Grobbelaar v News Group Newspapers Ltd
Jurisdiction | England & Wales |
Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE THORPE,Lord Justice Jonathan Parker |
Judgment Date | 18 January 2001 |
Neutral Citation | [2001] EWCA Civ 33 |
Docket Number | Case No: A2/1999/1117 |
Court | Court of Appeal (Civil Division) |
Date | 18 January 2001 |
[2001] EWCA Civ 33
Lord Justice Simon Brown
Lord Justice Thorpe and
Lord Justice Jonathan Parker
Case No: A2/1999/1117
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE GRAY
Royal Courts of Justice
Strand, London,
WC2A 2LL
Mr R Spearman QC (instructed by Daniel Taylor, Company Solicitor, for News Group Newspapers Limited, the Appellants)
Mr R Hartley QC & Miss S Palin (instructed by Cuff Roberts of Liverpool L3 9TD for the Respondent)
On 28 July 1999, at the end of a 16 day trial before Gray J and a jury, the respondent, Bruce Grobbelaar, was awarded £85,000 compensatory damages for defamation. The jury's verdict was unanimous. The award was in respect of a series of publications in the Sun newspaper on 9, 10, 11, 14, 15, 16 and 18 November 1994 stating that he had fixed football matches for money. The first such publication was on the front page under the banner headline "WORLD EXCLUSIVE GROBBELAAR TOOK BRIBES TO FIX GAMES." The libels could hardly have been graver nor more sensationally, widely and repeatedly proclaimed.
The award is now challenged on appeal by the publishers and the then editor, Mr Stuart Higgins. The appellants advance two central arguments. First they contend that the jury's verdict, notably their rejection of the defence of justification, was perverse. Secondly they submit that Gray J was wrong to have ruled in the course of the trial, on 23 July, that the defence of qualified privilege was not available in respect of the publications complained of.
It is convenient at this early stage of the judgment to give a brief chronological account of the central facts and events underlying these proceedings.
Mr Grobbelaar was a celebrated goalkeeper who joined Liverpool in 1981. In July 1992 he was invited by a fellow Zimbabwean, Mr Christopher Vincent, to invest in a safari holiday business called Mondoro and over the months that followed he paid over to Mr Vincent some £50,000.
In about November 1992 Mr Grobbelaar was introduced by Mr John Fashanu (another well-known footballer, then a striker for Wimbledon) to a Mr Lim (a young Asian, sometimes known as "the short man"). Mr Grobbelaar acknowledged that between then and about the spring of 1994 he received from Mr Lim cash payments totalling some £8,000. One such payment (of £1,500) was made on 30 September 1993 at a short meeting at the Hilton Hotel near Manchester Airport, Mr Grobbelaar and Mr Vincent having driven there together from Chester. These payments, Mr Grobbelaar asserted, were initially for forecasting match results (not involving Liverpool), at the rate of £250 per successful forecast, and later, because he proved an inept forecaster, for information about footballers and clubs. The appellants' contrary case was that the payments and at least one further and larger payment of £40,000 were for match fixing rather than match forecasting and that the £40,000 payment was made in cash on 25 November 1993 at a house in Byron Drive, North London, John Fashanu's address at the time, following Liverpool's 3–0 defeat by Newcastle on 21 November. Mr Grobbelaar denied receiving any monies on that visit. Rather, he said, the £20,000 in cash which he admitted handing over to Mr Vincent at about this date for the Mondoro project, as well as £5,000 paid on 26 November into his testimonial fund, came from his sock drawer at home, cash accumulated over the years from a number of legitimate sources.
On 4 January 1994 Liverpool drew 3 all with Manchester United (a match in which Mr Grobbelaar later said he had accidentally made two blinding saves and thereby lost some £120,000). This was the second of 5 matches to which evidence was directed.
On 5 February 1994 Liverpool drew 2 all away to Norwich. The night before the match Mr Vincent had driven Mr Grobbelaar from the Norwich hotel where the Liverpool team were staying to the London Hilton where again a short meeting took place between Mr Grobbelaar and Mr Lim at which £1,500 was paid over. That trip began shortly after 9 pm once the players' rooms had been checked to ensure that they had all retired for the night, and ended when Mr Vincent and Mr Grobbelaar arrived back in Norwich at about 3.30 am.
On 12 August 1994, during the off-season period, Mr Grobbelaar left Liverpool and joined Southampton. At about the same time he and Mr Vincent fell out: Mondoro had collapsed and Mr Vincent was wholly unable to account for the monies Mr Grobbelaar had invested: quite possibly he had misappropriated the larger part.
On 6 September 1994 Mr Vincent went to the Sun to sell his story. The price agreed was £33,000 although he had asked for £40,000 and later asked for more. The tale he told was noted in shorthand by a Sun journalist, Mr Troup, and subsequently transcribed. It included the allegations that Mr Grobbelaar had received £40,000 after Liverpool lost the Newcastle match and that he would have been paid £80,000 had they lost the Norwich game but that they drew it because he accidentally saved a shot with his foot whilst diving the wrong way.
There then followed a succession of covertly video and sound-recorded meetings between Mr Grobbelaar and Mr Vincent at which the Sun sought to obtain corroboration of Mr Vincent's story. I shall have to revisit these later. In essence, however, Mr Vincent was put up to making a corrupt proposal for future match-fixing and to obtaining such admissions as he could of Mr Grobbelaar's past misconduct.
It is not disputed that in the course of these meetings Mr Grobbelaar confessed to having taken money from Mr Lim for losing matches in the past (including £40,000 for Liverpool's 3–0 defeat by Newcastle), and to having missed out on further such payments for failing to do so, and also that he took £2,000 in cash from Mr Vincent pursuant to a proposal that he should fix matches in the future. The critical issue at trial, however, was whether these confessions were true or false. Was Mr Grobbelaar genuinely admitting to corrupt behaviour in the past and agreeing to a fresh corrupt proposal for the future? Or was he, as he claimed, intent rather upon bringing Mr Vincent to justice and fabricating for the purpose a false account of past corruption and a mere pretence that he could be bribed to throw matches in future?
The meetings took place respectively on 12 September 1994 (when Mr Vincent first made his corrupt proposal but the recording proved ineffective), 6 October 1994 (in Mr Vincent's hotel bedroom after 2 hours of unrecorded conversation in the hotel snooker-room), 25 October 1994 (also in Mr Vincent's hotel bedroom) and 3 November 1994 (in the sitting room of a property rented for Mr Vincent by the Sun). It was at the last of these meetings that Mr Grobbelaar was graphically recorded taking £2,000 in cash, the agreement being that he would receive that sum every fortnight until he selected a particular match to be lost for which he would be paid £100,000.
Meantime, on 24 September 1994, Southampton had beaten Coventry 3–1 (despite, according to Mr Grobbelaar's taped admission on 25 October, "2 minutes into the game push[ing] the ball into the back of the net"). On 5 November 1994, after the last of the meetings, Southampton drew 3 all with Manchester City. This was the one game which the Sun's reporters attended before publication. They watched highlights of the other four on video. They could see nothing untoward. That did not, however, surprise them: they thought it would be impossible to detect attempted match-fixing by a skilled goalkeeper.
On 8 November 1994 Mr Grobbelaar was due to fly to Zimbabwe to represent his country in an international match. At Gatwick Airport he was confronted by a number of Sun reporters and photographers and challenged with "a series of grave allegations which the paper intends publishing tomorrow". It will be necessary later to examine these exchanges in some detail but for the moment they can be summarised by saying that Mr Grobbelaar in general denied any wrongdoing. At the reporters' suggestion he then telephoned Mr Higgins and repeated his denials to him. Although Mr Grobbelaar had hinted to the journalists that he was gathering evidence against Mr Vincent, his response to Mr Higgins was rather that he had never attempted to throw a game in his life and that the £40,000 was from his testimonial fund. He certainly never made it plain to Mr Higgins that, so far from this being a sting upon him, he himself was perpetrating a sting on Mr Vincent. Indeed, he later said in cross-examination that "because these are the people that helped Mr Vincent" and "had not been truthful to me", he was not "going to give [Mr Higgins] that satisfaction".
Nothing in these exchanges persuaded the appellants to regard the taped admissions as other than genuinely corroborative of Mr Vincent's story of corruption. On the contrary, they were more than ever convinced of Mr Grobbelaar's guilt and duly went into print the following morning with the first of the publications complained of. They did so notwithstanding a faxed letter before action from Mr Grobbelaar's solicitors at 2.15 a.m. that morning asserting his innocence and claiming damages.
It was common ground at the trial that the articles, together with the many photographs and cartoons which accompanied them, meant that Mr Grobbelaar:
"(i)
Having dishonestly taken bribes had fixed or attempted to fix the result of games of football in which he had played, and
(ii) Had dishonestly taken bribes with a view to fixing the...
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