Hamilton v Fayed and Others
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR |
| Judgment Date | 05 October 2000 |
| Judgment citation (vLex) | [1999] EWCA Civ J0326-8 |
| Docket Number | QBEN1 98/1497/CMS1 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 October 2000 |
[1999] EWCA Civ J0326-8
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE POPPLEWELL)
Royal Courts of Justice
Strand
London WC2A 2LL
The Master of the Rolls
(Lord Woolf)
Lord Justice Hirst
Lord Justice Laws
QBEN1 98/1497/CMS1
MR GEORGE CARMAN QC and MR J PRICE QC and MS H ROGERS (Instructed by Messrs D J Freeman, London EC4A 1JU) appeared on behalf of the Appellant
MR DESMOND BROWNE QC and MS A PAGE (Instructed by Messrs Crockers Oswald Hickson, London, EC4A 3NJ) appeared on behalf of the Respondent
MR R CRANSTON QC and MR P SALES (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared as interverners on behalf of the Speaker and Authorities of the House of Commons.
Friday 26 March 1999
This is the judgment of the court, to which all three members have contributed.
The defendant appeals from a judgment of Popplewell J, given on 31 July 1998, by which he refused the defendant's application to strike out the plaintiff's claim for damages for libel on the ground of abuse of process. On 24 November 1998 this court (Judge LJ and Sir John Knox) granted leave to appeal against Popplewell J's decision. As the court then recognised, the case raises issues of great constitutional importance concerning the relationship between the courts and Parliament. The key question, in a nutshell, is whether it is open to a Member of Parliament, or former Member of Parliament, to bring a libel action on a publication made outside Parliament, containing defamatory imputations concerning the MP's activities and conduct as a Member, on which adverse findings have been made by the Parliamentary Commissioner for Standards (PCS), which were subsequently left undisturbed by the Standing Committee on Standards and Privileges (CSP), and by the House of Commons itself.
On behalf of the defendant Mr George Carman QC submitted, in outline, that to allow this libel action to be heard necessarily involves questioning proceedings in Parliament in contravention of Article 9 of the Bill of Rights 1689, whereby such proceedings are not to be questioned in any court, and/or that any hearing of this libel action will constitute a collateral attack upon Parliament's own previous investigation into the conduct of the plaintiff while he was a Member of the House of Commons. These submissions are challenged by Mr Desmond Browne QC on behalf of the plaintiff, and Mr Browne also relies on Section 13 of the Defamation Act 1996 as entitling him to bring this action, and also upon Article 6 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR").
Before us, though not before Popplewell J, HM Solicitor General has appeared to represent the Speaker and the Authorities of the House of Commons. He made it clear that he did so in fulfilment of one of the historic roles of the Law Officers, namely "as servants of the House in their capacity as legal advisers to Parliament" 1. His intervention has been of much assistance to the Court. He emphasised that his position was one of neutrality as between the parties to the present appeal, and his main criticism was directed to Popplewell J's approach to the problems arising, and in particular the manner in which the judge went behind the formal record of the Parliamentary proceedings, concluded that the result of the Parliamentary inquiry did not represent a final decision against the plaintiff, and expressed views as to the inadequacy of the inquisitorial procedure adopted by the PCS. This approach, he submitted, infringed Article 9, constituted a collateral attack on a decision of Parliament, and failed to respect the wider constitutional principle of mutuality of respect between two constitutional sovereignties.
It is convenient first to describe the facts. The plaintiff, Mr Mostyn Neil Hamilton, who was a Member of Parliament until he lost his seat in the 1997 General Election, complains of a broadcast made by the defendant Mr Fayed in the course of a Channel 4 TV documentary "Dispatches" on 16 January 1997, accusing him of seeking and accepting from the defendant cash for questions asked by him in the House of Commons. The general background to the case is, of course, common public knowledge, but it is necessary nonetheless to analyse the course of events in some considerable detail. At several stages of the history the chronological order of events is significant. There is an
overlap between the relevant Parliamentary events and the external events, and we shall describe the latter first.
In the mid 1980's there was a bitter dispute between the defendant and Mr "Tiny" Rowland concerning the acquisition by the defendant and his family of the House of Fraser, and in particular Harrods. In October 1985 Mr Fayed employed Ian Greer Associates as his Parliamentary lobbyists, and there followed a well organised campaign on the defendant's part both in and out of Parliament, principally during the period early 1987 to late 1989 when the DTI Inspectors who had been appointed to investigate the circumstances of the acquisition reported. During this period the plaintiff made a number of Parliamentary interventions, including questions in the defendant's interests, and it is the defendant's contention, flatly denied by the plaintiff, that the plaintiff was paid by him for this purpose, and that the initiative for such payments came from the plaintiff, the first alleged demand for payment being on 2 June 1987.
On 20 October 1994 The Guardian published a front page story derived from the defendant's allegations under the heading "Tory MP's were paid to plant questions says Harrods' chief". The article stated that the defendant had paid tens of thousands of pounds to the plaintiff and to Mr Tim Smith MP, through the agency of IGA, in return for asking questions in Parliament on his behalf. The defendant was said in terms to be the source of the information. The article also alleged that the plaintiff and his wife had enjoyed a week's stay at the Ritz Hotel in Paris free of charge, and had had free shopping trips to Harrods at the defendant's invitation.
The plaintiff issued proceedings for libel against The Guardian, as did IGA and Mr Ian Greer, on the same day as the publication, 20 October 1994. Mr Smith admitted having received money from the defendant and resigned his ministerial post. The Guardian pleaded justification, alleging inter alia that over the two year period 1987 to 1989 the plaintiff sought and received from the defendant in the form of either cash or Harrods gift vouchers a total of £28,000, for the most part in cash, and that such sums represented payments by the defendant for the plaintiff's services in tabling Parliamentary questions and motions and other Parliamentary services. In his reply the plaintiff asserted that he had never received any payment in cash or kind for any action taken by him in support of the defendant's cause.
On 21 July 1995 May J (as he then was) stayed both the plaintiff's and Greer—IGA's actions, holding that "the claims and defences raised issues whose investigation would infringe Parliamentary privilege to such an extent that they could not fairly be tried" 2. A significant part of his ratio was that The Guardian would be inhibited in presenting its plea of justification since it would be precluded on grounds of Parliamentary privilege from linking the alleged payments made to the plaintiff with the admitted tabling of the Parliamentary questions. That seemed to be the end of the matter. But on 4 July 1996 the Defamation Act 1996 received Royal Assent. During the passage of the Bill through the House of Lords, Lord Hoffmann moved an amendment on 7 May 1996 which was ultimately incorporated in the Act as Section 13. This amendment was undoubtedly prompted by the stay of Mr Hamilton's action in the preceding July, as Lord Hoffmann's speech made abundantly clear. Section 13 itself came into force on 4 September 1996. The proper construction and effect of this section is strongly disputed, and is of cardinal importance for the disposal of this appeal. The provision is set out later in this judgment. The consequence of its enactment for immediate purposes was that on 31 July 1996 May J lifted the stay imposed by him on 21 July 1995.
However, shortly afterwards the claims against The Guardian collapsed. The actions
had been consolidated by order of Sir Michael Davies on 28 April 1995, so that Mr Greer and IGA were being represented by the same solicitors and counsel as the plaintiff. Because of certain facts which had only just come to light (which concerned hitherto undisclosed payments by IGA to a third party) IGA and Mr Greer were advised in September 1996 that their prospects of success were "almost nil", and they decided to withdraw. The plaintiff considered that he had been betrayed. Counsel and the solicitors took the view that in the events which had happened they could no more continue to act for the plaintiff than for Mr Greer and IGA. In those circumstances the plaintiff, if he was to continue, would have to instruct fresh solicitors and counsel and seek an adjournment of the trial, which was imminent. This was beyond his means; and for that reason (on his account) he too withdrew.
On 16 January 1997 Channel 4 broadcast the "Dispatches" programme by which in these proceedings the plaintiff claims to have been defamed. The programme contained part of a filmed interview given by the defendant. The defendant said (in summary) that he had personally handed over cash to the plaintiff on a number of...
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