Khodaparast v Shad
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE OTTON,LORD JUSTICE POTTER |
| Judgment Date | 24 November 1999 |
| Neutral Citation | [1999] EWCA Civ J1124-8 |
| Judgment citation (vLex) | [1999] EWCA Civ J1124-22 |
| Docket Number | No FC3 1999/5526/A2 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 November 1999 |
[1999] EWCA Civ J1124-22
Lord Justice Stuart-Smith
Lord Justice Otton
Lord Justice Potter
No FC3 1999/5526/A2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO RELY ON FURTHER EVIDENCE ON APPEAL FROM ORDER OF MR ROGER TITHERIDGE QC
(Sitting as a High Court Judge)
Royal Courts of Justice
Strand
London WC2
MR STEVEN LEVINE (Instructed by Salina Patel of London) appeared on behalf of the Appellant
MR DAVID KINGSLEY (Instructed by Messrs Johns Saggar of London) appeared on behalf of the Respondent
This is an appeal from the judgment of Mr Recorder Titheridge QC, sitting as a Deputy High Court judge, given on 28th July 1997 whereby he awarded the claimant, the respondent in this appeal, the sum of £20,000 by way of damages for malicious falsehood. The respondent is an Iranian lady who, at the time of the events complained of, was heavily involved in the Iranian community in London, working as teacher at an Iranian religious school amongst other occupations.
The case concerns three sets of documents which appear to be pages from pornographic magazines containing photographs of the respondent apparently advertising telephone sex services. At no time has the respondent been involved in telephone sex services or the sex industry in any way. The documents concerned were sent to the daughter of an editor of a London based Iranian newspaper. They were distributed throughout the Iranian community but were not published in the newspaper, with the result that the respondent lost her job at the school. All her prospects of employment were in the Iranian community. The appellant and the respondent are former lovers. It is the respondent's case that the documents in question were sent by the appellant with full knowledge of their likely effect. It is her case that the appellant created the images by superimposing photographs that he had taken of her on to pages of pornographic magazines and photocopying the result, thus creating the illusion that she was participating in the sale of telephone sex services.
The respondent brought an action for malicious falsehood against the appellant, seeking an injunction against him preventing him from further distributing the documents and for damages. The appellant denied having taken the photographs or being responsible for their creation or distribution. He did, however, assert, both in statements and in court, that it was likely that the documents were in fact genuine and did represent the actual pages from pornographic magazines being entirely genuine and being put there by the respondent. He further asserted that the respondent herself was responsible for that publication and that she was a woman of loose morals and that the advertising of telephone sex lines was exactly the sort of activity she could be expected to participate in. It was on that basis that the respondent sought to obtain aggravated damages against the appellant since it was alleged that he deliberately attempted to blacken the respondent's name by the additional allegations that he made.
The main factual issues in the case were whether the pages in the pornographic magazines were genuine and were published in their present form in the pages of such a magazine at the respondent's instigation or whether they were mock-ups, and, if they were mock-ups, the identity of the person responsible for the creation and publication of them.
There is an issue of law as to whether or not aggravated damages can be awarded for malicious falsehood and the basis upon which, if they are available, they can be awarded. It is the respondent's case that the appellant was entirely responsible for the publication and make-up of these pages. Alternatively, if she was not, he had nothing to do with the matter.
The judge held on these issues that he preferred the evidence of the respondent to that of the plaintiff. He accepted her evidence that the appellant had taken photographs of her either with nothing on or in underwear, although at the time she merely thought that he was pretending to take those photographs. He concluded that the appellant had made the mock-ups and sent them to the daughter of the editor of Nimrooz, the paper in question, with the intention that they should be published in the Iranian community, that this had the effect that the respondent had lost her job with the school and had become unemployable in the Iranian community. In short, the appellants' contention in this court is that the judge was wrong to conclude that the pages were a mock-up and not genuine.
Secondly, that he was wrong to conclude that it was the appellant who was responsible for making the mock-ups and for sending them.
In seeking to set aside a decision of the trial judge on questions of fact, especially where it is based on the judge's assessment of conflicting testimony given by witnesses whom he has seen and heard, an appellant undertakes in this court a heavy burden. The law is summarised in the annual practice at page 105, and I merely remind myself that this court has to conduct a rehearing of the case, must consider the material before the judge and must come to its own conclusion upon the matter. I quote from page 106 of the citation of authority there:
"'The judge sees the demeanour of the witnesses and can estimate their intelligence, position and character in a way not open to the courts, who deal with the later stages of the case.' Khoo Sit Hoh v Lim Thean Tong [1912] AC 323 PC [at 323 to 335]. Not to have seen the witnesses puts the appellate judges in a permanent position of disadvantage against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage —for example has failed to observe inconsistencies or indisputable fact or material probabilities ….. the higher court ought not to take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses, and of their own view of the probabilities of the case (per Lord Sumner in SS Hontestroom v SS Sagaporak [1927] AC 37 at 47)."
There are other authorities to like effect set out in the note.
It is necessary therefore to consider the criticisms which are made on behalf of the appellant by Mr Levine. In reaching the conclusion that the pages were a mock-up, the judge had the following material. First, the evidence of the respondent that she had not prepared them herself. She was a respectable, responsible person and had no intention of doing so. Secondly, the evidence of the respondent that during the association with the appellant he had, at any rate, pretended to take photographs of her. Thirdly, there was the evidence of Mr Peak. Fourthly, the judge's own observations of the pages in question. Mr Levine's criticisms are directed first to the evidence of Mr Peak and the credibility of the respondent.
On 28th April 1987 the Court of Appeal made an order in the case, the material part of which is -
"i. that the Defendant and a representative of the Plaintiff's solicitors to attend the offices of Global Communications Limited for a meeting with Mr Kevin Swayne and/or Mr Dermot Maher to ascertain whether
a. the documents are reproductions of photographs that have ever appeared in the magazines in question
b. whether the transpara[n]cies, other related documents and copies are available from their records
ii. that if it should appear that Mr Swayne or Mr Maher require assistance of other parties so that the enquiries can be properly answered then the injunction made on the 26th July 1996 be varied to permit the assistance of other parties ….. "
The reason why the injunction had to be varied was because the defendant was restrained by the injunction from showing the documents to anyone else.
On 7th May the appellant and the respondent's solicitors attended at the premises of Global Communications. Mr Maher apparently was no longer available. Mr Peak was an accountant and director of that company which was a company which had risen from the ashes of a previous company called Rockzone, believed to have published a single copy of the magazine called Erotic Clips from which it appears that the first of the three documents was taken. That was referred to as document A. Mr Peak was not at the time of the publication concerned with the publication of Erotic Clips and appears to have taken over from Mr Maher. On that occasion statements were apparently taken from Mr Swayne and Mr Peak or taken subsequently. Both were subpoenaed to attend the trial. Mr Swayne was mentioned in the Court of Appeal order, as I have indicated, and appears to have been more knowledgable about the position at the time of publication. He was not called. Apparently his private affairs conflicted with his attendance at court. For reasons which seemed good to Mr Kingsley, who appeared on behalf of the respondent at the court below as he did here, he decided to call Mr Peak alone. In a witness statement Mr Peak said he examined the three documents in question —A, B and C —and gave reasons why in his opinion they were mock-ups. No objection appears to have been taken that he was not qualified to give expert evidence, but Mr Levine urges upon us that he was not and that the evidence was of little or no value.
In the course of his evidence Mr Peak said this at day 4 page 4 line 5:
"I was not involved in the actual completion of the artwork, but in my capacity and knowledge within the actual premium-rate industry, I have a good knowledge about what goes into artwork to make a certain advert/telephone...
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