Kingshott and Others v Associated Kent Newspapers and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BINGHAM,LORD JUSTICE STOCKER,LORD JUSTICE SLADE |
| Judgment Date | 25 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0525-6 |
| Docket Number | 90/0486 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 1990 |
[1990] EWCA Civ J0525-6
Lord Justice Slade
Lord Justice Stocker
and
Lord Justice Bingham
90/0486
1987 K No. 854
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE BROOKE)
Royal Courts of Justice
MR CHARLES GRAY QC and MISS ADRIENNE PAGE (instructed by Messrs Gouldene, Solicitors, London EC4Y OJJ) appeared on behalf of the Plaintiffs (Appellants).
MR GEOFFREY SHAW instructed by Messrs Oswald, Hicks Collier & Co., Solicitors, London, WC2R 3AQ) appeared on behalf of the Second, Third and Fourth Defendants (Respondents).
The plaintiffs in this action sued the defendants in libel. The libel complained of was contained in a newspaper report of a local planning inquiry. The defendants claimed qualified privilege for their report as a fair and accurate report of the proceedings of the inquiry. The trial judge held that no reasonable jury, properly directed, could reasonably reach the conclusion that the report was other than fair and accurate. He also held, applying s.7(3) of the Defamation Act 1952, that the report was not a matter the publication of which was not of public concern and the publication of. which was not for the public benefit. He accordingly withdrew the plaintiffs' case from the jury and entered judgment for the defendants. The plaintiffs appeal. They say that the issue of fairness and accuracy should have been left to the jury. They also say that the questions of public concern and public benefit should have been left to the jury. The defendants support the result, although contending that the whole issue of qualified privilege (including fairness and accuracy and public concern and public benefit) was properly one for the judge and not the jury.
The third plaintiffs run a ferry service from Ramsgate to Dunkirk using a terminal operated and managed by the second plaintiffs. The first plaintiff is managing director of the second and a director of the third plaintiffs. I shall refer hereafter to the plaintiffs without distinguishing between them.
The fourth defendants publish the Isle of Thanet Gazette, a local newspaper circulating in Margate, Ramsgate and Broadstairs. The third defendant is an experienced journalist working on that paper, which the second defendant edits. The plaintiffs discontinued against the first defendants, who were sued in error.
The plaintiffs wanted improved road access to the terminal. Their proposal was supported by the Kent County Council and, it seems, the local district council, but aroused considerable local controversy. An inspector, Mr. Bushby, was accordingly appointed to conduct a public inquiry into both the road scheme and an associated coastal protection scheme. The inquiry opened in late May 1987. Much technical evidence from experts in various fields was called. Evidence was also called from local people. The third defendant covered the inquiry for his newspaper.
On the morning of Wednesday 24th June 1987, Mr. Bushby heard evidence from a Mr. Kenneth Piper. The practice at the inquiry was for written proofs to be handed in to the inspector well before a witness gave evidence, but Mr. Piper's proof was not completed in time for that practice to be followed. He handed it in shortly before he gave evidence, so that the inspector had no time to read it before his evidence began. The plaintiffs, who had been present and represented at earlier stages of the inquiry, were not present or represented that day.
Mr. Piper's written proof of evidence contained three sections. The first outlined his considerable experience as an engineer in various fields, with particular reference to acoustics.
The second section of evidence, stated to be given solely as one of two councillors for the Southwood ward of the local district council, dealt with the background to the road application. This evidence was said to be a "composite" of views expressed by residents of the ward during canvassing for a recent election, at local meetings and in personal conversations. The points made in this section were threefold:
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(1) There was general distrust of the plaintiffs' determination to continue their commercial operations in Ramsgate.
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(2) The local district council were generally felt to have been incompetent in allowing the terminal project to "develop out of hand."
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(3) It was widely believed that the local council (before the election in May 1987) had been corruptly induced to grant favours to the plaintiffs: for example, councillors and council officers had been taken on free trips, during which planning matters had been discussed; tactical planning applications had been made; promotional opportunities had been granted to the plaintiffs and denied to others; planning breaches by the plaintiffs had been overlooked; unusual credit facilities had been given to the plaintiffs. The third section dealt with the planning issues before the inquiry: standards of construction, employment figures, funding future development, facilities at Dunkirk, engineering aspects of the road design, and so on.
Mr. Piper read his proof to the inquiry. It appears, from evidence which Mr. Bushby gave at the trial of this action, that at the outset Mr. Piper said he was not there as mayor (although he did at the time hold the honorific office of mayor of Ramsgate) or as a councillor but as a private individual. It also appears that when Mr. Piper reached what I have called the second section of his evidence Mr. Bushby asked him what evidence he had for his allegations, to which Mr. Piper answered that he had none. Mr. Bushby, it seems, asked if Mr. Piper was relying on rumour, and whether he had any documents. Mr. Piper said he had an eye witness and someone present put his hand up. Mr. Bushby said "I am sorry. I am not interested."
At the end of Mr. Piper's evidence it seems that Mr. Bushby asked representatives of the two councils if they wished to cross-examine and they did not. Not being present, the plaintiffs had no knowledge of the evidence given. Mr. Bushby himself then asked some questions to isolate the important points in the evidence. Mr. Piper highlighted the risk that the plaintiffs would cease their Ramsgate operations and the general discontent at the way the local council and its officers had dealt with the plaintiffs. Mr. Bushby noted "real concern about general corruption but no evidence for this!." This point about lack of evidence was, it seems, made after the evidence as well as during it. Mr. Bushby noted this point verbatim because he thought it important. He asked Mr. Piper if he really wanted him to put "all this stuff about corruption" in his report to the ministers and Mr. Piper said he did. Mr. Bushby thought he had probably said something to the effect that he was only concerned with planning considerations, but he could not be sure. It appears that at some stage (it is not clear when) Mr. Bushby said that he had been concerned during the inquiry about suspicions concerning relationships between the local council and the plaintiffs, and had been surprised at the reaction when he had suggested that he might visit Dunkirk. Describing the reception of Mr. Piper's evidence Mr. Bushby said
"I think there was a certain amount of shock, particularly amongst the Thanet Council Officers (the solicitor, the Chief Executive, Director of Engineering) when they heard Councillor Piper speaking—yes—and I think that the public who were largely on Councillor Piper's side were not so much shocked. The Inquiry was tense at that time."
I have summarised these facts in a tentative way only, because the facts have not been found and it is not the function of this court to find them. But there is only a limited dispute between the parties as to what happened and the broad outline of events at least seems fairly clear.
The third defendant regarded this as a highly newsworthy story, a view which his editor shared. The local council was approached for a comment and made one. The plaintiffs may have been approached for a comment but did not make one. They did, however, appear by their solicitor at the inquiry on the following day (Thursday, 25th June) and announced that proceedings in defamation would be issued. The third defendant wrote up the story, to which a headline, a caption and introductory paragraphs were added. The report appeared on the front page of the newspaper on Friday 26th June under a large headline. It read as follows:
"'CORRUPTION' BOMBSHELL"
Mayor stuns road inquiry with stories of free trips and preferential treatment
"Sensational evidence referring to a 'widespread belief of corruption' has been given by the Mayor of Ramsgate, Councillor Ken Piper, at the public inquiry into the new harbour road.
"He spoke of stories of free trips allegedly made by councillors and council officers while negotiations were taking place with Sally Line and suggestions that the company had been given 'improper' preferential treatment.
"The Mayor worked throughout the night at Albion House preparing his astonishing evidence on a word processor to hand to the inquiry co-ordinator shortly before 9 am on Wednesday.
"He said he wanted an inquiry into the rumours and a thorough investigation.
He added: 'If they are true, then heads must roll, and if they are false then they should be shown up as idle rumours. But they must be cleared up once and for all.'
"A...
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