De L'Isle (Viscount) v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE MUSTILL,LORD JUSTICE BALCOMBE |
| Judgment Date | 15 April 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0415-6 |
| Docket Number | 87/0317 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 April 1987 |
[1987] EWCA Civ J0415-6
Lord Justice May
Lord Justice Mustill
and
Lord Justice Balcombe
87/0317
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 Owen)
Royal Courts of Justice
MR. ROBERT SCOTT ALEXANDER, Q.C. and MR. R. WALKER (instructed by Messrs Peter Carter-Ruck & Partners) appeared on behalf of the Respondent/Plaintiff.
MR. DESMOND BROWNE (instructed by Messrs A.J. Brett) appeared on behalf of the Appellants/Defendants.
This is an appeal with leave of the learned judge from an order of Owen J. of 17th July 1986. On 20th March 1986 Master Lubbock ordered that this action should be tried by a judge alone. From that order the defendants appealed unsuccessfully to the learned judge. They now appeal to this court asking that the orders of the learned judge and master should be reversed and that we should order that the action should be tried by a judge and jury.
A limited company known as First National Finance Corporation Ltd. (FNFC) was at all material times and still is a substantial company with extensive interests in inter alia the property field and consumer finance. It thus became involved in the secondary banking crisis which occurred in the early 1970s: indeed it was the largest victim of that crisis. At all material times until the 16th July 1975 the plaintiff was the Chairman of FNFC. He is a well-known former member of the Cabinet and a former Governor General of Australia. He is the holder of the Victoria Cross and a Knight of the Garter.
In 1974 and 1975 FNFC was in increasing difficulties because of the general market conditions in the financial fields in which it operated. Ultimately, what has been described as a Support Group arranged by the Bank of England and the clearing banks provided funds for FNFC to replace deposits which had been made with the company through normal market channels, as and when they fell due.
The plaintiff resigned as Chairman of FNFC on 16th July 1975. There is a clear issue between the parties as to the circumstances in which this resignation took place and the reasons for it.
To complete the history of FNFC in so far as is relevant, on the evidence before us it seems that after overcoming substantial difficulties and at least two major reorganisations, FNFC ultimately repaid the balance due to the Support Group, after the provision of a loan of £160,000,000 from a syndicate of banks, in October 1983. So far as I am aware, the company is now trading profitably.
On 15th July 1985 a Mr. Peter Palumbo put out a Press Release announcing the appointment of the plaintiff as the Chairman of an organisation known as City Acre Property Investment Trust. This organisation has extensive property interests in the United Kingdom and was in the public eye in July 1985 in connection with its proposed development of the Mansion House Square site in the City of London.
On 17th July 1985 the following paragraph appeared in The Times Diary:
"Peter Palumbo is being unduly reticent about the background of the new chairman for his City Acre Property Investment Trust: Viscount De L'Isle. The extensive biography Palumbo has provided goes to great lengths to demonstrate that the Viscount is well suited to the task of persuading the City that the Mansion House needs a new neighbour. Yet curiously it leaves out one aspect of De L'Isle's experience of the property business; for several years he was chairman of the First National Finance Corporation. He left in 1976 as its multi-million pound real estate ventures collapsed, forcing the government to throw it a lifeline to keep it afloat."
The plaintiff complained about this paragraph in a letter to the editor of The Times dated 19th July 1985. In this he contended that the article contained substantial mis-statements. Parts of the plaintiff's letter need setting out in full:
"…..The Government did not 'throw a lifeline' to keep it afloat. When lenders withdrew their short term credit from FNFC and a number of other banking and financial institutions, under the leadership of the Bank of England a consortium of joint stocks banks was formed to replace these funds.
I did not leave as FNFC's 'multi-million pound real estate ventures collapsed'. I left when the financial viability of the company was assured as a result of the action described above. I resigned my chairmanship on the advice of the Governor of the Bank of England. Any reader ignorant of the facts would, on reading the sentence to which I am referring, suppose that I had quit my responsibility as FNFC was forced into liquidation, with the inference that I had done so at the expense, not only of the shareholders, but depositors.
In the context of my appointment of Chairman of the Board of City Acre Property Investment Trust the paragraph in question was clearly deliberately designed to be damaging."
The plaintiff's letter ended:
"I look forward to hearing from you that the false impression made by the paragraph in question will be corrected immediately."
However in his reply of 25th July 1985 the editor disputed that the facts stated in the Diary were incorrect and his letter continued: "The Diary paragraph was a bit sharp but I understand that this arose because of surprise that your chairmanship of FNFC was left out of the C.V. provided by the Palumbo organisation." After a further inconclusive exchange of letters, the plaintiff instructed solicitors who wrote to the editor on 6th August 1985 asking him to publish in The Times Diary the following statement, in order to avoid the necessity for legal proceedings:
"In my piece about the Palumbo Project, I mentioned that Lord De L'Isle, the new Chairman for the City Acre Property Investment Trust, was previously Chairman of the First National Finance Corporation from which he resigned in 1975. Unfortunately what I said gave the impression, which was not intended, that Lord De L'Isle's resignation had forced the Government to step in to keep the Corporation 'afloat'. This was not so. Lord De L'Isle remained with the company during its progress towards rehabilitation and only resigned as Chairman when this was agreed with the Bank of England. Prior to entering commerce Lord De O'Isle was Secretary of State for Air in Sir Winston Churchill's post-war Cabinet and later Governor General of Australia. I regret any misunderstanding to which my piece may have given rise."
The editor was not prepared to comply and accordingly these proceedings were started.
The writ was issued on 20th August 1985 and the statement of claim served on 2nd September 1985. In paragraph 3 of the latter the pleader quoted the first and last sentences from the paragraph in The Times Diary which I have already set out in full. The statement of claim then contended, in paragraph 4, that the words so published in their natural and ordinary or inferential meaning meant and were understood to mean:
"(1) That the Plaintiff had deliberately and for selfish and/or cowardly motive, resigned his chairmanship of a public company because it was in financial difficulty;
(2) That the Plaintiff had, thereby, put personal self-interest before the interest of shareholders and/or investors and/or the public purse;
(3) That the Plaintiff had, thereby, behaved discreditably in so resigning his chairmanship."
The defendants' defence was served on 27th September 1985. Paragraph 4 of it contained the usual denial that the words complained of in their natural and ordinary meaning bore or were understood to bear or are capable of bearing any of the meanings that were alleged in paragraph 4 of the statement of claim or any meaning defamatory of the plaintiff. In paragraph 5 the defendants set up a plea of justification. The first four sub-paragraphs of the Particulars of Justification referred to the Press release of 15th July 1985 and to the fact that although the plaintiff's curriculum vitae accompanying it mentioned that he had been a former director of various well-known British and American public companies, it did not say that for a number of years up until July 1975 he had been the chairman of FNFC. The particulars then briefly referred to the financial difficulties in which FNFC had been in 1974 and 1975, concluding with the plaintiff's resignation from the FNFC Board on 16th July 1975.
Sub-paragraph (5) of the Particulars of Justification was then in these terms:
"(5) The Defendants deny:
(a) the Plaintiff's assertion in his letter to the editor of The Times dated 19th July 1985 that he 'left when the financial viability of FNFC was assured', and
(b) his solicitors' contention in their proposed apology of 6th August 1985 that the Plaintiff 'remained with FNFC during its progress towards rehabilitation'.
The Defendants rely on the following matters as demonstrating that was not so."
Thereafter in fifteen further sub-paragraphs the particulars purported to trace FNFC's financial history and position up to at least the end of 1982. The sub-paragraphs alleged inter alia that the provisions made by FNFC in respect of expected or possible losses had to be increased from time to time. They set out the extent of FNFC's losses over the years. They referred to statements by chairmen subsequent to the plaintiff about the future of FNFC from time to time including the possibility that the company might be forced into liquidation and contended, correctly, that it was only in October 1983 that FNFC did finally repay the...
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