MacIntyre v Chief Constable of Kent and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Dyson,Mr Justice Wall |
| Judgment Date | 24 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1087 |
| Docket Number | Case No: A2/2002/0336 & A2/2002/0337 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 2002 |
[2002] EWCA Civ 1087
Lord Justice Brooke
Lord Justice Dyson and
Mr Justice Wall
Case No: A2/2002/0336 & A2/2002/0337
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Gray J
Mark Warby QC & Jacob Dean (instructed by Farrer & Co) for the Appellants
Andrew Caldecott QC & Manuel Barca (instructed by Goodman Derrick) for the Respondent
Introduction
There were before the court an appeal by the defendants by permission of the judge, and also their application for permission to appeal, against different parts of an order for case management directions made by Gray J in this libel action on 24th January 2002.
The claimant is a journalist who played a prominent role in the production and presentation of a series of BBC television programmes called MacIntyre Undercover. One of the programmes in the series, which was broadcast on 16th November 1999, was very critical of the way in which the disabled residents of a council funded care home in Kent were being treated. The Kent police prepared their own report into the question whether any criminal offences had been committed in that home, and this action arises out of the contents of the report itself, which was completed in March 2000, the publication of some of its contents by the Kent police to a journalist from The Sunday Telegraph, and numerous statements made to the media about the contents of the report and its findings. These statements were described by the judge as "the Pugash statements" from the name of the second defendant Mr Mark Pugash, who was the senior press officer of the Kent police. The first defendant is the Chief Constable of Kent, and the third defendant, Detective Sergeant Michael Costello, is an officer in that police service who helped to head the police inquiry which led to the preparation of the report.
It appears that the original broadcast had serious consequences, in that the local authority closed the home and displaced its 40 residents. 84 members of staff were made redundant. The BBC received over 10,000 calls to its hotline telephone number after the broadcast. A consequence of the police's decision to allow the journalist to read the report and to interview Mr Costello was that the ensuing article in The Sunday Telegraph led to a number of inquiries by representatives of the media to the Kent Police press office. The Pugash statements were made in response to these inquiries.
The history of this action
The claimant complains in this action that although the police interviewed him and subsequently reported that he had been genuinely helpful, they put none of the allegations of which he now makes complaint either to him or to the BBC, so that they had no opportunity of responding to them. They contained a specific allegation that he had lied about the administration of insulin, an allegation which appeared in The Sunday Telegraph. The police showed their report to The Sunday Telegraph with an express instruction that no allegation that the programme was misleading should be attributed to them. The claimant complains that despite this instruction Mr Pugash told representatives of the media subsequently that virtually nothing that was alleged in the programme stood up, and that this contention was published and republished throughout the local and national press.
The proceedings in this court arise out of the directions Gray J made at a case management conference on 24th January 2002. He first made a direction that the action should be tried by a jury. There is no appeal against that part of his order. He gave the defendants permission to appeal against his refusal to allow them to amend their defence to rely on similar fact evidence. He refused to grant them permission to appeal against his refusal to direct the trial of a number of preliminary issues, and they have therefore had to come to this court to ask for the requisite permission.
The broad complaint which the claimant makes in these proceedings is that the defendants defamed him by asserting that the film taken under cover in the care home was persistently, deliberately and dishonestly distorted by him or with his connivance so as to mislead the public, and that he told a lie in the course of presenting the programme. He claims damages, including aggravated damages.
By their amended defence the defendants rely on qualified privilege (both at common law and under the statute), justification and fair comment. The same defences are relied on in relation to most, but not all, of the different publications relied on. By his reply the claimant denies that the publications to The Sunday Telegraph and the Pugash statements attracted qualified privilege. He takes issue with the plea of justification, and denies that the publication to The Sunday Telegraph and the Pugash statements constituted comment for the purposes of a defensible plea of fair comment, because each contained factual allegations. And he asserts that the Pugash statements were actuated by malice.
The defendants sought from the judge directions that he should direct the trial of preliminary issues which would embrace the following matters:
i) Whether the words were published on an occasion of statutory qualified privilege;
ii) Whether the words were published on an occasion of qualified privilege in common law;
iii) Whether the words constitute fact or comment;
iv) Whether the words are capable, on the basis of the facts stated by the defendants, of satisfying the objective test of fair comment, and
v) Whether the words were published maliciously.
The judge rejected their application, and the defendants now seek to challenge his decision in this court in relation to issues (i), (ii) and (v).
The judge's reasons: Preliminary issues
The judge accepted that a major saving of costs and court time would be achieved if the defence could succeed on preliminary issues without the need for a trial on justification. He said he was aware that the court was encouraged to order the trial of separate issues where appropriate (see CPR 3.1(2)(i)), and that on two recent occasions this court had encouraged a preliminary trial on the question whether privilege was available.
On the other hand he was conscious that there remained sound reasons for caution about ordering the trial of preliminary issues before the facts had been found. In the present case the claim to privilege raised a number of difficult issues, which he enumerated, and he said that in those circumstances there was a real likelihood that any decision would be appealed. This would result in the prolonged postponement of any trial, and consequently of the opportunity for the claimant to vindicate his reputation. The judge said that experience suggested that it was sometimes appropriate to order the trial of qualified privilege as a preliminary issue and sometimes not.
He accepted that the question whether statutory privilege was available, subject to malice, was a self-contained issue which could be decided on largely uncontentious evidence. The difficulties confronting the defendants' application lay elsewhere. These could be summarised in these terms:
i) Resolution of the claim to common law privilege might well entail a wide-ranging factual inquiry. Under Reynolds v Times Newspapers [2001] 2 AC 127 a journalist is not entitled to rely on the privilege unless he has acted responsibly. The same condition might apply to the claim for privilege by the police in a case like the present. There would then have to be a detailed examination of many of the ten factors enumerated in Lord Nicholls' speech in Reynolds.
ii) The claimant's case on malice as at present pleaded threw up numerous factual issues, and disclosure might give rise to others. It had been argued for the claimant that the contents of the police report showed that the investigating officers had liaised and fully shared information with the compilers of an unfavourable report into conditions at the care home which was prepared for the local council by independent consultants known as Q-Trek. That report had reached conclusions about the conditions at the care home and the programme which were radically different from the conclusions arrived at by the police. The claimant might well wish to amend his reply, following disclosure, so as to rely on the contents of the Q-Trek report in support of his case on malice once he became aware of the extent of the police officers' knowledge of the conclusions arrived at by its compilers.
For these reasons the judge declined to order the trial of preliminary issues. He added that since he had ordered jury trial, it would be unsatisfactory if one jury were to decide the issue of malice in favour of the claimant and another jury had to be empanelled at a later date to decide the remaining issues, including justification.
The judge's reasons: the similar facts amendment
I turn now to the judge's reasons for refusing to allow the amendment sought. The defendants wished to add to their defence particulars relating to an earlier programme in the same BBC series about a model agency. That programme had also been the subject of a libel action (which was settled before trial). The defendants wished to add to their defence allegations that in connection with that earlier programme:
i) the claimant had conveyed to viewers in his broadcast commentary an...
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