Max Mosley v Associated Newspapers Ltd

JurisdictionEngland & Wales
JudgeMr Justice Nicklin
Judgment Date22 December 2020
Neutral Citation[2020] EWHC 3545 (QB)
CourtQueen's Bench Division
Docket NumberCase No: QB-2020-000824

[2020] EWHC 3545 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA & COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mr Justice Nicklin

Case No: QB-2020-000824

Between:
Max Mosley
Claimant
and
Associated Newspapers Limited
Defendant

Paul Mitchell QC and Tom Shepherd (instructed by Payne Hicks Beach) for the Claimant

Andrew Caldecott QC and Ben Gallop (instructed by Reynolds Porter Chamberlain) for the Defendant

Hearing dates: 15–16 October 2020

Approved Judgment

I direct that copies of this version as handed down may be treated as authentic.

THE HONOURABLE Mr Justice Nicklin

Mr Justice Nicklin Mr Justice Nicklin The Honourable
1

The issue raised in this case is whether the Defendant is liable for the tort of malicious prosecution as a result of sending a “dossier” of evidence to the Crown Prosecution Service, intending that the Claimant be investigated for alleged perjury, even if ultimately no criminal investigation or prosecution ensued. The matter comes before the court, at an early stage in the proceedings, on the Defendant's Application to strike out the claim, pursuant to CPR 3.4(2)(a), on the grounds that the statement of case discloses no reasonable grounds for bringing the claim.

The Parties

2

The Defendant is the publisher of the Daily Mail, Mail on Sunday and MailOnline. The Claimant is the former president of the Fédération Internationale de l'Automobile, the international federation of the world's major motoring organisations as well as the governing body of international motorsport. Latterly, he has become a prominent campaigner for reform of the print media in the United Kingdom.

The Claimant's Privacy Action against the News of the World

3

On 30 March 2008, the News of the World, the former Sunday newspaper published by News Group Newspapers Limited (“NGN”), published an article concerning the Claimant under the headline: “ F1 Boss has sick Nazi orgy with 5 hookers”. The article appeared both in the print and online versions of the newspaper. The Claimant brought a claim against NGN for breach of confidence and misuse of private information. The action was tried before Eady J between 7–14 July 2008. The Claimant was successful. He was awarded £60,000 damages: [2008] EMLR 20.

4

NGN had defended its publication as being in the public interest. Rejecting this defence, Eady J said this:

[122] The principal argument on public interest related to the Nazi theme. I have come to the conclusion (although others might disagree) that if it really were the case, as the newspaper alleged, that the claimant had for entertainment and sexual gratification been “mocking the humiliating way the Jews were treated”, or “parodying Holocaust horrors”, there could be a public interest in that being revealed at least to those in the FIA to whom he is accountable. He has to deal with many people of all races and religions, and has spoken out against racism in the sport. If he really were behaving in the way I have just described, that would, for many people, call seriously into question his suitability for his FIA role. It would be information which people arguably should have the opportunity to know and evaluate. It is probably right to acknowledge that private fantasies should not in themselves be subjected to legal scrutiny by the courts, but when they are acted out that is not necessarily so.

[123] On the other hand, since I have concluded that there was no such mocking behaviour and not even, on the material I have viewed, any evidence of imitating, adopting or approving Nazi behaviour, I am unable to identify any legitimate public interest to justify either the intrusion of secret filming or the subsequent publication.

5

During the course of the trial, the Claimant was cross-examined about whether he had supported racist politics in the 1960s, in particular acting as the agent for a candidate standing in a by-election in Moss Side in 1961. He was asked the following questions:

Q. Did you pursue some political ambitions within your father's party by acting as the agent in a Parliamentary by-election in Moss Side in 1961?

A. I absolutely acted as the agent in Moss Side in 1961, but I would not call that pursuing a political ambition. My father offered it to me as a holiday job after leaving Oxford and I did it, it was quite entertaining.

Q. And the candidate was a man called Walter Hesketh, and you were his agent?

A. Correct

Q. Putting out his literature?

A. Correct.

Q. And you had to take responsibility for that literature?

A. He was an ex-policeman, quite a respectable man, who I think represented England in athletics on a number of occasions, a nice enough man.

Q. And were you out on the streets issuing leaflets to voters urging them to vote for Mr Hesketh?

A. I do not think that I did that as the agent. I think I was in the headquarters trying to organise things…

Q. Do you remember Mr Robert J. Taylor?

A. I do not remember the name.

Q. Someone who has said, as you will have seen in the papers here, that he and you were out on the streets putting out leaflets urging voters to send the blacks home?

A. Well, you say that, you have read this somewhere. I have not seen Mr Taylor, I cannot remember him, and I have no recollection of doing any such thing, and I would think with the research that has been done if there was such a leaflet you would be able to produce it. If there were such a leaflet you would produce it.

Q. Did you put out leaflets as agent for Mr Hesketh urging voters to send the blacks home?

A. Not as I recall.

Q. Was it not part of the political agenda of the Union Movement to get the blacks sent home?

A. No. As I said, not as I recall. I think the policy at the time was to offer financial inducements to people to go home – a slightly different thing.

Q. And is there any truth in the suggestion in one of the articles that you will have read that leaflets were put out alleging that coloured immigrants brought leprosy, syphilis and TB?

A. That is absolute nonsense.

6

It appears that a copy of the election leaflet of Mr Hesketh was not available at the trial in 2008.

The Defendant's Articles and the leaflet

7

Almost 10 years later, on 28 February 2018, the Defendant published a front-page article in the Daily Mail under the headline: “ Did F1 Tycoon lie to Orgy Trial?” (“the First Article”). The print version of the First Article also occupied pages 2, 3, 10 and 11. It is not necessary to set out the full article for the purposes of this judgment. At the date of judgment, it remains available online at: www.dailymail.co.uk/news/article-5441827/Did-F1-tycoon-Max-Mosley-lie-orgy-trial.html.

8

The First Article was based, principally, upon the discovery of the election leaflet about which the Claimant had been cross-examined at the original trial. The leaflet, a facsimile of which was used to illustrate the Article, promoted Walter Hesketh as the Union Movement candidate for Moss Side at the By-Election on 7 November 1961. At the foot of the page there appeared the following statement: Published by Max Mosley, 113 Upper Lloyd Street, Manchester 14… One page of the leaflet – published in the Article – was headed: Why you should Vote Hesketh… on Tuesday, November 7th, 1961 and contained the following text:

PROTECT YOUR JOBS

Coloured immigrants are forming a large pool of unemployed. They will be used to lower your living standards.

PROTECT YOUR HOMES

Britain is suffering from an acute housing shortage. Coloured immigrants come into Britain faster than we can build new homes.

PROTECT YOUR HEALTH

There is no medical check on immigration. Tuberculosis, V.D. and other terrible diseases like leprosy are on the increase. Coloured immigration threatens your children's health.

PROTECT YOUR FAMILY

This man [pictured] is telephoning his wife to say that he would like to ‘digest’ is (sic) a good British dinner in a good British home. Remember that Mr Taylor, the Conservative candidate, said you would have to ‘digest’ the coloured immigrants who are here already, and then ‘digest’ some more ( Times 12-10-61), and the other candidates are every bit as bad. To stop coloured immigration VOTE HESKETH…”

9

On the reverse of the leaflet, under the heading “ A Personal Message from Walter Hesketh”, the following appeared:

“Dear Friends,

Do you want a change? Or are you perfectly content with the things as they are… Every vote for me is a real protest against what is now happening. My return to Parliament would be for the old parties an earthquake. A heavy vote for me would oblige them to take action and do the things you want done. No government can ignore the will of the people. Every vote for me is an expression of your will. It is a chance to tell the Government: wake up, get on or get out.

What do we want done? Surely we want something done about housing and about coloured immigration. These are the real issues of this election. Do you want to live in the present bad houses for ever? Do you want more and more coloured immigrants coming in? The old parties have been telling you all your lives that they will build you better homes, but they have not done it yet. But how many things have they ‘considered’, and for how long without anything happening? You know the results as well as I do. You know your only chance to stop the coloured immigrants coming in is to wake up the Government. And you know your only way to do that is to vote for me.

Even now they tell you they will let in any immigrants who show they have jobs to come to, or private means to keep themselves. But don't you know these bits of paper can be produced at any time by the racketeers who bring...

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    ...of its reputational impact, appears to me to have been firmly established at the highest level over a decade ago”. 98 In Mosley v Associated Newspapers Ltd [2020] EWHC 3545 (QB); [2021] 4 WLR 29 Nicklin J explained, at para 57, that: “In the ordinary course, neither the police nor a prose......

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