Maxwell v Pressdram Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,LORD JUSTICE PARKER |
| Judgment Date | 11 November 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1111-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/1008 |
| Date | 11 November 1986 |
[1986] EWCA Civ J1111-4
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 SIMON BROWN)
Royal Courts of Justice
Lord Justice Kerr
and
Lord Justice Parker
86/1008
1985 M 2981
MR. RICHARD HARTLEY QC and MR. THOMAS SHIELDS (instructed by Messrs. Nicholson Graham & Jones, Solicitors, London EC2R 6AU) appeared on behalf of the Plaintiff (Appellant)
MR. ANDREW BATESON QC and MR. DESMOND BROWNE (instructed by Messrs. Wright Webb Syrett, Solicitors, London WlV 6EE) appeared on behalf of the Defendants (Respondents)
This is an appeal from a ruling given by Mr. Justice Simon Brown yesterday in the course of a libel action by Mr. Ian Robert Maxwell MC against Pressdram Ltd. and Mr. Richard Ingrams—in other words, against the publishers and editor of Private Eye. The judge gave leave to appeal; he clearly found the point to be finely balanced. We heard part of the argument yesterday until the late afternoon; we have heard the remainder this morning and we now give judgment at short notice because the judge and jury are awaiting the outcome of this appeal.
The issue concerns the disclosure or non-disclosure of journalists' sources of information; it turns on section 10 of the Contempt of Court Act 1981, which is in the following terms:
"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime".
The issue here turns on the words "interests of justice". This means the administration of justice in the course of legal proceedings: see per Lord Diplock in Secretary of State for Defence and Another v. Guardian Newspapers Ltd, [1985] Appeal Cases 339, at p.350, in a passage which I think was concurred in by all, or certainly the majority, of their Lordships. In that context Lord Diplock said:
"The exceptions include no reference to 'the public interest' generally and I would add that in my view the expression 'justice', the interests of which are entitled to protection, is not used in a general sense as the antonym of 'injustice', but in the technical sense of the administration of justice in the course of legal proceedings in a court of law…..".
I need not read any further; Lord Diplock goes on to deal with the meaning of the word "court". I shall have to return to a later passage on the same page.
Mr. Maxwell is of course a well known person; in particular he is chairman of Mirror Group Newspapers Ltd, who publish The Daily Mirror. The original publication complained of was in the issue of Private Eye dated 12th July 1985. It is unnecessary to read the paragraph in full; it clearly alleges, in what one might call inimitable style, that Mr. Maxwell financed trips by Mr. Kinnock, the leader of the Labour Party, to East Africa and Moscow and that he also financed a Central American tour. The words in relation to East Africa are to the effect that Mr. Maxwell was acting as paymaster for the trip; in relation to Moscow it was said that he subsidised the trip, and in relation to the Central American tour that he "picked up the tab". The paragraph ended as follows:
"How many more Kinnock freebies will Maxwell have to provide before he is recommended for a peerage?"
On 15th July 1985 Mr. Maxwell denied these allegations; I should read in full what he wrote:
"Dear Mr. Ingram
There is not a word of truth in the allegations published in the 12th July issue of Private Eye alleging that I am 'acting as paymaster for Mr. Kinnock's trip to East Africa', nor that I subsidised Mr. Kinnock's trip to Moscow, nor that I picked up the tab for Kinnock's Central American tour.
"Finally, the disgraceful allegation that I provide Mr. Kinnock with 'freebies' (which presumably is intended to mean 'bribes') for the purpose of securing for myself a peerage recommendation is as insulting as it is mendacious. I call upon you, your printers and publishers to withdraw these allegations unreservedly and to publish prominently in the next edition of Private Eye a retraction and suitable apology, the draft of which I enclose herewith, and to pay £10,000 to the Mirror's Ethiopia Appeal Fund. Failing which I will issue proceedings for libel and damages against you, Pressdram Ltd. and its printers without further notice".
In the next issue of Private Eye dated 26th July, that letter was published on p.11, as well as a letter from Patricia Hewitt, Mr. Kinnock s press secretary, equally denying that there was any truth in these allegations. But at the same time Mr. Maxwell contends that on p.6 of that issue a fresh libel was published in an article which in effect wholly neutralised the publication of the apology and made matters worse. It referred to Mr. Maxwell as Mr. Kinnock's "Master's Voice" with a cartoon which illustrated that description, and it referred to the letter from Mr. Maxwell by saying that he "lamely denied" financing the East African trip. In other words, what Mr. Maxwell is saying is that it made matters worse instead of better, apart from containing another alleged libel concerning Mr. Maxwell's reaction to the possibility that Mr. Kinnock might not turn up for a party; I need not go into that further.
Mr. Maxwell saw that issue on Wednesday 24th July, when Private Eye was evidently available, although it is not generally on sale until the Friday, in this case 26th July, the date of the issue. Having seen that, Mr. Maxwell immediately applied to the Queen's Bench Division—I think it was to Mr. Justice McNeill for an interlocutory injunction to restrain the publication on the Friday and to recall unsold copies. That application was refused. There was then an immediate appeal to this court, consisting of Sir John Donaldson, Master of the Rolls, Lord Justice Parker and Lord Justice Balcombe, and the hearing began on Wednesday 24th July. We have a truncated transcript of the proceedings on that day and the following day. The issue was whether or not the defendants were going to justify, bearing in mind that if they persuaded the court that they were going to justify, then no interlocutory injunction would be granted.
On that day the journalist who had written the first article, and possibly the second one as well, was not available. But Mr. Eady, who appeared for Private Eye, informed the court that the defendants did intend to justify. He also said that the journalist, who turned out to have been a Mr. Sylvester (to whom I shall have to refer again) had given Mr. Eady a thumbnail sketch of the nature of the evidence at Mr. Eady's request, and Mr. Eady said to the court:
"I have probed a little further and I do know the identity of the witnesses and the nature of the evidence that they will give in relation to the Moscow and South American trips; but simply because the journalist who wrote it is not available I have not been in a position to obtain similar evidence in relation to Africa"—
meaning the trip to Africa.
The matter was then adjourned and came back before the court on the following day, Thursday 25th July. On that occasion there was before the court an affidavit by Mr. Christopher Sylvester, who said that he was the political correspondent for Private Eye. In paragraphs 6 and 7 he said:
"The defendants' position is that they intend to justify the statements of fact about which the plaintiff, both in his document and his counsel before the Court of Appeal on the 24th July made complaint. The sources for the defendants' statements are reliable and highly placed. The defendants also have evidence by which they can identify the method whereby funds from the plaintiff were channelled to Mr. Kinnock's private office, the amount of such funds being calculated by reference to expenditure on his overseas trips to Moscow and to Central America. It will be the defendants' contention that at least until publication of Private Eye on the 12th July, the same method would have been used in relation to the East African trip".
With regard to the circulation position Mr. Sylvester said in paragraph 13:
"The magazine's distribution pattern is as follows. The subscription copies numbering 47,000 will already be with subscribers. Distribution of the wholesalers' copies will have been completed by 6.30 a.m. on the 25th July"—that is, the following day.
What is said in that regard is that the total circulation of Private Eye is in excess of 200,000 copies, and that it is accordingly relevant to consider whether a substantial proportion of these copies could still have been recalled, or whether the motive was to go ahead with publication, recklessly and relentlessly, for profit.
Despite that affidavit, Mr. Hartley continued to submit that an injunction should be granted. But the matter was really closed by the Master of the Rolls' saying to him: "In the face of that, I do not know whether Mr. Hartley is pressing the matter". Although Mr. Hartley continued to press, not surprisingly, an injunction was refused.
Meanwhile, the writ had been issued on 24th July, and on 26th July the statement of claim was served. I shall have to refer to a number of passages in the pleadings. In paragrah 4 of the statement of claim the plaintiff pleaded:
"The said words"—he is referring there to the first...
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