McPhilemy v Times Newspapers Ltd (No. 2)

JurisdictionEngland & Wales
JudgeLORD JUSTICE THORPE,Lord Justice Brooke,LORD JUSTICE BROOKE,LORD JUSTICE LONGMORE,LORD JUSTICE SIMON BROWN
Judgment Date20 June 2001
Neutral Citation[2001] EWCA Civ 933
Docket NumberCase No: A2/2000/2935,PROFORMA
CourtCourt of Appeal (Civil Division)
Date20 June 2001
Sean Mcphilemy
Claimant/Appellant
and
(1) Times Newspapers Ltd
(2) Liam Clarke
(3) Andrew Neil
Defendants/ Respondents

[2000] EWCA Civ J0310-8

Before:

Lord Justice Thorpe

Lord Justice Brooke

PROFORMA

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

(MR JUSTICE EADY —AND A JURY)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

MR J PRICE QC and MR M NICKLIN (Instructed by Messrs Bindman & Partners, 275 Gray's Inn Road, London, WC1 8QF) appeared on behalf of the Appellant.

MR A CALDECOTT QC and MISS C ADDY (Instructed by Messrs Henry Hepworth, 5 St John Street, London, WC1N 2HH) appeared on behalf of the Respondents.

Friday, 10th March 2000

LORD JUSTICE THORPE
1

Lord Justice Brooke will give the first judgment.

LORD JUSTICE BROOKE
2

This is an appeal from a judgment of Eady J, given on the 8th March 2000, in which he refused an application by Mr Price, who appears for the claimant, to put in evidence before the jury two statements from a Mr Abernethy. These were statements which had been served on Mr Price's clients as statements upon which the defendants intended to rely at the trial. But, as sometimes happens, people change their intentions, and, in the event, the defendants elected not to call Mr Abernethy.

3

The facts relating to this evidence are somewhat complicated. We were told that it was on the 30th day of the trial, when the evidence was otherwise completed, that this application was made. The judge, in his short judgment, describes how both these statements were dealing with an incident which took place on the 13th June 1991 when Mr Hamilton, who was a researcher for Mr McPhilemy, who was engaged in making a film which was in due course produced and published by Channel 4 Television, was taken by Mr Abernethy in a car into the countryside in Northern Ireland where he met a person, who got into the back seat of the vehicle, who purported to be a representative of Ulster Resistance, and in fact a Regional Commander for that area. That person was described by Mr Hamilton very briefly in the evidence that he gave earlier in the trial as being a big man in a track suit. Mr Hamilton was told to keep his eyes to the front, but a conversation certainly took place in the course of that evening, even though he was not looking at the man at the time.

4

That evidence was not challenged at the trial, in the sense that it was not challenged when Mr Hamilton went into the witness box and said that he was taken by Mr Abernethy in this car and described what had happened in the car. The judge said that great weight was placed on the evidence of Mr Abernethy by Mr Hamilton and by others who were concerned in the making of the programme, because it appeared to them to confirm much of the account which they had been given earlier by Mr Sands. Mr Sands was a man who was not identified in the original programme. But he was the source of much of what the programme alleged, and the question of the sense of responsibility of Mr McPhilemy and those who were involved in making the programme and in its production is an issue in the trial.

5

Another issue in the trial, which has been raised despite the plaintiff's objection, is whether the people who were said to have been part of a committee were murderers or conspirators to murder. We have been shown the pleadings, we have been told about a ruling of the Court of Appeal which allowed the defendants to put their case as they wished to put it, and we have been shown the reply in which the plaintiff does not maintain that he made these direct allegations. In broad terms, he contends in paragraph 10A of the reply that he

"…. raises no positive case in this action as to the matters pleaded in paragraph 10A of the defence."

6

That paragraph raised the positive plea that none of the people identified in paragraph 10 of the defence had ever conspired to commit any murders and so on. In the reply it was pleaded that the claimant's case was that:

"The issue as to whether or not the individuals named in paragraph 10 are or were conspirators in the murders of Catholics and/or were members of the Committee is incapable of being resolved within the confines of this litigation with the resources available to [the claimant] and is, in any event, irrelevant to the allegation made against him in the article complained of."

7

We have been told that a large number of the people named in paragraph 10 if the defence have been called by the defendants to give evidence along the lines pleaded in that paragraph, to the effect that they are respectable people, that they have never conspired to commit murder, and that they are not members of any organisation such as the committee described in the programme, and so on.

8

The one person who is alive, who is not apparently being called to give evidence, is Mr Abernethy, who has been identified as the Chairman of the relevant committee. He is said in paragraph 10 of the defence to be a bank manager who had turned Sands down for a loan and was absurdly described by Sands as "the loyalist equivalent of Gerry Adams".

9

The judge briefly set out the matters to which this evidence related. He referred to the fact that great weight was placed on the incident that evening, as I have said, because it appeared to Mr McPhilemy and Mr Hamilton to confirm much of the account that Mr Sands had given. The judge said that it played a central part in their deliberations in 1991 and no doubt continued to play a part in Mr McPhilemy's deliberations about the validity of the evidence that he had at the time when he came to write and publish his book many years later.

10

The judge went on to say that Mr Price was fully entitled to rely on the evidence about the car journey, not in support of the proposition that there was a conspiracy to murder, but as part of the reasoning progress which governed the decisions of the programme makers in 1991, and, to a lesser extent also, his client in relation to the book.

11

This book was a book written by Mr McPhilemy, published in 1998 in the United States of America, in which he set out the history of what was recorded in the television programme and, on this occasion, identified the people involved.

12

The judge then went on in these terms:

"I was referred to an authority called The Filiatra Legacy [1991] 2 LLoyd's Rep.337, in order to try to throw some light on the situation which is now likely to arise quite often when people wish to put in statements which have been unused by the other side. There is the difficulty that has arisen in this case, which may arise quite often, namely, that the person choosing to put in the statement pursuant to that right may wish to rely on parts of the statement only.

The case was gone into in very considerable detail in the Court of Appeal, but it is important to bear in mind the passage on page 361 which makes it clear, in my judgment, that what one is not permitted to do (or at any rate that there is no existing authority which indicates that one is permitted to do it) is to put in evidence and then seek to persuade the court, whether it be a judge or a jury, that the evidence one is putting before the court, or part of it, was wrong 'on purpose'.

It is clear that the situation may often arise where one wishes to reconcile two parts of the evidence that has been adduced on one's own side in the course of a trial, and obviously things do change from time to time in litigation. But here Mr Price wishes to put in the statement and to invite the jury to disbelieve certain parts of it straight away; indeed to invite them to conclude that Mr Abernethy was lying in certain respects. That does not seem to me to be covered by the judgment of the Court of Appeal in that case. It was a novel situation and it seems to me to conflict with the basic principle that one cannot put before a jury evidence which one seeks to resile from (except in very limited circumstances)."

13

This morning we have had the privilege of hearing submissions from Mr Price. When I describe it as "the privilege", I mean that word, because he has put extremely clearly to us in a very short period the facts of a complicated situation, as well as drawing our attention to the relevant principles of law. Somehow or other, he and his junior have furnished us in the time available with a skeleton argument which runs to 11 pages and a document called The Claimant's Case which runs to another four, quite apart from bringing together, helpfully, all the relevant evidence which has been given in the case.

14

In paragraph 17 of their skeleton argument, Mr Price and Mr Nicklin set out four matters which they say that Mr Abernethy's statements show. I need not go into the detail of those. In paragraph 18 they say they shed a flood of light on his position in relation to the issues in this action.

15

We did not call on Mr Caldecott to reply to Mr Price's submissions, although he and his junior had also found the time to prepare substantial skeleton arguments in which they put what Mr Price says is in issue, simply because it appeared to the court that it was not necessary to reach a conclusion on those contentions because we could deal with this application more briefly. In other words, for my part, I can see a good deal of force in some of the submissions that Mr Price has made to us, both in writing and orally. I am conscious that, in the time available, it has only been possible to have a very superficial view of the issues which are before the jury at the trial. No doubt Mr Caldecott would have wished to spend a good deal of time dispelling my original impression, or at any rate trying to do...

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