McPhilemy v Times Newspapers Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE CHADWICK,LORD JUSTICE LONGMORE |
| Judgment Date | 12 June 2001 |
| Neutral Citation | [2001] EWCA Civ 871 |
| Docket Number | Case No: A2/2000/2395 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 June 2001 |
[2001] EWCA Civ 871
Lord Justice Simon Brown
Lord Justice Chadwick and
Lord Justice Longmore
Case No: A2/2000/2395
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Caldecott QC & Ms Caroline Addy (instructed by H2O Henry Hepworths of London WC1N 2HH) for the Appellants
Mr James Price QC & Mr Matthew Nicklin (instructed by Bindman & Partners of London WC1X 8QF) for the Respondent
Introduction
The respondent is a journalist and managing director of Box Productions Limited, a television production company. On 2 October 1991 he was responsible for a Dispatches programme called The Committee produced by Box for Channel Four Television. The general thesis of the programme was that there was, in Northern Ireland between 1989 and 1991, a committee known as "The Central Co-ordinating Committee" (The Committee) consisting of prominent and apparently respectable members of the Loyalist community. It was said that there was also an organisation of disaffected Royal Ulster Constabulary (RUC) officers known as the "Inner Circle", which controlled a larger organisation within the RUC known as the "Inner Force". It was said that The Committee obtained from the RUC the names of suspected Republicans, which were then passed to Loyalist paramilitary organisations to carry out their assassinations. The members of The Committee were thus co-conspirators in the resulting murders.
On 9 May 1993 the appellants published a long article in the Sunday Times, headed "Film on Ulster death squads a hoax, says missing witness", claiming that the programme was a hoax, the general theme of the article being that the quality of the sources for the programme, in particular a Mr Sands, was so poor and unreliable that no respectable broadcaster would have considered putting it out.
On 3 May 1996 the claimant issued a writ alleging that the article was defamatory, its clear meaning being that he was a hoaxer and deceiver. There was an issue in the action as to the meaning of the article. In addition the appellants pleaded justification.
On 30 March 2000, following a trial of 38 days before Eady J and a jury and 5 days of jury deliberations, judgment was given for the claimant on the jury's unanimous verdict for general damages of £145,000, leaving special damages (claimed at some £250,000 plus interest) to be assessed by the judge alone. The six questions put to the jury and their answers to them were as follows:
"(1) Do you find that the Sunday Times article of 9 May 1993 was defamatory of Mr McPhilemy?
Answer: Yes.
(2) Have the Sunday Times proved on the balance of probabilities that there was no Ulster Central Co-ordinating Committee, as described in the programme of 2 October 1991?
Answer: No.
(3) In any event, have the Sunday Times proved that Mr McPhilemy was deliberately setting out to mislead the viewers as to the case put forward in the programme for the existence or activities of the Committee?
Answer: No.
(4) If the answer to question (3) is "No", have the Sunday Times proved on the balance of probabilities that he was reckless as to the truth of the programme's allegations as to the existence or activities of the Committee?
Answer: No.
(5) In the light of your conclusions (both as to the meaning of the Sunday Times article and the questions (1) to (4)), have the Sunday Times succeeded in proving (again on the balance of probabilities) that the article of 9 May 1993 was substantially accurate?
Answer: No.
(6) If you find that the article was defamatory of Mr McPhilemy personally and that the Sunday Times have not proved the article to be substantially accurate, how much do you award him by way of general damages?
Answer:
£145,000."
The award is now challenged on appeal by permission of the judge below, the appellants' central contention being that the jury's negative answer to question (2) was perverse. No reasonable jury, they seek to argue, could have failed to conclude that the appellants had proved on the balance of probabilities that The Committee did not in fact exist. In particular, the only evidence called on the issue was the unchallenged and uncontradicted evidence of the great majority of those alleged to have been the members of The Committee, all of whom were of good character and all of whom denied any involvement with such a body. In the result, the appellants wish to contend, the jury's verdicts on all questions should be set aside and a fresh trial ordered, preferably by judge alone (preferably, indeed, by Eady J alone), alternatively at the very least that the damages award should be set aside.
At the outset of the appeal, before embarking on full argument as to whether or not the jury's answer to question (2) should indeed be regarded as perverse, we indicated that in the light of the history of this litigation, and not least the particular circumstances in which question (2) came to be put to the jury, we needed to be persuaded that an appeal on the basis proposed was properly open to the appellants. Having listened to Mr Caldecott QC for something over a day, we were not so persuaded; on the contrary, we concluded that an appeal on this basis would involve an abuse of process and bring the administration of justice into disrepute. This judgment is devoted to that issue, not (save very tangentially) to the alleged perversity of the verdict
The early history of this litigation
The early history of this litigation is to be found in some detail in this Court's judgments (Lord Woolf MR, Judge and May LJJ) on 21 May 1999 in McPhilemy v Times Newspapers Limited [1999] 3 All ER 775. The issue before the Court of Appeal on that occasion was whether the appellants should be allowed to re-amend their Particulars of Justification in order to challenge the existence of the murder conspiracy (in other words, to dispute the entire Committee thesis propounded in the programme). The respondent argued that the central issue in the case was whether he was a party to hoaxing or deceiving the public, not the truth or falsity of the alleged conspiracy, and that the time and expense of litigating the issue properly would be wholly disproportionate, not least having regard to his own lack of means. The Court of Appeal nevertheless upheld Eady J's order allowing the re-amendment. May LJ, giving the leading judgment, said that:
"… in this instance it adds to the defamatory sting to say, not only that main content of the programme was based on obviously worthless evidence, but that it was, or that it probably was, untrue." (p.789h)
He later added:
"I accept that the truth or falsity of the existence of The Committee which Sands alleged existed is a wide subject. … It will be for the trial judge to direct the jury (if there is one) what the issues at the end of the evidence are and what questions of fact they have to decide. … It may also be appropriate to direct the jury that, although it would be open to them to decide on the evidence whether it is true that The Committee to which Sands referred did or did not exist, they may feel that it is unnecessary to reach a conclusion on that question in order to decide whether the sting of the libel is justified. … There is in my view considerable force in Mr Caldecott's twin submissions that the defendants should not in this case be deprived of an important element of their case of justification, and that there is a real risk that vindication of the plaintiff in a case from which this element had been excluded would nevertheless be seen as vindication of his thesis." (p.79 d-j)
In his original Reply served in January 1997, the respondent had pleaded affirmatively that the Committee thesis was true (indeed, in February 1998 he published a book in the United States unequivocally reasserting it). In the face of the appellants' proposed re-amendment, however, and before Eady J's order allowing it, he had re-amended his Reply to resile from this assertion.
Application for trial by judge alone
I come next to Eady J's order on 8 July 1999 dismissing the appellants' application for trial of the action by judge alone. The respondent had opposed that application on the following basis:
"For reasons not of my own making, and indeed against my expressed wishes, the trial of this action may become the forum in which the British State and its agencies stand accused of complicity, or worse, in sectarian murder and terrorism in both Northern Ireland and the Republic of Ireland. It is inevitable that the integrity of the security forces and judicial system will be called into question. It is hard to imagine a more profoundly serious issue for a libel trial to address. It is undesirable that the reputation of the security and intelligence services and of the UK as a civilized country should rest on the trial of this libel action when it cannot hope to deal comprehensively with such weighty and constitutionally important matters (which in my submission are at best tangential to the central issues relating to the vindication of my reputation). Since the Court of Appeal has determined that the issues of truth or falsity are not to be excluded, the entire burden of deciding these matters would fall to the judge if this case were to be tried by judge alone.
It is my firm conviction that the undoubted integrity upon which a High Court judge would draw in trying the case without the benefit of a jury would be ineffective, were I to lose this action, to counter the...
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