Milne v Express Newspapers
| Jurisdiction | England & Wales |
| Judge | Lord Justice May |
| Judgment Date | 27 May 2004 |
| Neutral Citation | [2004] EWCA Civ 664 |
| Docket Number | Case No: A2/2003/1735/1822 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 May 2004 |
[2004] EWCA Civ 664
The Right Honourable Lord Justice May
The Right Honourable Lord Justice Tuckey and
The Right Honourable Lord Justice Laws
Case No: A2/2003/1735/1822
HQ02X00903
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THE HON. MR JUSTICE EADY
Royal Courts of Justice
Strand,
London, WC2A 2LL
Richard Parkes QC and William Bennett (instructed by Andrew Milne & Co) for the Appellant
Geoffrey Shaw QC and Caroline Addy (instructed by Davenport Lyons) for the Respondent
Introduction
This is the judgment of the court on two applications by the claimant, Andrew Milne, for permission to appeal against judgments of Eady J of 29 th November 2002 and 10 th July 2003 in Mr Milne's defamation action against Express Newspapers. Brooke LJ considered the applications on paper. He adjourned them for consideration by the full court with the appeals to follow if the court grants permission.
The defendants say that the first application needs a very long extension of time. The claimant says that the judge informally extended time for appealing against his first decision until after he had made his second decision. This is not supported by the transcript of what was said at the conclusion of the first hearing. In our view, however, any formal need for an extension of time should not prevent us from examining the merits of the first application.
Eady J's first judgment is an important one. It is reported at [2003] 1 WLR 927 and is the leading case which considers section 4(3) of the Defamation Act 1996. These applications are the first opportunity for this court to consider the statutory provisions, introduced by sections 2 to 4 of the 1996 Act, as to offers to make amends by a person who has published a statement alleged to be defamatory.
The publication
The proceedings concern an article in the Sunday Express of 25 th March 2001. There was at the time political controversy relating to Mr Keith Vaz, a Member of Parliament and Minister for Europe, and Mr Zaiwalla, the senior partner of a firm of solicitors, Zaiwalla & Co. There had been an inquiry and report by Dame Elizabeth Filkin, the Parliamentary Standards Commissioner. The claimant was a former salaried partner of Zaiwalla & Co. He had given evidence to the Filkin inquiry.
The Sunday Express article was written by Tim Shipman as "Political Correspondent". It had the headline "PM told sleaze report is not worth the paper it's printed on". The words of the article of which the claimant complained, following the headline, were
"Tony Blair had a face-to-face meeting with the Asian lawyer at the centre of the Keith Vaz sleaze scandal.
He met City solicitor Sarosh Zaiwalla after Mr Vaz, Minister for Europe, was condemned by a watchdog for recommending him for a peerage.
At the meeting Mr Zaiwalla, whose company paid Vaz two sums totalling £450, told the Prime Minister that key evidence had been ignored by the inquiry, and the subsequent report by the parliamentary sleaze buster Dame Elizabeth Filkin was "not worth the paper it was printed on".
His intervention may have helped to solidify Mr Blair's resolve to back Mr Vaz and allow him to travel to this weekend's European summit in Stockholm with Foreign Secretary, Robin Cook. Mr Zaiwalla also told the Sunday Express that Mr Vaz told him last year that he had previously recommended Dame Elizabeth's first husband for a peerage. David Filkin was made a Life Peer in 1999.
Mr Zaiwalla, who runs an international law firm in London's Chancery Lane, spoke to the Prime Minister for more than five minutes at a Labour Gala dinner on March 15.
He took Mr Blair aside at the Hilton Hotel bash and impressed on him the view that the evidence against Mr Vaz proffered by one of his former employees was tainted. Mr Zaiwalla, whose firm of solicitors once hired Mr Blair when he was a junior barrister, said: "I wanted to set the record straight. He did not say much, but he listened to what I had to say.
A leading figure in London's Asian community, Mr Zaiwalla said he "can't vouch" for whether Mr Blair agreed with him. But he added: "He has to listen to everybody. Mr Blair acted for my firm in 1983. He was a very competent barrister. I hope he has respect for me and respects my integrity.
Mr Vaz was first investigated last February after Andrew Milne, a former salaried partner at Zaiwalla & Co., alleged £2,000 had been given to him by Mr Zaiwalla. The Filkin inquiry found that Mr Vaz failed to declare two payments totalling £450 from the company. Dame Elizabeth had to drop an investigation into eight other charges after Mr Vaz refused to answer further questions. But Mr Zaiwalla said he believes that the minister's only fault is that he is "overly enthusiastic" to help people …"
A subsequent paragraph of the article stated that a Downing Street spokeswoman had said on the previous evening that there were over 500 people at the dinner and the Prime Minister had no conversations of substance with anyone.
The judge said that unusually there was no dispute between the parties as to the natural and ordinary meaning to be attributed to the passages in the article complained of. Both sides accepted that they convey the meaning that "the claimant is reasonably suspected of giving false evidence to the Filkin inquiry".
The offer to make amends
By a letter dated 13 th May 2002, the defendants by their solicitors made an unqualified offer to make amends under section 2 of the 1996 Act. In a separate second letter, they made proposals to implement the offer. The claimant wrote rejecting the offer and giving reasons for doing so. There was correspondence in which the defendants' solicitors suggested to him that he may have misunderstood the effect of the statutory procedure. He maintained his rejection of the offer. The defendants accordingly had a statutory defence to the claim under section 4 of the 1996 Act which they duly pleaded. In his reply, the claimant sought to rebut this defence by relying on section 4(3) of the 1996 Act. He gave particulars of the facts on which he relied.
The applications to the judge and Court of Appeal
By application notice dated 19 th September 2002, the defendants applied to strike out the three paragraphs of the Reply which relied on section 4(3) . They contended that the matters relied on in those paragraphs were insufficient in law to rebut the defence. This was the application which the judge decided in favour of the defendants on 29 th November 2002. He ordered that the three paragraphs of the reply should be struck out under rule 3.4 of the Civil Procedure Rules. He also ordered that judgment should be entered for the defendants unless the claimant applied within 14 days for permission to amend his reply. The claimant did so apply by application notice dated 19 th December 2002. The defendants opposed this application, contending that the proposed second version of the pleading still failed to measure up to the requirements of section 4(3) of the 1996 Act. On 10 th July 2003, the judge upheld the defendants' contentions, refused the claimant permission to amend his reply and ordered that judgment should be entered for the defendants in the action. He ordered the claimant to pay the defendants' costs of the action and of the application.
The claimant applied for permission to appeal against the judge's decisions and orders of 29 th November 2002 and 10 th July 2003. The claimant's contentions which survived as submissions advanced orally by Mr Richard Parkes QC on behalf of the claimant at the hearing before this court were:
a) that the judge's construction in his first judgment of section 4(3) of the 1996 Act was to an extent erroneous; and that upon a correct construction he should have permitted the claimant to amend his reply in the terms considered on 10 th July 2003.
b) alternatively, even if the judge's construction of section 4(3) was correct, he should have permitted the claimant to amend his reply in the terms proposed.
We use the expression "to an extent" in paragraph 7(a), because the claimant's original grounds of appeal and skeleton arguments, drafted on his behalf before Mr Parkes was instructed, contended for a construction of section 4(3) much further removed from that adopted by the judge than the construction advanced by Mr Parkes.
The claimant through Mr Parkes does not now contend that the paragraphs of the reply which the judge ordered to be struck out in his first judgment should be reinstated. This appeal is limited to the contention that the particulars which the judge rejected on 10 th July 2003 should have been permitted. There is therefore in form no surviving appeal against the order which the judge made on 29 th November 2002. His construction of section 4(3) and his reasoning in support of that construction is challenged. The judge carried that construction and reasoning through into his decision on 10 th July 2003 and the claimant is entitled to challenge this in advancing his second application. There is therefore nothing left of the first application nor any surviving basis for extending time to make it. We therefore refuse the application to extend time and the first application for permission to appeal, which is dismissed.
Sections 2 to 4 of the Defamation Act 1996
Section 2 of the 1996 Act provides that a person who has published a statement alleged to be defamatory may offer to make amends under the section. The offer may be in relation to the defamatory statement generally or in relation to a specific defamatory...
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