Milne v Express Newspapers
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 29 November 2002 |
| Neutral Citation | [2002] EWHC 2564 (QB) |
| Docket Number | Case No: HQ02X00903 |
| Court | Queen's Bench Division |
| Date | 29 November 2002 |
[2002] EWHC 2564 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Eady
Case No: HQ02X00903
Mr James Price QC and Mr William Bennett (instructed by Mr Mime) for the claimant
Mr Geoffrey Shaw QC and Miss Caroline Addy (instructed by Davenport Lyons, Solicitors) for the defendant
Hearing date: 11 November 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6. 1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
There is an application before the court on the part of the defendant in a libel action to strike out certain passages in the claimant's reply. The submissions turn to a large extent upon the proper construction of section 4 of the Defamation Act 1996. This is part of the "offer of amends" regime contained within sections 2–4 of the Act, which only finally came into effect on 28 February 2000.
The defendant's offer of amends was rejected by the claimant, which means that the defendant has a complete defence to the action unless the claimant is able to plead and to prove that the defendant knew, or had reason to believe, that the statement complained of was false: see section 4(3). It is submitted on the defendant's behalf that the three paragraphs of the reply seeking to rebut the statutory defence are doomed to failure and should now be struck out. Mr Shaw QC appearing for the defendant indicated that he is not asking for the action to be dismissed, or for summary judgment, as yet. He did, nevertheless, put down a marker that if his current application succeeds he is likely to take such a course unless in the interim the reply can he put in a viable form.
On 11 November, at the conclusion of the argument, I indicated to the parties that I was going to accede to Mr Shaw's submissions but that I would hand down my reasons in due course. I now do so.
The background is as follows. The claimant is a solicitor, who was formerly a partner in a firm called Zaiwalla & Co. On 12 March 2001 the House of Commons Committee on Standards and Privileges published a report under the title "Complaints against Mr Keith Vaz". Mr Vaz is a member of Parliament and was at the time a junior minister in the Government with responsibility for matters concerned with Europe. Attached to that report, as an appendix, was a memorandum which had been submitted to the Committee by the then Parliamentary Commissioner for Standards, Dame Elizabeth Filkin. She had found in the course of an enquiry, on the basis of what was apparently the limited information she had been able to obtain, that Mr Vaz had inappropriately failed to declare payments from a Mr Sarosh Zaiwalla (the senior partner of Zaiwalla & Co). The publication of the Committee's Report and the background to it were naturally matters which attracted a good deal of public and media attention.
On 25 March 2001, the defendant, Express Newspapers. published an article on page 6 of the Sunday Express by Mr Tim Shipman, who is not himself joined in the action as a defendant, under the heading "Tony Blair and the Vaz case lawyer". There is a much smaller sub-heading to the effect "PM told sleaze report is not worth the paper it's printed on". The article was described as "EXCLUSIVE" and was accompanied by a photograph of Mr Vaz with the then foreign secretary, under which appeared the caption, "UNDER PRESSURE: Keith Vaz with Robin Cook in Stockholm yesterday".
The words in the article selected for complaint are these:
"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…'.
Unusually, perhaps, there is no dispute between the parties as to the natural and ordinary meaning to be attributed to those passages. Both sides accept that they convey the meaning that "the claimant is reasonably suspected of giving false evidence to the Filkin enquiry".
The claimant did not in fact complain of the article for many months and only issued the claim form a few days before the expiry of the one-year limitation period applying in the field of defamation. He has pleaded that he did not find out about the words until late January 2002 and then moved as expeditiously as possible in all the circumstances. At all events, the defendant was first notified of the complaint by letter dated 22 March 2002, which was also the date on which proceedings were commenced.
On 13 May 2002 the defendant made an unqualified offer of amends in accordance with section 2 of the Defamation Act 1996. Since it was rejected, the defendant can now avail itself of the statutory defence under section 4. The claimant had the opportunity of submitting the outstanding issues for determination by a judge, in accordance with section 3 of the Act, if the parties were unable to agree on such matters as the publication of an apology or correction. the payment of compensation or of costs. He chose to reject that opportunity and can, therefore, only succeed if he is able to prove that the person who wrote the article (ie, the political correspondent, Mr Tim Shipman), or some other person directly concerned in the publication, had reason to believe that the words complained of (in the relevant meaning) were false at the time of publication. The claimant does not suggest that the words were known to be false—only that there was "reason to believe". It is important to note that the statutory words do not refer to the defendant having "reason to suspect".
In the context of this case, it must follow that the proposition of which the claimant hopes to persuade a jury is that the relevant person or persons "had reason to believe that it was false to say that there were reasonable grounds to suspect the claimant of giving false evidence to the Filkin enquiry". This is a tortuous proposition and debating that issue, whether before a judge or jury, would be somewhat reminiscent of medieval disputations about angels on pinheads. Bearing in mind that the defendant expressed a willingness to make appropriate amends, with a view to vindicating and compensating the claimant, six months ago, a casual observer might reasonably ask whether the cost of the exercise now contemplated is proportionate to the narrow dispute now remaining. What I must do, however, is to focus on the legal submissions on the interpretation of section 4.
As Mr Shaw has pointed out, the origin of this new regime is to be found in the proposals made by Sir Brian Neill's Committee on Practice and Procedure in Defamation as long ago as July 1991. They recommended that the provisions of section 4 of the Defamation Act 1952 (which had also provided for what was called an "offer of amends" procedure) should be repealed, since they had hardly, if ever, been used. They had therefore obviously not achieved the objective for which it had been designed by Parliament at that time. For present purposes, I need only refer to two extracts from that statute:
"4 Unintentional defamation
(1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person. make an offer of amends under this section; and in any such case—
(a) if the offer is accepted by the party aggrieved and is duly performed no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);
(b) if the offer is...
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