Newsgroup Newspapers Ltd and Anor. and Alan Eric Campbell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann |
| Judgment Date | 31 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1143 |
| Docket Number | Case No: A2/2001/2711 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2002 |
[2002] EWCA Civ 1143
Lord Justice Schiemann
Lord Justice Mantell and
Lord Justice Mance
Case No: A2/2001/2711
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(HEDLEY J)
Andrew Caldecott Q.C and Adam Wolanski (instructed by Farrer & Co) for the Appellant Alan Eric Campbell in person
This is the judgment of the Court to which we have all contributed. It is structured as follows :—
i) An Overview – paragraphs 2—20
ii) Legal Principles – paragraphs 21 – 36
iii) The Police evidence in relation to videos – paragraphs 37 – 43
iv) The newspaper's case as to how it had obtained the Bober video – paragraphs 44 & 45
v) The evolution of the claimant's case in relation to the videos – paragraphs 46 – 89
vi) The summing up – paragraphs 90 – 105
vii) Conclusions regarding the facts – paragraphs 106 – 116
viii) The appropriate amount – paragraphs 117 – 119
ix) Annex on authorities on the quantum of libel damages
An Overview
Before us is an appeal by the owners of the News of the World and its editor against an award by a jury of £350,000 general damages to the claimant Alan Campbell in respect of an article published in that paper on 3 rd December 1995. They accept liability but say the award is too high. The appeal is brought by permission of the judge. The claimant sought permission to cross-appeal on the basis that the award was too low. However, it seems that he has not paid the relevant fee and before us he has abandoned that application. So we are left purely with the appeal.
The article alleged that the claimant was an active paedophile. In particular, it alleged that he (a) sexually abused children whom he had lured into his house with the promise of money; (b) made videos of the abuse and marketed those videos; (c) demanded money for the return of a video; (d) admitted enjoying watching teenagers through peep-holes in public lavatories; and (e) generally had a perverted interest in children. The article suggested that various people had told the newspaper that they could substantiate various allegations and that the newspaper had seen a video made by the claimant which corroborated its allegations.
The newspaper had a video in its possession which was referred to as the Bober video because of the name of the young man who was shown on it with the claimant. It turned out that Mr Bober was not under age and no witnesses were called to say that they had seen the claimant engage in any form of sexual activity with children. This made the newspaper's defence in relation to allegations (a), (b) and (c) more difficult. Nevertheless, at the trial the newspaper sought to persuade the jury that it could justify all of its allegations. It failed to do so and now accepts that it could not justify allegations (a), (b) and (c) to which we shall refer as "the Unjustified Allegations". However, it still maintains that it could and did justify allegations (d) and (e) to which we shall refer as "the Remaining Allegations". In order to justify the Remaining Allegations the newspaper relied on the Bober video, and in particular conversations apparently between the claimant and Mr Bober about watching children in public lavatories ("the child sex conversations"). It has been common ground that, if the Bober video was genuine, then it contained material which on its face justified the Remaining Allegations.
However, whether or not the Remaining Allegations could be justified, it is now clear and uncontested that the article contained a grave libel justifying substantial damages.
However, the submissions at trial went far beyond submissions as to the appropriate sum for such a libel. The claimant relied on several matters as justifying an enhanced award : in particular, he asserted that the newspaper knowing that the Bober video was not what it appeared to be had deliberately put before the court as justifying the allegations in the article. The defendants relied on other matters as justifying a diminished award: in particular, it asserted that the claimant had deliberately created a video, which became known as the Duffy video, in order to lend colour to his assertion that the newspaper had created the Bober video. The newspaper submits that the judge failed to direct the jury adequately and that in consequence the jury fell into error and thus awarded a sum which this court should set aside.
The claimant's case. As finally left to the jury, the claimant's case, nearly all of which was disputed by the newspaper but which the claimant submits must have been accepted by the jury in its entirety, was as follows. He had on one occasion only had a sexual encounter with Bober. He had made a single video of that encounter ("The First Video"), from which any subsequent copies must have been made. The First Video, while containing both audio-visual material of a homo-erotic nature, did not feature anyone under age and did not contain the child sex conversations. The First Video had been seized by the police on a search of his home in 1993. That search had been instigated by an erstwhile business partner of his by the name of Bloom with whom he had quarrelled. Bloom had put it about that the claimant had regular sexual encounters with children and that the claimant had then placed these on video and distributed the videos in the market place. This was, the claimant said, all lies. The police had seen the First Video, and agreed that this had not contained the child sex conversations. They had investigated the matter thoroughly and had not preferred any charges. They had returned the First Video to the claimant in 1994. The First Video had then been stolen from the claimant's house a few days later at the instigation of Bloom. Bloom had persuaded the claimant's son (to whom I shall refer as Tony) to doctor the First Video by inserting the child sex conversations so as to create a video which contained verbal references to children and lavatories. It was this newly created video which was the Bober video relied on by the newspaper as justifying its allegations. Tony had supplied the voice track on the Bober video by imitating the claimant's voice. (We can leave on one side the suggestion made at one point by the claimant in submissions before us that the Bober video was further re-dubbed by the newspaper between the issue of the writ and the trial, so that the voice was no longer Tony's. This would represent an entirely new case, which would appear to make a nonsense of much of the expert and other evidence called at trial about the Bober video and Tony's supposed dubbing of it.) Tony was, the claimant said, a very vulnerable individual with a drink problem. The technical work of doctoring the First Video had been done at the house of a man called Squires in Hampton Road, Southport. The Bober video had come into the newspaper's hands sometime in 1995 via an investigative journalist named Merry. That journalist had arrived unannounced at the claimant's house with television cameras for Channel 4 and with the features editor of the News of the World. Mr Merry had then and there sought an interview which the claimant had refused to give. Mr Merry had then invented various quotations which he sent to the newspaper. Despite the claimant professing his innocence, the newspaper had insisted on publishing the defamatory article. Thereafter Channel 4 had screened a defamatory programme. Although Tony had, in the past, given statements denying taking any part in the dubbing process, this denial had been procured by the newspaper promising Tony a house if he would perjure himself. The claimant produced at trial a video, which in some respects resembled the Bober video but contained no references to children. This video, for reasons which will become apparent, was referred to as the Duffy video. The Duffy video was at least quarter of an hour shorter than the Bober video, but the claimant suggested that the Duffy video was a copy (dating from 1994) of the First Video, or at least of part of it, into which scenes showing a chair had been inserted to show where dubbing was to take place. However, the scenes showing a chair appeared, almost all of them, in the first part of the Duffy video, which otherwise corresponded with the first part of the Bober video; whereas the material which the claimant was suggesting had been dubbed appeared in the second half of the Bober video, which was visually reproduced only to the most limited extent in the Duffy video.
We examine the legal principles which govern libel damages in greater detail in paragraphs 21–35 below. It is sufficient at this point to say that it is common ground that if the claimant's allegations in relation to the creation of the Bober video are established then this could raise the claimant's damages to a level higher than they would otherwise have been. This is for at least three cumulative reasons. First, the Bober video is all that was relied on in support of the remaining allegations. Therefore, if the Bober video can not be relied on then there is no justification for the remaining allegations. Second, a deliberate attempt by the newspaper and its agents and advisers to put false evidence before the court has the potential to raise the claimant's level of damages. Third, the alleged bribery of a vulnerable son to give false evidence against his father is scandalous behaviour. It is common ground that, if the claimant makes good his doctoring allegation, then in principle the damages awarded...
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