Pamplin v Express Newspapers Ltd (Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE OLIVER,LORD JUSTICE PURCHAS |
| Judgment Date | 27 February 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0227-5 |
| Docket Number | 85/0084 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 1985 |
[1985] EWCA Civ J0227-5
Lord Justice Oliver
Lord Justice Purchas
and
Lord Justice Neill
85/0084
1980 P No. 2212
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE BRISTOW AND A JURY)
Royal Courts of Justice
MR. NIGEL LEY (instructed by Messrs. J.S. Sierzani & Co, Solicitors, Chorley, Lancs PR7 3AC) appeared on behalf of the Plaintiff (Appellant)
MR. P.J. CRESSWELL QC and MR. ANDREW CALDECOTT (instructed by Messrs. Lovell, White & King, Solicitors, London EC1A 2DY) appeared on behalf of the Defendants (Respondents)
This is an appeal by the plaintiff in a libel action, Mr. Barry Francis Pamplin, against an award of one halfpenny damages given by the verdict of a jury.
In the action Mr. Pamplin complained of a leading article published by the defendants, Express Newspapers Limited, in the issue of the Sunday Express of 21st October 1979.
The trial at which this award was made took place in October 1983 and was the second trial of Mr. Pamplin's claim. At the first trial in October 1982 Mr. Pamplin was awarded £12,000 but this award was set aside by the Court of Appeal on 27th May 1983 on the ground of a misdirection by the judge on the issue of damages, and a new trial was ordered.
The background of Mr. Pamplin's claim for damages for libel can be stated quite shortly. It seems that for some time Mr. Pamplin had been concerned at the fact that persons who can claim diplomatic immunity are able to avoid paying parking fines by the simple expedient of ignoring any summonses which they may receive. To Mr. Pamplin, and perhaps to others, this immunity appeared as an anomaly and as a loophole in the law.
He decided that he would take steps to expose what he thought might prove to be another loophole in the law. He therefore arranged to register his car in the name of his young son who was then aged 4 or 5. His plan was that if the car were parked illegally any responsibility of the registered owner could be evaded by making use of the rule of English criminal law that a child under the age of 10 years cannot be guilty of a criminal offence: see Children and Young Persons Act 1933 S.50, as amended by Children and Young Persons Act 1963 S.16(l).
For some while the plan seemed to work well and a number of parking offence tickets which reached the Pamplin home were safely ignored. But as time went by Mr. Pamplin's activities began to cause concern to the Police and to the traffic authorities, and in the summer of 1979, partly due to a letter written to the press by Mr. Pamplin himself, the matter started to attract some public attention and some comment in the newspapers.
By August 1979 this initial publicity had died down but public interest in Mr. Pamplin was revived in October 1979 when his appeal to the Divisional Court on a quite separate point under S.168(2) of the Road Traffic Act 1972 was dismissed. On 21st October 1979 the Sunday Express published as part of their third leading article the words of which Mr. Pamplin makes complaint. The article as a whole dealt not only with the car registration scheme but also with a similar scheme devised by Mr. Pamplin whereby his son became the owner of the family television set.
On 22nd May 1980 Mr. Pamplin issued a writ against the defendants claiming damages for libel, and on 9th June the statement of claim was served. In paragraph 3 of the statement of claim the words complained of were set out as follows:
"SPIV
………………………………..
There may be a few people who actually applaud Mr. Pamplin's sleazy little ways of avoiding his legal responsibilities. But can anyone with an ounce of decency inside him not feel utter disgust for a man who uses his son in that way—and who risks turning an innocent 6 year old into the unscrupulous spiv that Mr. Pamplin, quite clearly, already is".
In paragraph 4 the learned pleader alleged that "in their material and ordinary meaning" the words complained of meant and were understood to mean that the plaintiff was
"a thoroughly idle, wicked and unprincipled individual, making money by shady and dishonest practices, who was prepared to convert his son into a similar state of depravity and who was to be abhorred and found repugnant by all reasonable people".
This form of pleading opened the door to the possibility of a wide-ranging defence.
On 4th July 1980 the defendants served their defence setting up inter alia defences of fair comment and justification. At that stage the defendants relied on three main matters:
-
(a) The facts relating to the registration of the car and the subsequent penalty notices and summonses alleging illegal parking.
(b) The facts relating to the television set.
(c) The convictions of Mr. Pamplin of offences under S.168(2)(b) of the Road Traffic Act 1972.
In relation to both defences the defendants relied on the conviction in October 1977 which formed the subject matter of the unsuccessful appeal to the Divisional Court in October 1979 to which I have already referred.
In relation to the defence of justification alone the defendants also relied on a further conviction in December 1979 on four similar offences contrary to S.168(2)(b).
In May 1982 the defendants amended their defence to rely in addition as part of their defence of justification on the correspondence between Mr. Pamplin and his son and the Driver Vehicle Licensing Centre in Swansea. For his part Mr. Pamplin served a reply, and later an amended reply, alleging that the words complained of had been published with express malice.
It was on these pleadings that the case came on for trial before Mr. Justice Caulfield and a jury in October 1982. On that occasion after a trial lasting two days the jury awarded Mr. Pamplin the sum of £12,000.
In May 1983, however, the Court of Appeal allowed an appeal by the defendants on the ground of misdirection and a lack of direction by the trial judge on the issue of damages. A new trial was ordered.
The new trial took place in October 1983 before Mr. Justice Bristow and a jury. On this occasion the trial lasted a week. On 17th October 1983, after a retirement lasting several hours, the jury by a majority of 10 to 2 found in favour of Mr. Pamplin on the issue of liability and awarded him one halfpenny damages. The answer of the foreman of the jury to the question "And what damages do you award?" was "We award damages of the smallest coin of the realm, which we understand to be a 1/2p".
In the course of their deliberations the jury returned to court to ask certain questions. In answer to one of these questions the jury were told that they could return a majority verdict. No problem arises as to that but two of the questions posed by the jury, questions 3 and 5, related to costs. I shall have to return later to consider the answers which the learned judge gave to these two questions because the main plank of Mr. Pamplin's appeal is that one of these answers contained a serious misdirection or non-direction by the judge.
First, however, I must deal with another aspect of the case and refer to the amendments of the defence which were made in October 1983.
On 4th October and on 10th October 1983, that is, just before and at the outset of the second trial, the defendants obtained leave to make amendments to the amended defence. As far as we have been able to ascertain, these amendments were made by consent, or at any rate without any serious objection by Mr. Pamplin. These amendments introduced a number of new matters:
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(a) An allegation of lying about the number of parking tickets received and not paid: see subparagraph (7) of the particulars under paragraph 5 of the re-re-amended defence.
(b) An allegation of dishonest conduct in October 1980 when interviewing the victim of a rape: see subparagraph (14) of the particulars under paragraph 6 of the re-re-amended defence.
(c) An allegation of falsely representing in April 1983 that he was a journalist with the Sunday Times: see subparagraph (15) of the particulars under paragraph 6 of the re-re-amended defence.
(d) An entirely fresh plea that the defendants would if necessary rely in mitigation of damages on Mr. Pamplin's conviction at Preston on 9th October 1980 of failing to provide a specimen of breath for a breath test and, on the same occasion, wilfully obstructing a Police Constable in the execution of his duty: see paragrpah 9 of the re-re-amended defence.
Evidence relating to these new matters was given at the hearing in October 1983 and this evidence was available for consideration by the jury together with the evidence tendered in support of the matters raised in the original amended defence.
Against the award of one halfpenny damages Mr. Pamplin has appealed to this court. The appeal was opened to us after the short adjournment on Monday 10th December 1984 by Mr. Nigel Ley of counsel. Mr. Ley developed some of the grounds of appeal set out in the notice of appeal, as expanded in the written skeleton argument put in on behalf of the appellant.
On the second day of the hearing, however, Mr. Ley was absent from the court and thereafter the appeal was conducted by Mr. Pamplin in person.
Mr. Pamplin is certainly not without experience in the conduct of litigation: he is a solicitors' clerk and he appeared on his own behalf both at the trial in October 1983 and on the hearing of his previous appeal to the Court of Appeal in May 1983. Nevertheless I think it is right to pay tribute to the way in which Mr. Pamplin...
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