Polanski v The Conde Nast Publications Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE SIMON BROWN,Lord Justice Simon Brown,Lord Justice Jonathan Parker,Lord Justice Thomas
Judgment Date11 November 2003
Neutral Citation[2003] EWCA Civ 1573,[2003] EWCA Civ 1505
Docket NumberA2/03/2225,Case No: A2/2003/2225/QBENI
CourtCourt of Appeal (Civil Division)
Date11 November 2003

[2003] EWCA Civ 1505

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

(MR JUSTICE EADY)

Court 63

Royal Courts of Justice

The Strand

London WC2A 2LL

Before:

Lord Justice Simon Brown

Lord Justice Jonathan Parker

Lord Justice Thomas

A2/03/2225

Between
Roman Polanski
Claimant
and
The Conde Nast Publications Limited
Defendant

MR R THWAITES QC and MS H ROGERS appeared on behalf of the Claimant

MR T SHIELDS QC and MR M BARCA appeared on behalf of the Defendant.

RULING

(submitted for approval)

LORD JUSTICE SIMON BROWN
1

On the video conferencing appeal, for reasons which we shall give later in writing, we allow the appeal, set aside the judge's direction under CPR 32.3 and further indicate that, if the respondent were to seek to put in his statements as hearsay evidence and the appellants in those circumstances were to apply to call him to be cross-examined upon their contents, the court would be bound to allow such application and if the respondents were not to attend court in person for such cross-examination, the court would then be bound to exclude the statements from evidence.

2

On the paragraph 6.1 appeal we make no order, but we indicate that in our judgment, if and insofar as evidence of the facts referred to in paragraph 61(iv) of Eady J's judgment of 21st October 2003 is already before the court in relation to mitigation of damages or otherwise, it will be open to the appellants to address the jury to the effect that they might think it less improbable in those circumstances that the respondent attempted to seduce another man's female companion on 27th August 1969 than would otherwise be the case.

3

We do not propose to give any further or other judgment with regard to the paragraph 6.1 appeal, which I doubt anybody feels is necessary.

Appeal allowed.

No order as to paragraph 6.1 appeal.

Costs to be determined when judgment is handed down.

Leave to appeal to be determined when judgment is handed down.

[2003] EWCA Civ 1573

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(Mr Justice Eady)

QUEEN'S BENCH DIVISION

Before:

Lord Justice Simon Brown

Lord Justice Jonathan Parker And

Lord Justice Thomas

Case No: A2/2003/2225/QBENI

Between:
Roman Polanski
Respondent
and
The Condé Nast Publications Limited
Appellant

T Shields Esq, QC & M Barca Esq (instructed by Messrs Reynolds Porter Chamberlain) for the Appellants

R Thwaites Esq, QC & Ms H Rogers (instructed by Messrs Schillings) for the Respondent

Lord Justice Simon Brown

Introduction

1

Roman Polanski (the respondent), the celebrated film director, is the claimant in a libel action against the appellants due to be heard on 3 November 2003 before Eady J and a jury. On 9 October 2003 Eady J ordered that he be permitted to give his evidence in that trial by video conference link ("VCF") from a Paris hotel. The order was made under CPR 32.3 which provides that:

"The court may allow a witness to give evidence through a video link or by other means".

2

The reason why the respondent does not wish to give his evidence live in London is lest he be arrested here and extradited to the United States from where he fled on 31 January 1978. He fled having pleaded guilty on 8 August 1977 before a Californian court to unlawful sexual intercourse with a 13-year old girl for which he has yet to be sentenced. The appellants submit that in these circumstances no VCF order should have been made in his favour.

The libel action

3

The defamation complained of appeared in an article published by the appellants in the July 2002 edition of Vanity Fair magazine. The relevant words are these:

"'The thing about Elaine's' says Lewis Lapham, 'is that nobody will allow himself to be impressed by anybody. You could say, 'I just sold 17,000 copies of my book today' and they'd ask what you did yesterday. The only time I ever saw people gasp in Elaine's was when Roman Polanski walked in just after his wife Sharon Tate had been murdered by the Manson clan. I was sitting at a table with a friend of mine who had brought the most gorgeous Swedish girl you ever laid eyes on. I don't think I've ever seen a more beautiful woman. Polanski came over and asked to join us. It turned out that Polanski had been in London when the atrocity took place and he was on the way back to Hollywood for the burial. The Swedish beauty was sitting next to me. Polanski pulled up a chair and inserted himself between us, immediately focusing his attention on the beauty, inundating her with his Polish charm. Fascinated by his performance, I watched as he slid his hand inside her thigh and began a long honeyed spiel which ended with the promise 'I will make another Sharon Tate of you.'"

4

The respondent relies upon the natural and ordinary meaning of the words which, he contends, have the following defamatory meanings:

"(1) Whilst on his way back from London to Los Angeles to attend the burial of his wife, Sharon Tate, who had just been viciously murdered, the Claimant had stopped off in New York and, in the course of a visit to Elaine's restaurant, publicly and shamelessly seduced the female companion of one of the other customers.

(2) In the course of this seduction and as an inducement for her sexual favours, the Claimant had promised to make the girl famous with the words: 'And I will make another Sharon Tate out of you.'

(3) The Claimant by his said conduct had shown such appalling and callous indifference to the fate of his murdered wife that even the hardened regulars of Elaine's had gasped in astonishment."

5

The appellants deny those meanings and allege that the words complained of were true in the following, Lucas-Box, meaning:

"Even though his wife had just been viciously murdered, the Claimant had shown a callous indifference to her memory by shamelessly exploiting her name, and the prospect of emulating her fame, in order to make sexual advances on another man's female companion who he had only just met in a restaurant."

6

The appellants do not now suggest that the incident at Elaine's occurred, as the article had said, when the respondent "was on the way back to Hollywood for the burial" (Sharon Tate's burial which took place on 13 August 1969 following her murder on 9 August 1969) but possibly on 27 August 1969 when, it appears, the respondent was at Elaine's, during part of the evening in the company of Ms Mia Farrow. The respondent and, so far as she can help, Ms Farrow, say in their statements that nothing whatever of the kind alleged in the article occurred that evening; the respondent made no attempt to seduce anyone's companion, still less by exploiting Sharon Tate's name and fame. The appellants, however, seek to justify the Lucas-Box meaning of the words and to that end propose to call Mr Lapham and the "friend" to whom the article referred, Mr Perlberg. Ms Farrow, Mr Lapham and Mr Perlberg are all due to give live evidence at the trial.

7

Apart from the defence of justification the appellants rely upon a number of pleaded matters in extinction or mitigation of damages, alleging that "the claimant is a convicted sex offender with a bad reputation as a dissolute and shameless sexual predator". By Eady J's most recent interlocutory judgment given on 21 October 2003, he permitted the respondent to abandon an innuendo plea and a claim for aggravated damages and ruled that the appellants could seek to mitigate damages by reference to the following matters (which the judge said was "not necessarily an exhaustive list"):

"(i) The claimant pleaded guilty to sexual intercourse with a 13-year old girl in 1977 at a time when he was 43 years old.

(ii) He has never been sentenced for that offence and has stayed out of the United States since 1 February 1978, rather than face a term of imprisonment.

(iii) Before his first wife Sharon Tate's death, the claimant on his own admission in the autobiography regularly committed adultery on a casual basis because he had what might be described as an 'open marriage' and he drew a distinction in his own mind and in his own words between sex and love.

(iv) Within three or four weeks of her death, he resumed his casual sexual activities (including, apparently, having intercourse towards the end of August or beginning of September with two air hostesses).

(v) He was quoted in the Mail on Sunday in a lengthy feature article as admitting … that his reputation had never been his strongest asset."

8

Mr Thwaites QC told us in argument that he would propose to open and admit most of those matters at trial. What the respondent complains of is less them than, as he put it in his statement of 13 June 2003: "How shocking the story is, how deplorable it would have been for me to have behaved in such a way, what a callous betrayal of Sharon's memory it would have been. The story is just false. I cannot let it lie uncorrected."

9

The issues at trial are thus in a relatively small compass. Nevertheless, at their heart lies the respondent's character and reputation and the truthfulness of his account of his August 1969 visit to Elaine's.

10

It is convenient at this stage to record the following facts:

i) Having fled the United States, the respondent passed through London on 1 February 1978 en route to France where he has lived ever since. He has never returned either to England or to the United States.

ii) The...

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