Prager v Times Newspapers Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE PURCHAS,LORD JUSTICE NICHOLLS,LORD JUSTICE RUSSELL
Judgment Date22 July 1987
Judgment citation (vLex)[1987] EWCA Civ J0722-5
Docket Number87/0773
CourtCourt of Appeal (Civil Division)
Date22 July 1987
Morris Prager
Respondent
and
Times Newspapers Limited
Appellants

[1987] EWCA Civ J0722-5

Before:

Lord Justice Purchas

Lord Justice Nicholls

Lord Justice Russell

87/0773

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 SIMON BROWN)

Royal Courts of Justice

MR. LOUIS BLOM-COOPER Q.C. and MR. DESMOND BROWNE (instructed by Mr. Alastair J. Brett) appeared for the Appellants (Defendants).

MR. ANDREW BATESON Q.C. and MR. JOHN PREVTTE (instructed by Messrs. Wright Webb Syrett) appeared for the Respondent (Plaintiff).

LORD JUSTICE PURCHAS
1

This is an appeal by Times Newspapers Ltd. ("Times") against a ruling by Simon Brown J. given on 23rd July 1986. It raises a short but important point concerning the right of a defendant in a defamation action to plead a defence of justification to an alternative meaning of the words about which the plaintiff makes complaint. The plaintiff Morris Prager, to whom I shall refer by his professional name "Duff", was a promoter of boxing contests.

2

In its issue of the Sunday Times dated 30th January 1983, Times published an article under the headline: "Hagler's Truce". This described the relationships of Duff with others involved in the promotion of boxing contests, including one Don King and one Astaire. In the central passage of the article the following words of which complaint was made appeared:

"Duff, who spends most of his time in the United States these days, then formed alliances with Harold Smith, who was funding promotions with money stolen from the Wells Fargo Bank, and then Don King, the flamboyant black promoter."

3

Duff issued a writ on 11th February 1983. In the Sunday Times of 13th February Times published an explanation and disavowal in these terms after reference to the offending passage:

"We are glad to make it clear that we never meant to suggest that Mickey Duff was in any way involved in using stolen money to fund boxing promotions and deeply regret any misunderstanding or embarrassment which may have been caused."

4

Served with the writ was a statement of claim which set out the offending words and in paragraph 4:

"The said words bore the natural and ordinary meaning that the Plaintiff had formed an alliance with Harold Smith and that he was participating jointly with him in, or conniving at, the use of stolen money to fund boxing promotions."

5

By their defence, Times admitted publishing the offending sentence and pleaded that they were part of a longer article. The natural and ordinary meaning pleaded in the statement of claim was denied and a further denial made that any meaning of the words could have been defamatory of the plaintiff. By a further and alternative plea in paragraph 5 of the defence, Times asserted that the words "in their real, natural and ordinary meaning (and not that pleaded in paragraph 4 of the statement of claim) are true in substance and in fact". There then followed particulars of justification under six sub-paragraphs. These related to the promotion under an agreement between Smith and Duff of a contest which took place on 28th November 1980 and to agreements for two further fights in late 1980, alleging that, before the fights could take place, Smith was arrested and charged with the theft of US $21.3M from the Wells Fargo Bank. In the further paragraph Smith's conviction is recorded and the evidence produced at Smith's trial to the effect that the proceeds of the crime was used to pay large purses for boxing promotions. Finally, the particulars alleged:

"(vi) The Defendants do not allege that the Plaintiff was aware that Mr. Smith was using stolen money to fund boxing promotions, and they reiterate their denial that the words complained of bear any such meaning."

6

On the summons for directions dated 18th May 1983 the plaintiff sought, inter alia, an order striking out the whole of paragraph 5 of the defence on the grounds that it disclosed no reasonable defence. On 10th October 1983 Master Grant made no order in respect of this application. The action then went to sleep until 23rd February 1985 when the plaintiff served a notice of intention to proceed. The action was set down on 19th April 1985. On 30th October 1985 the judgments of the Court of Appeal in Lucas-Box v. News Group Newspapers Limited (1986) 1 W.L.R. 147 and (1986) 1 A.E.R. 177 were published. After giving notice on 14-th January 1986 Times issued a summons for leave to make substantial amendments to their defence. This was opposed. On 8th May Master Grant refused to grant leave for the amendment. The defendants appealed and on 10th June 1986 Alliott J. allowed the appeal, giving leave to amend subject to the deletion of the existing words of paragraph 5(vi) now forming the introduction to paragraph 5(ix) of the amended defence.

7

The amendment added to the existing particulars under paragraph 5 in a number of aspects in detail, the information for which clearly had been obtained as a result of discovery. In particular, reference was made to allegations relating to a failure to be frank with the California Athletic Commission in relation to some of the fights promoted, to failures to disclose the full amount of the purses and commissions paid under the agreements, to details of other fights including allegations of excessively large purses and large commissions received by Duff. It is not necessary to rehearse in full detail the allegations but the new form of paragraph 5(ix) must be set out. This purported to comply with the judgments in the Lucas-Box case:

The Defendants' case in relation to the matters added to the Particulars of Justification by amendment is that in the course of his business association with Mr. Harold Smith, the Plaintiff acted disreputably in conjunction with Mr. Smith by concealing from the California Athletic Commission and opposing boxers the true amount of purses being paid to boxers managed by the Plaintiff.

The unprecedented size of the true purses paid by MAPS and the fact that Mr. Smith on behalf of MAPS paid the Plaintiff as large a sum as 350,000 in cash should have made the Plaintiff suspicious about the source of the money."

8

On 22nd July 1986, when the action came on for trial before Simon Brown J. after the jury had been empanelled, Mr. Bateson, appearing for Duff, applied to strike out the whole of paragraph 5. After argument, the learned Judge ruled in these terms:

"In the result, I rule in favour of Mr. Bateson's application that the plea of justification may not here stand in its present form. I am of course prepared to hear argument as to the precise consequences upon the pleading of this ruling, but perhaps that may stand over lest there be some more fundamental submissions that counsel desires to make."

9

Counsel did not accept the invitation to adjust the pleadings and Times, through Mr. Blom-Cooper, now appeal before us against the learned judge's ruling.

10

Mr. Blom-Cooper relied on the case of Lucas-Box v. Neva Group Newspapers Limited and the acceptance by the Court of Appeal of a paragraph 11.12 in Duncan & Neill on Defamation which received the approval of this court in the case of Williams v. Reason (unreported) C.A. Transcripts 10th November 1983. The learned judge distinguished the Lucas-Box case:

"I would add only this. I have been troubled by the consideration that the Court of Appeal in Lucas-Box—a case in which superficially comparable defamatory words were published of the plaintiff—ordered the defence of justification to be pleaded and put to the jury, at least in the News of the World case, on substantially the same basis as the defendants here seek to put their case. I refer to the order that there be added to the defence in that action this paragraph: 'The defendants will invite the jury to infer from the facts and matters set out above that the plaintiff ought to have known or alternatively had reason to suspect that Petrone was an Italian terrorist suspect or alternatively that her claim to know no Italian terrorist suspects was in the circumstances puzzling or alternatively that she was careless in her choice of friends'. But reliance on any such contention formed no part of Mr. Browne's argument before me, and, despite that apparent similarity, I have concluded that the Lucas-Box decision in this regard does not assist me. The precise result there achieved is, in my judgment, explicable by reference to the differently slanted article and to that plaintiff's wider allegation as to the natural and ordinary meaning of the words complained of."

11

Mr. Bateson sought to support the learned judge on the basis that the plaintiff in the Lucas-Box case pleaded the meaning of the words in general terms ("a general charge")—see (1986) 1 A.E.R. 177 at page 178h:

"The said words, in their natural and ordinary meaning, meant and were understood to mean that the Plaintiff had knowingly assisted Italian terrorists and lied to the News of the World by denying that she knew any terrorists, alternatively that it was reasonably to be suspected that the Plaintiff had done so."

12

However, in the judgment of Ackner L.J. (as he then was) at page 183 the following passage appears:

"It seems to us to have been wholly overlooked that in both cases the defendants were asking for a substantial indulgence by the court, namely leave to amend in order to set up a plea of justification, two years after they had delivered their original defence. In such a situation, whatever may be the theoretical problems that the defendants might face, the court should not, in our judgment, have hesitated in ordering the defendants so to plead their case that the plaintiff knew quite clearly what the...

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