Richard v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 18 July 2018 |
| Neutral Citation | [2018] EWHC 1837 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2016-002849 |
| Date | 18 July 2018 |
[2018] EWHC 1837 (Ch)
Mr Justice Mann
Case No: HC-2016-002849
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Justin Rushbrooke QC and Godwin Busuttil (instructed by Simkins LLP) for the Claimant
Gavin Millar QC and Aidan Eardley (instructed by BBC Litigation Department) for the First Defendant
Jason Beer QC and Adam Wolanski (instructed by DWF LLP) for the Second Defendant
Hearing dates: 12 th&13 th, 16 th–20 th, 23 rd–26 th April, 8 th & 9 th May 2018
Judgment Approved
Introduction
The claimant, Sir Cliff Richard OBE, is a well known entertainer who has enjoyed a worldwide reputation as such since the late 1950's and early 1960's. The first defendant is the publicly funded UK broadcasting organisation. The second defendant represents, as his name suggests, the police force which polices the South Yorkshire area, which I shall call SYP.
Until the events of this case Sir Cliff was still pursuing his career even though he was by then in his early 70's. In 2014, and unknown to him, he became the subject of an investigation by the police in relation to allegations of an historic sex offence. That investigation was, at the time, being conducted by SYP. Mr Daniel Johnson (“Mr Johnson”), a BBC reporter, had found out about the investigation from a confidential source and approached SYP (in the form of a media officer, Miss Carrie Goodwin) about it. That led to a meeting with her and Supt Fenwick of SYP at which he was told about an intended search of Sir Cliff's English home (which turned out to be in a secure gated complex in Sunningdale, Berkshire) and it was agreed that Mr Johnson would be given advance notice of the search when it had been arranged. The contents of that meeting are hotly contested and form the principal area of disputed fact in this case. The search took place on 14th August 2014 and the BBC immediately gave prominent and extensive television coverage to it, as it was happening and thereafter. The search and the police investigation immediately gained very wide currency, first on the BBC and then, very rapidly, via other media outlets world-wide. Sir Cliff apparently remained under investigation until June 2016 when it was announced that there would be no charges brought against him.
In this action Sir Cliff claims that both the BBC and the SYP violated his rights both in privacy and under the Data Protection Act 1998 (“ DPA”). He claims substantial damages because his life and finances have been radically affected by what happened. In May 2017 Sir Cliff reached a settlement with SYP who accepted liability, apologised, made a statement in open court accepting liability, paid Sir Cliff damages of £400,000, agreed to pay his costs and paid £300,000 on account of that costs liability.
The BBC has continued to resist the claim, which now comes before me. In this trial I am invited to decide questions of liability, general damages, and some limited points about special damages. In addition, there are before me contribution proceedings between the BBC and SYP. SYP claims a contribution from the BBC towards the damages it is liable for, which the BBC resists, and the BBC itself seeks what is in effect an indemnity against any damages it might be liable for. SYP also claims a contribution in relation to its accepted costs liability to Sir Cliff.
Mr Justin Rushbrooke QC led for Sir Cliff; Mr Gavin Millar QC led for the BBC; and Mr Jason Beer QC led for SYP.
Witnesses – the claimant
The following witnesses gave evidence to me for the claimant, either in person or, in two cases, in unchallenged witness statements.
Sir Cliff Richard
He was (obviously) the claimant in this matter. He has a long and well known history in the entertainment (rock ‘n’ roll) industry going back to the late 1950s. He rapidly acquired a high profile and a great public following, which has persisted to this day. He is now 77, but has continued to work, though at a lower pace than when he was a younger man. In the decade to 2014 he released 7 albums and he still makes public appearances. He is also known for his publicly stated Christian beliefs and position, and his participation at various Christian events.
Sir Cliff gave evidence of how it was that he came to hear of the search of his property and the police investigation, and the effect that the events of this case had on him. He was a compelling witness, and was not accused of any exaggeration. I accept his evidence in full.
Detective Superintendent Matthew Fenwick
At the time of the events in question in this case Detective Superintendent Fenwick (to give him his full title) was the officer (relatively recently appointed) in charge of the public protection unit of SYP. Although he retired in December 2017, and was a civilian at the time he gave his evidence, I shall call him Supt Fenwick in this judgment.
Supt Fenwick gave evidence of how it was that SYP came to give the BBC details of the search of Sir Cliff's property, and to give or confirm other details of the investigation. He was involved almost from the beginning of the BBC's contact with SYP on the point. I consider him to have been a clear and reliable witness whose evidence was credible and, ultimately, very materially corroborated. At the trial he gave evidence as Sir Cliff's witness, not as SYP's witness; he was not examined by SYP at all.
Miss Carrie Goodwin
Miss Goodwin is, and at the relevant time was, the head of corporate communications at SYP. Although an employee of SYP, like Supt Fenwick she gave evidence for the claimant (and was not cross-examined by SYP). It was a large part of her job to liaise with the media over police issues, and it was she who had the first contact with Mr Johnson in relation to Sir Cliff. She then continued the contact and relationship thereafter as events unfolded. She participated in the crucial meeting at which Mr Johnson was promised details of the intended search of Sir Cliff's property and was therefore an important witness. She gave evidence of all those matters.
Having considered carefully how she came over in the witness box, I am satisfied that she was a careful and reliable witness, and an honest one. It is necessary to make that last point because part of the case of the BBC involves allegations that she fabricated notes of meetings and conspired to present a false story to the world when SYP and the BBC came under criticism after the search. Based on my impression of her in the witness box, the probabilities and the rest of the evidence, I find that she was not guilty of such dishonesty.
Mr Philip Hall
Mr Hall is the chairman and founder of PHA Media Limited, Sir Cliff's public relations consultants. He suddenly found out about the search when, on holiday in Spain, he was called out of the blue to be told that the search was in train, and he had to handle the matter at the time and the subsequent PR fall-out. He gave evidence of those matters (and most importantly for present purposes his dealings with the BBC on the day). He was a careful witness whose evidence can generally be accepted.
Miss Gloria Hunniford
Miss Hunniford is a television and radio presenter and a close friend of Sir Cliff. Via a short witness statement, on which she was not cross-examined, she gave evidence of her own perception of the effect that the events of this case have had on Sir Cliff. Since her evidence was not challenged I accept it all.
Philip Daval-Bowden
Mr Daval-Bowden is a costs lawyer and provided a witness statement dealing with the allocation of legal costs between various post-event legal matters when the effects of the publicity were being dealt with by lawyers. While I think that he may have technically produced, via his witness statement, some of the background documents relevant to some of the special damages points that arose before me, no-one ever referred to his witness statement and I think I can ignore it.
Mr Gideon Benaim
Mr Benaim is a partner in Simkins LLP, solicitors who acted for Sir Cliff in relation to his various affairs. He was called in immediately the search became known (though criminal solicitors were also instructed) and he and his firm dealt with the aftermath of the publicity given to the search in terms of dealing with the media and others, as will appear below. He gave evidence of those matters, and of the detail of certain transactions that were taken as sample cases for the purposes of determining some of the special damages points that arose. His credibility was not materially challenged, and I accept his evidence generally.
Mr Neil McLeod
Mr McLeod was and is a senior consultant at PHA Media Ltd, Sir Cliff's PR consultants. He gave brief witness statement evidence of the history of his company's work for Sir Cliff, of his involvement in the events of 14 th August and in subsequent events. He was not cross-examined so his evidence went in unchallenged.
Mr Paul Morris
Mr Morris is and was a partner in BCL Solicitors LLP, formerly known as BCL Burton Copeland (“BCL”). His firm was instructed at very short notice to attend at the search and subsequently to act for Sir Cliff in the criminal investigation. He gave short evidence of the former matter. His credibility was not challenged, and I accept all his evidence (which, in truth, does not advance matters much anyway).
Mr Malcolm Smith
Mr Smith is, and has for very many years been, Sir Cliff's business manager. He gave some evidence of the events of 14 th August (mainly in cross-examination as opposed to in his witness statement), and the rest of his evidence concerned Sir Cliff's business...
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