Slipper v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STOCKER,LORD JUSTICE BINGHAM,LORD JUSTICE SLADE |
| Judgment Date | 25 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0525-5 |
| Docket Number | 90/0485 1988 S NO.7702 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 1990 |
[1990] EWCA Civ J0525-5
Lord Justice Slade
Lord Justice Stocker
and
Lord Justice Bingham
90/0485
1988 S No.7475
1988 S NO.7702
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 MICHAEL DAVIES)
Royal Courts of Justice
MR. CHARLES GRAY Q.C. and MR. ANDREW CALDECOTT (instructed by The BBC Solicitor's Department, London, W1A 1AA) appeared on behalf of the Defendant (Appellant).
MR. DESMOND BROWNE QC (instructed by Messrs. Peter Carter-Ruck & Partners, Solicitors, London, WC1R 3AH) appeared on behalf of the Plaintiff (Respondent).
This is a defendant's appeal brought by leave against the order of The Hon. Mr. Justice Michael Davies made on 8th February, 1990, whereby he dismissed the defendant's appeal from that part of the order of Master Hodgson made on 20th November, 1989, as refused to strike out paragraph 7(b) of the plaintiffs' statement of claim in Action 1988 S No.7702. The defendants on this appeal seek to have these orders set aside and an order that the paragraph referred to be struck out pursuant to 0. 18 r.19 of the Rules of the Supreme Court and/or under the inherent jurisdiction of the court.
The action relevant to this appeal is one of two consolidated libel actions.
The underlying facts giving rise to the action may be summarised as follows:—
The plaintiff is now a security consultant. At the relevant time he was a Detective Chief Superintendent in the Metropolitan Police and Operational Chief Superintendent of the Flying Squad.
In the 1960's there occurred a major, and highly publicised, robbery popularly known as "The Great Train Robbery". One of the robbers was a man named Biggs who was convicted and sentenced to 30 years' imprisonment. He escaped from prison and went to Brazil. The plaintiff and another officer, Detective Sergeant Peter Jones, in January 1974 were sent to Brazil to bring Biggs back to this country. They failed to do so.
In 1986 the defendants made a film recounting these abortive efforts and the plaintiff contends that he was portrayed in this film in a manner which was defamatory, both personally and professionally, and in particular that he was portrayed as a ridiculous buffoon and an incompetent police officer. The film was based upon a book by a Mr. Delano originally entitled "Slip-Up" and the BBC film was made in 1986. Certain omissions from this version of the film were made before its publication on the dates indicated and in its published form, when broadcast, it was entitled "The Great Paper Chase". On 3rd November 1988 the defendants showed and published this film by way of a preview to press and television journalists. The judge found, and it is not disputed, that the purpose of this preview was to obtain publicity for the film in the national press, both before and after the public broadcast. The plaintiff by writ issued on 4th November, 1988, commenced proceedings for libel in respect of this preview publication by Action 1988 S No. 7475.
On 11th November, 1988 this film was broadcast and published to the public at large on BBC 1. It was shown on the evening of that date and some of the reviews which it is contended are relevant to the assessment of general damages appeared in the press the next day, 12th November.
In respect of this public broadcast the plaintiff issued a writ on 15th November, 1988 in Action 1988 S No.7702.
The two actions have been consolidated by Order dated 4th July, 1989.
In the main the allegations made by the plaintiff in support of his claim that the film was libellous of him are the same in both actions, being based upon the same film, but there is a difference which is significant in the context of the orders made and of this appeal. In the second action concerning the public transmission there is a pleaded paragraph which does not appear in the preview action. It is paragraph 7(b) and reads as follows:
"7(b). In support of his claim for general damages the Plaintiff relies on the following facts and matters:—
(i) As the Defendants well knew and could and did foresee a major film such as that broadcast by them concerning the Plaintiff was likely to be reviewed in the national press and the contents thereof rehearsed in such reviews. Further or in the alternative it was the natural and probable consequence of such broadcast that the film and its contents were likely to be reviewed in the national press.
(ii) In the premises the Plaintiff contends that the following passages from reviews which repeat the defamatory sting of the said film should be taken into account in assessment of general damages."
There is then set out the reviews said to be relevant to the plea and published in The Times, The Daily Telegraph and the Daily Mail on 12th November, 1988 and in the Sunday Times on 13th November, 1988 and The Sun on 16th November, 1988. There were many other reviews but the plaintiff does not rely upon these in support of his contentions.
It is contended, and it would seem to me to be manifest, that the reviews would be read by a number of persons who had not seen the original broadcast and thus enlarge the number of persons to whom the libel was published if the reviews had that effect. The plaintiff contends that the "sting" of the libel was necessarily reproduced in the reviews if a coherent review was to be made at all, or at least that it was foreseeable that this would be so. Accordingly, they contend that the reviews in question are relevant to the assessment of the general damages to be awarded in respect of the libel published by the defendants in the public broadcast and that this contention could have been raised at trial without being pleaded.
At the risk of some over-simplification, the defendants contend inter alia that the defendants in a libel action are not liable for the repetition of such a libel by an independent third party who was not their agent unless such third party is authorised or intended or morally bound to do so. They further argue that insofar as the plea under paragraph 7 does not put forward any claim that the defendants were liable for the repetition as a separate cause of action, this issue is still relevant to the matters raised on this appeal since, if the defendants are not liable, a paradoxical situation, and one which must be wrong in principle, is created, singe it would render the defendants liable for part of the damages in respect of a repetition or fresh libel for which they are not, in law, liable. They further contend that the reviews are not "repetitions", at all but original publications by a third party. They argue that if the real issue on this appeal is the question of remoteness of damage that the authorities, including those concerned with liability for repetition of a defamatory statement indicate that foreseeability is not the correct test, but even if it were the damages claimed are too remote to be recoverable.
The judge, after considering the arguments which had been addressed to him, and some of the authorities cited, expressed his conclusion in the following terms. They appear in the judgment on page 6F to 7A:—
"Against that background—and as I say I am not going to attempt to go through everything to which the court has been referred—it seems to me that it is not possible to isolate the reviews from the original publieation. They do seem to me to contain the sting of he libel which is relied upon namely the depiction or the Plaintiff as—and these are not the exact words, these are my summary—a bumbling fool. Are they the natural consequence of the original publication? I have come to the conclusion that it is impossible to say that they are not with the confidence which would be required to justify striking out. I am impressed by the facts which I recited at the beginning of this ruling, namely the quite deliberate showing of this programme to the media and the inference which I have drawn that the intention was that the media should reproduce the punch of the programme."
The following are put forward by the defendants as their grounds of appeal:
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(1) The learned judge erred in law in holding that the plaintiff could recover damages from the defendants for injury to his reputation arising from reviews of the programme complained of in that:—
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(a) The defendants are not liable in law for publications which they have not authorised and/or
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(b) The reviews do not re-publish the programme complained of but are an independent reaction to, and assessment of, the same programme over which the defendants have no control and/or
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(c) The learned judge was bound by the decision of Ward v Weeks [1830] 7 Bingham, 211 as approved by the majority of the House of Lords in Weld-Blundell v Stephens [1920] AC, 956 and/or
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(d) The reviews would have been read by many readers of the newspapers pleaded who had not seen the programme complained of and/or
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(e) It is contrary to principle for A to be liable for B's words where publication of the words by B is merely a natural and probable consequence of A's acts.
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(2) The learned judge erred in treating the issue as arguably one of fact for the jury rather than as an issue of law for the judge which could properly be determined at the interlocutory stage.
I therefore turn to consider some of the authorities which have been cited to us, in the light of these submissions. Ward v Weeks [1830] 7 Bingham, 211. In this case the defendant made a defamatory statement concerning the plaintiff to...
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