Turner v News Group Newspapers Ltd and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Moses,Lord Justice Pill |
| Judgment Date | 16 May 2006 |
| Neutral Citation | [2006] EWCA Civ 540 |
| Docket Number | Case No: A2/2005/1166 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 2006 |
[2006] EWCA Civ 540
Lord Justice Pill
Lord Justice Keene and
Lord Justice Moses
Case No: A2/2005/1166
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE HIGH COURT OF JUST
QUEEN'S BENCH DIVIS
(The Honourable Mr Justice Eady)
HQ04X03523
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Desmond Browne QC (instructed by Messrs Campbell Hooper) for the Appellant
Miss Adrienne Page QC (instructed by Messrs Farrer & Co) for the Respondent
Introduction:
This case is concerned with a dispute about the amount of compensation payable in a libel case under section 3(5) of the Defamation Act 1996 ("the 1996 Act") , a provision which deals with the situation where an offer to make amends has been accepted but where the parties do not agree on the compensation payable. In such circumstances, section 3(5) provides that the amount of compensation
"shall be determined by the court on the same principles as damages in defamation proceedings."
The issues in the present case include the scope and effect of the decision of this court in Burstein v. Times Newspapers Ltd [2001] 1 WLR 579 and in particular how far evidence of particular facts providing "directly relevant background context" is admissible in mitigation of damages in a case under section 3(5) of the 1996 Act. We are told that this is the first case to come before this court where the Burstein decision has had to be considered in an offer of amends case.
The appeal is brought by the claimant in the proceedings, Mr David Turner, against a decision of Eady J, who awarded compensation of £9,000 to the claimant. There were, nominally at least, two defendants to the claim, the second, Arisara Turner, being a former wife of the claimant. Her whereabouts, however, were and are unknown. The first defendant, News Group Newspapers Ltd, is the publisher of the News of the World newspaper.
The claim arose out of an article published in that newspaper on 15 February 2004. The article formed part of a larger two-page spread, entitled "How explosion in sex parties can be make-or-break affairs" and "SWINGERS AND LOSERS!" The specific article about which Mr Turner complained was headed "ARISARA 'It turned me on – but in the end it wrecked my marriage'." There then followed these words:
"THE swinging scene was meant to spice up sultry Arisara Turner's marriage – but ended up wrecking it.
The beautiful photographer (pictured right) was 25 when she was introduced to a circle of middle-class swappers by her businessman husband at a Coventry club.
'I was nervous and needed Dutch courage', recalled Arisara, who lives in west London.
'But inside I spotted a woman eyeing me up and we ended up in a clinch as my husband watched. He couldn't seem to get enough and it turned me on.
Doctors
'But he kept pressuring me to have sex with the men too, and that I didn't like – even though they were quite well-to-do people, even policemen and doctors.
'After a while I got fed up with it and decided I didn't want to go any more. That caused furious rows at home and in the end we divorced'."
The photograph on the right was of the second defendant. As Eady J noted at paragraph 4 of his judgment, the claimant was not mentioned by name in the article and so would have been identifiable only by those readers who could recognise the photograph as being of one of his former wives. He and the second defendant had in fact married in February 1999 but separated two years later and divorced in November 2001. Co-habitation was then resumed for a further period, but they separated again in September 2003.
The particulars of claim relied upon eight natural and ordinary meanings of the words complained of, those meanings being that:
"5.1 the Claimant is and/or was involved in a twilight world of swingers and wife-swapping and was depraved and immoral.
5.2 the Claimant is and/or was a member of a Coventry based sex, swinging and/or wife swapping club and/or circle.
5.3 the Claimant is and/or was accustomed to having sex with strangers and that the consequence of the Claimant's "craze" for sex with strangers was the breakdown of his marriage.
5.4 the Claimant introduced the Second Defendant to a circle of middle-class wife-swappers.
5.5 the Claimant obtained perverse enjoyment from watching the Second Defendant "in a clinch" with another woman.
5.6 the Claimant pressurised the Second Defendant to have sex with other men.
5.7 the Claimant is and/ or was a swinger and/or a wife-swapper and/or a loser.
5.8 the Claimant's marriage to the Second Defendant broke down and they divorced as a consequence of swinging and/or wife-swapping."
The proceedings were begun by a claim form dated 13 April 2004. Before taking this step, Mr Turner had written to the editor of the News of the World to complain on 17 February 2004, referring to the allegations in the article as defamatory and seeking the editor's comments and proposals. Having received no response, he sent a further copy of the same letter on 26 February 2004 and on the same day complained to the Press Complaints Commission. Eventually, after he had sent a further letter threatening to begin proceedings, and enclosing a draft "statement of claim", Mr Turner received a brief reply dated 26 March 2004. That came from the first defendant's legal manager, who indicated that he was making enquiries.
A more substantive response followed in a letter dated 5 April 2004 from the legal manager. This did not accept that the article was inaccurate and continued:
"Your former wife maintains that she has told the truth. Several other people to whom we have spoken lend support to her account. We are also aware that, whilst you were married to her you arranged for her to be photographed (professionally) in "top shelf"/pornographic poses.
In the circumstances, we do not think it would be appropriate offer you the "proposals" you seek."
The claimant was not satisfied with that response, as he made clear in a letter dated 6 April 2004. In that letter, he referred to there being "serious doubt" as to the reliability and integrity of his ex-wife and stated:
"I have never disputed the fact that Mrs Turner was during our marriage a professional free lance photographic model and that I acted in common with others, as her agent in obtaining work of (inter alia) the type you refer to. This is widely known and I do not see that it has any relevance whatsoever to my complaint."
The claim form in the proceedings then followed on 13 April 2004. An unqualified offer to make amends under section 2 of the 1996 Act was made by solicitors on behalf of the first defendant by letter dated 18 June 2004. As required by that statutory provision, it offered to make and publish a suitable correction of the statement and an apology, and to pay compensation and costs "as may be agreed or determined to be payable". But it also gave notice that, if agreement on compensation could not be reached, further matters would be relied on. The judge rightly noted that the 18 June 2004 was the last opportunity to make an offer of amends, since such an offer could not be made once a defence had been served, and that date was when the defence was due to be served.
Amongst the "further matters relied on" was a Burstein plea of mitigation attached to the letter. It consisted of 28 paragraphs which in considerable detail described what were referred to as "lurid sexual practices" engaged in by the claimant. The bulk of these allegations were subsequently withdrawn, as I explain later, and in those circumstances the judge felt it unnecessary to set them out in his judgment. I share that view. He stated, however, that he would have to do his best to take that document into account.
The claimant accepted the offer to make amends by letter dated 9 July 2004. Negotiations then ensued as to the form of the apology and as to matters relevant to the amount of compensation. A correction and apology were published in the News of the World on 15 August 2004. In the course of correspondence the claimant made some limited admissions as to the matters alleged in the Burstein plea. This became of importance because in due course Mrs Turner was found to be missing. She had supplied a signed witness statement to the first defendant, but in her absence the first defendant decided that it could no longer persist in the full range of allegations set out in its Burstein plea. By a letter of 16 December 2004 it identified certain matters upon which it still intended to rely when it came to the assessment of compensation, but by implication the first defendant limited itself to those identified matters. It again identified those matters in a document served on 22 February 2005 and described as "Outline of the First Defendant's Case".
These were effectively three in number. The first was the membership of the claimant and the second defendant of a Coventry-based private members' club called Caesars, which they were said to have attended on "fetish nights" on four or five occasions. The club was said to advertise itself as "the Midlands Leading Fetish, BDSM and Swingers Club" (BDSM standing for "Bondage and Discipline, Dominance and Submission, Sadism and Masochism") .
The second matter was the role of the claimant as the second defendant's manager or agent in arranging for her to be professionally photographed in pornographic poses, described by the first defendant's counsel at trial as "open leg shots" and "girl on girl" poses. The claimant was alleged to have encouraged...
To continue reading
Request your trial
-
Matthias Rath v (1) Guardian News and Media Ltd (2) Ben Goldacre
...admissible as material to the circumstances of publication, particularly on the test as stated in Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 W.L.R. 3469 at [56]: “I accept the point made in argument that it is somewhat repetitive to use the words “background” and “con......
-
Martin Gilham v MGN Ltd
...damages on a false basis if they were kept in ignorance of the facts to which the evidence relates, Turner v News Group Newspapers [2006] EWCA Civ 540 per Keene LJ at 62 There is a dispute about whether the bare fact of the claimant's dismissal from his job (and his subsequent unsuccessful......
-
Dr Craig Steven Wright v Magnus Granath
...damages on a false basis if they were kept in ignorance of the facts to which the evidence relates, Turner v News Group Newspapers [2006] EWCA Civ 540 per Keene LJ at [56]. 62 There is also what is known as the rule in Dingle (from Dingle v Associated Newspapers Limited [1964] AC 371). Thi......
-
Tariq Alsaifi v Trinity Mirror Plc & Board of Directors and Another
...appears to be Waters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967. The Court of Appeal referred to this case in Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 [48], but I do not read this paragraph as endorsing the principle. On the contrary, the final sentence of the paragraph ......
-
Table of Cases
...of the Bank of England (No. 6)[2005] 1 AC 610 . . . . . . . . . . . . . . . . . . . . . . . 322Turner v News Group Newspapers Ltd [2006]EWCA Civ 540, [2006] 1 WLR 3469, CA. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134–138United States v Astorga-Torres, 682 ......
-
Facts Relevant to the Assessment of Damages in Defamation: Turner v News Group Newspapers Ltd
...merchant’.4 But evidence of discreditable behaviour is not generally admissible to * Email roderick.bagshaw@magd.ox.ac.uk. 1 [2006] EWCA Civ 540, [2006] 1 WLR 3469, CA. 2 The particulars of claim identified these as among the natural and ordinary meanings of the wordsof which complaint was ......