Warren v The Random House Group Ltd (No. 1)
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE GRAY,THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady,Mr Justice Gray |
| Judgment Date | 20 December 2007 |
| Neutral Citation | [2007] EWHC 2856 (QB),[2007] EWHC 3062 (QB),[2007] EWHC 2860 (QB) |
| Docket Number | Case No: HQ06X03905 |
| Court | Queen's Bench Division |
| Date | 20 December 2007 |
[2007] EWHC 2860 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Gray
Case No: HQ06X03905
Adrienne Page QC and William Bennett (instructed by Carter-Ruck Solicitors) for the Claimant
Desmond Browne QC and Matthew Nicklin (instructed by Simons Muirhead & Burton Solicitors) for the Defendant
Hearing dates: 20 th, 21 st & 22 nd November 2007
Approved Judgment (II)
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Gray
The application to be decided.
In an earlier judgment in this case I refused the application of the defendant, The Random House Group Limited, for permission to amend its defence. The effect of the proposed amendment had been to withdraw the defence based on its offer of amends and to substitute for it a plea of justification in respect of one of three passages complained of by the claimant, Mr Warren, in its book about the career of the boxer Ricky Hatton. For the purpose of that judgment it was necessary for me to say little of the factual and procedural background to the case.
This judgment deals with two cross-applications. The first is an application by the defendant for permission to amend its defence. The amendment sought is in part necessitated by my earlier refusal to grant permission to the defendant to amend its defence to substitute a plea of justification for its reliance on the offer of amends (which was the subject of my earlier judgment). The amendment for which permission is now sought by the defendant makes substantial revisions and additions to what are known as “ Burstein particulars”. This application is opposed in its entirety by the claimant. In addition the claimant makes a cross-application to strike out the Burstein particulars as they originally stood.
The procedural history
As I have said, it was unnecessary for me in my earlier judgment to say a great deal about the procedural history of this case. The dates which are for present purposes material are these: the Particulars of Claim were served on 21 December 2006. On 7 March 2007 the defendant made an offer of amends in respect of one of the three passages complained of in the defendant's book. The letter containing the offer accepted that the facts as recounted in that passage were incorrect and needed to be corrected. On 12 March 2007 the defence was served; in addition to reliance on the offer of amends which had been made, it included Burstein particulars. Those particulars included an allegation that the boxer Mr Phillips had attempted to renegotiate his fee in the light of the fact that the fight with Mr Hatton was to be televised on the US television programme Showtime (“the Phillips allegation”). The defendant's offer of amends was accepted in the Reply served on 18 April 2007. That pleading also included a challenge to the admissibility of the Burstein particulars as they then stood. Thereafter it was agreed that the substantive libel action should be tried by judge and jury but that statutory compensation (if any) in respect of the publication which was the subject of the accepted offer of amends should be tried by judge alone. Disclosure took place on 7 June 2007 and inspection followed on 27 June 2007.
On 4 October 2007 a statement in open court was read. It related only to the passage complained of which was the subject of the defendant's offer of amends, subsequently accepted by the claimant. In that statement Counsel for the defendant apologised for the publication of the passage in the book which alleged that the Claimant had dishonestly “conned” Mr Phillips into accepting a fee of £50,000 for fighting Mr Hatton by falsely telling him that Showtime were not interested in televising the fight on US television.
On 6 November 2007 the defendant served a draft amended defence which withdrew the reliance previously placed on the accepted offer of amends and instead pleaded justification with supporting particulars. That was the pleading for which I refused permission for the reasons given in my earlier judgment.
At the conclusion of the earlier hearing on 21 November 2007, I announced my decision to refuse permission to make the amendment and told the parties that I would hand down a reasoned judgment as soon as possible thereafter. Thereupon the defendant set about preparing a substitute draft amended defence, which was served on the claimant that same evening and produced in court the following morning.
The re-formulated Defence
The reformulated amended defence runs to over 30 pages. Much of it is devoted to the defences of justification which are advanced in respect of the other two passages in the book of which the claimant complained but in respect of which no offer of amends was made by the defendant. For present purposes nothing turns on those pleas of justification. They will in due course be determined by judge and jury.
What is relevant to the present application is that part of the draft amended defence which deals with the Phillips allegation. There is no longer any defence of justification to that allegation because I refused permission to add it. Following my earlier ruling, however, the offer of amends defence has been resurrected, albeit with a number of significant changes. The paragraphs which are material for present purposes are paragraphs 6.4 to 6.6 inclusive. In order to make this judgment easier to follow, it is necessary to for me to set out those paragraphs verbatim:
“6.4 In the event that the Claimant accepts the offer of amends, The Defendant intends to will rely, in mitigation or extinction of any compensation payable to the Claimant upon:
6.4.1. such matters as are proved under Paragraph 5 above; and
6.4.2 the following matters which are directly relevant to the contextual background in which a defamatory publication came to be made:
(1) Vince Phillips is a citizen of the United States. He became a professional boxer in 1989 and in 1997, became a world-champion after achieving a 10 th-round knockout of the then undefeated IBF Light Welterweight title-holder, Kostya Tszyu. Mr Phillips successfully defended his title three times.
(1A) On 29 April 2002, Mr Phillips entered an agreement appointing Sugar Ray Leonard Boxing LLC (“SRL”) as his promoters (“the SRL Agreement”). The agreement provided, amongst other things:
(a) that SRL would become the exclusive promoters of Mr Phillips for a period of 2 years from the date of the agreement; and
(b) that fights under the agreement Mr Phillips would be subject to the “Minimum Purse Requirement” specified in the agreement, in particular that Mr Phillips would be paid US$150,000 for any Main Event Bout in which Mr Phillips participated and which was broadcast as part of the US Television Network, Showtime's Championship Boxing Series.
(1B) On 5 April 2003, Ricky Hatton was due to fight Vince Mr Phillips at MEN Arena in Manchester. The fight was arranged by the Claimant. The Claimant became the Promoter for Mr Phillips under a six title-bout agreement dated 25 January 2003 (“the Agreement”). on behalf of and Mr Phillips' promoter, Sugar Ray Leonard. Under the Agreement, Mr Phillips was to be paid US$50,000 for the fight, with US$10,000 of this sum becoming payable upon receipt of the signed agreement and the British Boxing Board of Control medicals. In a side agreement, SRL released Mr Phillips from the exclusive SRL Agreement to allow him to box for the Claimant. In return, Mr Phillips agreed to pay SRL US$5,000 of his purse for the Hatton fight and 20% of the purse for any subsequent fights under the Agreement with the Claimant.
(1C) As was the position with Ricky Hatton (see Paragraph 5.9A above), under the Agreement, Mr Phillips granted to the Claimant all rights and title and interest in the live gate receipts and the rights to exploit the broadcast rights of his fights.
(1D) Mr Sauer had negotiated the SRL Agreement with SRL for Mr Phillips. He was aware, therefore, that under the SRL Agreement a boxing bout involving Mr Phillips that was to be shown as part of Showtime's Championship Boxing Series would have attracted a minimum purse of US$150,000 for Mr Phillips. The transmission of the fight on the Showtime network would have meant that the Claimant would have been paid a very substantial sum by Showtime for the rights to transmit the fight and that, correspondingly, Mr Phillips could negotiate a larger purse. Mr Phillips, as a US former world-champion, was the only reason that Showtime would have been interested in showing a fight involving the then relatively unknown Ricky Hatton.
(1E) By agreement dated 11 February 2003, Mr Phillips appointed Jason Schlessinger as his manager for a period of 3 years.
(2) On or about 16 or 17 March 2003, Showtime announced publicly that they were going to broadcast the fight between Mr Phillips and Ricky Hatton on 5 April 2003. Subsequently, the US television network Showtime acquired from the Claimant the rights to transmit the fight on US television. Upon learning this, Mr Phillips(by a letter written to Sports Network by Mr Sauer dated 18 March 2003) attempted to renegotiate his fee of US$50,000 parts of the Agreement with the Claimant on the basis that the Claimant would receive from Showtime for the broadcasting rights to the fight, the US$50,000 originally agreed with Phillips was a pitiful sum (Ricky Hatton's purse was £550,000) and was substantially less than the purse that could have received had Mr Sauer known at the outset that Showtime were going to broadcast the fight. In...
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