Williams v Reason (Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE O'CONNOR,LORD JUSTICE PURCHAS,and |
| Judgment Date | 10 November 1983 |
| Neutral Citation | [1983] EWCA Civ J1110-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0440 1979 W No. 758 |
| Date | 10 November 1983 |
[1983] EWCA Civ J1110-4
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 RUSSELL and a Jury)
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice O'Connor
and
Lord Justice Purchas
83/0440
1979 W No. 535
1979 W No. 758
and
and
and
(Consolidated by Order dated 6th day of April 1979)
MR. C. GRAY (instructed by Mr. Richard C. M. Sykes, Solicitor, London SW1) appeared on behalf of the Defendants (Appellants)
MR. R. HARTLEY QC and MR. T. SHIELDS (instructed by Messrs.Davies Donovan & Co, Solicitors, Twickenham TW1 4BZ) appeared on behalf of the Plaintiff (Respondent)
The defendants' application for leave to adduce further evidence is dismissed, but their application for leave to re-amend their defence is granted. The appeal is allowed; a new trial is ordered on the ground of misdirection.
The reasons for the court's decision are to be found in the judgments which are now to be handed down.
The parties and their solicitors and counsel will want time to consider those judgments; we therefore adjourn the hearing to the earliest convenient date, for further argument on costs and any other relevant matters.
This is a defendants' appeal from the unanimous verdict of a jury, on which Mr. Justice Russell gave judgment for the plaintiff on 25th February 1982 for £20,000 in respect of two libels in two consolidated actions.
The libels were published in two articles in the Daily Telegraph of 21st February 1979 and 14th March 1979. The jury awarded the plaintiff £12,000 for the first and £8,000 for the second. The defendants were Mr. Reason, who wrote the articles, Daily Telegraph Ltd, who publish the Daily Telegraph, and Mr. Deedes, its editor. The plaintiff is a surgeon and well-known as an amateur player of rugby football in Wales and internationally.
The articles alleged that the plaintiff had infringed his amateur status by writing a book for money, contrary to the regulations of the International Rugby Football Board. That Board consists of two representatives from each of its eight Member Unions, including the Welsh Rugby Union, of which the plaintiff is a leading member. The regulations are regulations relating to amateurism annexed to the Board's bye-laws.
The meaning pleaded in the statement of claim of 27th April 1979 was highly defamatory of the plaintiff. It will have to be considered further, but though the defence of 4th July 1979 pleaded that the words complained of in the articles were not defamatory, the jury found that they were and the defendants do not appeal against that finding. The second defence was a plea of fair comment, to which was added, by an amendment of 15th April 1981, a plea of justification, on which this appeal turns. The plea of fair comment was abandoned at the trial; there is no appeal on the damages awarded and the sole issue for this court was whether the jury were justified in finding for the plaintiff or whether they should have found for the defendants because they had proved that the words complained of were substantially true. The jury were simply asked in respect of each article whether they found for the plaintiff or the defendants, and if for the plaintiff, what damages they awarded. The only grounds of appeal are that the judge misdirected the jury as to the true interpretation of the relevant regulation, or that if he did not, he failed to put to the jury adequately the defendants' defence that the plaintiff was nevertheless in breach of the regulation.
The defendants' notice of appeal asks for a new trial on these grounds, and though it includes an alternative request for judgment for the defendants, Mr. Gray, for the defendants, has not pursued that alternative in this court.
At the outset of the hearing of the appeal the court, and the plaintiff and his legal advisers, were confronted by a last-minute application on behalf of the defendants for leave to adduce fresh evidence and to grant a new trial in order that that evidence might be put before another judge and jury. This was the evidence of a former sales representative in Wales of the well-known specialists in sports equipment, Adidas, named Young, that the plaintiff had infringed his amateur status, not by contracting with a publisher to be paid for a book in 1977/78 contrary to regulation 2.11 of the regulations relating to amateurism, but by regularly taking cash payments from Adidas for wearing their boots in matches played from 1972 to 1977, contrary to regulation 2.2 of those regulations.
We looked at an affidavit from Mr. Young and affidavits from a Mr. Avery, from the defendant Mr. Reason and from Mr. Sykes, the solicitor instructed by the defendants to conduct these proceedings. For three days we heard evidence from Mr. Reason and Mr. Sykes and argument (much of it misdirected at the obtainability of evidence from other witnesses than Young) on the question whether the proposed evidence satisfied the first of the tests for the admission of fresh evidence after trial and judgment which were laid down in Ladd v. Marshall, (1954) 1 Weekly Law Reports, 1489. On the third day Mr. Gray, on behalf of the defendants, on the court's insistence submitted further and better particulars of justification, setting out in more detail the evidence that Mr. Young was able and willing to give, and asked leave to add them to his defence by re-amendment.
On the fourth day we informed counsel that we were of the opinion that all three tests were satisfied, that we proposed to allow the defence to be amended and the evidence to be admitted at a new trial and that we would, in accordance with the wishes of both counsel, continue the hearing of the appeal. Mr. Hartley for the plaintiff thereupon told us that he had not completed his submissions for the plaintiff and wished to submit affidavit evidence in rebuttal of the defendants' evidence that Mr. Young's evidence satisfied the first Ladd v. Marshall test of not having been obtainable by reasonable diligence for use at the trial. He further asked for an adjournment in order that he might put in evidence that Mr. Young was very well-known in Welsh rugby football circles, and that Mr. Young might be directed to attend for cross-examination on the one question whether his evidence had been so obtainable.
Mr. Hartley had not accepted an earlier offer that Mr. Young should attend court to be cross-examined and had told us on instructions that the plaintiff had accepted "beer-money" on a number of occasions, though he did not tell us by whom the payments were made. But he had had notice of Mr. Gray's application for less than a week and of the details of Mr. Young's evidence for a much shorter time than that; so we granted him the adjournment for which he asked and directed that Mr. Young should attend for cross-examination.
Ten days later, at the resumed hearing, we read eight affidavits put in by Mr. Hartley from rugby football players and journalists and the physiotherapist of the Welsh Rugby Union to the effect that Mr. Young was well-known and easily traceable. We then heard Mr. Young cross-examined by Mr. Hartley, not on whether he could have been traced but on whether he would have given the defendants or their solicitor the evidence he was now willing and able to give if they had asked him to give it at the trial in February 1982. The first Ladd v. Marshall test is usually satisfied by proving that reasonable diligence could not have disclosed the existence of the proposed witness, or in rare cases like House v. Haughton Brothers (Worcester) Ltd., (1967) 1 Weekly Law Reports 148, of the particular piece of evidence which the appellant asks leave to adduce. In this case the evidence of Mr. Sykes and Mr. Reason and the submissions of Mr. Gray led the court as well as Mr. Hartley to suppose that they could not have discovered the existence or whereabouts of Mr. Young, who had left his employment with Adidas in 1977, with reasonable diligence; hence Mr. Hartley's affidavit evidence was directed to that point only.
At the resumed hearing, however, Mr. Gray conceded that Mr. Young was well-known and traceable, and the defendants had therefore the difficult task of proving that if Mr. Young had been traced before the trial and had been asked if he would give the evidence he now proffered, he would not have been willing to give it. In discharging this heavy burden the defendants were considerably assisted by Mr. Young's denial that he would have been willing to give it to them then. The force of this denial was, however, weakened in my judgment by his admission that he had spent the evening before his appearance in court dining with Mr. Reason and Mr. Sykes. That was, I think, unfortunate; and I have no doubt that when he gave his evidence he knew, from the court if from no-one else, that he would be asked the question which he answered in the negative. However that may be, what man can be certain how he would have acted or what he would have answered in different circumstances on another occasion? There was independent evidence that Mr. Young was not willing to give names of those players to whom he said he had paid boot money until after the trial and then he was not...
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