X v Dempster
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Date | 1999 |
| Year | 1999 |
| Court | Family Division |
Contempt – Publication of material referring to proceedings in chambers and identifying witnesses – Referring to portrayal of mother as an unfit mother — Whether material contempt of court.
The father alleged that the respondents, namely the Diary Editor of the Daily Mail, and its owner, Associated Newspapers Ltd (the company), were in contempt of court in publishing an article in the Diary referring to the parents’ pending cross-applications for residence in respect of their children. The father alleged that there were four features of contempt in the article in that the Diary Editor had identified four persons as witnesses, had identified them as giving evidence for the father, had included a quotation from a friend of the mother that ‘she has been portrayed as a bad mother who is unfit to look after her children’, and had in effect stated that the four witnesses in their evidence had portrayed the mother in that light. Prior to being published the article had, as was standard practice, been checked by a practising barrister who had concluded that it did not amount to a contempt of court.
Held – Under s 12(1) of the Administration of Justice Act 1960 it was a contempt of court to publish information, which included summaries of what was said in court and written beforehand in statements and reports as much as direct quotations, in respect of proceedings sitting in private relating to the exercise of the inherent jurisdiction of the High Court with respect to minors, brought under the Children Act 1989, or which otherwise related wholly or mainly to the maintenance or upbringing of a minor. However, in the absence of a specific injunction, it was not contempt to publish in relation to such proceedings the fact that a child was the subject of proceedings; the name, address or photograph of the child or the parties; the date, time and place of any hearings; the nature of the dispute; anything seen or heard by a person conducting himself lawfully in the public precincts outside the court; or the text or a summary of the whole or any part of any order. As it would be anomalous that the supporting witness could not be identified but the child and the parties could be, it was not a contempt of court to identify a witness even in the type of proceedings in private specified as exceptional in s 12(1) of the 1960 Act. It followed that the identification of the four witnesses was not a contempt; and it was not necessary for the court to reach a concluded view on whether the fact that the witnesses were identified as giving evidence for one party amounted to a contempt. It was only a possible, and by no means a necessary, inference from the piece that it was these named witnesses who portrayed the mother as unfit, and it was well-known that parents often called witnesses who were prepared to praise their parenting abilities but not to denigrate those of the other parent. However, the
reference to the portrayal of the mother as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court had closed its doors to consider. No reasonable person could have concluded that that was other than a reference to the proceedings and the barrister had made a grave misjudgment. The respondents clearly had the requisite state of knowledge, ie that the publication of the information was known to relate to proceedings which were taking place in private, and committed a contempt of court in publishing the quotation. They would be fined £1,000 and £10,000 respectively.
Cases referred to in judgmentCleveland CC v W [1989] FCR 625.
De Beaujeu’s application for writ of attachment against Cudlipp, Re [1949] 1 Ch 230, [1949] 1 All ER 439.
F (orse A) (a minor) (publication of information), Re [1977] Fam 58, [1977] 1 All ER 114, [1977] 3 WLR 813, CA.
G (minors) (celebrities: publicity), Re[1999] 3 FCR 181, CA.
Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, [1991] 1 All ER 622, [1991] 2 WLR 513, HL.
R v Central Independent Television plc[1995] 1 FCR 521, [1994] Fam 192, [1994] 3 All ER 641, [1994] 3 WLR 20, CA.
ApplicationThe father of two children applied to the High Court for a declaration that the respondents, the Diary Editor of the Daily Mail, and its owner, Associated Newspapers Ltd, were in contempt of court in publishing an article in the Diary which referred to the parent’s cross-applications for residence. The case was heard and judgment was given in chambers. The case is reported with the permission of Wilson J. The facts are set out in the judgment.
Barry Singleton QC and Christopher Pocock (instructed by Memery Crystal) for the father.
Jonathan Caplan QC (instructed by Reynolds Porter Chamberlain) for the respondents.
Andrew Tidbury (instructed by Wright Son & Pepper) for the mother.
Cur adv vult
9 November 1998. The following judgment was delivered.
WILSON J.The father (as I will call him) applies for orders against Mr Nigel Dempster, the Diary Editor of the Daily Mail, and against Associated Newspapers Ltd (the company) which is the proprietor of that newspaper.
The father alleges that Mr Dempster and the company are each in contempt of court and should be punished: Mr Dempster by committal to prison and the company by sequestration of its assets or fine.
To be specific, the father’s allegation is that a publication by Mr Dempster and the company in his diary column in the Daily Mail of a short piece relating to the father, to his wife (the mother), and to their children was a contempt of court in that the article included information relating to proceedings before this court sitting in private.
Proof of an allegation in civil proceedings that a person is in contempt of court has to be up to the criminal standard, namely beyond reasonable doubt.
The father is a businessman and he and the mother move on the English social scene. Unfortunately their marriage has broken down and they are locked in a bitter struggle as to which of them should be entrusted with the care of the children. Their cross-applications for residence orders under the Children Act 1989 will be heard by a judge of this Division at a hearing in chambers estimated to last for ten days and beginning later this month. A number of people, including public figures, have signed statements and will give evidence on each side. At the request of the parties, I have not read the statements, save one for the purpose of a separate application. It is clear, however, that part of the father’s case, which the mother strenuously denies, is that she is neurotic and unstable and acts inappropriately in front of or in relation to the children.
The publication alleged to constitute a contempt of court was the leading piece in one of Mr Dempster’s columns. The piece comprised six paragraphs. Both the headline and the opening paragraph referred to the forthcoming hearing of the cross-applications for residence orders.
The most relevant paragraphs are the third and fourth. In the third the mother was said to be distraught that four people, named in the paragraph, had provided ‘affidavits’ in support of the father’s case. The fourth ran as follows:
‘Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court.”’
The father, Mr Dempster and others on behalf of the company have sworn affidavits in relation to events leading up to this publication. There are some factual differences in the evidence of the father and Mr Dempster. However they do not need to be resolved in the despatch of this application, so no oral evidence has been given. One such difference is that Mr Dempster alleges that it was the father who, in January 1998, first told him that there were proceedings about the residence of the children. Although the father denies it, I will assume, without finding, that Mr Dempster’s allegation is correct.
Mr Dempster says, and I accept, that in conversation with him a few days prior to publication a friend of the mother identified five people, including three of those he was later to name in his column, as having sworn affidavits against the mother in the residence proceedings, in which they had alleged that, as a mother, she was unfit. The friend told him that the allegation was untrue and that it had caused extreme distress to the mother.
Mr Dempster says, and for the purpose of this application I accept, that thereafter, on the day prior to publication, he telephoned the mother. The mother told him the date when the residence proceedings were fixed to begin and gave him an account of why the marriage had broken down...
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