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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Richard v British Broadcasting Corporation & Anor  EWHC 1648 (Ch) (26 May 2017)
Cite as:  EMLR 25,  EWHC 1648 (Ch)
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B e f o r e :
|SIR CLIFF RICHARD, OBE||Claimant|
|- and -|
|(1) THE BRITISH BROADCASTING CORPORATION|
|(2) CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE||Defendants|
MR. G. MILLAR QC (instructed by BBC Litigation Department) appeared on behalf of the First Defendant.
MR. A. WOLANSKI (instructed by DWF) appeared on behalf of the Second Defendant.
Crown Copyright ©
MR. JUSTICE MANN:
"Parties to an action do not need the consent of the court to make an effective settlement of their dispute; nor do they need the consent of the court to announce to the world that they have settled it on stated terms. The importance of the making of a statement in open court is, first, that it is likely to come to the attention of the press, who will give to it such attention as its public interest is seen by them to merit and, secondly, since the statement is part of a judicial proceeding, it is made on an occasion of absolute privilege. Thus, the parties to the statement are protected and, moreover, the statement can be reported without the publisher of the report incurring the risk of being sued in respect of it. …
It seems to me that the protection obtained from the fact that the approved statement is made in open court is not to be seen as an unintended and undeserved consequence of the procedure, but as a useful attribute of it which is obtained, of course, only if the court permits it to be used. The daunting burden of the risk in costs in such litigation must weigh intolerably upon most litigants. The procedure offers a means by which settlement can be reached and, when appropriate, announced in appropriate terms between two parties without risk of further litigation arising out of that announcement. It is, in my view, a grievous burden to be sued in a defamation action even if you win it in the end."
That then is the basis on which the statement is made.
"The judge was right, in my view, to regard the settlement of proceedings as a public good which the court should encourage and facilitate if, having regard to the interests of all the parties, it is right and just so to do. Although a party has no right to make a statement in open court upon which he can insist if the circumstances are such that the judge cannot in his discretion approve that course, it seems to me that parties who have made a bona fide settlement of a defamation action and ask leave to make a statement in open court may expect to be allowed to do so unless some sufficient reason appears on the material before the judge why leave should be refused to them. By saying that he did not regard either party as having a burden of proof, while acknowledging that it is desirable for settlement to be facilitated, I think the judge meant, as he said, that he must have regard to the interests of all parties; but, if there is no sufficient reason to refuse it, a plaintiff who has reached a settlement with a defendant should be allowed to make an approved statement. I think the judge was right in his approach."
"(2) The procedure by which a statement in open court was made as part of the settlement of a libel action was a well established and a valuable means of vindication. As a matter of general principle, parties who had made a bona fide settlement of a defamation action and asked for permission to make a statement in open court would be allowed to do so unless there was some sufficient reason to refuse permission, and as long as there was nothing in the case which made the making of a statement unfair to another party. The interests of non-parties should be borne in mind, given that any statement would be read with the benefit of absolute privilege. Statements should be fair and proportionate, and should not misrepresent a party's case or the nature of the settlement reached.
(3) However, the threshold of intervention would be high: the court was unlikely to intervene in the absence of any real or substantial unfairness to an objecting party, and nitpicking was to be discouraged. That was because a party making a statement in open court was exercising the right to freedom of expression (a right shared by the defendant, which was free to say what it wished about a settlement without interference by the claimant), and because the value of the procedure might be undermined if the settlement procedure were infiltrated by collateral disputes".
That, I think, is a sufficient summary of what was decided to make it unnecessary for me to read any, or much, of the judgment of Lady Justice Sharp, who delivered the principal judgments; the other two Lord Justices agreeing with her. She espoused the unfairness point at para.26 and made her point about nit-picking in para.27. The fairness and proportionality point is made in para.29.
(i) A party making a statement should not be allowed to abuse a privilege which attaches to a statement in open court and the publicity which it is doubtless intended to attract. Unfair statements about a third party or another defendant would be an example of an abuse.
(ii) The court must be live to the fact that a statement in open court is intended to attract publicity and ensure that fairness, or unfairness, to a third party or another defendant is viewed in that light.
(iii) It seems to me the parties are generally entitled to state their respective cases in such a statement and their respective admissions. A conceding party is entitled to express its objections in terms which it wishes to use, particularly if they have been agreed with the claimant as part of a settlement. If there are objections as between a third party or another party then that is very likely to be of little consequence.
(iv) Short of an apparent abuse, a statement should be allowed against the objections of a third party or another defendant unless it is sufficiently unfair to require the court to refuse to approve it.
(v) Causing prejudice to a fair trial involving others would be an obvious unfairness. However, unless the trial is a jury trial, it is hard to see how a statement in open court can prejudice that trial given that the trial judge can be expected to ignore such non-evidential material, even if that judge is aware of it. The Barnet case demonstrates that even if there is to be a jury trial the same may still apply.
(vi) Any unfairness which is relied on should be significant and the statement should not be disallowed because of what might be debatable and/or slightly unfair or nit-picking.
(vii) If the case of a non-settling party is referred to in the statement in open court by way of a proper summary, without setting out all the details, that is highly unlikely to be unfair. The case of a non-settling party, if referred to in the statement, does not have to be set out extensively.
(i) It is not for the BBC to dictate what is and is not in the statement and Mr. Millar did not seek to assert such a case, but it is nonetheless worth making. The statement in open court is not something which has to be in some way negotiated with the BBC.
(ii) It is not necessary for the parties faithfully to reproduce every aspect of the BBC's case to which they make reference, much less aspects to which they do not make reference.
(iii) What the parties are not entitled to do in their statement in open court is to represent the BBC's case in an unfair way.
(iv) A fair summary of the BBC's case cannot be complained of.
(v) The fact that a matter is expressed in a way which the BBC as, for these purposes, a third party, does not like, does not make it unfair.
(vi) The expression of the case of a settling party which conflicts with the case of the BBC as a non-settling party is again not necessarily unfair.
"Shortly after this a regional crime correspondent working for the BBC, Dan Johnson, contacted SYP and informed them that he was aware of the investigation. On 15 July 2014 he met with SYP's Head of Communications and Senior Investigating Officer."
"The BBC has claimed in its defence that when Mr. Johnson approached SYP all he told them was that he believed the claimant was being investigated by SYP".
Mr. Millar objects again to the "being investigated by SYP" wording and says there should be substituted that the claimant was "on their radar". That objection suffers the same fate as the same objection in relation to para.6. A further objection to some proposed additional wording at the end of para.10 has now been agreed between the parties and I do not need to deal with it.
"On 14 August 2014 SYP officers, accompanied by officers from Thames Valley Police, arrived at the claimant's apartment to execute a search warrant. Thanks to the information provided to him by SYP, Mr. Johnson was already at the location of the search along with a camera crew; and a helicopter with a further camera crew on board also arrived about the same time."
Mr. Millar's original objections sought to substitute the words "camera operator" for "camera crew". If that objection is still persisted in, in my view, there is nothing in it. He also takes a point about the allegation as to the timing of the arrival of the helicopter. For the words "about the same time" he says there should be substituted the words "somewhat later". This objection reflects what is apparently a dispute of fact between the parties as to the time of arrival of the helicopter. The significance of that disputed fact is not immediately apparent to me, but I shall assume that it is a point of some significance. What Mr. Millar is therefore apparently insisting on, if this statement is to be given, is a statement in this paragraph which coincides with his case and not with the case of the claimant (and a wording which SYP is apparently prepared to agree to).
"14. The claimant was not in his apartment at this time but was staying in Portugal. He was first notified of the search at 9.58am by the management at the development where his apartment is situated. Shortly before 1p.m. the claimant's solicitors, who arrived on the scene were notified for the first time, of some details of the investigation.
15. This was followed almost immediately afterwards by the 1p.m. BBC News; which featured as its headline news item a story about the search, naming him as under investigation for an alleged historic sexual abuse …".
"My Lord, SYP may have intended to protect the integrity of its investigation, as it claims, but it should not have made the disclosure to the BBC and cooperated with the BBC in the way that it did. SYP's actions facilitated the BBC's coverage, which caused such significant distress to the claimant. These events have had a devastating effect on the claimant: the BBC's coverage of the search was shocking, humiliating and embarrassing for him and attracted immediate worldwide attention. As a result he suffered profound and long-lasting damage and distress, and his reputation has been forever tainted".
"My Lord, SYP accepted what my learned friend has said. SYP accepts that the claimant's private information should not have been disclosed to the BBC, and that its reason for doing so, namely to protect the integrity of its investigation, was not an adequate reason for disclosing that information. SYP acknowledges that its conduct in this regard was unlawful and offers its sincere apologies to the claimant for the distress and humiliation he has suffered."
The statement in open court as it was read appears as an Appendix to this judgment.
IN THE HIGH COURT OF JUSTICE Claim No: HC-2016-002849
MR JUSTICE MANN
Counsel for the Claimant (Justin Rushbrooke QC)
1. May it please you My Lord, in this action I appear for the Claimant, Sir Cliff Richard, OBE, with my learned friend Godwin Busuttil. My learned friend Adam Wolanski appears for the Second Defendant, who is the Chief Constable of South Yorkshire Police (or 'SYP').
2. This is a claim for misuse of private information, breach of Article 8 ECHR and breach of the Data Protection Act 1998. The First Defendant to this claim is the BBC. It plays no part in today's proceedings, for reasons which will become clear.
3. The Claimant is an internationally-renowned singer, recording artist, actor and philanthropist. He has sold more than 250 million records worldwide and is one of the biggest-selling artists in UK Singles history. He received an OBE in 1980 and was appointed Knight Bachelor in 1995.
4. In late 2013 officers working for the Metropolitan Police's 'Operation Yewtree' commenced an investigation into an allegation of sexual assault of a young male dating back to the mid-1980s that had been made against the Claimant. I wish to record that the allegation has always been vehemently denied by the Claimant, and that on 16 June 2016 the Crown Prosecution Service announced that he would face no charges in respect of this or any other allegation of a similar nature. He is therefore an innocent man in the eyes of the law.
5. In early July 2014 responsibility for the investigation was transferred to South Yorkshire Police on the basis that the alleged sexual assault was said to have taken place within South Yorkshire Police's area of operation.
6. Shortly after this, a regional crime correspondent working for the BBC, Dan Johnson, contacted SYP and informed them that he was aware of the investigation. On 15 July 2014 he met with SYP's Head of Communications, and the senior investigating officer.
7. There are outstanding issues of fact between the parties as to the amount of detail known by Mr Johnson when he approached SYP.
8. It is Sir Cliff's and SYP's case that Mr Johnson knew a considerable amount of information which amounted to a similar level of detail to that in the possession of SYP, and that he claimed to have been given his information by a source within Operation Yewtree. It is also Sir Cliff's and SYP's case that Mr Johnson made clear to SYP that he was in a position to broadcast a story naming the Claimant as the subject of the investigation and would do so with or without SYP's cooperation.
9. In these circumstances SYP says it decided to cooperate with Mr Johnson in order to protect the integrity of its investigation, and as a result it made disclosures of private information to him between 15 July 2014 and 14 August 2014 in return for agreement not to broadcast the story until the Claimant had executed a search warrant at the Claimant's home.
10. The BBC has claimed in its Defence that when Mr Johnson approached SYP all he told them was that he believed the Claimant was being investigated by SYP. The BBC contends that in the communications that then took place between them it was the voluntary decision of SYP to share with Mr Johnson the information that it did. It denies that Mr Johnson ever told SYP that he had been given information from a source within Operation Yewtree, or that he suggested he was in a position to broadcast a story naming the Claimant as the subject of the investigation, or that he suggested he would do so with or without SYP's cooperation.
11. My Lord, since the Claimant's claim against the BBC is continuing, it may be for the Judge at trial to resolve the conflict of evidence between SYP and the BBC on these issues. There is no dispute between the Claimant and SYP that:
(1) SYP confirmed to Mr Johnson the Claimant's identity as the person under investigation for the alleged offence,
(2) they discussed with him the fact that SYP was going to obtain a search warrant in respect of the Claimant's home, and that (3) they agreed to cooperate with Mr Johnson by giving him, on an exclusive basis, information about the date and location of the search in advance of its being carried out.
12. There were further communications between SYP and Mr Johnson in the weeks which followed concerning the planned search. On 13 August 2014 SYP informed him that a search warrant would be executed the following day and gave him information which enabled the BBC to locate the Claimant's premises where it was to be carried out.
13. On 14 August 2014 SYP's officers, accompanied by officers from Thames Valley Police arrived at the Claimant's apartment to execute the search warrant. Thanks to the information provided to him by SYP, Mr Johnson was already at the location of the search along with a camera operator; and a helicopter with a camera crew on board also arrived at about the same time.
14. The Claimant was not in his apartment at this time but was staying in Portugal. He was first notified of the search at 09.58am by the management of the development where his apartment is situated. Shortly before 1pm the Claimant's solicitors, who had arrived on the scene, were notified, for the first time, of some details of the investigation.
15. This was followed almost immediately afterwards by the 1pm BBC News, which featured as its headline news item a story about the search, naming him as under investigation for an alleged historic sexual offence against a boy under 16. The story was accompanied by live on the ground reporting and nearly-live footage shot from the helicopter of the police carrying out the search. On the Claimant's case the story was sensationally-presented, although the BBC denies this.
16. The BBC News coverage also included an SYP Press Statement read out outside SYP's headquarters which confirmed that SYP officers had begun searching an address in Sunningdale in connection with an allegation of a sexual offence against a boy under the age of 16. Although this statement did not name the Claimant it was obvious that a statement in these terms given in conjunction with the BBC's coverage would serve to confirm his identity.
17. My Lord, SYP may have intended to protect the integrity of its investigation, as it claims, but it should not have made the disclosures to the BBC and cooperated with the BBC in the way that it did. SYP's actions facilitated the BBC's coverage, which caused such significant distress to the Claimant. These events have had a devastating effect on the Claimant: the BBC's coverage of the search was shocking, humiliating and embarrassing for him and attracted immediate worldwide attention, as a result he suffered profound and long-lasting damage and distress, and his reputation has been forever tainted.
18. Proceedings were issued on behalf of the Claimant on 6 October 2016. The Claimant sought general, aggravated and special damages for invasion of his privacy, breach of his rights under Article 8 of the European Convention on Human Rights (which guarantees a right to respect for an individual's private life and home) and/or breach of the Data Protection Act 1998.
19. It is also important that I record that the College of Policing's Guidance on Relationships with the Media (issued in May 2013), which was in force at the time of these actions, states that the names or identifying details of persons who are arrested or suspected of a crime should not be released to the press or public save in very special circumstances.
20. I am pleased to announce that SYP has now recognised that its conduct was unlawful, and has agreed to pay the Claimant a substantial sum by way of general and aggravated damages to compensate for its conduct, as well as appropriate sums in respect of the financial damage and legal costs incurred by the Claimant. It has also agreed to join in the making of this Statement in Open Court.
Counsel for the Second Defendant (Adam Wolanski)
21. My Lord, SYP accepts what my learned friend has said. SYP accepts that the Claimant's private information should not have been disclosed to the BBC and that its reason for doing so, namely to protect the integrity of its investigation, was not an adequate reason for disclosing that information. SYP acknowledges that its conduct in this regard was unlawful and offers its sincere apologies to the Claimant for the distress and humiliation he has suffered.
Counsel for the Claimant
22. In these circumstances Sir Cliff is prepared to let the matter rest against SYP.
23. His claim against the BBC has not been resolved and therefore continues.
24. He is pleased that he can draw a line under his claim against SYP and focus attention on bringing the claim against the BBC to trial as soon as possible.
26 May 2017
Simkins LLP DWF LLP
Solicitors for the Claimant Solicitors for the Second Defendant