|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Starr v Ward  EWHC 1987 (QB) (10 July 2015)
Cite as:  EWHC 1987 (QB)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Frederick Leslie Starr
|- and -
David Price QC of David Price Solicitors and Advocates for the Defendant
Hearing dates: 15th - 19th June, 22nd 24th June 2015
Crown Copyright ©
Mr Justice Nicol :
1974: the background
The publications complained of
"The first time we were taken to London there were eight of us. All the rest of the girls had gone home for the weekend. We were escorted into Television Centre and taken to see Sir Jimmy in his 'dressing room'.
The air hung thick with his foul cigar smoke. He laughed and joked with Miss Jones, Theo and every girl close enough to speak to. We were to be introduced to some of his guests on the show before it began.
Now my recollections of meeting with these guests are very vivid, not least because at least one of them has since been prosecuted for sexual misconduct with minors. Don't get me wrong. Not every celebrity we met was a closet paedophile.
Over several weeks, I met a great many male and female celebrities, some of whom I remember fondly for their intelligence, wit and general pleasant demeanour. However, of those who had similar tastes to Jimmy Savile a liking of under-age girls, I can only recall vague disgust and horror.
One particular celebrity, a very popular comedian of the time, whom I shall simply refer to as 'F', absolutely stank of booze and sweat. His hands wandered incessantly; he had absolutely no qualms whatever about any one of the girls seeing what he was doing to any of the others. The fact that we sat in his dressing room with him, drinking vodka or Bacardi rum whilst he blatantly selected which girl to humiliate amazes me. I cannot recall where Miss Jones and Theo were. Surely, they must have known what was going on?
Even so there were no acts of violence or threats. No-one was hit or taken against their will. I refused 'F' because getting anywhere near him made me heave. He smelled far too much like my step-father for my liking. 'F' made some rather cruel remarks about my lack of breasts by way of getting back at me for refusing him. Everyone laughed whilst I burned with humiliation."
"That's when the other guests on the show would come in, generally after the show had finished they would come in and they clearly saw girls and, well, kids, male and female, as being there to be used. I had a famous person who would try, he smelled awful, he smelled of sweat and alcohol and it made me heave just to be near him, so I certainly didn't want him to do anything to me."
"I was horribly, horribly humiliated by Freddie Starr who had a very bad attack of wandering hands and had groped me and I didn't like him because he smelled like my step-father and it frightened me and freaked me out and I rebuffed him and he humiliated me in front of everyone in the dressing room."
'Among the guests on Clunk Click were young people from hospitals and other institutions, including girls from Duncroft. Karin Ward, aged just 14, was one of them. After the show, she was invited with other young people to join more famous guests in the dressing rooms. She told Newsnight about this 11 months ago in the interview that was dropped'.
Liz MacKean was then heard to say,
'What sort of things happened in Jimmy Savile's dressing room?'
The BBC words were then broadcast. They were followed by footage of the notorious paedophile, Gary Glitter and these words,
'Gary Glitter also appeared on Clunk Click. He, too, would join Jimmy Savile and his young guests in the dressing room after the show.'
I shall refer to this as 'the BBC broadcast'.
"The first time we were taken to London there were eight of us. All the rest of the girls had gone home for the weekend. We were escorted into Television Centre and taken to see JS in his 'dressing room'.
The room was large and well appointed. The air hung thick with his foul cigar smoke but most of us were smoking cigarettes as well so it all combined into a kind of hazy fog at ceiling height. JS laughed and joked with Miss Jones, Theo and every girl close enough to speak to. We were to be introduced to some of his guests on the show before it began.
Now some of my recollection of meeting with these guests are very vivid, not least because at least one of them has since been prosecuted for sexual misconduct with minors. Don't get me wrong. Not every celebrity we met was a closet paedophile.
Over several weeks, I met a great many male and female celebrities, some of whom I remember fondly for their intelligence, wit and general pleasant demeanour. However, of those who had similar tastes to JS a liking for under-age girls, I can only recall vague disgust and horror.
One particular celebrity, a very popular comedian of the time, whom I shall simply refer to as 'F', absolutely stank of old sweat and the same cologne my step-father used to use. His hands wandered incessantly; he had absolutely no qualms whatever about any one of the girls seeing what he was doing to any of the others. The fact that we sat in JS's dressing room with both of them, being encouraged to drink vodka, gin or Bacardi rum whilst they blatantly selected which girl to humiliate amazes me. I cannot recall where Miss Jones and Theo were. Surely, they must have known what was going on?
Even so, there were no episodes of violence or threats. No-one was hit or taken against their will. I refused 'F' because getting anywhere close to him made me heave. He smelled far too much like my step-father for my liking. 'F' was furious that I dared refuse him; he made an exceptionally cruel remark about my lack of breasts by way of getting back at me for refusing him. So that everyone could hear, he said loudly, 'I wouldn't touch you anyway, you're a titless wonder!' Everyone laughed while I burned with humiliation. I carried that humiliation for the rest of my adult life because I was always stick thin and never, ever had any breasts; I could barely fill a double A cup bra."
I shall refer to these as 'the eBook words'.
The Defendant's defences in outline
The oral evidence
Applications by the Claimant
Extension of time to bring the claim in slander for the BBC Words
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which
(a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,
the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.
(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to
(a) the length of, and the reasons for the delay on the part of the plaintiff;
(b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A
(i) the date on which any such facts did become known to him, and
(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action;
(c) the extent to which, having regard to the delay, relevant evidence is likely -
(i) to be unavailable, or
(ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.
'Please note that this letter has nothing to do with the current police investigation in relation to your allegations and therefore that it relates to a civil matter, not criminal.'
The letter concluded,
'Please note that this letter is in no way meant to interfere with the current police investigation relating to you and our Client. In this respect we can confirm that we have fully informed the police of the action that our Client is taking against you and provided them with a copy of this letter.'
i) The length of the delay is a little over 10 months beyond the 1 year ordinary limitation period.
ii) I accept that until 22nd October 2012 the Claimant was unaware of the BBC interview, but, as Mr Price submitted, the ordinary limitation period had not by then expired. If 'delay', as I believe, refers to the time which elapsed after the expiry of the ordinary limitation period and before proceedings commenced, then there is no explanation at all. When a claimant is seeking to have an ordinary limitation period disapplied, the absence of an explanation for the delay can be of great importance see for instance Steedman v BBC  EMLR 318 (CA) per Brooke LJ at .
iii) Because all the facts relevant to the cause of action arising out of the BBC words were known before the ordinary limitation period expired, s.32A(2)(b) is not applicable. I accept that I must take account of all the circumstances, but particular regard must be had to the matters referred to in sub-paragraphs (i) and (ii) and they do not assist the Claimant. The date on which the facts were known to the Claimant was 22nd October 2012. Waiting 9 months thereafter to write a letter before action and almost another month before issuing the Claim Form was not in my judgment an example of acting promptly or reasonably. When the Claim Form was issued the sensible course was taken of staying proceedings until the police investigation was concluded. There is no evidence before me as to why a similar procedure could not have been adopted if the Claim Form had been issued earlier.
iv) The Defendant has not suggested that evidence is unavailable or less cogent because of the delay.
Amendment of the Particulars of Claim to plead that the ITV words and BBC words were actionable without proof of special loss
'In an action for slander in respect of words, calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.'
The 'Panorama' broadcast
The ITV words
"I was horribly, horribly humiliated by Freddie Starr who had a very bad attack of wandering hands and had groped me and I didn't like him because he smelled like my step-father and it frightened and freaked me out and I rebuffed him and he humiliated me in front of everyone in the dressing room."
i) I accept that the words were calculated (for which read 'likely') to disparage him in his profession as an entertainer and comedian. I have, in considering the application for permission to amend, referred to Mr Price's argument that Mr Williams-Thomas was already aware of the Defendant's account of what Freddie Starr had done (from his work on the 'Newsnight' item) and her repetition of that account in the ITV words could have had no impact on the Claimant's reputation so far as he was concerned. In my view, though, in deciding whether words are likely to have the relevant effect, it is permissible to take into account any repetition which is reasonably foreseeable. Whether or not the Defendant authorised or intended the ITV words to be broadcast (and I return to this below in the context of the ITV broadcasts), it was in my judgment reasonably foreseeable that they would be. The Claimant was about 69 when the Defendant was interviewed, but he was still performing and still active as a comedian and entertainer. The ITV words did not allege the most serious form of sexual assault, but I accept that they were likely to disparage the Claimant in his profession.
ii) In considering the application to amend, I explained that even in 2012 and long after the repeal of the Sexual Offences Act 1956, a person was still amenable to prosecution for something which was an offence under that Act at the time it was done. Section 14 of the Act prohibited an indecent assault on a woman. The prosecution would have to establish that the assault was 'indecent', but I am not concerned with whether the prosecution would necessarily succeed, but whether the words imputed that the Claimant had committed that offence. In my judgment, they did. To be relevant for these purposes, the imputed offence has to be punishable with imprisonment. An offence under s.14, committed in 1974, would have been punishable with a maximum of 2 years imprisonment. It is not necessary, as I understand it, for the Claimant to show that he was actually likely to be sent to prison if convicted of the particular act which was imputed.
It follows that the ITV words are actionable even without proof of special damage.
The ITV broadcasts
Justification and the ITV words and ITV Broadcasts
'The Claimant does not need to and does not make any allegation about whether the Defendant knew that her allegations were false.'
In her Amended Defence the Defendant has relied on qualified privilege. In his Re-Amended Reply, the Claimant has not pleaded that the Defendant was malicious. While malice may be demonstrated in a number of ways, a classic form is where the Defendant knew that what was said was untrue. That, as I say, was not pleaded by the Claimant. There is little scope for a plea of malice in response to a defence based on Reynolds privilege. The Amended Defence does rely on Reynolds, but it does also plead qualified privilege of the duty/interest kind. To this malice would be an answer since the privilege is only qualified. Because of this state of the pleadings, I agreed with Mr Price that it was not now open to the Mr Dunham to cross examine the Defendant on the basis that she had made her allegations about the Claimant knowing them to be untrue or that she had deliberately manufactured a false account. He did not do so.
'"Well I'm up for it" he said
So I kissed him. Still, he's still holding me, and, but instead of just like, erm, just a kiss, and he did actually, looking back, it could wrong, it did actually linger on rather, it was a bit of, er, you know, the tongues tangled up there, and it was an extended long kiss.'
Later in her interview she described it as,
'one of the more passionate kind of kisses that people would do in private.'
She said that the Claimant offered to give her a lift home after the show, but she declined.
i) It is, of course, a matter which took place a long time ago. But I find that the Claimant's remark to the Defendant, 'you're a titless wonder' was a striking one. It lodged in her memory. She was sensitive about her appearance (as are many teenage girls) and this remark in a crowded room which included some of the other girls at her school was understandably humiliating. I reject the submission by Mr Dunham that the Defendant had confused the Claimant with some other celebrity.
ii) I find as well that the Defendant's account of what led up to this remark by the Claimant is also more likely to be true than not, that is the Claimant touched or grabbed her bottom and she recoiled. The recoil, at least, was seen by Susan Bunce. Ms Bunce did not see what caused the Defendant to behave in this fashion. I have considered Mr Dunham's submission that it may have been the Claimant's smell which the Defendant associated with her step-father, but I have decided that it was more likely than not the smell, plus the sexual advance which grabbing of the Defendant's bottom was.
iii) The Defendant was being given Lithium at Duncroft at this time. She has accepted that this affected her memory. On peripheral matters her account has varied. Thus she said at some points that the Claimant's smell included a component of alcohol. She has accepted that she may have been wrong about that. In her BBC interview she said she was 14 at the time. We know that she was in fact 15. But in its core elements, her account has been consistent.
iv) In her BBC interview the Defendant had said 'I had a famous person who would try, he smelled awful, he smelled of sweat and alcohol and it made me heave just to be near him, so I certainly didn't want him to do anything to me'. Mr Dunham emphasised the word 'try' and suggested that the Defendant had later in her ITV interview sexed up what was previously described as an attempt to an actual grope. I reject this argument. In the first place, in the BBC interview she did not go on to explain what was 'tried'. In her evidence she said that the Claimant had tried to complete the 'goose', but got no further than grabbing her bottom. Secondly, the account which the Defendant gave in her FanStory words (and which was written in about 2008 so well before the BBC interview) was that the Claimant's hands 'wandered incessantly' and the meaning attributed to this in the Particulars of Claim was that the Claimant had groped and sexually assaulted her. Next, I do not accept that Mr Williams-Thomas encouraged the Defendant to elevate an 'attempt' to a 'grope' for the purpose of the ITV interview. I agree with his response that that would have been unprofessional. Mr Williams-Thomas, like Ms MacKean and Mr Jones, impressed me as a professional reporter and broadcaster. It would also be a curious thing to do in relation to a person who was not the focus of the programme he was making and where the difference between an attempted grope and an actual grope was not of the highest magnitude. I do not attach significance to the Defendant's omission to use the word 'goose' until she gave evidence. It is not a common idiom now and she would be right to consider that her audience (whether readers of FanStory, watchers of 'Newsnight' or viewers of the ITV interview) would be mystified if she used it.
v) As I have said, I find that in truth the Claimant has no recollection of what actually happened on this evening. He originally said that he could not remember being on a show with Jimmy Savile at all. I accept that the Claimant has appeared on several thousand TV shows and he could not be expected to remember each one, but his response when initially approached was to deny his appearance categorically not to say he could not remember. He then said that he had left immediately after the show. In his evidence he said he may have stayed for a short time with him manager, Mr Cartwright. Later in his evidence he said that his wife remained as well with him and Mr Cartwright. There has been no evidence from either Mr Cartwright (whose absence in the USA would not have prevented him providing a witness statement) or the Claimant's wife at the time (who could have been witness summonsed if she was unwilling to attend voluntarily).
vi) In his evidence, Mr Starr accepted that he had a voracious sexual appetite in 1974. Slapping a girl's bottom is what people did in the 1970's, he said. It did not mean anything and was acceptable. He revelled in the reputation of being a 'cheeky bastard' as he put it in his autobiography. He agreed that he did make jokes about women's breasts. 'Every man does it, even my 15 year old son', he said in evidence. He was asked about a passage in his autobiography which recounted his first meeting with Sandy, whom he later married in the mid-1970s. The book recorded him as saying to this woman to whom he had not previously spoken and, when learning her name, 'Hello Sandy. Can I play with your fur purse?' He said in his evidence this was inaccurate. In fact he had asked if he could play with her fur clitoris.
vii) In his witness statement, the Claimant said 'my humour was and remains the opposite of humiliation.' That is difficult to reconcile with an extract which Mr Price played from one of the Claimant's shows in which he takes two women from the audience on to the stage: one beautiful; the other, not so. The audience is repeatedly invited to laugh at the latter. Mr Starr emphasised that this was an adult show to which children were not admitted. That may be and it may explain why the jokes could be sexually frank. But it also showed that the Claimant felt free to raise a laugh at another person's embarrassment about her body.
viii) The Claimant's response was to say that his behaviour towards young girls was different. He said he didn't like younger women. In his interview for 'This Morning' he had said 'I always kept away from girls because I knew it spelt trouble.' In his evidence he said the cut off point was 22 or 23. However, his behaviour on the very same occasion as the Defendant spoke about tells a different story. Susan Bunce was a small 15 year old. He picked her up, held her in the air and gave her a long passionate kiss. Later in the evening he offered to drive her home. There was, according to Ms Bunce, a conversation about her age in which she allowed the Claimant to believe that she was 18. In her evidence she said that this took place before the Claimant had kissed her. Even if this was the case, it would mean that the Claimant's cut off below which he avoided girls was lower than he was prepared to admit. However, I prefer the account which Ms Bunce gave in her more detailed interview with the police. In this she said the conversation about her age took place only after the incident in which she and the Claimant had kissed. I also accept the evidence of witness C. When she, also a 15 year old school girl, asked for a memento, he offered her a tuft of his pubic hair. I reject the claim that this was impossible because of the tightness of his trousers or the width of his belt. Ms Bunce had described him as wearing loose trousers when he invited her to look in his pocket for a packet of cigarettes. He had obviously changed from the trousers he had been wearing during the 'Clunk Click' show.
ix) The accounts of the Defendant, Witness C and Ms Bunce appear to be independent of each other. There is no evidence to the contrary. Indeed, Ms Bunce was called in the Claimant's support. Ms Bunce did not see what the Claimant did and said to Witness C. Witness C and the Defendant gave no evidence about what took place between Ms Bunce and the Claimant. I do not find this surprising. There were lots of people in the room. Each of these three remembered most clearly what happened to her. The accounts of Ms Bunce and Witness C however, provide support as to the Claimant's behaviour towards 15 year old girls that night. They contradict the Claimant's evidence that below 22 or 23 was the cut off for his interest in women. They support the Defendant's account that it included girls of 15.
Other defences for the ITV words and ITV broadcasts
i) The eBook does not say that the name of person concerned began with 'F', simply that was the code which the Defendant was going to use. But, even if I assume that some readers made the (correct) assumption that it did mean that the comedian's name began with F (a) and (b) alone give insufficient clue as to the identity of the person about whom she was speaking. The evidence of Ms MacKean, Mr Jones and Mr Williams-Thomas was that none of them knew who F was until the Defendant told them. Mr Dunham argued that a reader of the eBook could have consulted the internet and found that the Claimant was a popular comedian in the 1970's whose name began with F. However, there is no pleading or evidence to this effect. Nor do I know how many other comedians whose names began with F would have been thrown up. The size of that group would make a difference as to how realistic it would be for a reader to assume that 'F' was the Claimant.
ii) The Claimant relies as well on (c), but a reader of the eBook who was able to identify the Claimant as F because of the broadcasts would have learned that he vigorously denied the Defendant's allegations. Furthermore, Channel 4 News broadcast the item because of the Claimant's actions in applying unsuccessfully for an injunction and because of his denials in the media of the Defendant's allegations (which had not at that stage been published by her). Mr Dunham acknowledged the force of these points which had been made by Mr Price. He responded by saying that there would be some readers of the eBook who had not seen the broadcasts. However, that brings him back to the difficulty which I mentioned in (i) above.
iii) The numbers of those who read the eBook in this jurisdiction is uncertain. The Claimant pleaded that there was a significant number. This was not admitted and he called no evidence in support of the contention. In cross examination the Defendant said she had sold 100 copies of Part 1 of her book (an earlier part than the eBook which contained the words complained of). At least some of those were to the United States of America and there is no claim in respect of publications outside the jurisdiction. There was no cross examination and no other evidence in relation to sales of the eBook.
Summary of conclusions
Note 1 At one point in his closing submissions, Mr Dunham suggested that words spoken which were recorded on film could, alternatively, be treated as a libel, but on reflection he accepted that they were pleaded as slander and he did not apply to amend to plead them as libel in the alternative. [Back] Note 2 As with the BBC words, Mr Dunham accepted that the claim for the ITV words was pleaded in slander and he did not apply to amend to plead libel in the alternative. [Back]
Note 1 At one point in his closing submissions, Mr Dunham suggested that words spoken which were recorded on film could, alternatively, be treated as a libel, but on reflection he accepted that they were pleaded as slander and he did not apply to amend to plead them as libel in the alternative. [Back]
Note 2 As with the BBC words, Mr Dunham accepted that the claim for the ITV words was pleaded in slander and he did not apply to amend to plead libel in the alternative. [Back]