![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462 (05 November 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/1462.html Cite as: [2005] EMLR 217, [2005] QB 972, [2005] 3 WLR 281, [2004] EWCA Civ 1462, [2005] 1 All ER 30 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2005] QB 972]
[Buy ICLR report: [2005] 3 WLR 281]
[Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Fulford
Strand, London, WC2A 2LL |
||
B e f o r e :
Vice-President of Court of Appeal (Civil Division)
LORD JUSTICE MAY
LORD JUSTICE DYSON
____________________
Martha Greene |
Claimant/Appellant |
|
- and - |
||
Associated Newspapers Limited |
Defendant/Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Andrew Caldecott QC and Catrin Evans (instructed by Reynolds Porter Chamberlain) for the Respondent
____________________
Crown Copyright ©
Para No | |
PART I | |
1. Introduction | 1 |
PART II | |
2. The Procedural Background | 3 |
3. The Facts | 5 |
4. The Judge's Conclusions on the Facts | 20 |
5. Counsel's Arguments Before the Judge | 24 |
6. The Judge's Conclusions on the Law | 32 |
7. The Effect of the New Evidence | 34 |
PART III | |
8. The Law of Prior Restraint in Defamation Actions: the Beginnings | 42 |
9. The Law of Prior Restraint in Defamation Actions: the Modern Law | 51 |
10. The Law of Prior Restraint in Defamation Actions: the Rationale of the Rule | 57 |
PART IV | |
11. The Effect of the ![]() ![]() |
58 |
12. Section 12(3) of the ![]() ![]() |
59 |
13. Section 6 of the ![]() ![]() |
67 |
Lord Justice Brooke: This is the judgment of the court.
PART I
1. Introduction
Part II
2. The Procedural Background
3. The Facts
“The woman at the centre of the Blairs' £3.6 million house deal is a former business contact of convicted fraudster Peter Foster, The Mail on Sunday can reveal. Martha Greene has become one of Cherie Blair's closest friends and confidantes and was entrusted with the role of go-between when, earlier this summer, the Blairs bought the property in Connaught Square, central London.”
A little later the article continues:
“Martha Greene, the 48-year-old New Yorker who runs the Villandry Restaurant and Foodstore in London's Great Portland Street, was, like Foster, introduced to Cherie by her lifestyle 'guru', Carole Caplin. The women have known each other for six years, during which time Greene has seemingly supplanted Caplin as Cherie's 'new best friend'.”
“Of course, any claims made by Foster must be treated with a degree of caution. But e-mail communications between Foster and Greene, seen by this newspaper, support his account. In one, dated November 6, 2002, Greene wrote to Foster: 'As discussed, happy to assist you with the development of your Reneulle business in UK. I don't need a fancy title, as you suggested, just a consultant would suit me fine.
I would require a set fee of US$15,000, if possible paid to my account in the US …. Can we do this without the need to UK-based invoice through your overseas company? Would be helpful?'”
“The piece is littered with inaccuracies, some material, some less so. It is unnecessarily intrusive, for instance into her personal relationships and misuses what is clearly confidential medical information about her membership of and attendance at Alcoholics Anonymous, as well as her treatment for breast cancer. There can be no conceivable justification for putting this information into the public domain.
The sting of the article is, however, to be found in your attempts to link our client to Peter Foster……. Our client has met Peter Foster on no more than six occasions between October 2002 and January 2003 and not otherwise. They were predominantly social events. She did not send Foster the e-mails you attribute to her. She did not have any form of business with him.”
“Thank you for your help with last week's article. A further email has come into our possession which raises a number of points. We would be grateful for your response by 12 noon tomorrow so that we can include it in the article we are preparing for this Sunday's Mail on Sunday.
In an email you sent on Friday January 31, 2003 to Peter Foster, you say:
'I would like you to give some thought to our suggestion of selling your diet aids over the internet. As you know, we are both very excited about the potential of the internet and its global reach. Ivan has the expe(r)ience with the structuring of a web site that is interactive and also how to advertise on the net.'
Can you confirm that you are planning to enter into business with Peter Foster selling his slimming aids on the internet?”
“The simple answer to the questions raised in your letter is that Foster is lying to you in suggesting that our client sent him an email on 31 January 2003. If Foster has provided you with what he claims to be an email from our client to him dated 31 January 2003, then it is a forgery and your paper is about to be duped and to dupe its readership in the event that you publish his claims. Newspapers are frequently the subject of scams and there is a need for considerable caution.
Please provide us with details as to: at what time this email is said to have been sent; from what email address it is said it was sent, and to which email address it is said to have been sent, and ideally supply us with a copy of the alleged email. Without this information our client is obviously hampered in her ability to meet any case you may persist in maintaining that the email is genuine, and in demonstrating that the email is a forgery by independent or other forensic evidence.
The suggestion that our client emailed Foster on 31 January is undermined by the sequence of events leading to Foster's deportation at the end of January. On Monday 27 January 2003, Foster was detained at Dublin Airport by the Irish Garda having, it seems, spent most of the period leading up 27 January in the Irish Republic. On Tuesday 28 January 2003 Foster was deported from Ireland. On 30 January 2003, Foster appears to have arrived back in Australia, landing at Sydney Airport before flying to the Gold Coast, south of Brisbane.
All of this information is in the public domain and information that you could readily obtain. If you were to read the coverage given to Foster during January 2003, including that given over to his deportation from Ireland and his arrival back in Australia, the likelihood of our client emailing him on Friday 31 January to discuss a business proposition is highly unlikely.”
“… [T]here can be no public interest in simply regurgitating claims of a conman or information obtained from one of the other sources we have identified without having properly taken steps to verify the information that has been provided and, at the very least, demonstrated that the email he claims to have been sent is authentic.”
“I confirm that I did have about two conversations with Foster in which he tried to persuade me to assist him in his business proposals. However, this was the extent of my involvement and I confirm I did not enter into a business relationship with him, take any steps to assist him, or receive any money from him.”
“I am arranging for a forensic computer expert to examine my computers during the course of the next few days to demonstrate that the alleged email was not sent by me to Foster. In this regard, even if the Court is not minded to injunct the Defendants permanently until further order, I respectfully request that it orders an interim injunction to prevent the publication of the allegations the Defendants propose to publish based on the email until such time as it is possible for proper evidence to be put before the Court on the authenticity of the alleged email. If so, I also ask that the defendants disclose the email said to have been sent by me to Foster in order that this may be given to the computer forensic expert to assist in his examination of my computers. I confirm I have a PC in my office and my home.”
“I do not know whether or not the editor will decide to publish an article about the business relationship between Martha Greene and Peter Foster, but if he does decide to do so I believe we will be able to stand up the story and, if The Mail on Sunday is sued, I confirm we will justify the sting of the article.”
4. The Judge's Conclusions on the Facts
“As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial.”
5. Counsel's Arguments before the Judge
“[Counsel] further relies upon the long-established principle in the closely related field of defamation law that where the defendant contends that the words complained of are true and swears that he will plead and seek to prove the defence of justification, the court will not grant an interlocutory injunction unless, exceptionally, it is satisfied that the defence is one which cannot succeed. This is often called the rule in Bonnard v Perryman ([1891] 2 Ch 269) and it appears to extend also to the defences of privilege and fair comment. In defamation, therefore, it is even harder to obtain interlocutory relief than were the claimant facing the suggested balance of probability test in section 12(3) [of theHuman Rights Act
1998]. So much the more likely, submits [Counsel], that Parliament was intending by section 12(3) to introduce a test at least as stringent as that rather than the lower and less precise threshold test of a real prospect of success, a test so low, indeed, that a failure to meet it would in any event render the claim vulnerable to strike out by summary judgment under CPR 24.2 and amounts to little more than was previously required by the American Cyanamid approach - see American Cyanamid v Ethicon Limited [1975] AC 396, 407:
“The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words that there is a serious question to be tried.”
For her part, Arden LJ said at p 96:
“The present case is an action for breach of confidence. If a breach of confidence occurred, the second appellant (“The Echo”) was aware of all the relevant circumstances. This is not a case where defamation is alleged and where The Echo has indicated its intention to prove justification at trial. In such a case, the court will not grant an interim injunction to restrain publication unless it is clear that the plea of justification is bound to fail: Bonnard v Perryman [1891] 2 Ch 269, Holley v Smith [1998] QB 726. Nor is this a case where there is a strong case for publication in the public interest of the alleged confidential material of the nature that was held to exist in Lion Laboratories Ltd v Evans [1985] QB 526.”
“The rule in Bonnard v Perryman is long established, straightforward to apply and in harmony with the importance attached by the Convention and the European Court of Human Rights to the right of freedom of expression. Moreover, the rule releases the court from the usually impossible task of investigating summarily the merits of the defence of justification which is so often dependent on the credibility of witnesses and detailed consideration of documents. It is surely improbable that it will be adjudged that the burden on a claimant seeking an interim injunction in defamation has been relaxed by section 12(3) so that he merely has to show a reasonable prospect of success in the face of a defendant's contention that he has a viable defence.”
6. The Judge's Conclusions on the Law
7. The Effect of the New Evidence
PART III
8. The Law of Prior Restraint in Defamation Actions: the Beginnings
“To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.”
“I have this to bear in mind, that, if in such a case as this an interlocutory injunction is not granted, I cannot imagine any case in which an interlocutory injunction to restrain a libel could be granted, whereas it is clear on the authorities that there are cases in which it would be proper to grant it.
Then there is this further matter to be considered with reference to the point made, that the matter ought to be tried before a jury. I am satisfied of this, that if the matter was before a jury now, upon the evidence which is before me - that is to say, the evidence of the Plaintiffs uncontradicted, not cross-examined to, and merely resting on the Defendant's evidence in answer to it - I am perfectly satisfied there is not any jury in England who would say there should be a verdict for the Defendant in such a case, and, what is more, if they did, I am quite satisfied it is a case in which a new trial would be directed. This, of course, does not touch what may be the case when the action comes to be tried. There may be evidence before the Court then which would satisfy a jury who tries it that the Defendant has made out a justification. I am merely referring to the materials before me, which are all I can look to now in considering what I am to do in the matter. In these circumstances I have come to the conclusion that an injunction must be granted in the terms which I have mentioned.”
"... the question of libel or no libel was for the jury. It was for the jury and not for the Court to construe the document and to say whether it was a libel or not. To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel before the jury decided whether it was a libel or not. Therefore, the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise the jurisdiction."
“agreed with the rules laid down by the Master of the Rolls, and he was not prepared to say that the jury might not find that this was no libel, or that the alleged libel was true. The injunction, therefore, ought not to have been granted. Both the Judge at Chambers and the Divisional Court had suggested a form of circular; but it was no part of a Judge's duty to do so, except for the purposes of putting an end to litigation, and the Court ought not to settle a draft form of what might turn out to be a libel.”
“…[T]he subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions… In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable.”
9. The Law of Prior Restraint in Defamation Actions: the Modern Law
“The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years ever since Bonnard v. Perryman. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth should out. … There is no wrong done if it is true, or if [the alleged libel] is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication.”
“These principles have evolved because of the value the court has placed on freedom of speech and I think also on the freedom of the press, when balancing it against the reputation of a single individual who, if wrong, can be compensated in damages.”
“If the court were to accept this argument, the practical effect would I believe be that in very many cases the plaintiff would obtain an injunction, for on the American Cyanamid principles he would often show a serious issue to be tried, that damages would not be realistic compensation, and that the balance of convenience favoured restraining repetition of the alleged libel until trial of the action. It would thus be a very considerable incursion into the present rule which is based on freedom of speech.”
“I cannot see why the Bonnard v Perryman principle should not be applied. Quite apart from any question of public interest in the freedom of the press, there is a much wider principle which covers it, and that is this. The injunctive powers of the court can only be invoked in support of a right or in defence of an interest. If the Polly Peck defence were to succeed the plaintiff would have no right. She therefore cannot expect to have it defended. That does not of course answer the question which arises as to how likely she is to succeed. That is a problem which always arises in libel and elsewhere. The point is that Bonnard v Perryman, apart from its reference to freedom of speech, is based on the fact that courts should not step in to defend a cause of action in defamation if they think that this is a case in which the plea of justification might, not would, succeed.”
“… the question what meaning the words complained of bore was primarily one for the jury.
Suppose the words bore the second meaning alleged and an injunction were granted restraining further publication, if application were made to commit the defendants for contempt of court for breach of that injunction, the judge hearing the application would have to form a view as to whether there had been a breach of the injunction and decide whether the words used implied that Mr Herbage had been made bankrupt and discharged without paying his debts in full. It could not be right in a defamation action to grant an action of that kind. There were special circumstances in defamation actions”. (Emphasis added)
“I accept that the court may be left with a residual discretion to decline to apply the rule in Bonnard v. Perryman in exceptional circumstances. One exception, recognised in that decision itself, is the case where the court is satisfied that the defamatory statement is clearly untrue. In my judgment, however, that is a discretion which must be exercised in accordance with established principles.”
10. The Law of Prior Restraint in Defamation Actions: the Rationale of the Rule
Part IV
11. The Effect of the Human Rights Act
1998
12. Section 12(3) of the Human Rights Act
1998
“No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”
“When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a 'serious question to be tried' or a 'real prospect' of success at the trial.”
“There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law further than was necessary to remedy the 'mischief.' Of course it may and quite often does go further. But the principle is that if the enactment is ambiguous, that meaning which relates the scope of the Act to the mischief should be taken rather than a different or wider meaning which the contemporary situation did not call for.”
“The words, in their context, need mean no more than that there is a contempt in the absence of a defence recognised by law. If Parliament had intended to treat publication of information relating to proceedings before a court sitting in private as a contempt irrespective of circumstances, I would have expected express provision to that effect. Circumstances can and do arise in which Parliament must have intended the old law to continue, for example, where the court authorises publication or where by the passage of time 'the rule of publicity [is] resumed' (Lord Shaw of Dunfermline, Scott v Scott [1913] AC 417 at 483). Similarly, if, as I believe, the pre-existing law recognised a defence that the publisher neither knew nor ought to have known that the information published related to proceedings before a court in private, one would have expected express provision if such a defence was to be taken away.”
“It is a well established principle that a rule of the common law is not extinguished by a statute unless the statute makes this clear by express provision or by clear implication.”
13. Section 6 of the Human Rights Act
“The common law rules, and their statutory modifications, regarding defamation and injurious falsehood represent compromises gradually worked out by the Courts over the years, with some legislative adjustments, between competing values. Personal reputation and freedom to trade on the one hand have to be balanced against freedom to speak or criticise on the other.”
“My Lords, this appeal concerns the interaction between two fundamental rights: freedom of expression and protection of reputation.”
“… [N]o one has a right to a reputation which is unmerited. Accordingly one can only suffer an injury to reputation if what is said is false. In defamation the falsity of the libel or slander is presumed; but justification is a complete defence.”
“… [T]he dangers inherent in prior restraint are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”
“17. The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.
VI. The general rule
18. In oral argument it was accepted by both sides that the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8.”