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Cite as: [2002] EWCA Civ 1087

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    Neutral Citation Number: [2002] EWCA Civ 1087
    Case No: A2/2002/0336 & A2/2002/0337

    Gray J

    Royal Courts of Justice
    London, WC2A 2LL
    24th July 2002

    B e f o r e :



    - and -

    (Sued as Chief Constable of Kent)


    (Transcript of the Handed Down Judgment of
    Smith Bernal Reporting Limited, 190 Fleet Street
    London EC4A 2AG
    Tel No: 020 7421 4040, Fax No: 020 7831 8838
    Official Shorthand Writers to the Court)


    Mark Warby QC & Jacob Dean (instructed by Farrer & Co) for the Appellants
    Andrew Caldecott QC & Manuel Barca (instructed by Goodman Derrick) for the Respondent



    Crown Copyright ©

      Lord Justice Brooke :

      1. Introduction

    1. There were before the court an appeal by the defendants by permission of the judge, and also their application for permission to appeal, against different parts of an order for case management directions made by Gray J in this libel action on 24th January 2002.
    2. The claimant is a journalist who played a prominent role in the production and presentation of a series of BBC television programmes called MacIntyre Undercover. One of the programmes in the series, which was broadcast on 16th November 1999, was very critical of the way in which the disabled residents of a council funded care home in Kent were being treated. The Kent police prepared their own report into the question whether any criminal offences had been committed in that home, and this action arises out of the contents of the report itself, which was completed in March 2000, the publication of some of its contents by the Kent police to a journalist from The Sunday Telegraph, and numerous statements made to the media about the contents of the report and its findings. These statements were described by the judge as “the Pugash statements” from the name of the second defendant Mr Mark Pugash, who was the senior press officer of the Kent police. The first defendant is the Chief Constable of Kent, and the third defendant, Detective Sergeant Michael Costello, is an officer in that police service who helped to head the police inquiry which led to the preparation of the report.
    3. It appears that the original broadcast had serious consequences, in that the local authority closed the home and displaced its 40 residents. 84 members of staff were made redundant. The BBC received over 10,000 calls to its hotline telephone number after the broadcast. A consequence of the police’s decision to allow the journalist to read the report and to interview Mr Costello was that the ensuing article in The Sunday Telegraph led to a number of inquiries by representatives of the media to the Kent Police press office. The Pugash statements were made in response to these inquiries.
    4. 2. The history of this action

    5. The claimant complains in this action that although the police interviewed him and subsequently reported that he had been genuinely helpful, they put none of the allegations of which he now makes complaint either to him or to the BBC, so that they had no opportunity of responding to them. They contained a specific allegation that he had lied about the administration of insulin, an allegation which appeared in The Sunday Telegraph. The police showed their report to The Sunday Telegraph with an express instruction that no allegation that the programme was misleading should be attributed to them. The claimant complains that despite this instruction Mr Pugash told representatives of the media subsequently that virtually nothing that was alleged in the programme stood up, and that this contention was published and republished throughout the local and national press.
    6. The proceedings in this court arise out of the directions Gray J made at a case management conference on 24th January 2002. He first made a direction that the action should be tried by a jury. There is no appeal against that part of his order. He gave the defendants permission to appeal against his refusal to allow them to amend their defence to rely on similar fact evidence. He refused to grant them permission to appeal against his refusal to direct the trial of a number of preliminary issues, and they have therefore had to come to this court to ask for the requisite permission.
    7. The broad complaint which the claimant makes in these proceedings is that the defendants defamed him by asserting that the film taken under cover in the care home was persistently, deliberately and dishonestly distorted by him or with his connivance so as to mislead the public, and that he told a lie in the course of presenting the programme. He claims damages, including aggravated damages.
    8. By their amended defence the defendants rely on qualified privilege (both at common law and under the statute), justification and fair comment. The same defences are relied on in relation to most, but not all, of the different publications relied on. By his reply the claimant denies that the publications to The Sunday Telegraph and the Pugash statements attracted qualified privilege. He takes issue with the plea of justification, and denies that the publication to The Sunday Telegraph and the Pugash statements constituted comment for the purposes of a defensible plea of fair comment, because each contained factual allegations. And he asserts that the Pugash statements were actuated by malice.
    9. The defendants sought from the judge directions that he should direct the trial of preliminary issues which would embrace the following matters:
    10. i) Whether the words were published on an occasion of statutory qualified privilege;

      ii) Whether the words were published on an occasion of qualified privilege in common law;

      iii) Whether the words constitute fact or comment;

      iv) Whether the words are capable, on the basis of the facts stated by the defendants, of satisfying the objective test of fair comment, and

      v) Whether the words were published maliciously.

      The judge rejected their application, and the defendants now seek to challenge his decision in this court in relation to issues (i), (ii) and (v).

      3. The judge’s reasons: Preliminary issues

    11. The judge accepted that a major saving of costs and court time would be achieved if the defence could succeed on preliminary issues without the need for a trial on justification. He said he was aware that the court was encouraged to order the trial of separate issues where appropriate (see CPR 3.1(2)(i)), and that on two recent occasions this court had encouraged a preliminary trial on the question whether privilege was available.
    12. On the other hand he was conscious that there remained sound reasons for caution about ordering the trial of preliminary issues before the facts had been found. In the present case the claim to privilege raised a number of difficult issues, which he enumerated, and he said that in those circumstances there was a real likelihood that any decision would be appealed. This would result in the prolonged postponement of any trial, and consequently of the opportunity for the claimant to vindicate his reputation. The judge said that experience suggested that it was sometimes appropriate to order the trial of qualified privilege as a preliminary issue and sometimes not.
    13. He accepted that the question whether statutory privilege was available, subject to malice, was a self-contained issue which could be decided on largely uncontentious evidence. The difficulties confronting the defendants’ application lay elsewhere. These could be summarised in these terms:
    14. i) Resolution of the claim to common law privilege might well entail a wide-ranging factual inquiry. Under Reynolds v Times Newspapers [2001] 2 AC 127 a journalist is not entitled to rely on the privilege unless he has acted responsibly. The same condition might apply to the claim for privilege by the police in a case like the present. There would then have to be a detailed examination of many of the ten factors enumerated in Lord Nicholls’ speech in Reynolds.

      ii) The claimant’s case on malice as at present pleaded threw up numerous factual issues, and disclosure might give rise to others. It had been argued for the claimant that the contents of the police report showed that the investigating officers had liaised and fully shared information with the compilers of an unfavourable report into conditions at the care home which was prepared for the local council by independent consultants known as Q-Trek. That report had reached conclusions about the conditions at the care home and the programme which were radically different from the conclusions arrived at by the police. The claimant might well wish to amend his reply, following disclosure, so as to rely on the contents of the Q-Trek report in support of his case on malice once he became aware of the extent of the police officers’ knowledge of the conclusions arrived at by its compilers.

    15. For these reasons the judge declined to order the trial of preliminary issues. He added that since he had ordered jury trial, it would be unsatisfactory if one jury were to decide the issue of malice in favour of the claimant and another jury had to be empanelled at a later date to decide the remaining issues, including justification.
    16. 4. The judge’s reasons: the similar facts amendment

    17. I turn now to the judge’s reasons for refusing to allow the amendment sought. The defendants wished to add to their defence particulars relating to an earlier programme in the same BBC series about a model agency. That programme had also been the subject of a libel action (which was settled before trial). The defendants wished to add to their defence allegations that in connection with that earlier programme:
    18. i) the claimant had conveyed to viewers in his broadcast commentary an impression which he knew to be completely false;

      ii) the editing was dishonest;

      iii) the claimant’s commentary was untrue in another respect, as he knew or could have found out; and

      iv) other edits conveyed a false picture, as he knew or could have found out.

    19. It was argued that these allegations could be put before the jury either as similar fact evidence to rebut the claimant’s case that his editing of the programme about the care home was honest, or in reduction of damages, as being part of the context in which that programme was broadcast.
    20. The judge said he had come to the clear conclusion that the just and expeditious disposal of the action required him to refuse permission to amend. The jury would have plenty to think about when grappling with the question of the claimant’s honesty in connection with the programme about the care home. To impose on them the added task of deciding whether he was dishonest in connection with a different programme in the same series would distract them from evaluating the parties’ cases about the validity of the contentions made in the Kent police report. He was not persuaded that it was unjust to confine the case in this way, and he also explained why he was far from convinced that the amendment would only add one day to the length of the trial.
    21. He added that he had real doubts whether the material sought to be admitted as similar fact evidence was admissible for the limited purposes indicated in Neill LJ’s judgment in Thorpe v Chief Constable, Manchester [1989] 1 WLR 665. He said that it would also be incumbent on the defendants to persuade the trial judge to exercise his discretion in favour of admitting the evidence, even if he permitted it to be added to the defendants’ statement of case by amendment.
    22. 5. The similar fact amendment: discussion and conclusion

    23. I will deal with this second issue first. It arises in the following way. The programme which is at the centre of these proceedings was broadcast on 16th November 1999, and the other programme (mentioned in para 13 above) was broadcast a week later. Mr MacIntyre was not a defendant in the (settled) libel action which arose out of the later programme, although the defendants in the present action say he was very closely involved.
    24. The defendants wish to be able to adduce evidence in the present action of three instances of alleged editorial distortion and dishonest editing in the making of the Elite programme. The details of these three matters were as follows:
    25. i) Mr MacIntyre tried to coax a model, Miss Howard, into saying that Elite did not warn her about the dangers she would face in Milan. She repeatedly told him she was warned. In his broadcast commentary he said that the girls were not warned. The broadcast included a small edited part of his interview with her. The unedited version shows her saying that the agencies were very firm about warning the girls. The edited version suggested that she was saying that the agencies knew the dangers (but the girls did not).

      ii) The BBC possessed a film of a girl arguing with her boyfriend, a university student, who wanted to go on to a nightclub with their friends while the girl wanted to go home. In the broadcast Mr MacIntyre’s commentary depicted this as being of a model arguing with a nightclub PR, who was trying to force her to go to a nightclub (where models are at risk from drugs or sexual exploitation) against her will.

      iii) In the third piece of editing, the word “not” is removed from a sentence spoken by a model. 15 minutes of footage is also removed, so that although in fact the nightclub PRs arrived at the club 15 minutes before the “Elite booker” (in fact a booker for another agency) arrived, it appears that they arrived together, and Mr MacIntyre’s voice over says “This man is an Elite booker, who arrives with his PR friends”.

    26. The reason why the defendants say they should be allowed to adduce this evidence is that they are contending that in the Kent care home programme Mr MacIntyre indulged in editorial distortions and dishonest editing. He contends in reply that the omissions and edits and commentary on which the defendants rely were proper and honest, and that they reflected the true position as observed by himself and other programme makers. The defendants contend that the Elite examples give the lie to these protestations of innocence. They show, it is said, that Mr MacIntyre and the other programme makers were quite willing to present a wholly false picture to the viewer. They wish to introduce the evidence in order to rebut Mr MacIntyre’s case that any distortions and edits were innocent, although they might at first sight appear misleading.
    27. The principles governing the admissibility of similar fact evidence in civil actions are well known. In Mood Music Publishing Co v De Wolfe Ltd [1976] Ch 119, 127 Lord Denning MR observed that in civil cases the courts have followed a similar line to that pursued in criminal courts, but that they have not been so chary of admitting it. He said:
    28. “In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it.”
    29. In Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665 Neill LJ said, succinctly, at p 674:
    30. “Evidence of ‘similar facts’ is relevant both in criminal and in civil cases to rebut defences such as accident or coincidence or sometimes to prove a system of conduct. Such evidence is not admissible, however, merely to show that the party concerned has a disposition to commit the conduct alleged.”
    31. In Berger v Raymond Sun Ltd [1984] 1 WLR 625 Warner J directed himself at p 632 that in deciding how to exercise his discretion in relation to the admission of evidence “the court should at least take into consideration the probable probative value of the evidence sought to be adduced and the extent to which it will complicate and prolong the trial”. An example of a judge at first instance weighing these rival considerations in the balance can be seen in the judgment of Aldous J in the copyright case of Perrin v Drennan [1991] FSR 81.
    32. The claimant filed evidence in relation to the defendant’s application to amend. He said that the court should be aware of the fact that the BBC mounted a full-blown defence of justification in the Elite action which was settled at midnight before the morning of the first day of the trial on terms that the BBC paid nothing to Elite by way of damages or costs. He was not a defendant in that action. Nor was he a party to the settlement or to the public statement agreed by the BBC. To the extent that the settlement deprived him of the opportunity to vindicate his professional reputation with respect to the Elite programme, he would consider it grossly unfair and disproportionate for the issues in that programme now to be belatedly reopened in the highly selective manner envisaged by the defendants. If his complaint in this case was effectively to be turned into a trial of the series as a whole, then he would expect to be allowed to adduce evidence about the journalistic integrity of a different programme in the series which survived the crucible of a criminal trial and was vindicated by the jury’s guilty verdict and the resulting imprisonment of both defendants.
    33. In a supporting witness statement, his solicitor explained that Mr McIntyre felt constrained on matters relating to the Elite programme, having regard to the terms of the confidential settlement between Elite and the BBC and the mutual undertakings those terms contain.
    34. Mr Warby QC, who appeared for the defendants, developed in this court the submissions that had been advanced before the judge. He relied in particular on the episode in which Mr McIntyre was directly involved. He said that this evidence would rebut the claimant’s contention that any distortions and edits, which might at first sight appear innocent, were misleading. He argued that if this evidence was withheld from the jury (and the trial judge) there was a real danger of the court deciding the case in blinkers, and of the claimant obtaining vindication on a false basis.
    35. It appears to me that this was essentially a matter for the discretion of this very experienced judge. I have read and re-read the relevant part of his judgment with care (for my summary, see paras 15 and 16 above) and I find it quite impossible to say that his decision on the point fell outside the wide ambit of discretion open to him when performing his case management duties. If the relevant evidence had been likely to be brief and compelling, he might well have decided the matter the other way, but he was right to be concerned that contentious evidence in relation to a wholly different programme might have the effect of distracting the jury from the central task they had to perform. It should be remembered that in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 this court emphasised the need to confine libel actions within manageable and economic bounds. I would therefore dismiss the defendant’s appeal on this point.
    36. 6. Preliminary Issues: Discussion and conclusion

    37. I turn now to the defendants’ challenge to the judge’s refusal to order the trial of preliminary issues on the questions of qualified privilege and malice. We granted the defendants the requisite permission to appeal during the course of the hearing. Before I analyse the submissions we received, I will set out the principles of the law of qualified privilege that apply to this case.
    38. The defendants’ claim for statutory qualified privilege is founded on section 15 and paragraph 9 of the Schedule I to the Defamation Act 1996. Section 15 provides, so far as is material:
    39. 15(1) The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows.
      (3) This section does not apply to the publication to the public, or a section of the public, of matter which is not of public concern and the publication of which is not for the public benefit.
    40. Schedule 1, paragraph 9 of the Act provides, so far as is material:
    41. 9(1) A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of –
      (b) … any authority performing governmental function in any member state.
      (2) In this paragraph “governmental functions” includes police functions.

      The editors of the ninth edition of Gatley on Libel and Slander (1998) comment at p 410 that the privilege under the schedule plainly does not protect the original publication of the matter that is reported: see on this point Lord Steyn in McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 295.

    42. If that defence fails in the case of any or all of the publications, the defendants also assert that each publication complained of attract qualified privilege at common law. They do not rely on the criteria for qualified privilege identified by the House of Lords, and particularly by Lord Nicholls, in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The main plea of qualified privilege in paragraph 13 of the Amended Defence takes up nearly 14 pages to develop and this is followed by shorter pleas in relation to the other publications of which complaint is made. In relation to the original incident relating to the disclosure of the police report to The Sunday Telegraph journalist and the subsequent article in that newspaper, the first and third defendants’ case, in brief is that
    43. “the information in the words complained of was information on matters of public interest and concern which the First and Second Defendants were under a social or moral duty to communicate to the public, which had a legitimate interest in and right to know the information and in all the circumstances the publication of the said words is privileged at common law” (Amended Defence, para 13.1.2).”
    44. The reply contains three and a half pages of factual allegations in response to the main plea of qualified privilege. It ends with a plea of express malice against the first and second defendants. This plea adopts many of the factual allegations contained in the early part of the Reply, and eight more allegations of fact. The main thrust of the plea of malice is that these defendants published or caused the publication of the Pugash statements
    45. “in pursuit of an improper tactical objective; namely to mount a full-frontal attack on the programme in the hope that the ensuing public controversy would forestall any complaint or legal action against the Kent Police by the BBC or the programme makers in consequence of The Sunday Telegraph publications.” (Reply, para 121(10)(2)).
    46. Mr Warby submitted that this court has now laid down what is tantamount to a rule of practice to the effect that courts should direct issues of qualified privilege to be heard in advance of the main trial of a defamation action. He relied in this context on passages in two recent judgments. In GKR Karate v Yorkshire Post (No 1) [2000] EMLR 396 this court upheld an order made by Sir Oliver Popplewell less than a month before a libel trial was due to start to the effect that the issues of qualified privilege, insofar as they related to the two newspaper defendants (but not to a lay defendant), should be tried first. The lay defendant did not ask for a preliminary trial on qualified privilege in his case, and the preliminary trial suggested was estimated to last three days in contrast to a four to six week trial of all the issues. It appears from p 401 of the report that the disputed facts, so far as the two newspaper defendants were concerned, were quite limited in extent.
    47. In this court May LJ, with whom Tuckey LJ agreed, said at p 404 that:
    48. “I consider that, subject to questions of substantive law and fairness to which I shall come, the judge’s order was entirely in accordance with the CPR. A fair means of determining privilege and malice in this case without having to trudge expensively through the mire of justification achieves the overriding objective.”
    49. In Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805, [2002] 1 All ER 652 Lord Phillips MR, giving the judgment of the court, said at [41]:
    50. “Qualified privilege ordinarily falls to be judged as a preliminary issue and before, therefore, the truth or falsity of the communication is established.”
    51. It would be quite wrong, in my judgment, to describe these two dicta as giving rise to a new rule of practice. Nothing in them should be interpreted as taking away the discretion of the judge at a case management conference to give the directions he considers to be appropriate for the management of the individual case. It may very well be that now that the ground rules for the defence of newspaper qualified privilege seem fairly well settled for the time being (the House of Lords having refused the defendants’ petitions to appeal against two different judgments of this court in Loutchansky v Times Newspapers), a judge may generally decide it wise to direct a preliminary issue on qualified privilege in such a case, on the basis that an appeal is not particularly likely and a decision in favour of the defendants would avert a long trial on justification.
    52. But the judge must also bear in mind that the claimant has brought the case to vindicate his reputation, and it may well be unfair to delay the ultimate trial while a preliminary issue is fought over, perhaps all the way to the House of Lords. The judge was wrong in the present case to take into account the dicta of Lord Denning MR in Richards v Naum [1967] 1 QB 620, 626 and Lord Scarman in Tilling v Whitman [1908] AC 1, 25 in so far as they discouraged the trial of preliminary issues on a point of law alone. What he was concerned with was a proposal to direct the trial of a separate issue of both fact and law (pursuant to his powers in CPR 3.1(2)(j)). He also appears to have been wrong to have thought that there was any issue other than qualified privilege to be tried in the Loutchansky case. In Grobbelaar v News Group Newspapers Ltd [2001] 2 All ER 437, a case which he also mentioned, the trial preceded Sir Oliver Popplewell’s then quite novel direction in GKR Karate.
    53. The defendants’ advisers told us that they estimated that a trial of preliminary issues would take no longer than four days, whereas a trial including the issue of justification would take in excess of 15 days. The attitude of the claimant’s advisers was that the proposed preliminary issue would take significantly longer for a jury to try. At all events the contrast was not between a very short first trial and a very long second trial.
    54. Mr Warby commented that the judge made no finding that the defence of qualified privilege was unlikely to succeed. It appears to me that the judge was wise to confine himself to saying that the defence raised difficult issues and that there was a real likelihood of an appeal. He was entitled, in my view, to regard the defence as problematical. After all, the police had not been engaged in conducting an inquiry on quasi-judicial lines, and it was not the function of the police to pass judgment on the appropriateness of the claimant’s broadcasting techniques. It is well known that the publication of the reports of local authority inquiries of a quasi-judicial character has given rise to difficulties in the field of defamation (see the Law Commission’s Consultation Paper No 163, Publication of Local Authority Reports (2002)). One would not anticipate that a plea of qualified privilege in the present case would give rise to any fewer difficulties, particularly as Mr Warby accepted that the police had never given the claimant the opportunity of responding to the suggestion that he had told a deliberate lie.
    55. Mr Caldecott QC, for the claimant, put the central issue like this:
    56. “It would be constitutionally troubling if the police were to have a generic qualified privilege at common law or by statute for publicly defaming persons who are not even the subject of their investigation and without even interviewing them.”

      He observed that the importance of seeking and giving the other side of the story was stressed at common law in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 206 where the failure of the journalist to include Mr Reynolds’s explanation was fatal to the defence.

    57. It appears to me that subject to the minor errors I have mentioned the judge’s well-balanced approach to the problem he faced cannot be properly faulted. In my judgment it is impossible to say that he was wrong to refuse the suggested trial of preliminary issues in these circumstances. I would therefore dismiss this appeal.
    58. Lord Justice Dyson:

    59. I agree.
    60. Mr Justice Wall:

    61. I agree that this appeal should be dismissed for the reasons given by Brooke LJ whose judgment I have had the advantage of reading in draft. I do not wish to add anything to Brooke LJ’s analysis of the substantive issues. I do, however, wish to add a word of emphasis to what Brooke LJ in paragraph 26 of his judgment describes as “the wide ambit of discretion open to [a judge] when performing his case management duties”.
    62. The importance of effective judicial case management is, in my judgment, difficult to overstate. In the Family Division, sections 11 and 32 of the Children Act 1989 imposed an early statutory responsibility on the judiciary to ensure that both private and public law cases relating to children were time-tabled and managed so as to avoid delay and achieve the most effective hearing. It is not surprising that since the introduction of the CPR other specialist jurisdictions have formalised their case management procedures with discrete Practice Directions within the Rules.
    63. Particularly where (as should be the case) case management is synonymous with judicial continuity, the specialist judge managing a case acquires a knowledge of it and a “feel” for it which is unique. It follows, in my judgment, that, within paragraphs 4.4 and 4.5 of the Practice Direction to CPR Part 52, appeals from case management decisions made by specialist judges will inevitably be difficult to sustain.
    64. In this category of appeal, therefore, it seems to me that the well-known and often quoted words of Asquith LJ in Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 343, 345 relating to the exercise of judicial discretion have a particular application. Asquith LJ said:
    65. “It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
    66. Having listened with admiration to the argument, I was quite clear at its conclusion that the decisions made by the judge were well within the ambit of his discretion and could by no stretch of the imagination be described as “plainly wrong”.

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