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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bowker & Anor (t/a Lagopus Services) v The Royal Society for the Protection of Birds [2011] EWHC 737 (QB) (25 March 2011) URL: https://www.bailii.org/ew/cases/EWHC/QB/2011/737.html Cite as: [2011] EWHC 737 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) Gordon Bowker (Trading as Lagopus Services) (2) Christine Bowker (Trading as Lagopus Services) |
Claimants |
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- and - |
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The Royal Society for the Protection of Birds |
Defendant |
____________________
Adam Wolanski (instructed by Bird & Bird LLP) for the Defendant
Hearing dates: 21st October 2010 & 5th November 2010
____________________
Crown Copyright ©
Mrs Justice Sharp:
Introduction
Events leading to the publications complained of
The words complained of
"Subject: The Bowker et al paper
Dear all – many of you by now will be aware of the Bowker et al paper that has recently been published (Bowker, G. Bowker, C. & Baines, D. (2007) Survival rates and causes of mortality in black grouse tetrao tetrix at Lake Vyrnwy, North Wales, UK. Wildlife Biology 13(3)). This paper stems from a 3 year study that Gordon Bowker undertook (funded by Severn Trent Water) on our Lake Vyrnwy reserve a few years ago. We were always uncomfortable with this work, and were very concerned about the field methods employed by Gordon. The work was initially written up as an unpubl rept for Severn Trent Water (STW), but was then 'adopted' by David Baines of the GCT who pulled out some of the data and analysed them to produce a scientific paper. RSPB were sent this paper in draft to allow us to comment on it, which we did, expressing very grave concerns to GCT. However, these views did not dissuade GCT from proceeding to submit this paper for publication.
To help us address the issues and likely problems that we may face following its publication, Ian Johnstone has put together a very useful critique of the paper that will be very helpful to those of us who are likely to be faced with questions and comments arising from the paper's publication. This critique is attached. At least for the moment this should NOT be circulated externally, but please do use the information provided within it to deal with the issues that may arise. I do not have an electronic copy of the paper itself, but hard copies can be obtained by contacting Alix Middleton at SHQ (who has kindly agreed to do this until the journal issue arrives at our library).
A particular point of concern in this study is that it adopted very high disturbance methods, which could conceivably have led to the high rates of predation and chick mortality recorded (black grouse being a species that are known to be sensitive to activities such as catching and radio-tagging). Unfortunately, many of these more unorthodox methods were not documented in the paper itself, although they are detailed in the original but unpubl STW rept. This is worth bearing in mind when faced with comments regarding the fact that we are refuting findings based upon peer reviewed published science. The overall levels of disturbance to the study animals in this study appear to be much higher than in any other radio-tracking study of black grouse published in the scientific literature.
To my mind the methods that may have had greatest influence in biasing the results from this study are:
Breeding success. This was measured using standard method of locating broods with trained dogs. However, counts were made 'on or around 1st September' (according to the original STW rept) or in the 'last week of August' (according to the published paper). Either way, these counts are late compared to when they are done at other UK sites and in other UK studies (mid July to mid Aug being the norm). Therefore, the breeding success data are not directly comparable to those from other UK studies – more chicks may have died, and its also conceivable that some break-up of the broods may have started by the time counts were done (staff working on black grouse in Wales may be able to comment on the likelihood of the latter).
Radio-tagging of young chicks: A large number of chicks were radio-tagged at an early age (e.g. 40 chicks from 10 broods in 2000 and 14 chicks from seven broods in 2002: Bowker & Bowker 2003). Young black grouse chicks are vulnerable to many mortality sources, and it is conceivable that radio-tagging young chicks may increase their vulnerability in some ways. Even if any such effects are small they may have affected results in this study due to the large numbers tagged. No mention of the tagging of young chicks is made in the methods of the published paper.
Capture, handling and tagging of juvenile black grouse: A high proportion of all juvenile black grouse at Vyrnwy were radio-tagged during the study. Gordon Bowker, in his STW rept on this work (Bowker & Bowker 2003), advocates a method of handling chicks on multiple occasions, in order to reduce the chances of mortality when old chicks/juveniles are captured for the purposes of tagging. This meant that chicks were located (with dogs), captured and handled on multiple occasions and, overall, chicks surviving to 8 weeks each appear to have been handled more than three times. As far as I am aware, this is a completely untried and untested method, and to my mind seems more likely to increase mortality amongst chicks. Again, this information (fundamental to the methods of study) is not mentioned in the published paper.
Hopefully, Ian's critique, along with above information, will help in dealing with any fall-out that arises from the Bowker paper. Get back to me or Ian with any queries etc you might have on all of this.
Note, I have circulated this to those staff on our 'black grouse' e-mail list, plus a few others I could think of (and who didn't appear to be on that list), but please forward to others in your departments/regions/countries who might not be on this list but may need to deal with black grouse and these issues.
Cheers
Murray"
"4.1 recklessly used entirely untried and untested field methods, about which Dr Grant was most concerned and which he would never condone, involving unprecedented and dangerous levels of disturbance to black grouse;
4.2 dishonestly mislead readers of their published paper by deliberately omitting details of such methods when they should have included them;
4.3 incompetently measured broods at a time of year that was too late to draw any meaningful comparisons with other sites and studies; and
4.4 dishonestly (or at least incompetently) presented the results of their study in a scientific paper as if the results were of value when they knew (or at least should have known) that the results were biased and misleading."
"A critique by RSPB Conservation Science of:
Bowker, G. Bowker, C. & Bains, D. (2007) Survival rates and causes of mortality in black grouse tetrao tetrix at Lake Vyrnwy, North Wales, UK. Wildlife Biology 13(3).
Summary
This study presents data on breeding success, survival rates and causes of death of black grouse over four years at Lake Vyrnwy, North Wales. Breeding success was estimated by searches for females with chicks using pointer dogs. Juvenile and adult survival was estimated by radio-tracking. They then used these demographic rates to determine whether the population should be increasing or declining. They also estimated population trends by censuses in spring. They conclude that breeding success and survival were too low during their study to maintain the population (low survival being due to high losses to birds of prey and foxes), and suggest that immigration from adjacent more productive sites may have supported numbers in the past. They support their conclusion for black grouse by using data on red grouse over the same period that also show low breeding success and decline in numbers.
Background
Science is the combining of quantitative observations (data) with logical arguments to make a case for or against specified ideas (hypotheses). The conclusions that can be made by studies that use this scientific method are always limited by both the quality and quantity of the data they use. For example, inaccuracy or bias in data can lead to the wrong conclusions being drawn. Small sample sizes or length of study often do not reveal the full picture. Failure to consider all the important variables can also lead to the wrong conclusions. It is well worth looking at this paper by Bowker et al to see how they have dealt with these issues.
Inaccurate lek[1] counts?
First, we need to question whether a decline in black grouse has really taken place over the period of their study. The reason for this is that the lek count data in Bowker et al differ from those published by RSPB and Severn Trent Water (STW) (fig.1). The RSPB/STW data represent a long series of systematic surveys that always used the standard black grouse survey method and the same survey area each year. The largest discrepancy was in 2000, and this figure has the most influence on the trend reported by Bowker et al. Because the RSPB/STW and Bowker et al data for other years are much more similar, we can only conclude that their survey method was different in 2000, leading to a higher count. This weakens their case for a decline in male black grouse at Lake Vyrnwy.
Lack of long-term context
Second, even if the trends in males and females reported by Bowker et al are accurate (perhaps they counted birds within a different boundary to that represented by the RSPB/STW data), we should ask how this fits within the long-term trend on the reserve (fig.1). Clearly there is an upward trend in male black grouse at Lake Vyrnwy over the last decade. During this period, peregrine and goshawk numbers have remained stable, fluctuating between 2-4 prs and 0-4 prs respectively (RSPB unpublished data). The intensity of fox control (and presumably fox abundance) is also unchanged since 2000.
Therefore, Bowker et al's conclusions do seem at odds with the general increase over a period with stable predator abundance. This is even more puzzling in the light of their data that show males begin lekking on average just 1.5km from where they were born. Therefore, whilst immigration of some females from neighbouring populations is possible (although their suggested source population has since declined), the long-term increase in males at Lake Vyrnwy must be largely from locally reared birds.
Low breeding success and survival: real ecology or artefact?
Third, we need to be satisfied that the reported low breeding success and survival (the causes of population decline) are correct results, rather than the consequences of the methods used, or other variables not taken into account. Radio-tagging was the main method Bowker et al used to measure survival. Literature evidence for bad effects of radio-tagging on grouse is mixed. For example, Johnstone & Lindley (2003) report ambiguous results for black grouse chicks in Wales, and concluded that their study lacked the statistical power to detect more subtle effects. Studies that use radio-tracking should always consider whether their study animals are affected.
A high percentage of the black grouse population at Lake Vyrnwy were radio-tagged at some point in their lives (e.g. all 12 juveniles in 2000 and 14 out of 18 juveniles in 2001, these data being found in the full report of their project (Bowker & Bowker 2003)). Given this, and their lack of assessment of effects, the possibility that low survival was due to disturbance associated with radio-tagging and monitoring cannot be excluded. Furthermore, Bowker et al do not mention that young chicks were also radio-tagged as part of their study (e.g. 40 chicks from 10 broods in 2000 and 14 chicks from seven broods in 2002: Bowker & Bowker 2003). So if present, this effect could also cause the low breeding success reported.
Based on field signs, the authors report most deaths as due to predation by birds of prey (suggesting goshawk or peregrine) and foxes. That these are predators of black grouse is expected. However, based on the results in Bowker et al, we are unable to exclude the possibility that the high level of losses they found (85%) was an artefact of the intensive methods they used to estimate survival. This view is reinforced by the upward trend in lekking males since 1994, when peregrine and goshawk numbers were broadly stable.
Breeding success has been measured by systematic survey since Bowker et al and in the same areas as their study (counts took place in the third week of August). It was a mean of 3.3 chicks per hen in 2005 (n=3), 2.7 chicks per hen in 2006 (n=3), and in both years although few hens were found, all had broods. Even allowing for slightly earlier counts, these figures are much higher than those reported by Bowker et al. However, breeding success was zero in 2007. Breeding success is known to be poor in such wet summers, when chicks may be more vulnerable to predation in addition to lack of insect food (Summers et al 2004). Bowker et al do not consider environmental effects such as this in their discussion of reasons for their reported low breeding success.
Red grouse breeding success at Lake Vyrnwy has also been estimated in six standard 1km square plots over the long-term (fig.2). Whilst during the period of Bowker et al's study success declined, data suggest that this was a fluctuation within longer-term stability. Indeed, after a period of decline, spring male red grouse abundance is now the same as when Bowker et al began their project (fig.3).
Conclusion
The inadequate survival and population decline at Lake Vyrnwy reported by Bowker et al seems to be an anomaly in a longer period of population increase and, at least in recent years, adequate breeding success.
There are a number of reasons why they wrongly conclude that the Vyrnwy population is doomed. First, their lek count data for 2000 seems to be inaccurate. Second, they have not demonstrated that their survival data are unbiased by their intensive methods. Third, they have failed to consider all relevant variables (such as June rain). Fourth, they have failed to interpret their results within a wider context. Their arguments for declines in breeding success and numbers for both black and red grouse are undermined when their data are viewed in the context provided by long-term monitoring data that used standard methods.
Because they have not formally addressed all of these issues, we must conclude that their science is unconvincing. Indeed, the authors themselves acknowledge some of these weaknesses.
References
Bowker,G, Bowker,C. (2003) Black Grouse (Tetrao tetrix) at the STW Lake Vyrwny Estate, North Wales. Unpublished report.
Farmer, R. (2005) Lake Vyrnwy: Farming and Conservation, a Case Study. RSPB, The Lodge, Sandy, Beds.
Johnstone, I & Lindley, P. (2003) The proximate causes of black grouse breeding failure in Wales. CCW contract science report No. 600.
Summers, R.W. Green, R. E. Proctor, R Dugan, D. Lambie D. Moncrieff, R. Moss, R & Bains D. (2004) An experimental study of the effects of predation on the breeding productivity of capercaille and black grouse. J.Appl.Ecol 41 513-525
Thorpe, R. Sheehan,J & Walker, M (2004) The birds of RSPB Lake Vyrnwy reserve. Welsh Birds 4 20-30."
"6.1 recklessly used intensive field methods involving dangerous levels of disturbance to black grouse chicks and juveniles, such methods being the most likely cause of the low rate of survival of black grouse reported in the study;
6.2 improperly failed to declare such methods in their published paper;
6.3 incompetently used an inaccurate lek count for the year 2000;
6.4 incompetently neglected to consider environmental effects as a reason for the reported low breeding success; and
6.5 cynically (or at least incompetently) attributed the low grouse survival rate (that they had most likely caused themselves) to predators."
"I am writing about the recently published paper on black grouse at Lake Vyrnwy – Bowker G, Bowker C and Baines D (2007) Survival rates and causes of mortality in black grouse Tetrao tetrix at Lake Vyrnwy, North Wales, UK Wildlife Biology 13 – and about the Game Conservancy Trust's press release of 26 September carrying your name as STW contact.
Given our joint interests and responsibilities for the Lake Vyrnwy estate, I am sure that this paper is of great interest to you, as is the overall situation and future for black grouse at Lake Vyrnwy, and elsewhere in Wales. As a conservation organisation that attempts to base its policies and land management on the best available evidence, the RSPB welcomes and encourages scientific research on wild bird populations and their habitats, indeed it often funds and conducts such research itself. Unfortunately, I feel unable to take such a view of the Bowker et al paper.
As you know this paper comes from a study that we have long been concerned by, given the way in which it appeared to be undertaken, and we have serious concerns over the resulting paper. These concerns have been raised with you and your predecessor over a number of years. Some of these concerns are of such a fundamental nature that I think we need to make you aware of them again (as the representative with responsibility conservation issues of the company which sponsored this work).
On the face of it, the paper seems quite compelling; predation levels at Lake Vyrnwy appear very high on black grouse adults and juveniles, and the authors use a simple model to show that productivity was not high enough to compensate for these high levels of predation mortality, so the population declined. A nice case of where a predator seems to be limiting its prey population.
However, the RSPB's monitoring of male black grouse at Lake Vyrnwy tells a completely different story. I have attached a graph that compares Bowker et al's short-term (2000-2003) run of data with our own much longer set. As you will see, our data suggest that the male black grouse population has risen dramatically over the period of our management. It also shows that there is a marked discrepancy in Bowker et al's and our estimate for 2000. The decline of males reported by Bowker et al hangs almost entirely on the one data point for this year. Bowker et al also report an even more marked decline among female black grouse; unfortunately, we do not have any data on females for comparison.
Given the apparent rate of decline, the paper leaves the reader feeling that in the absence of some form of predation management, the Vyrnwy black grouse population must surely be doomed to extinction. But nothing could be further from the truth. Numbers of male black grouse are now higher than they have been for the last twenty years.
So, how can the story told by the paper and RSPB's information appear so different? I can think of several reasons; there are probably others.
First, the RSPB's data are wrong for 2000, the male black grouse population at Vyrnwy declined between 2000 and 2003, and the period of Bowker et al's study just happened to coincide with this short-term decline (due to high predation mortality and low breeding success) in an otherwise rising trend. If this were the case, it is unclear why mortality was so high during this particular period, as our evidence suggests that predator numbers at Vyrnwy have remained more or less stable over the last decade.
Second, the fieldworkers may have contributed to the decline they observed. The methods used to catch, handle, mark and track birds – particularly chicks – seem to have been particularly intensive, which is a cause for serious concern, given that black grouse are a species known to be particularly sensitive to such activities. The authors advocated – at least in the STW report that preceded the paper (although mention of this is omitted from the paper itself) – handling of chicks on multiple occasions, with each chick in a brood being located by a dog on each occasion. As far as I am aware, this is a completely untried and untested approach to this type of work, and is undocumented in the scientific literature.
Overall, chicks that survived to 8 weeks were each handled more than three times, with a high proportion of all the juveniles at Vyrnwy being radio-tagged in each year of study. Once tagged, they were then located and flushed every two weeks. Additionally, large numbers of young chicks were radio-tagged as part of the study (e.g. 40 chicks from 10 broods in 2000 and 14 chicks from seven broods in 2002), and again this could inflate mortality. Again, mention of this activity is omitted from the published paper. To my mind, this seems a high level of disturbance, and is much greater than in any other radio-tracking studies of black grouse that we, at RSPB, are aware of. One interpretation of the attached graph could be that male black grouse numbers were rising before the arrival of Bowker, declined while he worked on the site, and rose again when he left. While there may well be no causation here, there surely remains – at least to my mind – a whiff of suspicion.
Finally, the RSPB data are correct, male black grouse numbers simply fluctuated between 2000 and 2003 and did not decline at all. If so, the entire thrust of the paper seems flawed.
I do not know – and probably may never know – which of these reasons, if any, is closest to the truth. However you look at it, though, such short-term studies do little to aid our understanding of these complex problems. I agree that predators can sometimes reduce black grouse numbers. Our own work at Abernethy suggests this, but has also shown that rainfall can be equally important for productivity; the Bowker et al study took no account of this at all.
For all of these reasons above, I see little merit in the Bowker et al paper, and fail to see how this work will do anything positive to further effective conservation action for black grouse. I am not clear either what benefit STW can derive from helping to publicise the paper. I hope that you can understand our frustration with this paper. As far as we are concerned, the black grouse population has risen dramatically at Lake Vyrnwy since we took over the management of its moorlands, hardly a message that shouts out from the Bowker et al paper, or from the recent press release put out by the Game and Wildlife Conservation Trust with your name attached to it.
Some years ago, the RSPB and STW agreed a communications protocol at meetings that you or your line manager attended in Shrewsbury, to ensure that press releases of mutual interest were agreed before issuing. We agreed that both organisations would operate at Lake Vyrnwy in a spirit of partnership and cooperation. The black grouse press release seems to breach that protocol. Further, how would STW react if RSPB issued a press release with incorrect implied criticism of your operation?
Given our serious concerns over the paper, the apparent failure of the communications protocol and in the interests of the Lake Vyrnwy operation, I think it would be valuable to have further discussion on this matter to see whether we might be able to reach some agreement on a way forward.
I look forward to hearing from you.
Yours sincerely,
Dr Tim Stowe
Director, Wales
Copy to Tim Wright, STW Shrewsbury"
"8.1 recklessly used particularly intensive yet completely untried and untested field methods, about which Dr Stowe was most concerned and which he would never condone, involving unprecedented and dangerous levels of disturbance to black grouse chicks and juveniles, such methods being the most likely cause of a decline in the numbers of black grouse at Lake Vyrnwy;
8.2 dishonestly misled readers of their published paper by deliberately omitting important information about these methods that had been included in the preceding STW report;
8.3 incompetently used an inaccurate lek count for the year 2000, which renders their entire study worthless; and
8.4 incompetently neglected to consider rainfall as a reason for the reported low breeding success."
Issue one: meaning
"The real question in the present case is how the courts ought to go about ascertaining the range of legitimate meanings. Eady J regarded it as a matter of impression. That is all right, it seems to us, provided that the impression is not of what the words mean but of what a jury could sensibly think they meant. Such an exercise is an exercise in generosity, not in parsimony."
"The governing principles relevant to meaning … may be summarised in this way:
(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(3) Over-elaborate analysis is best avoided.
(4) The intention of the publisher is irrelevant.-
(5) The article must be read as a whole, and any "bane and antidote" taken together.
(6) The hypothetical reader is taken to be representative of those who would read the publication in question.
(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" ….
(8) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense."
"To be actionable [in defamation] words must impute to the claimant some quality which would be detrimental, or the absence of some quality which is essential, to the successful carrying on of his office, profession or trade. The mere fact that words tend to injure the claimant in the way of his office, profession or trade is insufficient. If they do not involve any reflection upon the personal character, or the official, professional or trading reputation of the claimant, they are not defamatory."
"We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy. Underwager v Salter 22 Fed. 3d 730 (1994):
"[Plaintiffs] cannot simply by filing suit and crying 'character assassination!' silence those who hold divergent views, no matter how adverse those views may be to a plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation….More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.""
Discussion
"Words may be defamatory of a trader or business man or a professional man, although they do not impute any moral fault or defect of personal character. They [can] be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity…."
"The law draws a distinction between libel and lawful criticism. Libel is personal and subjective. It is a lowering of the man himself in the eyes of right-thinking people generally. It is actionable without more ado. Lawful criticism is impersonal and objective. It is criticism of goods, of a design, a system, or a technique. It points out defects and deficiencies in them without attacking them and himself. It is not actionable unless proved to be both false and malicious.
Applying this test, I hold that this scientific paper is no libel. Here are a group of scientists who have done a valuable piece of research. They have discovered that the technique practised by the plaintiff is dangerous. It is surely in the public interest that they should make known their findings to the profession: and that the scientific journals should be entitled to publish them: without fear of a libel action. So far from everything being presumed against them, I think everything should be presumed in their favour: for they are doing a public service. It may be that, in criticising the plaintiff's technique, they are casting some reflection on him. That cannot be helped. Every criticism of a technique tends to cast some reflection on those who practise it. But that does not give cause for a libel action. These scientists have nowhere descended to an attack on the plaintiff personally. They should not be plagued with a libel action. The case is, to my mind, covered by Griffiths v. Benn, 27 T.L.R. 346 and John Leng & Co. Ltd. v. Langlands, 114 L.T. 665. The comments on a system in those cases were far more violent and severe than these here, but it was held that there was nothing which went beyond the bounds of lawful criticism.
So here I hold that the defendants have not gone beyond the bounds. They have only exercised the right of lawful criticism. It would be a sorry day if scientists were to be deterred from publishing their findings for fear of libel actions. So long as they refrain from personal attacks, they should be free to criticise the systems and techniques of others. It is in the interests of truth itself. Were it otherwise, no scientific journal would be safe. I would allow the appeal and strike out this statement of claim."
"The case which the plaintiff seeks to set up, as I understand it, is that he is attacked in the way of his profession, in that, without any proper prior investigation, he is alleged to have been preaching and practising a dangerous technique, found in a number of instances to produce deleterious effects, and possibly resulting in death in several cases. It should in my judgment be for a jury to say whether all this is defamatory of the plaintiff, as an attack on his professional reputation. What I find it impossible to say, at any rate at the present stage, is that the words of the article are plainly and obviously incapable of bearing any defamatory meaning.
It has been urged on behalf of the defendants that so to hold would be most detrimental to the advancement of scientific knowledge, since no scientific journal will in future feel safe in publishing an article which is critical of the views of an opposing school of thought. I do not accept that there is any such danger. For one thing, it is perfectly possible for scientific gentlemen to criticise each other's views and theories without saying anything capable of being construed as defamatory, even though they may be, in Gilbert's words,
"Maintaining with no little heat
Their various opinions."
But quite apart from that, it is, I think, to be emphasised that the present case is not concerned merely with the presentation of opposing views on some theoretical scientific subject. The essential feature of the case is that the plaintiff is a practising dental surgeon, and the gist of his case is that the article complained of is unjustifiably critical of the way in which he carries on his practice, thereby damaging his professional reputation."
"How can it be argued that this article could not reasonably be given any meaning defamatory of the plaintiff in his profession as a dentist? I think it can only be so argued on the basis of a narrow view being taken as to the scope of defamation of a person in his trade, business or profession.
Many reported cases are concerned with the question whether defamation of goods involves defamation of the trader who sells the goods…
I doubt whether the analogy sought to be drawn in the present case between a trader's goods and a professional man's technique is sound. Goods are impersonal and transient. A professional man's technique is at least relatively permanent, and it belongs to him: it may be considered to be an essential part of his professional activity and of him as a professional man. In the case of a dentist it may be said: if he uses a bad technique, he is a bad dentist and a person needing dental treatment should not go to him."
"[I]t may be that the agreed pair of questions which the judge was asked to answer was based on a premise, inherent in our libel law, that a comment is as capable as an assertion of fact of being defamatory and that what differ are the available defences; so that the first question has to be whether the words are defamatory even if they amount to no more than comment. This case suggests that this may not always be the best approach, because the answer to the first question may stifle the answer to the second."
"It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may well colour the meaning."
The Grant email: the parties' submissions
The RSPB Critique
The Stowe letter
"I do not know – and probably may never know – which of these reasons, if any, is closest to the truth".
Judge or jury
"Where on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is an issue-
(b) a claim in respect of libel,
the action shall be tried with a jury, unless the court is of the opinion that the trial requires any ... scientific ...investigation which cannot conveniently be made with a jury...
(3) An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury."
"(i) The basic criterion, viz. that the trial requires a prolonged examination of documents, must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated (Rothermere v. Times Newspapers Ltd [1973] 1 W.L.R. 448). However, the word "examination" has a wide connotation, is not limited to the documents which contain the actual evidence in the case and includes, for example, documents which are likely to be introduced in cross-examination (Goldsmith v. Pressdram Ltd [1988] 1 W.L.R. 64).
(ii) "Conveniently" means without substantial difficulty in comparison with carrying out the same process with a judge alone. This may involve consideration of several factors, for example:
(a) the additional length of a jury trial as compared with a trial by judge alone;
(b) the additional cost of a jury trial taking into account not only the length of the trial but also the cost of, for example, additional copies of documents;
(c) any practical difficulties which a trial by jury would entail, such as the handling of particularly bulky or inconvenient files, the need to examine documents alongside each other, and the degree of minute scrutiny of individual documents which will be required;
(d) any special difficulties or complexities in the documents themselves (Beta Construction Ltd v. Channel Four Television Co. Ltd [1990] 1 W.L.R. 1042 especially per Stuart Smith L.J. at page 1047C-D and per Neill L.J. at page 1055H, referred to and applied in the recent case of Taylor v. Anderton [1995] 1 W.L.R. 447).
(iii) The ultimate exercise of discretion will in each case depend substantially on the circumstances of each individual case, and it would be idle to attempt to enumerate all the factors which might arise.
There are, however, four factors which have been identified in the earlier cases, which have some general application and which are presently relevant, as the judge recognised:
(1) The emphasis now is against trial by juries, and this should be taken into account by the court when exercising its discretion (Goldsmith v. Pressdram (supra) at page 68 per Lawton L.J. with whom Slade L.J. expressly agreed). This conclusion is based on section 69 (3), which was a new section appearing for the first time in the 1981 Act to replace section 6 (1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, the provision in force at the date when Rothermere v. Times Newspapers was decided.
(2) An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest (Rothermere v. Times (supra)).
(3) The fact that the case involves issues of credibility, and that a party's honour and integrity are under attack is a factor which should properly be taken into account but is not an overriding factor in favour of trial by jury (Goldsmith v. Pressdram (supra) at page 71H per Lawton L.J).
(4) The advantage of a reasoned judgment is a factor properly to be taken into account (Beta Construction v. Channel Four Television (supra))."
"16. It was suggested on behalf of Mr Fiddes that these principles were not entirely consistent with earlier authorities, but we do not accept that. Inevitably, there are some dicta in other judgments which put some of these points slightly differently, but there is no inconsistency between Lord Bingham's illuminating summary of the applicable principles when approaching the section 69 questions and other authoritative observations from this court. Lord Bingham went on to point out the value of a reasoned judgment (which would not be available in a jury trial), particularly to the successful party.
17. Having said that, there are six points we think it right to make about Lord Bingham's analysis of the applicable principles, in the light of the arguments advanced to us.
18. First, we would like to emphasise the need for caution when invoking the additional length, and (even more) the additional cost, of a jury trial as factors to be taken into account on the second, convenience, section 69 question. Jury trial will almost always take longer, and cost more, than trial by judge alone. The extra time taken, and the extra costs involved, in a jury trial may often be a useful sort of quantitative cross-check of what might otherwise be a purely qualitative assessment of the extra inconvenience of a jury trial (as was done in Beta Construction [1991] 1 WLR 1042). However, it would be dangerous if those two factors were given much independent weight, as it would risk undermining the important right to a jury trial which section 69(2) gives – to defendants as well as to claimants – in libel actions.
19. Secondly, the number of documents is not the issue when it comes to the first and second section 69 questions. As Slade LJ said in a passage cited by the Judge, "[t]here may be many cases where numerous documents will be required to be looked at, but no substantial practical difficulties are likely to arise in their examination being made with a jury", and, by contrast, there can be cases where "relatively few documents will require examination, but nevertheless long and minute examination of them is likely to be required".
20. Thirdly, it is important to appreciate that the inconvenience to be considered in the second section 69 question is that arising from "the prolonged examination of documents": the court should not, at that stage, look at any other inconvenience which may arise as a result of a jury trial, although it could well be relevant when considering the third question. Fourthly, the fact that one party is a public figure may often be a reason for favouring a jury trial, but that does not mean that the fact that neither party is a public figure is a reason against a jury trial.
21. Fifthly, it is fair to say that the constitutional importance of the right to trial by jury was not mentioned in Aitken [1997] EMLR 415, but that aspect was clearly in the Judge's mind in this case, as he cited Nourse LJ's observation in Goldsmith [1988] 1 WLR 65, 74, referred to above. That is undoubtedly a factor which has to be borne in mind on the issue of convenience as well as of discretion.
22. Sixthly, as the Judge pointed out in this case, the fact that juries in criminal trials (especially those trials involving allegations of complex financial fraud and the like) sometimes have to consider complex documentation does not really bear on the three section 69 questions. It may well be that, in some such criminal trials, the section 69 questions would result in the conclusion that the trial should be by judge alone, but the questions do not arise in the criminal field even in relation to such cases: there is an absolute right to a jury trial, save in circumstances which are very different from those covered by section 69."
i)
"Particulars of Claim 13.1.5 The work done by the First Claimant in 1998 and 1999 produced much of the data on which Dr Johnstone wrote a scientific paper, The proximate causes of black grouse breeding failure in Wales, with Patrick Lindley. An appendix to this paper extracted data from the First Claimant's database of the 161 chick handlings that took place in 1998. Part of this paper focused on the results of the investigation into the effect of radio-tagging, concluding that "There was no strong evidence that disturbance associated with radio tracking, or being radio tagged, reduced chick survival". Dr Grant, Dr Johnstone and Dr Stowe were all fully aware of this study and its conclusions yet did not refer to it in the words complained of (except for Dr Johnstone, who referred to it in the most general terms) and instead suggested that radio-tagging in fact increased mortality.
Defence paragraph 16.2.5 Dr Johnstone considered the issue of the effects of radio tagging and handling of chicks to be of such importance it was given prominence in the 2003 report that he wrote with Patrick Lindley ("the Johnstone and Lindley study") for that project's funder, Countryside Council for Wales. The study included an analysis of data from 1998-2001, with a summary of the numbers of chicks radio-tagged by site and year, including the 1998 and 1999 data collected by the Claimants under contract to the Defendant.
Defence 16.2.6 The Johnstone and Lindley study concluded that the evidence that radio-tagging had an effect was not strong either way. Importantly, the study did not conclude that radio-tagging never affects black grouse survival. Rather, the study highlighted that effects may have existed but could not be detected with that study design (e.g. sample sizes were small and so statistical tests had limited power to detect effects). In relation to radio-tagging effects, the study concludes by stating, "Given the range of covariates that might influence breeding success on each site, these analyses may lack the statistical power to detect more subtle effects". Such covariates would include rainfall, habitat quality and levels of predation.
Reply 9.8(a) Paragraph 16.2.5 is admitted, save that the issue of radio-tagging and handling of chicks was not given any great prominence in Dr Johnstone's 2003 paper. The summary on page 2 dedicates only one of 14 sentences to the issue: "There was no strong evidence that the disturbance associated with radio tracking, or being radio-tagged, reduced chick survival". This paper was based on data including that from the 1998 work, which involved, at the direction of Dr Grant and Dr Johnstone, intensive handling of chicks. The words quoted in the penultimate sentence of paragraph 16.2.5 are a standard caveat included in many science papers and are not a 'conclusion' in respect of radio-tagging.
Reply 9.8(b) Paragraph 16.2.6 is denied. The study was looking at whether the evidence showed radio-tagging having any effect on chick survival; the authors were not trying to 'prove a negative' and show that it had no effect. Their findings were that there was no evidence of any statistical significance that radio-tagging did reduce chick survival. This is not somehow a neutral result, as the Defendant seeks to portray it, but rather one that supports the view that radio-tagging does not have an effect on chick survival."
ii)
"Particulars of Claim 13.1.7 From 1st April 2000 to 31st August 2003 the Claimants carried out work of a very similar nature as the First Claimant had for the Defendant for Severn Trent Water at Lake Vyrnwy. This work was known as the STW Lake Vyrnwy Black Grouse Project. The Defendant was involved in this work, its role being "to providing the project brief…ensure the scientific validity of the work, assist with its analysis and publication (if required), to oversee the day to day management via the Reserve warden, and to ensure that the project complements the Welsh Black Grouse Recovery Project" (project brief written by Dr Johnstone). Dr Johnstone wrote a paper on the claimants 2000-2003 Lake Vyrnwy work:- Population size, productivity and dispersal of black grouse at Lake Vyrnwy RSPB Reserve over three years.
Defence 16.8 As to paragraph 13.1.7, it is denied that the work carried out by the Claimants from 1 April 2000 to 31 August 2003 for Severn Trent – the STW project – was of a very similar nature to the work carried out for the Defendant during the Recovery Project. In so far as it is suggested that Dr Grant believed that the work carried out was similar, this is denied. Specifically:
16.8.1 Unlike the 1997 – 1999 work, the 2000 – 2003 work involved the radio-tracking of adult black grouse for prolonged periods to measure their movements.
16.8.2 Different protocols were in place for monitoring the survival of radio-tagged black grouse chicks. The Defendant's protocols for 1998 and 1999 required fewer chicks to be tagged and for there to be no subsequent revisiting, recapturing and handling of those chicks.
16.8.3 The Defendant's work in 1998 and 1999 did not involve searches of sites from mid-April to late-May with trained dogs to count numbers of black grouse hens.
16.8.4 The Defendant's work in 1998 and 1999 did not involve monitoring radio-tagged adult and juvenile black grouse, including the locating and flushing of these birds every two weeks on average.
16.8.5 In 2000 – 2003 estimates of black grouse productivity at Lake Vyrnwy were made later in the season than the average for sites covered by the Defendant's work in 1998 and 1999.
Reply 9.15 As to paragraph 16.8, even if, which is denied, all of the pleaded differences between the 1997 – 1999 work for the Defendant and the Lake Vyrnwy work for STW pleaded in fact existed, they are not sufficient to distinguish the two projects as dissimilar. As to the specifics pleaded:
(a) As to paragraph 16.8.1, the First Claimant's work for the Defendant in 1999 included radio-tagging adult grouse (two birds at each of Clocaenog, Vyrnwy and Cwm-hesgyn).
(b) As to paragraph 16.8.2, as Dr Grant well knew (and has admitted in the Defence), the 1998 work involved a far greater degree of capturing, handling and tagging chicks than took place at Lake Vyrnwy; and in 1999 chicks were revisited and re-handled to re-glue tags.
(c) Paragraph 16.8.3 is denied. The work in 1998 started in March and involved searching for hens.
(d) Paragraph 16.8.4 is admitted in respect of the 1998 work, but the 1999 work did involve monitoring radio-tagged adult and juvenile black grouse. It is denied that the Lake Vyrnwy work involved flushing birds every two weeks; paragraph 9.18 below is repeated.
(e) Paragraph 16.8.5 is denied. The 2000 – 2003 estimates of black grouse productivity at Lake Vyrnwy were undertaken in August. As confirmed by an email from Dr Johnstone to the First Claimant dated 22 June 2001, the counts in 1997 took place between 16 July and 20 August, in 1998 between mid-July and September, and in 1999 between 22 July and 31 August."
Issue three: Summary Judgment
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
"It is well settled by the authorities that the court should exercise caution in granting summary judgment in certain kinds of case. The classic instance is where there are conflicts of fact on relevant issues, which have to be resolved before a judgment can be given (see Civil Procedure Vol 1 24.2.5). A mini-trial on the facts conducted under CPR Part 24 without having gone through normal pre-trial procedures must be avoided, as it runs a real risk of producing summary injustice."
"32. There is no dispute between the parties on the legal principles potentially applicable. There is an issue as to which of the potentially applicable principles prevails. There are two separate principles, both to be taken from Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1. There is the general principle as to the court's approach to summary judgment. And there is the particular principle applicable to allegations of dishonesty. Allegations of malice in libel actions fall into the category of dishonesty.
33. The general principle to be applied in considering CPR 24 is set out by Lord Hope of Craighead:
"94 the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is-what is to be the scope of that inquiry?
95 I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman [[2001] 1 All ER 91], at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all."
34. Lord Hobhouse of Woodborough put it succinctly at para 158:
"The criterion which the judge has to apply under Part 24 is not one of probability; it is absence of reality."
35. The particular principle applicable to an allegation of malice in libel (which is equivalent to dishonesty) requires the claimant to pass a much higher threshold. A pleaded case in malice must be more consistent with the existence of malice than with its non-existence. In libel the principle is now generally taken from Telnikoff v Matusevitch [1991] QB 102. The principle is of general application and was set out by Lord Hobhouse in Three Rivers, when he said:
"160 Where an allegation of dishonesty is being made the [claimant] must have a proper basis for making an allegation of dishonesty in his pleading. The hope that something may turn up during the cross-examination of a witness at the trial does not suffice.
161 The law quite rightly requires that questions of dishonesty be approached more rigorously than other questions of fault. The burden of proof remains the civil burden - the balance of probabilities - but the assessment of the evidence has to take account of the seriousness of the allegations and, if that be the case, any unlikelihood that the person accused of dishonesty would have acted in that way. Dishonesty is not to be inferred from evidence which is equally consistent with mere negligence. At the pleading stage the party making the allegation of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation will be struck out. The allegation must be made upon the basis of evidence which will be admissible at the trial."
36. The burden of proving malice is not easily satisfied: Horrocks v Lowe [1975] 135.
37. […]
38. In applying these principles it is necessary for the court to assume that the allegations of fact made by the Claimant in the APOC and the Reply, as to publication and malice (if sufficiently particularised), will all be established as true. Similarly, it is necessary for the court to assume that the allegations of fact made by the Defendant in support of his plea of qualified privilege will all be established as true. These assumptions are not findings of fact, or expressions of opinion as to the likely outcome. It is simply that if the assumptions are not made, the points will not arise. For example, if the Claimant's case that the Press Release [complained of] refers to him is not upheld at trial, he will have failed on his whole case at that stage, and the other parts of his case will not require to be determined. At a hearing such as this one the later thresholds or tests in a party's case have to be examined on the assumption that he has passed the earlier ones.
39. The denials by the other party, whether made in a pleading, or in a witness statement or affidavit, are of little assistance, unless they fall into one of the exceptions identified by Lord Hope at para 95: cases where it is possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance, that is, where it is clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. It must follow that a bare denial, even on oath, from the most eminent source cannot be expected to bring a case within that exception."
"33. It has been confirmed by the Court of Appeal in Telnikoff v Matusevitch [1991] 1 QB 102 and in Alexander v Arts Council of Wales [2001] 1 WLR 1840 that, in order for a claimant to succeed in proving malice, it is necessary both to plead and prove facts which are more consistent with the presence of malice than with its absence. This is one of the reasons why, in practice, findings of malice are extremely rare.
34. It is thus reasonably clear, as a matter of pleading practice, that allegations of malice must go beyond that which is equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice; in the sense that the relevant person was either dishonest in making the defamatory communication or had a dominant motive to injure the claimant. Mere assertion will not do. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box, or that he will make an admission in cross examination: see Duncan and Neill on Defamation at para 18.21.
35. It is not appropriate merely to plead (say) absence of honest belief, recklessness or a dominant motive on the defendant's part to injure the claimant. Unsupported by relevant factual averments, those are merely formulaic assertions. It is certainly not right that a judge should presume such assertions to be provable at trial. Otherwise, every plea of malice, however vague or optimistic, would survive to trial. It would be plainly inappropriate to move towards such an unbalanced regime, since it would tend to undermine the rights of defendants protected under Article 10 of the European Convention on Human Rights.
36. It is necessary also to remember, in a case where malice is alleged against a corporate entity, that in order to fix it with the necessary state of mind, the individual person or persons acting on its behalf, and who are said to have been malicious as individuals, must be clearly identified."
Qualified Privilege
The evidence re the Grant email
"Dr Graham Hirons. In October 2007, Dr Hirons was Head of Reserves Ecology for the RSPB. His team were responsible for ensuring that staff working on reserves were provided with the eco logical knowledge required to manage each reserve. In addition, they undertake audits of reserves – which includes, for example, knowledge of the trends of birds (such as black grouse) on RSPB land – to ensure that reserves are as productive for wildlife as possible. Dr Hirons' team are also responsible for deciding whether predator control (i.e. killing of predators) should be undertaken on a reserve, to safeguard threatened species (like black grouse). [Graham Hirons, is head ecologist based in Sandy HQ and is not involved with black grouse.]
Tim Melling. In October 2007, Dr Melling was Conservation Officer in RSPB's Northern England Office. Mr Melling was a member of the steering group of STW's project to reintroduce black grouse into the Upper Derwent Valley of the Peak District National Park. Gordon Bowker was the contractor undertaking the reintroduction work, funded by STW. [Tim Melling is a conservation officer. He was involved in the UDV [Upper Derwent Valley] project, but he arrived at one meeting and introduced himself as merely standing in for a colleague who couldn't come. He said "I am a Twite expert, and know nothing about black grouse". He was there just to report back to RSPB on the progress of the UDV.]
Julian Hughes. In October 2007, Julian Hughes was Head of Species Policy. His job was to ensure that the RSPB does all it can to improve the fortunes of species of conservation concern (like the black grouse), by ensuring that RSPB's action plans for each of these species is fully implemented across the organisation. Each action plan had a plan manager within Mr Hughes's team; Mr Hughes himself took responsibility for black grouse. [Julian Hughes was species and policy officer but was not working on black grouse].
Richard Farmer. In October 2007, Mr Farmer was RSPB's Senior Reserves Manager for Wales, and Manager of our North Wales Office in Bangor. In this role, he took overall responsibility for RSPB's reserves in Wales, ensuring that they met the objectives required of them, one of which was to ensure healthy populations of species of conservation concern, such as black grouse.
Dick Squires. In October 2007, Mr Squires was RSPB's Area Manager for Mid and S Wales, overseeing all reserves in Mid and West Wales, including Lake Vyrnwy. Mr Squires was consequently the line manager of Mike Walker, the site manager of Lake Vyrnwy. Apart from line manager responsibilities, Mr Squires was actively involved in and had responsibility for reserve and species management, including for black grouse. [Dick Squires and Richard Farmer were reserves managers, and like the others were not working on black grouse or were people who would be asked about them by any third party]."
The evidence re the Stowe letter
The parties' submissions
"the court must "grasp the nettle" and reject an unreasonable conclusion contended for by the respondent. If not, as Tugendhat J said in John v Guardian News Media Ltd [2008] EWHC 3066 (QB) at [16] the applicant will be "wrongly burdened with defending libel proceedings [which] can be a very onerous burden and one which interfered with the right of freedom of expression."
i) The publication of the Grant email and RSPB Critique took place to the 59 RSPB staff identified in the list attached to Mr Sherrell's witness statement.
ii) The publication of the Grant email and RSPB Critique took place to Dr Baines at the GCT, although it is not known who published it to him, and, if they are not at RSPB, whether RSPB would be liable for such publication. The Claimants also assert publication to the Forestry Commission, but have provided no particulars of this, nor any evidence to back it up.
iii) In addition, the RSPB Critique was sent (without the Grant email) to one individual outside the RSPB, namely Dr Galbraith, the Director of Science and Advisory Services for SNH who was about to chair a meeting of the UK Biodiversity Action Plan group on Black Grouse.
Discussion
"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society."
"not only defines the occasion that protects a communication otherwise actionable, but enunciates the principle on which the protection is founded. The underlying principle is 'the common convenience and welfare of society' – not the convenience of individuals or the convenience of a class, but, to use the words of Erle C.J. in Whiteley v Adams (1863) 15 C.B. (N.S.) 392 at 418, 'the general interest of society'."
"the communication was of such a nature that it could fairly be said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them." Per Lord Esher MR in Hunt v Great Northern Rly Co, [1891] 2 QB 189 at 191."
"30. The argument, as it seems to me, has been much bedevilled by the use of the terms "common interest" and "duty-interest" for all the world as if these are clear-cut categories and any particular case is instantly recognisable as falling within one or other of them. It also seems to me surprising and unsatisfactory that privilege should be thought to attach more readily to communications made in the service of one's own interests than in the discharge of a duty - as at first blush this distinction would suggest. To my mind an altogether more helpful categorisation is to be found by distinguishing between on the one hand cases where the communicator and the communicatee are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and on the other hand cases where no such relationship has been established and the communication is between strangers (or at any rate is volunteered otherwise than by reference to their relationship). This distinction I can readily understand and it seems to me no less supportable on the authorities than that for which Mr Caldecott contends. Once the distinction is made in this way, moreover, it becomes to my mind understandable that the law should attach privilege more readily to communications within an existing relationship than to those between strangers. The latter present particular problems. I find it unsurprising that many of the cases where the court has been divided or where the defence has been held to fail have been cases of communications by strangers. Coxhead -v- Richards was just such a case. As Coltman J, one of those who held that privilege did not attach, observed:
"The duty of not slandering your neighbour on insufficient grounds, is so clear, that a violation of that duty ought not to be sanctioned in the case of voluntary communications, except under circumstances of great urgency and gravity." (Emphasis added).
39. Subject only to the point I have already made about preferring for my part a distinction between cases depending on whether they do or do not involve an existing relationship rather than a distinction between common interest cases and those involving duty-interest, I agree with the approach taken in that paragraph. It matters not at all whether Mr Stobbs and the Bar Council are properly to be regarded as owing a duty to the Bar to rule on questions of professional conduct such as arose here, or as sharing with the Bar a common interest in maintaining professional standards. What matters is that the relationship between them is an established one which plainly requires the flow of free and frank communications in both directions on all questions relevant to the discharge of the Bar Council's functions."
"It is of course axiomatic that, in defamation proceedings, questions of law are for the judge, but questions of fact for the jury; so that neither the judge nor this court should presume to make decisions dependant on issues of fact which ought properly to be left to the jury. But that does not mean that a claimant can secure a full jury trial simply be asserting that there are issues of fact. As this court decided in Alexander v Arts Council of Wales [2001] EWCA Civ 514; [2001] 1 WLR 1840, section 69 of the Senior Courts Act 1981 entitles a party to have a material issue of fact decided by a jury. But it is for the judge to decide whether there really is such an issue."
Other publications
Malice
Approval/involvement in/knowledge of the same or similar methods
The 15 February 2001 memorandum
"expressed concerns over higher levels of handling and radio-tagging of small chicks than was specified in the RSPB proposal. GN [Geoff Nicholls] understood these concerns and the potential for disturbance to impact on numbers of black grouse fledglings. The difference in chicks per hen counted at Vyrnwy compared to the recovery project sites was discussed along with the possible reasons for it (disturbance effects and timing of counts). It was agreed that this would be discussed with GB [Gordon Bowker] in detail. Making best use of the data collected was discussed. IJ stated he was happy to help with/carryout key analyses for the RSPB proposal, subject to the data being collected in an appropriate way."
"IJ [Dr Johnstone] studied data presented [by Mr Bowker] and asked questions about methodology... The concerns of the RSPB over levels of handling/tagging small chicks were discussed. GB [Gordon Bowker] had misinterpreted the report to CCW [Countryside Council for Wales] on effects of handling in 1999. However GB appears to have researched tagging effects in detail, and feels he has some evidence from Vyrnwy that this level of tagging had no effect, although this was not formally presented. Rather than appear inflexible IJ agreed to review levels of tagging this year in light of this. Nevertheless GB did agree to only tag two chicks per brood in future if the RSPB require it. Another option mentioned by GB was to catch and tag hens when they have small broods and use them to relocate large chicks for tagging. GB said it is important to handle chicks early to reduce shock-related deaths of older chicks, citing work on red grouse and game birds in general. GB stated that Murray Grant had said he could handle chicks 2-3 times over the course of the season. These issues will be covered by the review. …IJ suggested GB visit the North Wales Office in April to review tagging methodologies and talk about making best use of data. GB was happy to do this."
"Lord Hope had spoken of a statement contradicted by "all the documents or other material on which it is based" (emphasis added). It was only in such a clear case that he was envisaging the possibility of rejecting factual assertions in the witness statements. It is in my view important not to equate what may be very powerful cross-examination ammunition, with the kind of "knock-out blow" which Lord Hope seems to have had in mind. "
A further allegation of fabrication by Dr Stowe
"Further, it is simply not the case, nor is it suggested in either the Claimants [sic] 2003 report or their 2007 scientific [Wildlife Biology] paper that "once tagged, [black grouse] were then located and flushed every two weeks", as Dr Stowe wrote in the words complained of. This is a complete fabrication on Dr Stowe's part, plainly designed to make the Claimants look reckless and incompetent and their work appear unorthodox and dangerous to black grouse." (Emphasis added)
"In the Wildlife Biology paper the Claimants specifically state that "on average, tagged birds were located and flushed every two weeks."
"As to paragraph 16.11, the data the Claimants recorded, from a distance, at Lake Vyrnwy showed that the birds flushed, on average, every two weeks when they were being tracking (sic), as they were very wild and active. This was not as is stated or implied in the words complained of, because of any action on the part of the Claimants. That the Claimants recorded from a distance whether the birds "fixed" or "flushed" is a fact well known to the Defendant and to Dr Grant and Dr Stowe and deliberately not relayed to the readers of the words complained of."
"Dr Stowe falsely suggested in the Letter that the Cs caused the birds they were studying to flush every two weeks."
"Cs' case on this particular allegation against Dr Stowe should be clear from para 28(v) of the Cs' skeleton argument and/or para 25-26 of Cs' written submissions but for the avoidance of doubt it is made clear now: Dr Stowe's reference to flushing was, in context, deliberately misleading, but insofar as there is a reference to birds flushing in the Cs and Dr Baines' paper [the Wildlife Biology paper] ("on average…every two weeks") it was an error to refer to it as a "complete fabrication." (Emphasis added)
The allegation of fabrication of data relating to lek counts
The allegation that Dr Grant made false and misleading statements about the timing of brood counts to injure the Claimants
The allegation that Dr Grant, Dr Johnstone and Dr Stowe instructed Mr Melling to make a false accusation against the First Claimant
The allegation pleaded in paragraph 13.1.13 of the Particulars of Claim
Conclusion
"the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick."
Note 1 A lek is the name given to an area used for the performance of communal breeding displays and courtship during the mating season by black grouse. A lek count is of the number of males at the lek. Though it is not a word in common usage the argument before me proceeded on the basis that the readers of the publications complained of would be familiar with these words. [Back]