England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE BROOKE)

		Royal Courts of Justice
		30th March 1993

1. THE MASTER OF THE ROLLS: This is the judgment of the court to which all members have contributed.
2. The appeal is against a ruling on a preliminary issue by Brooke J. on 19th December 1991 in a libel action in which Dr Frank Skuse is plaintiff and Granada Television Limited is defendant. The action concerns a programme in Granada's renowned "World in Action" series broadcast on 28th October 1985 and entitled "In the Interests of Justice". It concerned the six defendants, now famous as "the Birmingham Six", convicted in 1975 of causing death and injury by planting bombs in public houses in Birmingham the year before. Dr Skuse was at that time a forensic scientist employed by the Home Office.
3. The programme referred explicitly to the plaintiff and in March 1989 he issued proceedings. No application was made for trial by jury, and on 18th October 1991 Otton J. ordered that a preliminary issue be determined:

"whether the words complained of are defamatory of the Plaintiff and if so, whether they bear the defamatory meaning complained of by the Plaintiff or some lesser defamatory meaning, and if so what".

4. The defamatory meaning contended for by Dr Skuse was set out in paragraph 3 of his statement of claim:

"In their natural and ordinary meaning the said words and visual images meant and were understood to mean that the Plaintiff, when appearing in the capacity of an expert witness at the trial in 1975 of the Birmingham bomb suspects, had misrepresented to the Court negligently the effect of the scientific tests which had been carried out."

5. Granada contended that the programme bore no meaning defamatory of Dr Skuse or alternatively a meaning less defamatory than he alleged. On the preliminary issue Brooke J. ruled that the words complained of were defamatory of Dr Skuse. He held:

"that the words complained of bear the meaning that there were reasonable grounds to suspect that Dr Skuse was negligent as a forensic scientist and expert witness in the Birmingham Six case because he was using what was a screen test as a test on which he could base his conclusion of 99 per cent certainty that the two men whose hands were tested had handled explosives, when his conclusions were based almost entirely on that test and that test alone, and that this caused and contributed to the wrongful imprisonment of the Birmingham Six."

6. Both parties challenge the judge's ruling. Dr Skuse contends that the judge was wrong not to hold that the broadcast bore the defamatory meaning pleaded in paragraph 3. Granada contends that the judge was wrong to hold that the words complained of bore any defamatory meaning; but in the alternative it seeks to affirm the judge's order.

The publication complained of

7. Dr Skuse pleaded in his statement of claim, as the rules require, the words of which (taken together with the accompanying visual images) he complained. They were these:

"ANNOUNCER

"There is a bomb planted in New Street at the Tax Office: the codeword is 'bastards'."

"Hello, hello"

On November 9th in 1974 an anonymous phone call to a newspaper Office signals the Provisional IRA bringing the worst ever terrorist outrage to mainland Britain. Minutes later bombs destroyed two crowded pubs in the heart of Birmingham. Twenty one people died. One hundred and sixty two were hurt. The callous murder and maiming of innocent civilians prompted unprecedented public anger. By the following day when the Home Secretary visited the scene of the carnage he had already promised tough action against terrorists. Public protest and anti-Irish feeling were answered by quickly outlawing the IRA, giving the police wide-ranging new powers under The Prevention of Terrorism Act and by the swift arrest of six suspects. The men were convicted of the biggest mass murder in British history, a crime so appalling that public anger still swamps their claims of innocence. But ten years after their trial an examination of crucial evidence against them has yielded disturbing results.

SIR JOHN FARR

I think it was very important to have a conviction in 1974.

I think that it was important then and still is, because they are an example to others who would place bombs in Birmingham or any British city. My own view is very doubtful as to whether they actually got the guilty men inside.

HILL

He took a piece of cotton wool and poured some of this ether on it and took swabs of my hands.

ANNOUNCER

Patrick Hill described the first stage of the forensic test he underwent after [arrest]. Whatever the truth about the confessions, there is no doubt it was the forensic results that triggered the police interrogation. If a sample turns pink within ten seconds under the simple Griess test, it indicates the suspect could have been handling explosives. Samples from Hill and Power did turn pink. Results were presented to the jury at Lancaster Castle in such a way that it was the strongest strand of independent evidence. Dr Frank Skuse, the Home Office forensic scientist who conducted the tests, told the jury that he was 99% certain that the two had handled explosives. His contentions were based almost entirely on the Griess test.

DAVID BALDOCK

The Griess test is only a screen test, and a positive result means that there is a possibility that the substance you suspect to be present is present. It doesn't prove that that substance is present.

ANNOUNCER

It wasn't known whether anything the men did on the train that night could have led to incriminating forensic tests. The scientist tested more than twenty substances, including lighter fuel, cigarette smoke, even meat pies but with no result. Then they turned their attention to nitro-cellulose, commonly found in the paints, vanishes and lacquers regularly used on railway and bar furniture. Dr Hugh Black, a former Chief Inspector of Explosives at the Home Office, appeared for the defence at the trial. He argued that the innocent compound nitro-cellulose could give the same result as the explosive nitroglycerine. Dr Skuse for the prosecution said it couldn't if the tests were done at room temperature as his had been. Mr Justice Bridge came down on the side of Dr Skuse. In summing up, he told the Jury the defence should have done their own tests and he concluded with Dr Skuse's words:

'I am 99% certain that that shows the presence of nitroglycerine. The only other substance I know of which could give such a result is also a much rarer constituent of commercial explosives.'

ANNOUNCER

We decided to find out who was right. The result would prove crucial for the men with forensic evidence against them, who both were painters by trade and one claims he had been painting on the morning of their arrest. Working [in] their own laboratories without knowledge of each other, both scientists Griess tested nitrocellulose, the chemical which puts the gloss on many paints. They took three samples [from] a spray lacquer, from varnish and from raw nitro-cellulose chips. In each case, experiments to room temperature gave identical results to explosives; something which Dr Skuse had told the Court couldn't happen under the Griess test.

DAVID BALDOCK

As a result of the tests I have carried out, clearly there are other substances which give positive reactions to this test, and so it's totally unrealistic to use it as a test for identification.

DR CADDY

The tests that I have carried out would indicate that there are other compounds, other materials which occur in society, which do respond to the Griess test and they could in that case perhaps cause some confusion.

ANNOUNCER

Results like these were the cornerstone of the police inquiry which led to the men's conviction. Yet in independent experiments, two scientists have proved irrefutably that Dr Skuse's evidence was simply wrong.

ANNOUNCER

If the evidence of the Griess test is worthless, the Home Office can point to only one other forensic test which suggests the men's guilt.

DR BALDOCK

If you have a positive Griess test, you have to go away and carry out more sophisticated types of analyses to confirm the presence of the substance you suspect is present.

ANNOUNCER

But in the Birmingham case the sophisticated tests on a machine like this produced only one [questionable] result. The machine identifies nitro-glycerine by breaking it into three fragments represented by electronic flashes on a screen.

DR BALDOCK

[Only] one of those fragments was in fact shown to be present, therefore we haven't got the complete picture.

INTERVIEWER

So it could have been something else?

PR BALDOCK

It could have been something else."

The programme

8. The material complained of included no specific reference to any visual image. These excerpts formed part of a programme which lasted in all for some fifty-four minutes. Since plainly the excerpts can only be fairly understood and assessed in context, it is necessary to characterise and summarise the thrust of the programme as a whole. Like the judge, we have had the advantage of watching the whole programme.
9. The programme was a serious, hard-hitting investigation of a criminal investigation and trial which were not then, or for some years afterwards, generally recognised as involving any miscarriage of justice. By 1985 the public anger which the original events had aroused in 1974-1975 had no doubt subsided, but the Birmingham Six were still regarded by the public as justly-convicted mass murderers and terrorists.
10. The purpose of the programme was to present very serious doubts about the soundness of the convictions, which were said to be based on circumstantial evidence, the defendants' confessions and the scientific evidence of Dr Skuse.
11. The circumstantial evidence was said to rest on the defendants' acquaintance with an IRA bomber named McDade, who had blown himself up planting a bomb; on the defendants' congregating in the bar at New Street station, which was near to where the bombs were planted; and on the departure of five of them to Heysham on the Belfast boat train to attend McDade's funeral shortly before the Birmingham bombs exploded. The programme discounted the significance of this evidence: some of the defendants' wives gave innocent explanations for the trip to Belfast; the defendants' acquaintance with McDade was said to be social; IRA and Sinn Fein spokesmen said that the defendants were not and had never been members of the IRA or the Irish republican movement.
12. About sixteen minutes, roughly in the middle of the programme, were devoted to the defendants' confessions. The suggestion was that these had been false and had been made as a result of violence inflicted on the defendants by police and prison officers. Photographs of the defendants at various stages, revealing obvious facial blemishes, were shown, and statements supporting the allegation of violence were made and quoted by "a world authority in forensic medicine", the wife of one defendant, the defendants' solicitors and some prison officers.
13. The last ten minutes or so of the programme dealt with the scientific evidence in the case, although there had been earlier references to this evidence which had been described by the defendants' solicitor as the "corner stone" of the police case and the "turning point" in the investigation. Most of the material complained of, beginning with "He took a piece of cotton wool ...", was broadcast during this last ten minute period.

The court's approach

14. There was no substantial dispute between the parties about the correct approach of the court in determining this preliminary issue, although naturally the parties tended to lay emphasis on different features. It is, however, relatively unusual for the court to be asked to decide the meaning actually to be attributed to the words used and the sense (if any) in which they are defamatory; its usual function is to rule whether in law words are capable of bearing a defamatory meaning. For that reason it is appropriate to summarise the principles upon which we have approached the task:

(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once in 1985.

(2) "The hypothetical reasonable reader [or viewer] is not naive 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."

(per Neill L.J., Hartt v. Newspaper Publishing PLC. unreported, 26th October 1989 (Court of Appeal (Civil Division) Transcript No. 1015): our addition in square brackets).

(3) While limiting its attention to what the defendant has actually said or written, the court should be cautious of an over-elaborate analysis of the material in issue. We were reminded of Diplock L.J.'s cautionary words in Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157 at 171:

"In the spring of 1964 two short letters appeared in the correspondence columns of the 'Daily Telegraph'. Written by Mr Herbert, they formed part of a robust though desultory controversy about the prospective use by motor vehicles of a public footpath forming part of Upper Mall in Hammersmith. Neither letter can have taken a literate reader of that newspaper more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference about the plaintiffs' characters or conduct which he might have drawn from what he read would have been one of first impression. Yet in this court three lords justices and four counsel have spent the best part of three days upon a minute linguistic analysis of every phrase used in each of the letters. If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiffs' character or conduct which was actually formed by those who read the letters in their morning newspaper in 1964."

In the present case we must remind ourselves that this was a factual programme, likely to appeal primarily to a seriously minded section of television viewers, but it was a programme which, even if watched continuously, would have been seen only once by viewers many of whom may have switched on for entertainment. Its audience would not have given it the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article. In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer we are entitled (if not bound) to have regard to the impression it made on us.

(4) The court should not be too literal in its approach. We were reminded of Lord Devlin's speech in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 at 277:

"My Lords, the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer's first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory."

(5) A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally (Sim v. Stretch [1936] 2 All E.R. 1237 at 1240) or would be likely to affect a person adversely in the estimation of reasonable people generally (Duncan & Neill on Defamation, 2nd edition, paragraph 7.07 at p. 32).

(6) In determining the meaning of the material complained of the court is "not limited by the meanings which either the plaintiff or the defendant seeks to place upon the words" (Lucas-Box v. News Group Newspapers Ltd [1986] 1 W.L.R. 147 at 152H).

(7) The defamatory meaning pleaded by a plaintiff is to be treated as the most injurious meaning the words are capable of bearing and the questions a judge sitting alone has to ask himself are, first, is the natural and ordinary meaning of the words that which is alleged in the statement of claim and, secondly, if not, what (if any) less injurious defamatory meaning do they bear? (Slim v. Daily Telegraph Ltd. above, at p. 176.)

(8) The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. Plainly this principle is less compelling where his conclusion is not based on his assessment of the reliability of witnesses or on the substance of their oral evidence and where the material before the appellate court is exactly the same as was before him. But even so we should not disturb his finding unless we are quite satisfied he was wrong.

(9) The court is not at this stage concerned with the merits or demerits of any possible defence to Dr Skuse's claim.

The argument for Dr Skuse

15. The defamatory meaning pleaded by Dr Skuse in paragraph 3 of his statement of claim was said to be conveyed in particular by three suggestions contained in the programme:

(1) Dr Skuse had testified that he was 99% certain two of the defendants had handled nitro-glycerine relying "almost entirely on the Griess test" when that is "only a screen test and a positive result means that there is a possibility that the substance you suspect to be present is present" but "doesn't prove that the substance is present". To use the Griess test as a test of identification was "totally unrealistic" and the results were "worthless". Yet the judge relied strongly on this evidence in his direction to the jury before conviction.

(2) Dr Skuse expressed the opinion he did although more sophisticated analysis was necessary to confirm the presence of the substance suspected to be present, and in the Birmingham case that more sophisticated analysis "produced only one questionable result" so that the suspected nitroglycerine "could have been something else".

(3) Dr Skuse testified that nitrocellulose could not give the same positive Griess test result as nitroglycerine if the tests were done at room temperature as his had been, when simple tests commissioned by Granada showed that this evidence was "simply wrong". In the result, the evidence of Dr Skuse, crucial to the prosecution, was flawed.

The argument for Granada

16. The lynchpin of Granada's case was the programme's repeated references to "new evidence". Doubts about the soundness of the convictions rested on matters "which had never before been proved". The opinions of Dr Baldock and Dr Caddy were based on experiments which they had carried out, which had not been carried out before and which had yielded "surprising results". The case was not one where advances in scientific knowledge or technology were said to make possible discoveries which could not have been made before, but whereas there had at the trial been no evidence of scientific tests which contradicted Dr Skuse's evidence such evidence was now available. The programme did not accuse Dr Skuse of negligence or incompetence or say that he should have done the tests which Dr Baldock and Dr Caddy did. It said his evidence was wrong, but anyone (not least a professional man) can be wrong without being negligent or incompetent. The programme made no attack on Dr Skuse and it would be a serious blow to investigative journalism if a man could not be said to be wrong without defaming him. If, contrary to Granada's primary submission, the programme could be said to bear any defamatory meaning, it could not bear more than the limited meaning found by the judge, that there were reasonable grounds to suspect negligence by Dr Skuse.

Conclusions

17. We share the judge's conclusion that the material complained of would have lowered Dr Skuse in the estimation of ordinary reasonable viewers of this programme and would have affected him adversely in the estimation of such viewers. We do not, however, share the judge's view that the material bore only the limited defamatory meaning which he found.
18. The reasonable viewer would appreciate that as a professional scientist carrying out investigations and giving evidence for the Crown in a momentous criminal trial Dr Skuse was under a duty to use the utmost care and to be completely thorough. The viewer would understand from the programme that in basing a very strong opinion on the positive result of the Griess test Dr Skuse misunderstood or misstated the significance of the result, particularly since he lacked the confirmation which another test might have provided. He would also understand that, in testifying that the positive Griess test result could not have been caused by nitrocellulose, Dr Skuse had either spoken when he did not know or on the basis of defective experiments. Overall, the viewer would feel that Dr defendants and in particular his statement that "nobody was able to actually come forward and produce some kind of other substance totally innocent of any connection with explosives which produced the same result". We do not, however, think (as the judge did) that the viewer would understand the programme to be criticising the solicitor if it was criticising Dr Skuse. The solicitor was, understandably, supportive of the defendants, he was not a scientist and the programme did not give viewers much time for reflection; but if the viewer had reflected, he would have expected the defence solicitor to vindicate the conduct of the defence.
19. (3) At page 16A the judge held that "the ordinary viewer would in my judgment have formed the view from this programme that back in 1975, there was not evidence which was staring Dr Skuse in the face that his confident evidence was wrong". Perhaps. But this was not the issue. The viewer would, we think, have been led to believe that at the time a competent forensic scientist would have known that the Griess test was only a screening test, in which a positive result could be obtained not only from nitroglycerine but also from innocuous substances innocently encountered, and that the results of the second more specific tests performed upon the suspects were incomplete, so that Dr Skuse should not have given evidence as he did. The viewer would also, we think, have expected Dr Skuse to do the tests which Dr Baldock and Dr Caddy did when Granada asked them and which invalidated his evidence.
20. (4) The judge did not in our view give sufficient weight to the clear thrust of the programme, to the crucial role attributed to Dr Skuse and to the very strong language used Skuse had been seriously at fault in giving evidence, damning to the defendants, which was unreliable and shown to be so by investigations, later carried out by Dr Baldock and Dr Caddy, which could and should have been carried out by Dr Skuse at the time, especially as his attention was specifically drawn to the possibility of an innocent explanation for the positive Griess test results by cross-examination and by the evidence of Dr Black.
21. In our judgment the natural and ordinary meaning of the material complained of was that, as a Home Office forensic scientist investigating the Birmingham bombings and giving evidence for the Crown at the trial, Dr Skuse failed to show the skill, knowledge, care and thoroughness to be expected of him in that role. The "judgment
22. Since we base our decision more on the impression which the programme made on us than on minute textual analysis of the transcript of the programme, there is limited value in analysing our reasons for differing from the judge. But we should very briefly indicate the points in his judgment at which we part company with him:

(1) At page 6E of his judgment the judge described the main thrust of the programme as being "that there was new evidence available which would now warrant very careful reconsideration". That was in our view only part of the thrust. The programme raised very serious doubts about the soundness of the convictions and threw doubt on the three main strands of evidence, in particular the scientific evidence of Dr Skuse.

(2) The judge attached considerable importance to the contributions of the "obviously competent solicitor" of the about his use of the test result ("totally unrealistic", "simply wrong", "worthless", "questionable"). Nothing whatever was said to suggest that is opinions reflected received opinion or standard practice in 1974-1975.

(5) The judge's distinction between negligence and reasonable grounds to suspect negligence may of course be properly made if the words complained of warrant it (as in Lewis' case where it was said that a company was the subject of a police inquiry), but it is a distinction more familiar to lawyers than laymen and it is not one which would, in our judgment, occur to the ordinary reasonable viewer of this hard-hitting, arresting, quickly-moving television programme. Such a viewer would be left with the clear impression that Dr Skuse had quite simply but very seriously fallen down on his job.

23. We are satisfied that the natural and ordinary meaning which the judge gave to the material complained of was wrong. We accordingly allow Dr Skuse's appeal and rule that the natural and ordinary meaning of the words is that set out above in the last paragraph of our "Conclusions". Granada's cross-appeal is dismissed.

Order: Appeal allowed and cross-appeal dismissed with costs to be taxed and paid forthwith.

24. THE MASTER OF THE ROLLS: For the reasons that have been handed down in the judgment of the court this appeal will be allowed. Perhaps I could at this stage make one extremely minor correction on the text which I gave to you. It is a point of punctuation on page 6. In the third paragraph of that page and the fifth line of that paragraph, after the word "planted" there should be a semi-colon and not a colon.
25. MR BROWNE: Would your Lordships also order the dismissal of the cross-appeal?
26. THE MASTER OF THE ROLLS: Yes.
27. MR BROWNE: May I ask for the costs of this appeal and the costs before the learned judge? The order made by Mr Justice Brooke was that the costs of the preliminary issue should be costs in cause. That, in my submission, clearly reflected the half and half position that the learned judge reached. This court has essentially found in favour of the plaintiff's pleaded meaning which is set out in paragraph 3 of the statement of claim and, the whole question of meaning being essentially a discrete issue, in my submission this court can deal with the costs as a discrete issue as well. Given that we have succeeded on that issue which was raised initially by the defendants, I respectfully ask your Lordships to order the costs not only here but also before the learned judge.
28. Can I just ask one other thing? That is that, if your Lordships are with me on costs, they should be taxed and paid forthwith. That, in my submission, is appropriate, not just because meaning is a discrete issue but also having regard to Dr Skuse's means, particularly his means when set against those of the defendants. The estimated costs of Dr Skuse in this court are in the region of £15,000 to £20,000. That will not come as a surprise to Granada, who estimated their own costs as being in the region of £28,000 when they sought security from Dr Skuse on the ground of his impecuniosity. It was agreed between the parties that on that basis Dr Skuse should furnish a charge over a property he owns in the north of England. In fact, I believe that the charge was in the end never legally executed but at any rate the principle of security on the basis of impecuniosity was agreed between the parties, and I am told that the costs of that issue and of preparing the charge and the necessary searches were themselves in the region of about £1,000.
29. My Lords, there being no legal aid for libel, for a plaintiff who is retired living on a pension to take on a wealthy media enterprise like Granada is obviously a formidable undertaking. The reason I ask that the costs should be taxed and paid forthwith is that, in my submission, nothing should be done to place any obstacle in the way of Dr Skuse bringing this matter on for trial, and it would be an unfortunate result were the costs of this appeal and the hearing before the learned judge on which Doctor Skuse has been successful in any way to shackle him in pressing on to the trial and the vindication of his name which he seeks. Those are my submissions.
30. THE MASTER OF THE ROLLS: Mr Moloney, there are two applications, one that there be costs in this court and below, and second that they should be taxed and paid forthwith.
31. MR MOLONEY: As to the first, my Lord, our submission would be that the court should not order that the costs of this appeal or below be my friend's in any event but that those costs should be linked to the final outcome of the trial on the defence of justification, whether by way of simply an order that the costs here be costs in the cause, or that they be plaintiff's costs in the cause, or perhaps that the costs of this appeal and before Mr Justice Brooke be reserved to the trial judge.
32. The bases on which I make those submissions are these. Firstly, though my friend says that he has been successful, and in one sense he has certainly been substantially successful, the court has not found that the words bear the meaning for which he contended. The court has substituted, as it is entitled to do and as it is its duty to do in the circumstances, a rather different meaning comparable to but no more serious than his, in some respects a broader meaning and one which gives us greater opportunity still for justification. So the court has not accepted my friend's meaning but substituted a meaning of its own.
33. Secondly, the court is already aware, although it has not been concerned with the details, of the defence; and the court has made it absolutely clear in its judgment that it is in no way prejudging any issue of any defence that may be available. The court knows from my skeleton argument that Granada has already got on the record a justification of negligence by Dr Skuse at the trial and in giving evidence at the appeal, and it is Granada's intention that they obviously will consider the meaning that your Lordships have considered. There is already an application pending which will no doubt now return to the judge or to the master for an amended defence. A defence is already on record, and will be placed on the record perhaps in more elaborate form, of justification in full to the meaning that your Lordships have attributed to the words.
34. I have got two points: one of a general nature about preliminary issues in defamation actions and one specific to this very peculiar case.
35. The general point is this. At a trial in the ordinary way meaning would be determined and it might well be determined in favour of a plaintiff, but liability of course depends ultimately not on what is alleged but on whether what is alleged was true and fair or not; and the court at trial would certainly not apportion the costs as between costs attributable to the issue of meaning and costs attributable to ultimate liability. Preliminary issues are encouraged by this court in defamation actions precisely because they are salutary and because they tend to narrow the issues. They can dispose of the case altogether or they can narrow the issues and clarify what needs to be proven for the purposes of justification. In our submission, the costs of this preliminary issue are a necessary and useful part of the costs of the overall action, which is what the court has to look at, and it may also be relevant to my friend's application that the costs should be taxed and paid forthwith. Both parties have voluntarily engaged in this preliminary issue and they have done so in the hope that it would shorten and simplify and render economical the disposal of the trial. If they had not done that Dr Skuse would have proceeded and would have incurred these costs, or a very large measure of them, at the trial without the opportunity, I say in parenthesis, for taxation forthwith. So that is the first point: that there is no obvious reason why the costs of the preliminary issue, or indeed of the appeal which has produced this useful result, should be separated and dealt with separately from the overall outcome of the trial.
36. The second point, and one on which perhaps I place even more reliance, relates to this particular case. My submission is that the costs should abide the event of the trial. In other words, if it is found that Dr Skuse was not negligent, then of course he should get the costs of this hearing as well as his costs of the trial as a whole. On the other hand, what if we are successful in our justification? What if it is established that Dr Skuse was negligent? As the court knows and as there is really no dispute, the Granada programme in 1985 was the first and one of the most important steps in a public campaign to serve the interests of justice (which was the name of the programme) by righting a very grave injustice, perhaps the gravest known to English law. The programme led directly to the first reference to the Court of Appeal. It was expressly referred to in the Home Secretary's reference to the Court of Appeal, the first appeal. At the first appeal Dr Skuse's evidence was in part discredited. Following that first appeal he sued, some three and a half years after the programme was made. Then came the second appeal, the conclusion of which in the concluding words of the Court of Appeal which freed the Birmingham 6 was: "For our part we would say that, in the light of the fresh scientific evidence, which at least throws grave doubt on Dr Skuse's evidence if it does not destroy it altogether, these convictions are both unsafe and unsatisfactory."
37. Now, if this court accedes to my friend's submissions on costs and we win at the trial, the situation will be this. The company which bears the large measure of the credit for righting the gravest injustice in modern British legal history will be asked to pay substantial costs to the man who, by his negligence, was largely responsible for bringing that injustice about. The court can see the issue that that raises. The programme was not expressly an attack on Dr Skuse. It did not expressly attribute negligence to him but the court has held that by implication it did so. My submission on costs is that, in the circumstances of this very peculiar case, the costs should be tied to the final outcome, ideally as costs in cause or, alternatively, as I say, plaintiff's costs in cause or as costs reserved to the trial judge. So those are my submissions on costs.
38. So far as taxation forthwith is concerned, if the court is against me on that, my friend has alluded to evidence which is not before this court and to which I had no idea he was going to refer until now. The court knows the factual background to this case. It has been proceeding for many years and the trial is to come. It is not the usual practice of this court to order that the costs of an appeal, when the trial is continuing, should be taxed and paid forthwith, and in my submission, given that there is a strong defence of justification here which may well succeed - of course this court is not going to prejudge it one way or the other but given that eventuality - and given that there is a perfectly real probability, we would say a high one, that at the end of the day we will be successful and Dr Skuse will have to pay us enormous sums in costs which, according to Mr Browne, he will be quite unable to pay, it must follow that Granada should at least have the comfort, or what I might call the informal security, of a set-off against the costs of this appeal which, if we pay to Dr Skuse, we will never see back if we get an ultimate order for costs in our favour at the end of the day. So, for those reasons, if the court is against me on the issue of primary liability for costs, in my submission at the very least it will be right that taxation should be deferred until the conclusion of the hearing. Those are my submissions.
39. MR BROWNE: My Lords, first of all, it was the defendants who sought this preliminary issue because they challenged the pleaded meaning in the statement of claim. Once the defendants had raised that issue it was only realistic that the plaintiff should agree that it be tried as a preliminary issue. So that is why I say that it is an entirely discrete issue which, as your Lordships have said in the judgment, is one not connected in any way to the merits or demerits of the plea of justification.
40. Mr Moloney says that the meaning which your Lordships have found is one which is different from the pleaded meaning. In my submission, it is a substantial paraphrase of the pleaded meaning and does not differ from it in any essential respect.
41. So far as the costs overall are concerned, it is clear from what Mr Moloney has said that the costs are increasing all the time. There is now mooted an application for an amended defence so, even before Dr Skuse takes this action to what may be a trial lasting two, three, perhaps even four weeks, he will be confronted with further heavy interlocutory applications. That is why I am concerned that on this discrete issue he should have the protection of having his costs taxed and paid forthwith.
42. Mr Moloney took your Lordships - and perhaps I should have objected but I did not want to interrupt his flow - into the position in relation to the Court of Appeal hearings, and he sought to persuade your Lordships that this programme was, as it were, the trigger for the ultimate release of these men. I do not accept that. I can very shortly - and I think I must in the light of what Mr Moloney has said - just give your Lordships the background to the appeals. First of all, in the 1987 appeal the basic thesis of the Granada programme that these confessions have been extracted by police brutality was rejected. The argument was not resurrected at the successful 1991 appeal. Indeed, the Court of Appeal in 1991 said they were not surprised that the argument had been rejected back in 1987. So far as the scientific evidence was concerned, the possibility of nitrocellulose giving a positive reaction to the grease test which had been the crux of Granada's scientific arguments in the programme in 1985 was rejected by the Court of Appeal in 1987 and was not resurrected by the appellants in 1991.
43. One other matter which was rejected by the Court of Appeal in 1987 was the possibility of contamination of the GCMS tests. In 1987 the Court of Appeal dismissed that as not worthy of sensible or or rational discussion, and again that was not raised in 1991. In 1991 what led to the success of the appeal was the discovery, almost fortuitous, in the interval between the 1987 appeal and the 1991 appeal of an unidentified material which a scientist at Aldermaston had found in the course of one of his swab tests which did produce the single peak which was said to be only consistent with nitroglycerine. It was because of that single swab that the Court of Appeal came to the conclusion which, taken rather shortly and perhaps out of context, Mr Moloney read to your Lordships this morning.
44. The other matter which nobody had foreseen before the 1991 appeal - nobody had foreseen at the time of the 1987 appeal -was the possibility of contamination of the little bowls used for testing of the swabs by laboratory detergent. The Court of Appeal regarded that as a relevant factor in 1991, although there was no material showing what cleaning material had been used by Dr Skuse on the bowls.
45. I give your Lordships that short background because it shows that what led to the release of the Birmingham 6 in 1991 were matters which had not been known to science in 1987. It truly was new evidence coming to light in the four years between 1987 and 1991. Secondly, quite contrary to the impression created by Mr Moloney, the 1987 appeal substantially dismissed the whole thrust of the Granada programme both on the scientific evidence, the possibility of a positive reaction to nitrocellulose, and also in relation to police brutality. So, having said that, I ask your Lordships to draw the conclusion that this is not a case therefore where, as Mr Moloney suggested, the defendants are likely to be successful at trial and therefore confronted with a large irrecoverable bill of costs run up by them which Dr Skuse will not be able to pay. It is really because the costs burden is potentially so formidable for Dr Skuse and because there is this inequality of resources between the parties that I ask your Lordships to make the order for taxation forthwith.
46. (Their Lordships conferred)
47. THE MASTER OF THE ROLLS: The appeal will be allowed and the cross-appeal dismissed with costs to the appellant here and below. It appears to us that the parties did decide to have a preliminary issue on the question of meaning and defamatory or no and, of course, this process would have been unnecessary had the defendants chosen to say yes, our programme does mean effectively what the plaintiff asserts and, moreover, it is true; therefore, the issue has arisen because they chose to put in issue both the meaning and the question of defamation. It seems to us to follow that the appellant should have his costs of this issue both in this court and before the learned judge.
48. We have been very considerably exercised in relation to Mr Brown's second application that the costs should be taxed and paid forthwith. Such an order is sometimes made as a mark of disapproval of the parties' conduct and any such disapproval would be entirely inappropriate in this instance since, were we to make such an order, we should not be wishing to be seen as criticising Granada in any way at all. They have been exercising perfectly legitimate rights as a litigant in no way abusing the procedure. On the other hand, we have to try and weigh the interests of justice both as they affect the plaintiff, who runs the risk that he may be unable to pursue his complaint, with the risk of injustice to the defendants who, if they ultimately succeed in justifying this programme and its relation to Dr Skuse, as they may well do, stand the risk, if they pay out costs now, of being unable to recover them ultimately.
49. We have found this a difficult and indeed somewhat baffling balance to strike, but on balance are of the view that, in the exceptional circumstances of this case, the defendants' costs should be taxed and paid forthwith since we think that overall that is likely to contribute to the interests of justice more effectively than any other order. I do, however, repeat that, in making that order, we express no criticism whatever of the conduct of Granada in this matter and they may indeed turn out, as Mr Moloney submits, to have been a catalyst in the course of this extremely unhappy matter.
50. Thank you both very much indeed.