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 Drake)

		Royal Courts of Justice
		15th March 1995

LORD JUSTICE McCOWAN: Pursuant to leave granted by Russell LJ, this is an appeal by the plaintiff from an order of Drake J. made on 26th October 1993, by which he ordered that the plaintiff's action against the second and third defendants be struck out. What is sought in the appeal is that that order be reversed. What the action is about is helpfully summarised by Drake J. in his judgment (page 66, bundle 1, line 11):

"The plaintiff's action for libel is based upon publications on 15th and 16th January 1987. The very brief outline is that the plaintiff was a local politician, serving on the Gloucester City Council. On Monday, 16th January 1987, the Sun and the Daily Mirror, newspapers owned by the second and third defendants respectively, published articles alleging that the plaintiff had admitted that he had been treated for Aids.

On 30th January he issued a writ suing them for libel. He also sued a local Gloucester news agency as first defendants and a local Gloucester newspaper as fourth defendants. They are no longer concerned in the action and I do not propose to refer to them further.

The defence of the second and third defendants was leave and licence, that the plaintiff had volunteered the relevant information to the local news agency which had passed it on to the national newspapers. There was no plea of justification.

The plaintiff had applied for and obtained an order for an expedited trial which took place in May 1988. I observe in passing that with the modern state of the lists it would have come on a lot quicker without an order for expedited trial. However, at the trial the plaintiff asserted that he was not a homosexual -he gave evidence to that effect. That was relevant, because it was accordingly improbable that he had, in fact, been treated for Aids. There was detailed evidence on the issue of leave and licence. The jury rejected the defence of leave and licence and awarded the plaintiff damages in the sum of £28,750 against the second defendants -that was for the Sun -and £10,580 against the third defendants for the Daily Mirror. The trial ended on 18th May 1988.

The defendants appealed on the ground that they had obtained fresh evidence. That would show that the plaintiff was in fact a homosexual and had committed homosexual acts with a number of different people and had, therefore, lied at the trial. The appeal was heard on 1st, 2nd and 3rd February 1989. Judgment was reserved and was handed down on 25th May 1989. Lord Justice Fox gave a detailed judgment with which the other members of the court concurred. He analysed fresh evidence to be given by five witnesses and concluded that the fresh evidence satisfied the rules in Ladd v. Marshall and therefore a new trial was ordered."

I turn to the judgment of Fox LJ to see what that analysis produced. I find the passage in question beginning at page 46 of bundle 1. There was, first of all, Mr. Jeremy Taylor, a journalist, who said that in 1985 the plaintiff admitted to him that he was a homosexual and intimated that he would like a homosexual relationship with Taylor, which Taylor declined. Then there was Derek Newall, who asserted that in May, and again in June 1986, he went to bed with the plaintiff and various homosexual acts took place between them. Next there was Simon Lea, who said that in 1980 the plaintiff had invited him to go bed with him and, in fact, he had gone to bed with him and homosexual acts had taken place. Next there was a Mr. Walker, who said that he had met the plaintiff at a party in June 1987 and that the plaintiff at that party had repeatedly put his arms around him. Later in the evening, the plaintiff said that he was tired and was going to bed. He asked Mr. Walker to accompany him for a chat. Mr. Walker was not prepared to do that. At one point in the evening he asked the plaintiff "directly if he was trying to proposition me". The plaintiff replied, yes. Mr. Walker said that he was sorry to disappoint him but he was straight, whereupon the plaintiff said that he had never failed before. And then Duane Hoffman, a very important figure in this. He said that on 28th September 1988 --that is after the first trial and before the Court of Appeal hearing --he spent the night with the plaintiff in a hotel in New York, and that homosexual intercourse took place between them. In October 1988 he asked the plaintiff for the reason for his frequent trips to New York. The plaintiff replied that there was only one purpose for his visits, and that was that he had been told that he carried the HIV virus and he had been seeking medical help from the best clinics in New York. In that same month they came to England. The plaintiff told him that he had pulled the wool over their eyes in court when lying about his homosexuality. In November 1988 they stayed in a hotel in Blackpool and had homosexual relations. Further homosexual acts took place at an hotel in Gloucester and again at an hotel in London, on both occasions in November 1988.

In the end, what decided it for the Court of Appeal was the evidence of Hoffman and Walker. Of them, Fox LJ said at page 55H:

"These, on the face of them, appear credible ....."

He continued at page 57C:

"But the evidence of Hoffman and Walker would, in my opinion, have an important effect on the result of the case because, if true, it would support the contention that Mr. Gilberthorpe (1) was a homosexual at all material times and (2) deliberately misled the court at the trial."

The learned Lord Justice then shortly summarised their evidence and went on:

"If believed, the evidence (as evidence of promiscuous homosexuality) would be likely to persuade a jury (a) that Mr. Gilberthorpe's denials of homosexuality were false and (b) that he might have believed, or had reason to fear, that he had the AIDS virus and that therefore (c) it was credible that he should have volunteered the AIDS story to the News Agency to pre-empt the story which he believed the Express was about to publish."

He concluded at page 59F:

"In the circumstances, I conclude that in the interests of justice a new trial is necessary and I would allow the appeal."

The court went on to say that the retrial should take place as soon as possible. As is already apparent, that did not happen. I return to the judgment of Drake J., taking it up at page 67, line 23:

"So it was then for the plaintiff to restore the action for hearing. The summons for directions in the new trial was not served for a very long time, not in fact until 13th July 1993, but meanwhile the second defendants, on 14th April 1992, had issued a summons to strike out for want of prosecution and the third defendants issued a similar summons at a later date. So the defendants say that it was between the order for retrial made on 24th May 1989 and the issue of the second defendants' summons to strike out on 14th April 1992, that the plaintiff was guilty of inordinate and inexcusable delay which is likely to cause serious prejudice to the defendants. And I add, to make it quite plain, that I think it would be wrong to hold the plaintiff guilty of any delay after the issue of the summons to strike out on 14th April 1992, because thereafter it was at least equally in the hands of the defendants to press ahead with the hearing of the summons to strike out. However, the plaintiff concedes that he was guilty of inordinate delay over the period up to 14th April 1992. But he says that it is excusable and he denies that there is likely to be serious prejudice to the defendants as a result of the delay.

The excuse for the delay is made on three separate but, in some cases, overlapping grounds. Firstly, that it was due to lack of finance on the part of the plaintiff; secondly due to his ill health; and, thirdly, that he was reasonably involved over a period of time in gathering evidence to rebut the defendants' fresh evidence. The burden of proof is clearly on the plaintiff to show that the delay is excusable. On the issue of prejudice the burden of proof is on the defendants.

I turn to consider first the three grounds of excuse. Lack of finance. This is an unusual excuse. Unusual simply because in the majority of striking out applications, which are very frequent in personal injury actions, the plaintiff is either legally aided or has the benefit of union backing. In the case of libel there is, of course, no legal aid and I have to take note of the fact that there is no legal aid in libel as a matter of Government policy. In the circumstances I think it is right for the court to be very cautious before finding a lack of finance as an excuse. To find a lack of finance as an excuse for delay might encourage some plaintiffs to bring defamation proceedings and allow them to drag on, at the expense meantime of the defendants, in the hope of obtaining certain advantages such as a buying- off settlement of the claim or a prolonged injunction. However, having said that I think it right to be cautious, I do think it is a ground of excuse which it is proper for the court to consider and I accept Mr. Nicol's submission that each case ought to be considered on its merits."

The learned judge then did an analysis of the plaintiff's financial situation over the relevant period, and concluded at page 71:

"I have no doubt that he has made out a general case that from time to time he has been short of money. He has said so himself and his solicitors have backed him up. But I am not satisfied on the evidence put forward that he has sufficiently discharged the burden of proof on him of showing lack of finances as an excuse to justify the considerable delay.

Ill health is quite certainly a good ground to excuse delay but, again, the onus of proof is on the plaintiff and he must show that the ill health is such as to have made it unreasonable to expect him to proceed. In this case I have no hesitation in saying that his evidence falls far short of being enough to explain more than a minimal period of delay."

Mr. Nicol, for the appellant, criticises the passage in which the judge says that, because there is no legal aid in defamation proceedings, the court has to be very cautious before finding lack of finance as an acceptable excuse. Mr. Nicol says that the judge is guilty there of an error of principle and that it is significant that neither respondent has sought to uphold the judge's reasoning. Since therefore, argues Mr. Nicol, the judge fell into error, this court must exercise its own discretion.

I have to say that I do not follow the logic of the judge's remarks on this aspect. I should have thought that, if anything, absence of legal aid is a factor which should elicit from a judge a sympathetic approach to the matter, since the plaintiff has to find out of his own pocket the means of financing his action, often, as in this case, against defendants who have not the slightest problem in financing their defences. But I must take into account what the judge went on to say at page 69, line 9:

".... having said that I think it right to be cautious I do not think it is a ground of excuse which it is proper for the court to consider and I accept Mr. Nicol's submission that each case ought to be considered on its merits."

The judge plainly did, in my judgment, consider the matter on its merits, and, therefore, I do not find that his earlier remarks destroy his exercise of discretion. For my part, I do not find it possible to say that he was plainly wrong to exercise his discretion as he did.

Then Drake J. turned to what he described as the principal ground put forward by the plaintiff justifying the delay up to April 1991, after which impecuniosity was relied upon. That principal ground was the need for the plaintiff to obtain rebutting evidence to meet the defence of justification. For this I go to page 72, line 23. The judge, having said that the principal witness was Mr. Hoffman, went on:

"In a telephone conversation of 30th March 1989 he told the plaintiff's solicitors that his evidence supplied to the Court of Appeal was perjured. Thereafter the plaintiff says that he was kept away from Mr. Hoffman, partly by the fact that Mr. Hoffman, having returned to this country, was convicted of a criminal offence and was deported, but partly by strong pressure put on the plaintiff by the defendants' solicitors, who went so far as to threaten to refer the matter to the Attorney General, should the plaintiff's solicitors persist in trying to get in touch with Mr. Hoffman.

However there is no sufficient evidence, in my judgment, to show that the plaintiff did do what he ought to have done to try to get further evidence from Mr. Hoffman between March 1989 and 20th November 1990. On that date it was Mr. Hoffman himself who sent a fax from New York reiterating that he would retract the evidence supplied to the Court of Appeal.

In the end, on 27th February 1991, Mr. Hoffman sent a fax to the plaintiff's solicitors, saying that he had been bribed by the defendants to give perjured evidence and on the same day, at the British Embassy in New York, he swore an affidavit to the same effect. I add for completeness that after that, at a subsequent date, he seems to have told the defendants that he had been bribed by the plaintiff to give that affidavit. So at the end of the day, if the matter came to trial, Mr. Hoffman would have given evidence that the plaintiff was a homosexual, then retracted that evidence and then retracted the retraction. Be that as it may, it seems to me that as early as March 1989 and therefore immediately at the time the retrial was ordered, the plaintiff already had evidence by way of a telephone conversation, which I should emphasise was recorded by the plaintiff's solicitors, that Mr. Hoffman has retracted his evidence.

Really there is very little that has happened since that has taken the matter further. The retraction and counter-retraction will all have to be considered if the matter goes before a jury. But the telephone conversation in March 1989 was enough, recorded as it was, to undermine and attack Mr. Hoffman's evidence, and I find no justification in the plaintiff having delayed as long as he did in proceeding with the retrial on the grounds that he was awaiting further and better retractive evidence from Mr. Hoffman."

One criticism can be made of the words of Drake J., which I have read at page 73, lines 5 to 8, because of the terms of a letter written by the solicitors to the second respondent to the appellant's solicitors on 7th November 1990. This is to be found at page 41 of bundle 2. In it this is said:

"You will recall that our clients were granted leave to amend the Defence to rely on the evidence of a number of further witnesses in support of a plea of justification. We have recently spoken with one of these witnesses, Mr. Hoffman, who resides in the USA. He has been informed by a number of his friends and former employees that your client has been making persistent enquiries to discover his present address."

But, as I have said, the appellant does not seek to justify the delay after April 1991 by reference to the need to obtain rebutting evidence. I conclude that it would be impossible for me to say that the learned judge was plainly wrong in holding that the delay was inexcusable.

The judge then came on to the subject of prejudice. To see how he dealt with that, I turn to page 77, line 22:

"However, that leaves the matter of prejudice on which issue the burden of proof lies on the defendants. A retrial will involve witnesses on the issue of leave and licence which will mean them giving evidence of events back in 1985 to 1987 and in the light of the witnesses giving evidence of justification, a jury would have to look at the evidence of leave and licence in the light of and in conjunction with the evidence of justification. It is unlikely, or at least it is far from certain, that a jury would find a black and white answer to whether the witnesses in justification are wholly false or wholly true. They would quite possibly find that the justification witnesses fell somewhere in between the two. That would leave the justification evidence to be considered as affecting the evidence of leave and licence. The justification witnesses would themselves be giving evidence, some of which goes back a very long time ......"

I omit the next two sentences and continue at line 17 on page 78:

"In this case I think it is absolutely inevitable that the memories of witnesses on all these issues will have faded very badly. It is true that there will be notes, statements and telephone conversations of an earlier date from which the witnesses may refresh their memory. There will also be, in the case of the witnesses on leave and licence, the transcript of the original trial of their evidence from which they can refresh their memory. But that is not by any means a full substitute for the fresher memory that they would have had."

On page 79 he noted that Mr. Nicol had suggested that the court should consider the justice of the case as a whole as seen by an innocent bystander. To this argument, Drake J. responded on page 79, line 16:

"I will accept that that is a reasonable additional manner in which the court should approach this problem. But when I do so I still come to the very firm conclusion that a reasonable bystander, provided that he were properly informed of all the facts, would come to precisely the same conclusion as that to which I have come, namely that litigation ought not to be unreasonably delayed, and that it is in the public interests that there should be an end to litigation as speedily as possible. It is the plaintiff's own fault, despite the excuses that he has put forward, that this matter has not come to trial more speedily and therefore it is his own fault that justice requires that the case should be struck out on the grounds that the inordinate and inexcusable delay is such as is likely to cause serious prejudice to the defendants in this action."

In considering this part of the judgment, I have regard, first, to the aspect of justice. The judge stresses that it is in the public interest that there should be an end to litigation as speedily as possible, with which I agree. But there is another aspect to justice in this case. What I have in mind was put by the appellant in his fifth ground of appeal to this court as follows:

"Further or alternatively, in the exceptional circumstances of the case, it was unjust and unfair to deprive the Plaintiff of his opportunity to establish that the evidence furnished to the Court of Appeal in 1989 and which led this court to set aside the verdict of the jury in his favour was perjured and obtained by improper means."

The court put it in argument to counsel for the respondents in these terms. On one or the other side of this case, there has been a great deal of skull-duggery. Putting it in less colourful terms, there would appear to have been, on one side or the other, a conspiracy to pervert the course of justice in which solicitors or a solicitor may have been involved.

Should that all be swept under the carpet? What of the judgment of the Court of Appeal? Hoffman was the potential witness who most influenced them. They considered him a credible witness. Indeed, on what they knew there was no real reason to consider him otherwise. But had they had any notion that he was subsequently to make no less than seven separate retractions of the statement which was before them, would they have ever ordered a new trial? I doubt it very much. They would have been bound to consider him at least a thoroughly unreliable witness. Is that to be ignored because the plaintiff has been guilty of inexcusable delay in pursuing the new trial? Interestingly enough, Mr. Gray, for the Second Respondent, complains that many of the scandalous allegations against his instructing solicitors emanate from Hoffman, but it was chiefly the statement from Mr. Hoffman which got them their new trial. In his written submissions on the issue of prejudice and on whether a fair trial could now be had, Mr. Gray said this:

".... it is wholly inappropriate for an appellate court to embark upon an estimate of the credibility of witnesses such as Hoffman."

He explains that when writing that he did not know that Mr. Nicol was going to rest so much of his argument in this court on the injustice ground, since he made so little of it in the court below. Now faced with it, I am bound to say that Mr. Gray appeared to me to change tack. He argued, with much cogency, that the detailed description in Hoffman's original statement of the nature of the alleged relationship between him and the plaintiff, plus certain other factors to which Mr. Gray drew our attention, make it highly likely that the statement was true. He contended: "I say that it is a true bill." But it is not, in my judgment, for this court to say where the truth lies as between that statement and the seven retractions.

We would have to hear and see the witnesses, including hearing them cross-examined, to arrive at any conclusion about that. Such an exercise is no more for us than it was for the Court of Appeal which ordered a retrial.

In my judgment, this is, indeed, an exceptional case where justice demands that these various unhappy aspects of the case should be thoroughly explored if the plaintiff is prepared to come to trial with all the financial dangers that it holds for him, and if the defendants are prepared to risk calling the retractors, Hoffman, Walker and Leigh, and the other justification witnesses. This was a material aspect which was not taken into account by the judge, though, in fairness to him, it may well be that the matter was not put to him in quite that way. For that reason alone, I would hold that the judge was plainly wrong in his decision.

However, I go on to consider the matter on the supposition that I am wrong about that. Was the judge entitled to hold that there would be serious prejudice to the defendants as a result of the delay? Mr. Caldecott QC, for the Third Respondent, has argued that, if the matter had progressed speedily, as it ought to have done, there are five named hotels in Hoffman's statement which they could have approached for corroborative evidence. They could have been making enquiries about the plaintiff's finances, to take one example. I am afraid my reaction is this. The respondents undoubtedly have the staff and the money to make those enquiries anyway. If they took the risk that the plaintiff would not pursue a retrial and therefore did not trouble to make those enquiries straightaway after success in the Court of Appeal, frankly, it is on their own heads. He argues further, however, that it is a real prejudice that it was at such a late stage that his client got the recantation statements. He submits that a witness would be more likely to know nearer the time why he recanted. For my part, however, I cannot imagine that any one of these witnesses can have forgotten why he recanted. He makes further points. He submits that evidence was withheld and that no discovery was given when it should have been. These are points which in other circumstances might carry great weight, but I am bound to say that none of them greatly impressed me in the exceptional circumstances of this case, to which I have referred.

I consider next the question of the leave and licence witnesses. True, they will have to cast their memories back some way, but, as the judge himself pointed out, they will have to assist them and to refresh their memories notes, statements, telephone conversations and the transcripts from the original trial. In any event, what this case will be about, if re­tried, is whether the plaintiff was at all material times a promiscuous homosexual with an understandable fear of catching AIDs, who had lyingly pretended otherwise in the first trial.

The evidence of this will come, if it comes at all, from the justification witnesses. The respondents should only succeed if they call those witnesses and they are believed. I look again at the words of the learned judge at the top of page 78 of the bundle:

"It is unlikely, or at least it is far from certain, that a jury would find a black and white answer to whether the witnesses in justification are wholly false or wholly true. They would quite possibly find that the justification witnesses fell somewhere in between the two."

I fail to understand those remarks. In my judgment, it will be black or white. They will either say that they had sexual relations with the plaintiff or they will not. I fail to believe that they could get away with saying that they cannot remember. Fading memories will essentially have nothing to do with the basic issue in the re-trial. If the respondents' star witnesses, on the basis of whose statements they got a new trial, fail to come to court, or, having done so, fail to come up to proof, the respondents will have to bear that with fortitude. Being quite clear in my mind that the real issue at the re-trial will be whether the plaintiff lied last time when he said he was not a practising homosexual with a fear of AIDs, I cannot see any reason why there should not be as fair a re-trial in 1995 as in 1990. I am therefore of the view that the judge was plainly wrong on prejudice and I would allow the appeal.

LORD JUSTICE WARD: I agree that the appeal should be allowed for the reasons given by my Lord and, in deference to the learned judge with whom I disagree, I add only this. There is a public interest in the administration of justice, and the courts must uphold it. Three very important pillars which support the due and proper administration of justice fall for consideration in this case. The first is that there should be end to litigation. The second is that justice delayed is justice denied. The third, to quote from the speech of Lord Hailsham of Marylebone, is:

"the general importance of the principle that, in all cases before them, the courts should insist on parties and witnesses disclosing the truth, the whole truth, and nothing but the truth, where this would assist the decision of the matters in dispute." [D. v. National Society for the Prevention of Cruelty to Children [1978] AC 178, 225D.]

The Court of Appeal were principally concerned with the first and Drake J. primarily with the second. I have no doubt that he also had the third in mind, though I doubt whether he would have had the benefit that we have had of the full thrust of Mr. Nicol's submissions being directed towards him. Mr. Nicol had suggested that the court, in a case like this:

"should stand back and consider the justice of the case as a whole, consider the reaction of an innocent bystander who would see that the plaintiff had won but is now to be deprived of the fruits of his victory because of some possible delay, perhaps only that of 12 months between April 1991 and April 1992."

Drake J., having accepted that submission, then went on:

"I will accept that that is a reasonable additional manner in which the court should approach this problem. But when I do so I still come to the very firm conclusion that a reasonable bystander, provided that he were properly informed of all the facts, would come to precisely the same conclusion as that to which I have come, namely that litigation ought not to be unreasonably delayed, and that it is in the public interests that there should be an end to litigation as speedily as possible."

It is this conclusion which I find myself unable to accept. The court strikes out claims for want of prosecution but, of course, subject to the court's inherent jurisdiction to control the proceedings before it in order to achieve justice. In this case there has been an affront to justice by the lies and perversions of one or more than one person. Since the court's own integrity has been assaulted in this manner, it is, in my judgment, all the more important that the truth must out. The learned judge erred in not giving sufficient weight to the public interest, that in all cases before them the court should insist that all parties and witnesses disclose nothing but the truth. Like my Lord and for the reasons he gives, I am not satisfied that the delay in this case has caused such prejudice that the court should allow a deception practised on it to be unresolved. For those reasons, I would allow the appeal.

SIR ROGER PARKER: I agree, and having nothing to add.

(Appeal allowed. Costs of the first trial and the last hearing in the Court of Appeal to remain reserved to the judge at the retrial. Costs before Drake J. and before the Court of Appeal to be the appellant's.