England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Judge Michael Evans QC)

		Royal Courts of Justice Strand London WC2
		21st June 1996

Friday, 21st June 1996

LORD JUSTICE NEILL: I shall refer to the former husband of the appellant as the father. The father and the appellant were married on 16 January 1975. The first child D was born on 17 February 1977. He is now 19. The younger child J was born on 7 February 1980. He is now 16.

The parties separated in 1980. Divorce proceedings followed. The decree absolute was dated 24 October 1984. In the divorce proceedings the appellant was given the custody of the two children.

In June 1986 with the approval of the court the appellant took the two children to Tenerife for a holiday. However, she did not return to this country. On 3 October 1986, on the application of the father, an order was made that the two children become wards of court. On 7 November 1986 Hollis J ordered that the children should return. On 16 December Waterhouse J made an order giving interim care and control to the father.

In March 1987 the father went to Tenerife to try to find the appellant and the children. He later reported that they had been "spirited away". It is now clear that in or about March 1987 the appellant and the two children had left Tenerife and travelled to Australia.

At about the end of February 1988 the father received information to the effect that the children might be in Australia. He made an application to the High Court in Swansea relating to the children. The application was supported by an affidavit sworn on 5 November 1987

The matter came before Judge Michael Evans QC sitting as a judge of the Family Division in Swansea. The father appeared in person. At the conclusion of the hearing, which took place in chambers, the judge decided to adjourn into open court and reporting restrictions were lifted. After the adjournment into open court the judge made the following statement:

"Daniel Bryan Witt (17.02.77) and Jamie Peter Witt (07.02.80) are the children of Bryan Courtenay Witt and Lorraine Ann Witt who married on the 16th day of January 1975 at Aldershot in Hampshire. The marriage unhappily ended in divorce and there has been a long history of dispute over the children.

On the 3rd October 1986 by an Application filed at the Swansea District Registry the children were made Wards of Court. By an order dated the 7th November 1986 Mr. Justice Hollis made an order that the wards be returned to the jurisdiction of this Court within 14 days and that the Mother, Mrs. Witt, should disclose her whereabouts to the Plaintiff's Solicitors. This was because it was believed that the wards had left the United Kingdom.

In spite of attempts to find out the whereabouts of the wards from those who would have such knowledge, the children were not found or returned. On the 16th December 1986 Mr. Justice Waterhouse ordered that the interim care and control be committed to Mr. Witt the father, and that the children should be handed over to him and not removed from him without the leave of the Court.

In March 1987 Mr. Witt eventually traced the children to Tenerife and went there to secure the transfer of care and control to him under the order of the Court, having taken all proper steps to enlist the help of the local Courts. To use his words "the children were spirited away from the island" and have not been seen since.

Great concern is now felt about the welfare of these children because we have no knowledge of how they are cared for or for example what education they are receiving, if any. About three weeks ago, Mr. Witt received information that the children might be in Australia. This is the only country, so far as he is aware who has issued a visa for them to enter.

I have adjourned this matter to Open Court in order that I may enlist the help not only of the National Media, but through them all other agencies who may be able to help. I call upon anyone who has any information as to the whereabouts of these children to inform Messrs Douglas Jones and Mercer, Solicitors of St. Helens Road, Swansea. A photograph which is 2½ years old is available, but the children are obviously older and their looks may well have changed.

In the unusual events which have happened, I want to make it plain that the usual restriction on publication of the details of these events does not apply. I have informed Mr. Witt that he is free to discuss with the media or anyone else any details which will enable the court to find where the children are to ensure their safe return to the jurisdiction, and to a final resolution of this troublesome matter."

Following the hearing in court the father spoke to representatives of the press. It also seems clear that he gave an interview on television. In the course of speaking to the press the father made serious and defamatory allegations against the appellant including in particular an allegation to the effect that she was in some way connected with a drugs gang. It is right to emphasise at the outset that this allegation was completely untrue. It was later withdrawn by the father.

Unfortunately, however, the father's allegations against the appellant were published in a number of newspapers. One of the newspaper reports was in the issue of the Daily Mirror dated 22 March 1988. It is not necessary to refer to this report or to the other newspaper reports in detail. It is, however, necessary to mention that the report in the Daily Mirror did not make clear that the words attributed to the father were spoken outside court rather than in the course of the court proceedings. The reports in the other newspapers, and in particular the report in the Western Mail dated 22 March, made it clear that the father had spoken to the press after the hearing in the court in Swansea.

In March 1988 the appellant was working in Australia. When she had arrived in Australia a year before she had been admitted on the basis that she did not take employment.

In March 1988 the appellant received a copy of the Daily Mirror article in Australia. She rang the newspaper in England to complain about it and was referred to a man she believed to be the editor. The appellant did not want the call to be traced as she had "gone to great lengths to avoid [her] ex-husband and harassment". The appellant says that the editor told her that there was nothing he could do "as they were just repeating what my ex-husband has said in court". The appellant plainly had no intention at that time of commencing proceedings.

The appellant attempted to stay in Australia but fell foul of the immigration authorities there. She was deported to the United Kingdom in December 1990, her children accompanying her. In early 1991 she consulted solicitors who told her that they did not specialise in this area of law but advised her, sensibly it appears to me, that she would need a copy of the transcript of the hearing of 21 March 1988. When she inquired of the court, she was told that no transcript was available.

On 4 July 1991, at the library at Aberystwyth, the appellant examined the relevant articles in the newspapers owned by the second, third and fourth respondents (the Welsh newspapers).

There was a further court hearing with respect to the children before Mr Justice Rattee in Swansea on 12 November 1991. The wardship of the children was continued, with care and control to the appellant and reasonable access to the father. It was at court on that day that the father signed a retraction of his allegation that the appellant had been involved in drug smuggling.

There was then an interval of eighteen months before the appellant wrote letters before action, in June 1993, to each of the respondents. By his clerk, Judge Michael Evans QC wrote to the appellant on 25 August 1993 stating that to the best of his recollection the father had on 21 March 1988 "said nothing in court about drug smuggling nor that Mrs Clare was a drug smuggler".

The appellant issued writs on 21 March 1994. That is of course well outside the ordinary three year limitation period in defamation but just within the six year limitation period for malicious falsehood.

LIBEL

The court has heard submissions from the appellant in person and from Mr Caldecott QC as amicus curiae. To defeat a claim of limitation in defamation, the appellant seeks to rely on s 32A of the Limitation Act 1980, inserted into the Act by the Administration of Justice Act 1985. S 32A provides:

"Where a person to whom a cause of action for libel or slander has accrued has not brought such an action within the period of three years mentioned in section 4A of this Act (or, where applicable, the period allowed by section 28(1) as modified by section 28(4A)) because all or any of the facts relevant to that cause of action did not become known to him until after the expiration of that period, such an action -

(a) may be brought by him at any time before the expiration of one year from the earliest date on which he knew all the facts relevant to that cause of action; but

(b) shall not be so brought without the leave of the High Court."

The appellant's submission is that only upon receipt of Judge Michael Evans's letter of 25 August 1993 did she realise that her alleged involvement in drug smuggling had not been mentioned in court on 21 March 1988. Until then, she believed that the newspaper reports were privileged as accounts of court proceedings. Her writ was issued within one year of the receipt of the judge's letter. It was issued without the leave of the High Court but no point was taken before Sir Michael Davies as to the absence of leave. The point has not seriously been taken against her in this court and, for the purposes of this appeal only, I would be prepared to treat the writ on the basis that leave had been obtained.

The appellant relies upon her alleged lack of knowledge of facts relevant to the cause of action, within the meaning of that expression in s 32A, until 25 August 1993. Counsel for the respondents, Mr Shields QC and Mr Moloney, submit that the expression in the section covers only facts establishing the existence of a cause of action, that is those which ought to be pleaded in the statement of claim, and does not extend to facts tending to rebut an anticipated defence such as privilege. Even if the broader construction is correct, they submit, the appellant knew all the relevant facts by 1991. The appellant admits having been told in Australia that her ex-husband had said on television and the radio that she was in a drug smuggling gang. By July 1991, the appellant had read the offending articles from three of which it was clear that the words attributed to the father were spoken outside court rather than in the course of court proceedings. Further, at the latest in November 1991, when the case came before Rattee J, the appellant had a copy of Judge Michael Evans's order and was aware that it contained no reference to drugs or drug smuggling. At the same time, the father withdrew his allegation of drug smuggling. The respondents also rely on the fact that detailed and appropriate letters before action were written two months before the judge's letter. The appellant told the respondents that she was ready to serve writs. She believed she had a cause of action prior to her receipt of the judge's letter.

In Johnson v Chief Constable of Surrey (transcript 19 October 1992) the plaintiff sought to bring an action for damages for false imprisonment after the expiry of six years from the accrual of the cause of action. He relied on s 32(1)(b) of the 1980 Act which provides for the postponement of the limitation period where "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant". The plaintiff contended that the police had concealed material from him which demonstrated that they did not have reasonable grounds to suspect the relevant offence at the time of the arrest.

The court had to construe the expression "facts relevant to the plaintiff's right of action" which in material respects is the same as the expression now under consideration. It is common ground that the difference between "right of action" and "cause of action" is irrelevant for present purposes, the former being used merely to embrace equitable rights.

The court construed the expression narrowly. Rose LJ stated (at p 6C-H):

"For my part I accept [the] submission that, in construing the section, there is no middle ground between facts and evidence ... Facts which improve prospects of success are not, as it seems to me, facts relevant to the right of action ... I accept the construction proposed ... is a narrow one but unless it is correct it is difficult to see what purpose is served by the special provisions with regard to personal injury actions which are contained in s 33 of the Act."

It is clear that Rose LJ accepted what in this court has been described as the statement of claim test, that is knowledge of the facts which should be pleaded in the statement of claim.

Russell LJ stated (p 7):

"In order to give relief to the plaintiff any new fact must be relevant to the plaintiff's "right of action" and is to be contrasted with the facts relevant, for example, to "the plaintiff's action" or "his case" or "his right to damages". The right of action in this case was complete at the moment of arrest. No other ingredient was necessary to complete the right of action. Accordingly, whilst I acknowledge that new facts might make the plaintiff's case stronger or his right to damages more readily capable of proof they do not in my view bite upon the "right of action", which was already complete, and consequently in my judgment are not relevant to it."

Neill LJ referred to the plaintiff's submission that the tort of false imprisonment has two elements, first the detention and second the absence of any reasonable cause by the police officers to suspect guilt. Neill LJ stated (at p 8D):

"In one sense it is true to say that the tort of false imprisonment has two ingredients; the fact of imprisonment and the absence of lawful authority to justify it. ... but as I understand the law, the gist of the action of false imprisonment is the mere imprisonment. The plaintiff need not prove that the imprisonment was unlawful or malicious; he establishes a prima facie case if he proves he was imprisoned by the defendant. The onus is then shifted to the defendant to prove some justification for it. If that be right, one looks at the words in s 32(1)(b), "any fact relevant to the plaintiff's right of action". It seems to me that those words must mean any fact which the plaintiff has to prove to establish a prima facie case."

Mr Caldecott submits that the primary purpose of the cause of action in defamation, unlike that in other actions including malicious falsehood, is to obtain vindication, and the court should consider a broader construction of s 32A. Had Parliament intended the narrow meaning, the word "necessary" would have been used instead of "relevant". Serious injustice may in some cases result if the "facts relevant" do not include for example facts tending to prove malice, in cases where there was no cogent evidence of malice previously and where in consequence a defence of fair comment or qualified privilege would have succeeded, or facts tending to establish that the occasion of publication was not protected by privilege where previously it had appeared that the occasion was privileged. Mr Caldecott gave the example of a musician who discovered, years after an adverse review of his performance, facts which went to prove malice in the reviewer. Mr Caldecott accepts, rightly in my view, that ignorance of the facts must have been the cause of the plaintiff's decision not to commence proceedings and that the facts must be facts of a decisive character in the proposed action.

Mr Caldecott has sought to distinguish Johnson on the basis that s 32A, unlike s 32(1)(b), is specific to defamation where a distinction between facts necessary to make out a prima facie case and facts bearing on the existence or otherwise of a good defence is difficult to justify as a matter of policy. The narrowness of s 32(1)(b) encourages a broad construction of section 32A. Leave is required under s 32A and the court has a discretion, which will protect a defendant in appropriate cases, absent in the other section. The comparison with s 33, thought relevant by Rose LJ in Johnson, has no relevance in the context of an action in defamation.

Mr Caldecott accepts that a court will not usually construe the same words in the same statute in different ways. He also accepts the importance of the principles of finality and certainty in questions of limitation.

The respondents rely upon the decision of this court in Johnson. They also rely upon the statement of Sir John Donaldson MR when considering the relevance of an alleged concealment of the right of action under s 26 of the Limitation Act 1939 in Frisby v Theodore Goddard & Co (The Times 3 March 1984). The Master of the Rolls stated that it was to be remembered that a right of action arose out of a basic set of essential facts. That right could be concealed by the hiding of one or more of those facts, but concealment of evidence was wholly different and related to the proving of the case rather than the existence of the right of action.

The respondents submit that relevant facts are those which must be proved to establish a cause or right of action in the absence of a defence. The facts on which the appellant seeks to rely are relevant not to the cause of action but to the possible existence of a defence under the Law of Libel Amendment Act 1988 which confers a privilege upon fair and accurate newspaper reports of proceedings publicly heard before any court.

Counsel submit that, unlike the broad construction, the narrow construction provides a clear, certain and workable test. On the broad test there would be considerable complication and uncertainties, for example, if facts relevant to a possible defence of justification were to come within the scope of the section or facts claimed to throw light on earlier facts relevant to a possible defence of fair comment. The present case gives a further example of the complexity which would arise upon a broad construction. Given the appellant's knowledge in 1991, would the judge's 1993 letter permit the issue of a writ?

In my judgment, the decision in Johnson, which is of course binding upon this court, must be applied to the relevant expression in s 32A as it applies to the expression in s 32(1)(b). The relevant facts are those which the plaintiff has to prove to establish a prima facie case. That being so, the fact alleged to have come known to the plaintiff only in August 1993, that drug smuggling had not been mentioned in court, is not a relevant fact within the meaning of s 32A.

As well as being bound by it, I respectfully agree with the decision in Johnson. In s 32A Parliament has for actions for libel or slander breached the protection which a period of limitation ordinarily gives to a defendant. I do not consider that Parliament has intended, in the words used in s 32A, to create a breach so wide as to enable facts relevant to possible defences to the action to be a relevant consideration. Given the public interest in finality and the importance of certainty in the law of limitation, I would have expected Parliament to use words different and more general had the broad construction, with the uncertainties it involves, been intended. The facts relevant to the cause of action are confined to the limited class of facts contemplated in Johnson.

I would make one reservation and it relates to whether there is a cause of action when it is clear on the face of the statement of claim that the occasion was absolutely privileged, such as proceedings in Parliament and in courts. Mr Caldecott referred to Law v Llewellyn [1906] 1 KB 487 where an action against a magistrate for a statement made in the course of his judicial duties was struck out as not actionable. Counsel agreed that the court itself should take the point in such an action and strike it out. I would leave this question open.

The point has not been seriously pursued but I would not hold that the alleged representation on the telephone to Australia by an editor of the Daily Mirror that there was nothing he could do "as they were just repeating what my ex-husband had said in court" was a deliberate concealment within the meaning of that term in s 32(1)(b) of the 1980 Act. On the basis of Johnson, the facts given were not in any event facts relevant to the plaintiff's right of action within the meaning of that paragraph.

MALICIOUS FALSEHOOD

The claim for damages for malicious falsehood is not defeated by limitation. It requires proof of publication and falsity, which are admitted, and malice and damage or assumed damage, which are not.

The statement of claim alleges in relation to each defendant that:-

"The plaintiff avers that the above article was published maliciously, the defendant knowing that the matters complained of were untrue or alternatively acting recklessly, not caring whether they were true or false. If it be necessary the plaintiff avers that the malice can be inferred from the grossness and falsity of the assertions and the cavalier way in which they were published. Further the plaintiff relies on s 3(1)(a) of the Defamation Act 1952."

Section 3(1)(a) of the 1952 Act provides that:

"In an action for ... malicious falsehood it shall not be necessary to allege or prove special damage -

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form."

The appellant does also plead financial loss in Australia alleging that as a result of the Daily Mirror article she felt the need to leave her employment and also that she was dismissed from subsequent employment when her employers became aware of the article. The appellant does not suggest that the Welsh newspapers circulate in Australia.

The appellant submits that there is an arguable case that the respondents acted maliciously. They should have checked the story before printing. The judge had not given the press a licence to print anything. The respondents had never been prepared to apologise, a sure sign of malice, it is submitted. In relation to the third respondent, the appellant draws attention to the fact that a major drugs trial was being conducted in Swansea in March 1988 and, in the editions of their newspaper on either side of the prominent report about her appear prominent reports of that drugs trial.

As amicus curiae, Mr Caldecott has analyzed the content of Judge Michael Evans's statement in the context of the allegation that the respondents acted maliciously. It contains no reference to drugs. There is no reference to the police, which might have been expected if criminal conduct was suspected by the judge. Far from expressing suspicion of the children being subjected to drug smuggling, it is stated that the court has "no knowledge of how they are cared for". Mr Caldecott also submits that if the father did not tell the judge of his fears about drugs, that is an indication that he had no such fears. In the circumstances, the respondents should have made further inquiries about the allegations made by the father out of court before publishing them.

For the respondents, it is submitted that there is no arguable case that they acted maliciously. The wording of the court statement and in particular paragraph 7, gave credence to the word of the father. It cloaked him with authority to speak outside court. The judge did not distance himself from the father and at paragraph 4 quoted what the father had said. The press had been requested by the judge to help in tracing children who were with a mother who had flouted an order of the court. A judge who took the exceptional course the judge took can be assumed by the press to have had very serious concerns about the way the children were being treated. It is, as Mr Shields put it, a majestic leap from a finding of publication to a finding that words were published without an honest belief in their truth.

Sir Thomas Bingham MR giving the judgment of the court in John v MGN [1996] 2 All ER 35 at p 57H stated that:

"Where actual knowledge or unlawfulness is not in issue, a jury direction based on reference to "reckless, not caring whether the publication be true or false" is sanctioned by long usage and is not incorrect. The crucial ingredient of this state of mind is, however, a lack of honest or genuine belief in the truth of what is published. That is what makes the publisher's conduct so reprehensible (or "wicked") as to be deserving of punishment. Carelessness alone, however extreme, is not enough unless it properly justifies an inference that the publisher had no honest belief in the truth of what he published".

Mr Caldecott also referred to Lord Diplock's analysis of honest belief in Horrocks v Lowe [1975] AC 135, at 150B:

"If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true of not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true".

The finding of the judge on this point was that "In the special circumstances arising out of the judge's request and his very unusual open licence to [the father] to talk to the press, the assistance in tracing the children being given by the press - in all the circumstances, I do not find that the plaintiff has any possibility on the facts and on her pleadings of establishing the necessary ingredient of malice in malicious falsehood. The defendants may or may not, any of them, have been negligent but that is something which would be insufficient and with which I do not deal".

The respondents also submit that, on the pleaded case, there are no prospects of proving special damage and that words published are not "calculated to cause pecuniary damage to the plaintiff".

The jurisdiction to strike out should be exercised, as the judge recognised, only if plainly and obviously the action cannot succeed.

The essence of the appellant's case on malice is that the respondents were reckless. It is not suggested that any of the newspapers acted out of spite towards the appellant or that they actually knew that what they published was false. The plaintiff pleads that "malice can be inferred from the grossness and falsity of the assertions and the cavalier way in which they were published".

It is to be remembered, however, that malice connotes an actual or presumed state of mind, and that the presence or absence of malice is a matter of inference. Furthermore, though earlier or subsequent events may throw light on a defendant's state of mind the court is concerned with the question of whether the publication was actuated by malice. It is therefore necessary to examine the circumstances surrounding the moment of publication with great care.

The facts in this case were most unusual. I should set out again the last three paragraphs of the statement which Judge Michael Evans QC made in open court:

"Great concern is now felt about the welfare of these children because we have no knowledge of how they are cared for or for example what education they are receiving, if any. About three weeks ago, Mr W received information that the children might be in Australia. This is the only country, so far as he is aware, who has issued a visa for them to enter.

I have adjourned this matter to open court in order that I may enlist the help, not only of the national media, but through them all other agencies who may be able to help. I call upon anyone who has any information as to the whereabouts of these children to inform [the solicitors]. A photograph which is 2½ years old is available but the children are obviously older and their looks may well have changed.

In the unusual events which have happened, I want to make it plain that the usual restriction on publication of the details of these events does not apply. I have informed Mr W that he is free to discuss with the media or anyone else details which will enable the court to find where the children are to ensure their safe return to the jurisdiction, and to a final resolution of this troublesome matter."

On the one hand account must be taken of a number of points about this statement including the following:

(a) The judge said that he had no knowledge of how the children were cared for.

(b) In the statement the judge made no reference to drugs.

(c) Though it was apparent that the judge had informed the father that he was free to discuss the case with the media, the judge's permission to the father could not be construed as a licence to him to say what he liked.

It can therefore be said that a journalist should have noticed and been warned by the contrast between the judge's apparent lack of knowledge of how the children were being cared for and the very serious allegations made by the father. Further enquiries, it could be said, were clearly called for.

On the other hand, in considering whether the respondents acted recklessly and published the allegations about the appellant without any genuine belief in their truth it is important to recognise that the judge had enlisted the help of the press to find the children and that he had given express permission to the father "to discuss with the media or anyone else any details which will enable the court to find where the children are to ensure their safe return to the jurisdiction."

The fact that the father was allowed to speak to the press might well have led the press to conclude that the judge regarded the father as a reliable informant.

I see great force in the submissions made on behalf of the respondents on the issue of malice. Moreover, it is a striking feature of the case that the court had invited the assistance of the media in order to trace the children. If, however, we accede to these submissions the appellant will be denied the opportunity of putting her case on malicious falsehood before a court and of seeking to prove after discovery and cross examination her assertion that the respondents were in fact reckless in a relevant sense.

Bearing in mind the seriousness of the allegation in fact made and the effect of s 3(1)(a) of the 1952 Act, I would not have struck out the action for lack of an arguable case on damages.

I have found this to be an anxious case. In the end, however, I do not think it would be right to strike out the appellant's claim in malicious falsehood at this stage. The court's power to strike out a claim is one to be exercised with the greatest care. I consider that on this aspect of the case the appellant's appeal should be allowed.

LORD JUSTICE MORRITT: I agree.

LORD JUSTICE PILL: On the issues in libel I agree and do not wish to add anything. On the issue of malice in the malicious falsehood claim, I too see great force in the submissions made on behalf of the respondents and the conclusion reached by Sir Michael Davies. The fact that Judge Michael Evans QC took the unusual step of issuing the statement at all would encourage the press reasonably to assume (though wrongly as it turned out) that the appellant, who was in breach of a court order with respect to the children, and had removed them from Tenerife, was acting so as to put their safety in peril. While I accept that, by his statement, the judge did not licence the father to say anything outside court he chose to say, the statement did in effect confer a credibility upon the father and a freedom in him to speak to the media. When conferring that freedom, the judge said in terms that he was enlisting the help of the media and other agencies and that can reasonably be construed as an encouragement to publish material arising from any interview with the father. Nothing has so far emerged to indicate anything which I would construe as ill-will or improper purpose on the part of the respondents towards the appellant at the time of publication.

However having regard to the apparent lack of further enquiry by the respondents before they published the serious allegation made by the father, and to the nature of striking out proceedings, I do not find a need to dissent from the course proposed by Neill LJ and Morritt LJ.

Order: appeal allowed in part; plaintiff to pay three-quarters of taxed costs of each of defendants here and below in relation to striking-out proceedings not to be enforced until conclusion of action for malicious falsehood or without leave of the court; plaintiff's statement of claim in libel and malicious falsehood to be served by 1st September; defences to be served by 1st October.