England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBEN1 98/1535

(THE HON MR JUSTICE EADY )

Royal Courts of Justice

Strand

London WC2

Friday 21 May 1999

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE JUDGE

LORD JUSTICE MAY

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SEAN MCPHILEMY

Appellant

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1. TIMES NEWSPAPERS LIMITED

2. LIAM CLARKE

3. ANDREW NEIL

Respondents

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR J PRICE QC and MR M NICKLIN (Instructed by Messrs Bindman & Partners,London, WC1X 8QF) appeared on behalf of the Appellant

MR A CALDECOTT QC (Instructed by Messrs Henry Hepworth, London, WC1N 2HH) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

Friday 21 May 1999

JUDGMENT

LORD JUSTICE MAY:

The plaintiff is a journalist and managing director of Box Productions Ltd, a television production company. In the libel action with which this appeal is concerned, he sues the publishers of the Sunday Times, its Editor and a journalist for what he alleges was a defamatory publication in an article in the Sunday Times for 9th May 1993. The article was headed "Film on Ulster death squads a hoax, says missing witness". It was about a programme produced by Box called "The Committee", broadcast by Channel 4 television on 2nd October 1991. The general thesis of the programme was that there was in Northern Ireland between 1989 and 1991 a Committee known as "the Central Co-ordinating Committee" consisting of prominent and apparently respectable members of the Loyalist community. It was said that there was also an organisation of disaffected RUC officers known as the "Inner Circle" which controlled a larger organisation within the RUC known as the "Inner Force". It was said that the Committee obtained from the RUC the names of suspected Republicans which were then passed to Loyalist paramilitary organisations to carry out their assassinations. The members of the Committee were thus co-conspirators in the resulting murders. The sources for these allegations who appeared on the programme itself were a Mr Sands, whose identity was concealed by referring to him as "Source A", a Mr Quinn, referred to as a "liaisons officer," and an anonymous police officer contact of a newspaper journalist. Sands claimed that he was himself a member of the Committee.

The Sunday Times article claimed that the programme was a hoax. A general theme of the article was that the quality of the sources for the programme, Sands in particular, was so poor and unreliable that no respectable broadcaster would have considered putting the programme out in the terms in which it was. The article was lengthy, comprising 28 paragraphs of newsprint. Its introductory paragraphs read as follows:

"It seemed the television scoop of the year, revealing the existence of an official conspiracy to murder republicans in Northern Ireland. This weekend, however, the makers stand accused of producing little more than a collage of unsubstantiated rumours and fabrications, condemned by the very man whose identity they went to court to protect.

"Source A", the anonymous central witness in the sensational Channel 4 documentary, The Committee, has now described the programme as a hoax and claimed he was tricked into appearing. The man, who appeared on the film with his face masked to say he knew about 19 such killings, claimed he was promised £5,000 to recite a prepared script about events on which he had heard rumours but about which he had no personal knowledge. He said he was assured his interview would not be screened.

This weekend he said: "At the time I didn't know if what I was saying was true or not. But the programme makers told me that they had checked it out so I thought it must be right. They took me to London and I felt trapped."

His testimony undermines, perhaps fatally, suggestions raised by the Dispatches programme, screened in October 1991, that there were sinister death squads in Northern Ireland controlled by a committee of police officers, Protestant businessmen and loyalist terrorists."

The following paragraphs give a detailed account of what Source A had said on screen in the programme and what he later told the Sunday Times about the way in which the programme was made.

The writ was issued on 3rd May 1996, very shortly before the expiry of the then 3 year limitation period. The plaintiff explains this delay by saying that he had another libel action against another national newspaper which he decided to pursue first. He was not financially able to pursue two libel actions at the same time.

In the present proceedings, a statement of claim was served on 19th August 1996 and a defence pleading justification on 8th November 1996. On 5th February 1997, Astill J. heard and determined an application by the plaintiff under Order 82 rule 3A which sought to exclude the defendants' then plea of justification on the basis that the article was not capable of bearing the meaning for which the defendants contended. Astill J. put the matter which he had to consider in these terms:

"The plaintiff's case is that the clear and unambiguous meaning of the article which would be apparent to the hypothetical reasonable reader is that this plaintiff was a hoaxer and a deceiver, yet the plea of justification means that he was incompetent and careless. To that the defendants add "reckless". In any event, it means that the plaintiff was hoaxed rather than a hoaxer, deceived rather than a deceiver. If the only meaning that the reasonable reader could give to the article is the opposite, then, submits the plaintiff, the plea of justification must go."

After hearing submissions Astill J. came to the conclusion, not without hesitation, that there remained room for the reasonable reader to conclude that the plaintiff, albeit the Managing Director of the film makers, was not a party to the hoaxing or deception. The judge accordingly permitted the defendants' then pleaded meaning, which included the allegation of recklessness, to remain.

In March 1997, the plaintiff served a list of documents. There was also provided to the defendants important parts of the source material for the television programme. These included unedited video tapes of Sands' interview and audio tapes of his recorded interview with a researcher. The defendants were also provided with transcripts of these tapes. On 4th September 1997, the defendants' solicitors wrote saying that leading counsel had advised that the defence needed amendment. A draft was expected in October and a hearing of an application for permission to amend was expected in November 1997. These dates were not met. On 19th December 1997 there was exchange of witness statements. The trial of the action was fixed for 5th October 1998. On 6th April 1998 the defendants applied for leave to re-amend their defence and a draft of the proposed re-amendment was served. The application was not heard until July 1998, in part because of the availability of counsel. Eady J. gave his decision allowing the re-amendments on 30th July 1998. He also vacated the date fixed for the trial, although he expressly found that he did not regard the re-amendments which he had permitted as giving rise to any necessity to vacate the hearing date. He said in his judgment that he would consider the question of vacating the trial date on quite separate grounds, including the difficulty in which Mr Price Q.C found himself in representing the plaintiff in October 1998. Mr Price has told us that this did not mean that he was not available, but that he was telling the judge that he could not reasonably prepare for the trial in the time available between the end of July and the beginning of October. The date for trial has now been refixed for 11th January 2000.

This is the plaintiff's appeal, by permission of this court given by Evans and Ward LJJ. on 25th November 1998, from Eady J.'s decision allowing the re-amendments.

Before Eady J. the plaintiff opposed the application to re-amend on grounds that:

(a) the article was not capable of bearing meanings now attributed to it by the defendants' amended pleading and that particulars of justification which sought to support that meaning should not be allowed;

(b) the additions to the particulars of justification resulted in a massive enlargement of the scope of the action which, on the contrary, should be confined to central necessary issues;

(c) the re-amendments were brought forward too late and should be disallowed in particular because to allow them would mean that the already fixed trial date would have to be postponed and that this would be unjust; and

(d) the defendants were guilty of overreaching, not least because they served witness statements in December 1997 when they must have known that they intended to apply for permission to make very extensive additions to their defence.

The plaintiff's pleaded defamatory meaning of the article is as follows:

"In their natural and ordinary meaning, the said words meant and were understood to mean that:

(1) the plaintiff hoaxed and deceived Channel Four Television and the public by producing a sensational television documentary ("The Committee") making allegations of the most serious kind, of an official conspiracy to murder republicans in Northern Ireland, which was in fact a fabrication in which supposedly key eye-witnesses ("Source A" and Edward Quinn), who, as the plaintiff well knew, actually had no personal knowledge at all of the matters related by them but had merely heard rumours, were bribed to recite scripts prepared for them by the programme makers.

(2) The plaintiff's said hoax involved using six men for on-screen interviews to support the programme's thesis (of an official conspiracy), although not one of them believed in it, and all of them were duped into appearing on the programme.

(3) The plaintiff (among others) was under police investigation on reasonable suspicion of having committed a crime or crimes by his said actions in making the said programme.

(4) Accordingly, the Plaintiff is quite unfit ever to be employed again in the production of documentary films or programmes or in any form of journalism."

The defendants' original Lucas-Box meaning which Astill J. considered was as follows:

"Further and alternatively, if and insofar as the words meant and were understood to mean that the plaintiff:

(i) knew or ought to have known that the film produced by his company for Channel 4 was an inaccurate and unreliable film which relied on coached witnesses and the largely unsubstantiated, uncorroborated and incredible evidence of one man and in which the statements of other supposed witnesses had been misrepresented; and

(ii) accordingly, acted improperly, alternatively acted recklessly, by causing or facilitating the broadcast of the film, which was almost certainly untrue and calculated to mislead the public;

they are true in substance and in fact."

The defendants' re-amended Lucas-Box meaning which Eady J. permitted was:

"Further and alternatively, if and insofar as the words meant and were understood to mean that the plaintiff:

(i) knew or ought to have known that the film produced by his company for Channel 4 was an inaccurate and unreliable film which relied on coached and/or prompted witnesses and the largely unsubstantiated, uncorroborated and incredible evidence of one man and in which the statements of interviewees had been misrepresented; and

(ii) acted recklessly by causing or facilitating the broadcasting of the film, which was in substance untrue and calculated gravely to mislead the public in presenting as proven the gravest allegations of conspiracy to murder Catholics (including wholly innocent Catholics with no terrorist affiliations) against a supposed Committee of senior police officers, Protestant businessmen, solicitors, professional people, clergy and loyalist terrorists which, if believed, would have seriously jeopardised the standing of, and trust in, the police in Northern Ireland and/or gravely harmed relations between the two communities in Northern Ireland and which was little more than a collage of unsubstantiated rumours and fabrications;

(iii) had induced Channel 4's most senior management to believe before and after the broadcast that the programme was true in every material particular and made to the highest journalistic standards when it had not been; and

(iv) is thereby unfit to produce documentary films on controversial issues requiring careful and dispassionate investigation and the objective assessment of evidence

they are true in substance and in fact. Further if, which is denied, the article meant that the plaintiff himself had been a party to the coaching or prompting of Source A and/or that the plaintiff's conduct in relation to the programme and/or his subsequent endorsement of the programme before the Divisional Court and/or Box's refusal to identify the source for the programme merited investigation by the police, the article is true in those meanings also."

The original particulars of justification were extensive in giving, for example, detailed reasons why Sands' information should have been regarded as obviously unreliable.

Eady J. summarised the defendants' proposed re-amended particulars of justification in these terms:

"It is necessary for me to attempt to summarise the very extensive additional particulars of justification upon which the defendants now seek to base their plea. The proposed amended particulars run notionally to 14 sub-paragraphs, although there are so many sub-sub-paragraphs with their own series of numbers that it becomes very confusing. The whole plea spreads over some 38 pages. The first five numbered sub-paragraphs are introductory, in the sense that they set out how the programme was commissioned: (i) the period over which it was researched and produced, (ii) the involvement of a researcher called Ben Hamilton, who is not a party to these proceedings, (iii) the role of the plaintiff and the nature of his responsibility, (iv) the involvement of a Martin O'Hagan who is said to have been an unsatisfactory person to have relied upon for information as being someone convicted of firearm offences and, so it is said, being a journalist notorious for outlandish and uncorroborated stories, and (v) the introduction by him of a man referred to as Source A, in fact named Sands, who is described as the programme's primary witness.

Mr O'Hagan is described as the originator of the "Inner Circle/Inner Force" story. It is said also that the plaintiff failed to reveal O'Hagan's involvement, either in the programme or to the Divisional Court when the matter came before them for non-disclosure of information: see D.P.P. v. Channel 4 Television Co. [and Box Productions] [1993] 2 All E.R. 517.

Next in sequence, the allegations focus on the centrality of Source A and what is said to be the inherent implausibility of his story, the alleged pretence of a need to keep his identity secret (when he was personally untroubled by this prospect), and his inability to provide any hard information as to what has been described as "The Committee" of which he was said to be a member.

There is then a long section identifying inconsistencies and errors in Sands' account of individual murders said to have been authorised by the Committee, and also prompting, and a reliance by him on material apparently deriving from Martin O'Hagan. The attacks or killings addressed are those identified as (1) the Cappagh killings; (2) Mr Finucane; (3) Sam Marshall; (4) Denis Carville: (5) John O'Hara: (6) Brendan Curran; (7) the Sweet Shop killings and (8) Thomas Casey.

Next, one finds particulars about Sands being "evasive and unconvincing" as to identifying members of the Committee, and about his account of the role of the R.U.C. and the Committee as being self-contradictory and wholly implausible. Considerable detail is given. His interviews are said to reveal considerable reliance upon Mr O'Hagan, and the defendants rely on what is said to have been the "self-evident danger that Sands was being rehearsed by O'Hagan." Reference is made to payments in cash or kind to O'Hagan and Sands.

Attention is drawn to muddle and confusion as to the various bodies said to be involved in the killings and to the fact, or alleged fact, that it was only in the final filmed interview that Sands consistently referred to the body as "the co-ordinating Committee". Reference is made to an allegation that Special Branch had handed to an assassin a file on John McCann with a view to his murder, but no effort was made by the plaintiff, apparently, or Mr Hamilton to take the information seriously so as to protect Mr McCann's life. Reliance is placed on misrepresentations said to have been made to the R.U.C. when Channel 4 submitted a dossier about Sands and his allegations in October 1991.

Another part of the pleading alleges that Channel 4 decided to test Sands' allegations, and reference is made to checks carried out by a so-called troubleshooter. It is also said that the plaintiff presented Sands to the Divisional Court as an impeccable witness, and that in other respects the plaintiff misled the Divisional Court in his own affidavit.

Details are given of warnings received, or allegedly received, by the plaintiff and Mr Hamilton that the story was "highly likely to be untrue". It is said that the most basic checks had not been carried out into the claims made by Sands, especially in relation to the membership and activities of the so-called "Committee". What is more, the defendants assert that none of the persons said to be members of the Committee actually conspired to commit any murders, and are not members. That is an allegation relied upon by the defendants as being central to the case, and they submit that it would have been indeed central to the charge of recklessness which was sanctioned by Astill J. in February of last year.

Part of the criticism made by the defendants is that those named individuals were not even contacted prior to the broadcast or to the submission of the dossier.

Sands' allegations are said to be unsupported by any other witness. His claims about the "Inner Circle", are said to be supported only by a Mr Quinn, as to whom separate facts are pleaded showing the unsatisfactory nature of his evidence, in particular inconsistencies with what Sands himself was saying. Thus it is said also that no reliance should have been placed on him. Furthermore the defendants point to affidavit evidence, placed before the Divisional Court in 1992 about Quinn, which is said to be false in a number of important respects.

There are criticisms in relation to other interviewees for the programme having been misled and of editing out of material that did not support the Committee thesis.

Finally, reliance is placed on the subsequent behaviour of the plaintiff in dismissing material which has subsequently cast doubt on the programme's thesis and upon the continued assertions by the plaintiff of the truth of what was said in the programme, including in his book "The Committee" published in America."

Eady J. said that, as libel actions go, this raises issues about as serious as one could envisage. He said that there clearly was the plainest public interest in resolving the substantive issues in the trial as fully and openly as possible. On the subject of the meaning of the article, the judge said:

"The word "hoax" which figures so largely in the article itself, and in the submissions before me, sometimes has connotations such as one might associate with the old fashioned notion of a "prank", but in the present context the word has very grave significance indeed. The clear suggestion in the article is that the programme, broadcast in October 1991, contained false information which led the public astray at least in relation to the state of the evidence. The word clearly conveys the impression that some person or persons involved in the making of the programme must have been dishonest, whether for financial or political motives, as opposed to merely incompetent. The challenge is to the central thesis of the programme, namely that there was a body of outwardly respectable people called "the Committee" who were conspiring to murder catholic citizens in Northern Ireland.

The article is not, however, definitive as to who was dishonest. It is conceivable that readers might have concluded that some people were parties to the broadcast of the programme for reasons of political prejudice or bigotry without necessarily knowing that the content of the programme was false and unsubstantiated."

The judge recorded Mr Price as having submitted that the re-amendment had the effect of putting in issue (1) the truth of the programme's thesis and (2) quality of the journalistic research which underlay the programme. Mr Price had submitted that any such meaning was outside the range of meanings which the words in the article were capable of bearing. He submitted that the lowest meaning which the defendants should be permitted to plead was that which they urged before Astill J. and which he held with some hesitation was a meaning which the words could bear, that is to say that the plaintiff was recklessly involved in producing the hoax film. Of this submission, the judge said:

"I reject that submission without hesitation. How could the plaintiff in the real world conceivably restore his reputation if he has been defamed by this article without the defendants being permitted to investigate the truth of the programme's thesis and, if it is shown to be false, how the plaintiff came to be associated with it? It is implicit in the article that the plaintiff was associated with a programme which put out a false picture as to the state of the evidence in relation to these very grave allegations. It fundamentally attacks, therefore, the quality of the journalism. It would reduce this libel action to a ritual if those fundamental and serious issues were excluded from consideration. It is unreal to suppose that a jury could be seized of this matter in which the plaintiff maintains that the central thesis of the programme was true, and the defendants that it was false, without being permitted to know their respective positions, let alone adjudicate between them. Part of the defamatory sting of the article, insofar as it refers to the plaintiff, must be that he was in part responsible for putting out a fundamentally false accusation of conspiracy to murder. In such circumstances, that allegation would be assumed false in the plaintiff's favour unless and until the defendants justify it, as they wish to do."

The judge accordingly held that it was fundamental to the article that the allegations in the programme were false and that therefore the defendants were in principle entitled to justify that proposition as an essential part of their case of justifying their defamatory allegations about the plaintiff's association with the programme.

The judge considered the question of delay. He said that there was no doubt that there had been delay which he might have to reflect in a costs order in due course. But he said that in something as fundamental as this it would be wrong not to allow the amendments. He summarised the reasons advanced to explain the delay as:

"... such factors came into play as the gravity and complexity of the allegations; the fact that the plaintiff and his advisors received warning of the amendments a year ago but, more particularly in December (when they were supplied with witness statements relating to the matters, or some of the matters which now form the subject matter of the particulars of justification); as well as being warned, of course, in April, when the pleading was actually served. Reference was made also to the need for further discovery from the plaintiff; to gathering evidence in Northern Ireland; and, in particular, to the difficulty of analysing the disclosed material (consisting as it did of notes which were not easy to decipher and also tapes - audio tapes in particular, but also video tapes - which it was necessary to analyse in the closest detail)".

The judge acquitted the defendants of the charge of overreaching, with its overtones of abuse of process. He saw no evidence to justify that proposition, although he entirely accepted that there had been delay which was considerably longer than was justified by the evidence itself. He said that it was highly undesirable that the allegations in the case should not be investigated until a year (or more, as it has turned out) from the date when he was giving judgment in July 1998. But he did not regard the re-amendments which were proposed on behalf of the defendants as justifying an adjournment. He considered, without deciding, the question whether the action might be tried by judge alone. He said that there were very telling arguments in favour of that course. He considered briefly Mr McPhilemy's own financial difficulties. He said that there was no evidence before him to demonstrate that the amendments made any difference between the plaintiff being able to afford the action and his not being able to do so. He was not persuaded that this was a sufficient reason for not permitting amendments which otherwise seemed to him to be legitimate.

In the result, the judge allowed the re-amendments to be made. The date for the hearing was postponed, but, on the judge's view, for other reasons.

The plaintiff's appeal to this court is confined to challenging the re-amendments to the Lucas-Box meanings and to three paragraphs only of the particulars of justification. The submissions made on his behalf essentially seek to have excluded those parts of the re-amended defence which put in issue the truth or falsity of the central thesis of the Channel 4 television documentary. This was that there existed in Northern Ireland in the years 1989 to 1991 a murder conspiracy involving Loyalist terrorists, prominent members of the Loyalist community and officers of the Royal Ulster Constabulary.

The written grounds of appeal may be summarised as contending that Eady J. gave insufficient weight to the limitations imposed by Astill J.'s decision; that he should not have allowed the introduction of a wide-ranging inquisition into the question whether the thesis of the programme was true, which was largely irrelevant to the question whether the plaintiff was responsible for a hoax or whether he was reckless; that the judge failed to confine the issues to those essential to a fair determination of the real dispute between the parties; that he failed sufficiently to take account of the plaintiff's lack of means and its effect on his ability to conduct overloaded litigation; that the judge failed to give due weight to the defendants' delay in bringing forward the proposed amendments whose effect was to postpone the fixed trial date; and that he should not have acquitted the defendants of overreaching.

It is submitted that the plaintiff's complaint is that he is accused of perpetrating a hoax and a deception and that therefore the central issue at the trial should focus on whether he was a party to hoaxing and deceiving the public in this way. It was the suggestion of deceit and hoaxing made in the article which was particularly deadly to a documentary producer's reputation. The plaintiff claims no special treatment because he is almost entirely without funds and cannot obtain legal aid. But it is submitted that the principle that libel trials should be limited to essential issues is especially in point where one of the parties is at a very severe disadvantage in being able to afford the litigation. It is submitted that libel proceedings are not a proper forum for an enquiry into the truth or falsity of the existence of a conspiracy to murder. Such a far reaching inquiry cannot sensibly be grafted on to this libel action. Such an inquiry would contribute little or nothing to the real issues in the action. The time and expense of litigating that issue properly would be wholly disproportionate.

It is submitted that Astill J's ruling of February 1997 limited the range of meanings which the words are capable of bearing to meanings to:

(1) that the plaintiff was himself a hoaxer and deceiver, this being essentially the plaintiff's pleaded meaning, and

(2) that the plaintiff was reckless in failing to prevent a hoax by Mr Hamilton and Mr O'Hagan, this being the lowest meaning permitted by Astill J's judgment.

It is submitted that the defendants should be held to that ruling, which was not appealed. It is said that the new Lucas-Box meanings are unnecessarily long and complicated; and that the re-amended Lucas-Box meaning would enable the defendants to advance a positive case that the Committee did not exist as a murder conspiracy in Northern Ireland in 1989 to 1991. It is accepted that the original Lucas-Box meaning was open to the same objection but that was not critical both because Astill J. had limited the meaning and because no such case was in fact advanced in the unamended particulars of justification.

The three paragraphs of the re-amended particulars of justification to which the plaintiff now objects are paragraphs (10), (10A) and (14). Paragraph (10) alleges that the most basic corroborative checks upon Sands' allegations were not carried out. It is said that no attempt was made to observed alleged members of the Committee arriving for a meeting or to check hotels where the meetings were said to have been held. Basic checks were not made on those named by Box in a dossier submitted to the RUC as being alleged to be members of the Committee which, it is said, would have revealed the sheer improbability of their involvement. These people are then named and described as generally respectable and apolitical people. Paragraph (10A) asserts that none of the people identified in paragraph (10) ever conspired to commit any murders and that they are not members of any organisation such as the Committee, as described in the programme. Paragraph (14) alleges that the plaintiff has continued to assert publicly and to Channel Four that the programme was true and refers to a book to be published by him in America - I understand that it has now been published - in which he restates the substance of the main thesis of the programme and accuses those named in the dossier supplied to the RUC as responsible for the murders referred to in the defendants' particulars.

The essential objection to the first two of these paragraphs is that they seek to introduce an inquisition into the question whether a murder conspiracy was operating in Northern Ireland in 1989 to 1991. It is accepted that at the time of the hearing before Eady J. passages in the plaintiff's amended reply put in issue the truth or falsity of what Sands had told the programme makers. To that extent, the reply failed sufficiently to observe the distinction between what is true or false in an absolute sense and what is true or false in relation to the state of the evidence available to the programme makers. Appreciating this distinction, the reply has now been re-amended.

As to the judge's reason for rejecting the plaintiff's opposition to these re-amendments, it is submitted that a journalist would be fully vindicated by a judgment acquitting him of any lack of scrupulousness and care and skill in making his investigation. That would be so whether or not the testimony of the witness on which the story was based turned out to be true or false. It is submitted that whether or not Sands' testimony can be shown to be true or false is irrelevant to the issue of the plaintiff's honesty or even to any issue of the quality of his journalism. Whether the allegations made in the programme were true is not central. What matters is the care with which the programme was made. Even with the most careful research, a programme might be made containing information which was in fact incorrect. It is suggested that the judge was internally inconsistent in referring in two instances to the programme being false in relation to the state of the evidence available to those making it, but later saying that part of the defamatory sting of the article was that the plaintiff was in part responsible for putting out a fundamentally false accusation. It is submitted that the sting of the article must lie in the programme makers' handling of the information which they have, and not in the absolute truth of what is said.

It is submitted that the judge failed to confine the issues to what was essential. Not one of the 15 people named in paragraph (10) of the particulars of justification was named in or identifiable from the programme. Yet the defendant is apparently proposing to lead evidence from all or most of them. It is submitted that the case should concentrate only on an investigation of the plaintiff's integrity and professionalism, and that that requires an examination of the evidence gathered by his team and the checks made on that evidence and any areas which they neglected to look into.

As to delay, it is submitted that the defendants must have taken a positive decision when they originally served their defence in November 1996 not to plead a case that the central thesis of the programme was false. It is suggested that they had enough material then to plead that case had they decided to do so. The re-amendments were largely based on analysing Sands' evidence recorded on the audio tapes and video tapes, which were available to the defendants in March 1997. They finally produced their draft re-amendment in April 1998. The plaintiff challenges Eady J's finding that the trial date was not jeopardised by the re-amendments. It would have been foolhardy and contrary to practice for the plaintiff's advisors to prepare to deal with matters raised by the proposed re-amendments before permission had been given for them to be made. It is submitted that amendments which require extensions of time which themselves involve the adjournment of a fixed trial date should be granted only as a last resort.

As to overreaching, the plaintiff relies on the timing of the pleadings, the proposed amendments and of the exchange of witness statements for a submission that the defendants must have exchanged witness statements on a false basis. They ought to have applied for an extension of time for exchanging witness statements linked to a date when they would have been ordered to produce their proposed re-amendments.

It is submitted on behalf of the defendants that as a matter of law a defendant can justify words complained of in a libel action on any meaning defamatory of the plaintiff which the words are reasonably capable of bearing, provided that the issues and evidence are confined to what is necessary for a fair determination of the dispute between the parties. It is submitted that, in considering the proper ambit of the real issues, it is crucial to assess the range of potential defamatory meanings. The attitude of the plaintiff is also relevant, but it is important that the plaintiff should not obtain vindication on a false basis. A defendant should generally not be deprived of advancing his full defence assuming that it is otherwise a proper plea. It is submitted that the essential test on granting leave to amend is whether in all the circumstances it is fair to do so. It is pointed out that a defendant is obliged to plead all facts relied on in mitigation of damages. It is submitted that the Court of Appeal will only interfere with the exercise by a judge of his discretion to allow an amendment in exceptional circumstances and where there is an error of principle.

The defendants submit that the judge was correct to conclude that part of the defamatory sting of the article is that the plaintiff was in part responsible for putting out a fundamentally false accusation of a conspiracy to murder. The judge was correct to say that this was central to the justification. It is submitted that it is impossible to sever the question whether the public was hoaxed or deceived by the broadcast and the nature and extent of the plaintiff's responsibility for that hoax, from the question whether what the public were told in the programme was untrue. The latter question arises from the way in which the plaintiff has presented his case as to meaning. Mr Caldecott submits that it is not possible to divorce recklessness from its consequences. The plaintiff's own pleaded meaning itself embraces a complaint that the article portrayed the programme as deceiving the public. The public were not, it is submitted, deceived about the quality of the journalism, but rather as to the truth of the programme's thesis. This illustrates the unreality of seeking to exclude proof of the falsity of the programme's charges from a justification that the plaintiff recklessly deceived the public as to the truth of the programme's thesis. Further, the scope of the particulars of justification which are not under appeal is wide and there is no coherent basis for distinguishing them from the three comparatively short paragraphs which are under appeal.

It is submitted that Astill J's decision did not limit the scope of permitted justification in the way contended for. Astill J's use of the term "recklessness" derived from the defendants' pleaded meanings. From the beginning of the action these included allegations that the film was "inaccurate and unreliable", "almost certainly untrue", and based on "largely unsubstantially uncorroborated and incredible evidence of one man". It is submitted that Astill J. did not rule that the words complained of could only mean that the plaintiff had recklessly failed to prevent Mr Hamilton and Mr O'Hagan from perpetrating a hoax. His ruling was that the words were capable of bearing the meanings defamatory of the plaintiff pleaded in the defence.

It is submitted that there is a compelling public interest not to limit the defence of justification artificially. The sting of the alleged libel is not limited to the way in which the plaintiff undertook his journalistic research without reference to the truth or falsity of the subject of the research. The research material is certainly relevant in judging culpability, but so too is what the journalist did not bother to investigate or research and the potential impact of that material on the veracity of the allegations. The court should be cautious about ruling out at this stage matters which are relevant to Sands' credibility as a source for the programme.

The defendants submit that the plaintiff himself advanced a positive case that the contents of the programme were true in his original reply and in witness statements served on his behalf and he should not now be allowed to contend that these matters are irrelevant. It is suggested that even in the amended reply there remain allegations that Sands was telling the truth, so compelling (on the plaintiff's case) was his evidence and the corroboration for it.

The defendants further contend that the particulars under consideration are relevant to their pleaded case on causation of damage which is not under appeal. They point to the fact that the plaintiff claims large sums as special damages and to what the plaintiff himself said in his book that, if the allegations in the programme were false, his career in journalism would, he believed, effectively be over. Whatever the plaintiff may now say, he has repeatedly said that it was the attack on the truth of the programme's central thesis as to the existence of the Committee which damaged his career as a journalist. Further the plaintiff's state of mind and actions after he knew the contents of the defendants' witness statements are relevant to the question whether he acted responsibly in broadcasting the programme without making inquiries of those whom Sands named.

The defendants submit that there is no ground for interfering with the judge's discretionary decision. The judge found that the introduction of the new material pleaded by re-amendment was not a sufficient ground for postponing the trial date of October 1998. His finding that there was no overreaching was, it is submitted, a proper finding after careful consideration of the documents and the procedural history. This should be considered in the light of the point that the truth or falsity of the programme was put in issue by the plaintiff's own pleaded case and witness statements as they stood at the time of the application to re-amend.

It is submitted that there is no inconsistency in the judge's reasons and that the judge was fully aware of the need to focus on the real issues.

As to the disputed particulars, the defendants submit that paragraph (10) relies on the inherent improbability of Sands' thesis in the light of the background of the alleged Committee members. The fact that almost all those identified by Sands were, on the defendants' case, respectable members of the Protestant community was in itself a powerful reason for doubting his allegation. Their standing also goes to the culpability of the failure to put the allegations to them before the broadcast - an allegation made in particulars (10B) which is not challenged. It also bears on the defendants' case that a false impression was given in proceedings before the Divisional Court that Sands' allegations had been exhaustively checked. It is submitted that it is illogical to exclude paragraph (10) while leaving in paragraphs (10B) and (10C). Paragraph (10A) is central to the defendants' case that the thesis put forward in the programme was false.

Paragraph (14) of the defendants' re-amended particulars refers to the plaintiff's book recently published in the US. It is submitted that proof that the plaintiff has continued to make the same allegations as were made in the programme and has publicly named the individuals implicated by Sands is directly material to the plea of recklessness and the wide meaning pleaded by the plaintiff as to his general unsuitability to report on matters such as those in the programme.

On the subject of hardship, the defendants submit that, at the time that Eady J. was considering the proposed re-amendments, the plaintiff was asserting that the Committee thesis was true. The plaintiff has continually and exhaustively researched the subject matter of the programme and has written a book in which he states that he has evidence to prove that the Committee thesis is true. In these circumstances, if there is a case and evidence to that effect, it ought to be readily available to the plaintiff to put in cross examination to the individuals named in paragraph (10) of the defendants' particulars. It is submitted that no particular witness or new line of enquiry were put before Eady J. as a reason for postponing the trial date. No request for particulars of the re-amendments has been served or referred to in correspondence since the hearing before Eady J.

Legal principles relevant to this appeal include:

(a) a defendant is entitled to seek to justify any meaning defamatory of the plaintiff which the words complained of are reasonably capable of bearing, but may not seek to justify a separate and distinct meaning of which the plaintiff does not complain - see for example Polly Peck v. Trelford [1986] Q.B. 1000 at 1032.

(b) according to historic procedure, the defendant must give proper particulars of the facts on which he relies to justify the meaning for which he contends. I say "according to historic procedure" because, in my view, the procedure as it has been understood and used is often unsatisfactory. It will be a matter for future consideration whether the procedure should be reconsidered in the light of the litigation culture which the Civil Procedure Rules embody. It may in particular no longer be tolerable in libel actions to have excessively long particulars of justification, which often (as in this case) give rise to expensive and time consuming adversarial pre-trial contests. Rather perhaps should the particulars succinctly set out the scope of the intended justification, leaving the detail to be given once only in witness statements.

(c) defendants' particulars of justification and libel cases generally should be strictly confined to those matters which are essential to the proper disposal of the real issues between the parties - see Polly Peck at 1021 and Rechem International v. Express Newspapers (unreported) 12.6.92 C.A. at p. 19 of the transcript. This may mean cutting out peripheral matters the burden of whose investigation is disproportionate to their importance. On the other hand,

(d) the action should be so structured that the defendant is not prevented from deploying his full essential defence and so that the plaintiff, if he wins, will obtain proper vindication upon a proper basis - see Basham v. Gregory (unreported) 21.2.96 C.A. at pages 10 and 11 of the transcript.

The contest before Eady J. was wider than the contest in this court. For the purposes of this appeal, in my judgment the questions are:

(a) whether the defendants' amended Lucas-Box meaning is a defamatory meaning which the words complained of are capable of bearing - this to be judged in the light of Astill J.'s decision, which neither party appealed or now seeks to challenge;

(b) whether the particulars which are challenged are legitimate particulars in support of the defendants' pleaded meaning; and

(c) if the defendants succeed academically on (b), whether the particulars (or the meaning) should nevertheless be excluded or curtailed for reasons of delay, overreaching, proportionality or good case management.

In my judgment, the article itself, whose text is, as so often, in danger of being submerged in meanings derived from it by lawyers, comes close - I am inclined to say very close - to asserting that the programme's central thesis was untrue. I put it in these terms, since for present purposes, there is an issue on the pleadings which it is not for this court to determine finally. But the article says that the programme was "little more than a collage of unsubstantiated rumours and fabrications" and the plain nature of the "hoax" was that it was a deception of the viewing public because the main content of the programme was, for the reasons explained, probably untrue. I accept that in some circumstances a publication that the content of a programme is untrue may not be defamatory of the programme makers. But I consider that in this instance it adds to the defamatory sting to say, not only that main content of the programme was based on obviously worthless evidence, but that it was, or probably was, untrue.

Accordingly, in my judgment, Eady J. came to the correct general conclusion as to meaning. I further consider that there is little material difference between a charge of recklessness in broadcasting a programme whose main thesis was "almost certainly untrue" and where it was "in substance untrue". The second of these is slightly stronger and slightly more critical of the plaintiff. It is not less serious than the meaning which Astill J. permitted to remain. If anything, it is more serious.

Once it is seen that the re-amendment relating to the truth of the programme's thesis was permissible, I consider that the other changes to the defendants' Lucas-Box meaning were no more than tidying up, legitimate elaboration of the main theme or unobjectionable response to the plaintiff's own pleaded meaning.

The truth or falsity of the main thesis of the programme has been a part of the battleground in these proceedings from the start. The plaintiff's letter before action dated 16th August 1996 stated that "Inevitably the claim that [the plaintiff] had deliberately perpetrated a hoax and deceived Channel 4 into broadcasting a false and fabricated allegation caused commissions to dry up ...". The plaintiff's own pleaded meaning, with its reference to the "documentary ... making allegations of the most serious kind, of an official conspiracy to murder republicans in Northern Ireland, which was in fact a fabrication", embraces the meaning that the programme's main thesis was untrue. I am not persuaded by Mr Price's submission that "fabrication" here is to be read as confined to fabrication of the source material in fact relied on. It is accepted that the plaintiff's original reply contained significant material to the effect that the thesis was true. The defendants' original meaning came close to asserting that the thesis was untrue. It included that it was "almost certainly untrue".

Since, as I consider, Eady J. reached the correct general conclusion as to meaning, paragraphs (10) and (10A) of the defendants' re-amended particulars were, subject to questions of proportionality, case management and delay, permissible. Mr Price for practical purposes accepts that the particulars in paragraph (10) were within the ambit of the defendants' original Lucas-Box meaning as being particulars of checks which it is said the plaintiff should have made. He submits nevertheless that they should not be permitted because it would in practice not be possible to draw a line beneath paragraph (10), so as to exclude paragraph (10A). I agree that it would not be possible to draw such a line. But that would lead me to the conclusion that paragraph (10A) was permissible, not that paragraph (10) should be excluded. This may be illustrated from the opening words of paragraph (10), which alleges that the plaintiff obtained no, or no proper, corroboration of the claims made by Sands and that the most basic checks were not carried out. The particulars then give details of people said in the dossier submitted to the RUC to have been members of the Committee. The fact that the people referred to in paragraph (10) were not named in the programme does not help Mr Price's submission, since their names were given by Sands to the programme makers who were therefore in a position to make checks about them. Their status in society and evidence they might give about whether it was true that they were members of the Committee is relevant to the questions both whether the plaintiff made proper inquiries and whether the programme's thesis was probably untrue. It would be quite impractical to draw a line excluding evidence to the effect that the thesis was, for these people, untrue. This would be so, in my view, even on the original Lucas-Box meaning.

As I have said, Mr Price for practical purposes accepted that the original Lucas-Box meaning would sustain particulars that the programme's thesis was untrue, but he told us that the plaintiff was reluctantly prepared to accept the position when there were then no particulars to the effect that the thesis was in fact untrue. He, again for practical purposes accepts that his submission here needs to be that the additional particulars should have been disallowed on general grounds, not because they particulars which do not go to justify the defendants' original or amended Lucas-Box meaning. Although Mr Price's written skeleton tended to disclaim reliance on the plaintiff's impecuniosity, he stressed orally what he submitted was the unduly wide scope of the evidential inquiry which the amendments would engender. He referred to Part 1 of the Civil Procedure Rules for the court's duty to deal with cases justly including, so far as is practicable, ensuring that the parties are on an equal footing and dealing with the case in ways which are proportionate to the financial position of each party. The court is also required to deal with the case in ways which are proportionate to the its importance and complexity. This is, of course, an appeal from a decision made well before the Civil Procedure Rules came into effect. But even so, I consider that Part 1 embodies important considerations which were in substance already part of the proper approach to the conduct of libel actions when Eady J. made his decision. As with all actions, libel actions should by proper case management be confined within manageable and economic bounds. They should not descend into uncontrolled and wide ranging investigations akin to public inquiries, where that is not necessary to determine the real issues between the parties. The court will, now as when Eady J. made his decision, strive to manage the case so as to minimise the burden on litigants of slender means. This includes excluding all peripheral material which is not essential to the just determination of the real issues between the parties, and whose examination would be disproportionate to its importance to those issues. It does not, in my judgment, extend in this case to excluding potentially important evidence which is central to a legitimate substantial defence. It is also, in my view, relevant to the question of proportionality that the truth of the programme's main thesis was, as I have said, part of the plaintiff's own original battleground.

I accept that the truth or falsity of the existence of the Committee which Sands alleged existed is a wide subject. But I think that Mr Caldecott is correct in saying that it is not perhaps as wide as Mr Price would have it. It will be for the trial judge to direct the jury (if there is one) what the issues at the end of the evidence are and what questions of fact they have to decide. I do not wish or intend to constrain those directions at this stage. But the evidence may well be properly and proportionately confined to the question whether the Committee and conspiracy which Sands described truly existed, and may not extend to the much wider question whether there was any conspiracy of the kind alleged between 1989 and 1991. It may also be appropriate to direct the jury that, although it would be open to them to decide on the evidence whether it is true that the Committee to which Sands referred did or did not exist, they may feel that it is unnecessary to reach a conclusion on that question in order to decide whether the sting of the libel is justified. This, as I say, will be for the judge to decide at the conclusion of the evidence. But its possibility illustrates the fact that particulars of justification may herald evidence which is properly admissible in aid of a case of justification without necessarily raising a distinct issue which it is necessary for the tribunal of fact to decide absolutely. Equally, and bearing in mind that the burden of proving justification is on the defendant, particulars of this kind may not cast a burden on the plaintiff to make a positive case in an attempt to show absolutely that the whole of the defendants' evidence is incorrect. If the plaintiff chooses to shoulder that burden, that is another matter.

There is in my view considerable force in Mr Caldecott's twin submissions that the defendants should not in this case be deprived of an important element of their case of justification, and that there is a real risk that vindication of the plaintiff in a case from which this element had been excluded would nevertheless be seen as vindication of his thesis.

Paragraph (14) of the particulars refers to the plaintiff's book. It is inevitable that the plaintiff will be cross-examined about the book and in my view no practical harm is caused by its featuring in the particulars. The fact that he has persisted with allegations which the defendants say are groundless and untrue may, if the defendants are found to be substantially correct, be relevant to whether the plaintiff was reckless. The particulars may also be relevant to the quantification of damage. In my view, Eady J. was correct not to exclude this paragraph.

As to delay and overreaching, there is in my view no persuasive basis for attacking Eady J.'s decisions. Although late amendments which cause a fixed trial date to be vacated should only be rarely allowed, the judge was entitled to conclude that these amendments were not a reason for delaying the trial, which was adjourned for other reasons. In reaching that conclusion, he no doubt took account of the fact that the original particulars of justification were extensive and would alone have required extensive preparation. The submission as to delay is in any event weaker in this court where the amendments complained of are limited to the Lucas-Box meaning and three paragraphs of the particulars only.

For these reasons, I consider that Eady J. reached the correct conclusions. I would dismiss this appeal.

LORD JUSTICE JUDGE: I agree with the judgment given by May LJ and the judgment to be given by Lord Woolf MR. There is nothing I can usefully add.

LORD WOOLF, MR: I am in agreement with the judgment which has been given. I give an additional judgment to draw attention to broader issues to which this appeal gives rise.

The first of those issues is the impact of the Civil Procedure Rules on appeals from decisions of lower courts given, as in this case, prior to 26 April 1999. The transitional provisions contained in the Practice Direction to CPR 51 do not expressly deal with appeals. However, the general approach should be obvious. In reviewing a decision made prior to 26 April 1999, this court will not interfere after that date, if it would not have done so if the appeal had been heard prior to that date. This court only interferes with a decision of a court below if that decision was wrong. If the decision was not wrong prior to 26 April 1999, it does not become wrong for the purposes of an appeal as a result of the subsequent coming into force of the CPR. However, if the decision is one with which this court would have interfered prior to 26 April 1999, in deciding what order should be made for the future, this court will take into account, in particular, Part 1 of the CPR.

The next point to which I would refer arises out of the pleadings in this case. I do not in my following comments suggest that the existing pleadings are other than in the form which is commonly adopted by libel practitioners. However, undoubtedly considerable time, energy and money have been incurred in producing those pleadings and the question that arises is whether this scale of expenditure is necessary or desirable. An indication of the scale is provided by the fact that the reply is already in a re-amended form. There have been two substantial separate hearings before High Court judges solely concerned with pleading issues. I refer to the judgment of Astill J of 5 February 1997, as to the meanings that the words complained of are capable of bearing, and the judgment of Eady J of 30 July 1998 which gives rise to this appeal.

The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party’s witness statements, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules. The Practice Direction to CPR 16, paragraph 9.3 requires, in defamation proceedings, the facts on which a defendant relies to be given. No more than a concise statement of those facts is required.

As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification. In addition, after disclosure and the exchange of witness statements pleadings frequently become of only historic interest. Although in this case it would be wrong to interfere with the decision of Eady J, the case is overburdened with particulars and simpler and shorter statements of case would have been sufficient. Unless there is some obvious purpose to be served by fighting over the precise terms of a pleading, contests over their terms are to be discouraged. In this case the distinct impression was given by the parties that both sides were engaged in a battle of tactics. Each side was seeking to fight the action on, what from that party’s perspective appeared to be, the most favourable ground. The dispute over particulars was just being used as a vehicle for that purpose. If disputes of the nature which have occurred in this case are necessary, they should certainly not be dealt with in isolation. They should be dealt with at hearings where all the outstanding issues are resolved. I regret that it seems all too likely that in this case the decision on this appeal will be followed rapidly by a further bitterly fought interlocutory skirmish over the question of whether the case should be heard by a judge alone or a judge sitting with a jury. The defendants’ delay in seeking leave may have contributed to the need for the additional hearing. However, proper case management by the parties required the consolidation of the three hearings. At a case management hearing, instead of a sterile argument as to whether a particular fact should or should not be pleaded as a particular of justification, if necessary and desirable the issues to be decided at the trial could, failing agreement, have been identified by the court and a decision taken as to what evidence would be appropriate for this purpose.

CPR 1 gives a new emphasis to the need for proportionality, although the need for proportionality, in defamation proceedings in particular, has not gone unnoticed prior to the new rules. The judiciary had been exhorting proportionality whenever an appropriate opportunity to do so arose. The CPR gives the courts greater powers to impose proportionality. This can be especially important because of the need, which CPR 1 also identifies, of, so far as is practicable, ensuring that the parties are on an equal footing. However, if a party because of his or her personal circumstances wishes the court to restrain the activities of another party with the object of achieving greater equality, then that party must behave in a way which makes it clear that he or she is conducting the proceedings in a manner which demonstrates a desire to limit the expense as far as practical. In this case this is not the way that proceedings have been conducted on behalf of Mr McPhilemy. It is true that he has amended his statements of case to restrict the allegations that he is making. However, he has restricted those allegations only so far as was absolutely necessary to enable an argument to be advanced on his behalf that the truth of the contents of the programme which was broadcast were not in issue. The plaintiff could, from the outset, have made it clear that he was confining his complaint about the article to the issue of whether the article alleged wrongly that he had been grossly irresponsible in permitting the broadcast without there having taken place a thorough in depth investigation as to its accuracy.

While under the CPR a party cannot be prevented from putting forward an allegation which is central to his or her defence, the court can control the manner in which this is done and thus limit the costs involved. Both sides should co-operate in enabling this to be done. As to this case, I have already referred to the plaintiff’s conduct, but the fault in this regard is not of the plaintiff alone. It is fair to point out that while the defendants accept that they are not in a position to allege that the plaintiff actually knew that the programme was a hoax before it was presented, they are seeking to conduct the case in a way which will enable them to call precisely the same evidence as they would have relied upon if the issue was whether the plaintiff was aware that the allegations made in the broadcast were untrue.

The judge’s task at the trial of this case is going to be far from easy, but I am afraid that within the ambit of the issues raised on this appeal it is not possible for this court to ease his task. If there is any attempt by either side to appeal any further interlocutory decision then, if practical, the application for permission to appeal and any appeal should be dealt with by the same constitution of this court.

Order: Appeal dismissed with costs.