England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Tuesday, 24th July 2001

Tuesday, 24th July 2001

1. LORD JUSTICE MAY: This is a renewed application for permission to appeal against a decision of Eady J in a libel action given on 9th May 2001. The claimant is Mr Windsor. The defendants are Rosie Boycott and Express Newspapers.
2. The libel proceedings concern an article in the Sunday Express on 21st May 2000 under the heading: "Spy Expert Predicts the Revelations in Former MI5 Chief's Memoirs – It's the little secrets that could hurt the most." The article concerned Mr Windsor who was an administrative employee of the National Union of Mineworkers ("the NUM") during that union's industrial disputes in 1983, 1984, 1985, or thereabouts. The central story of the alledgid libel ( my words, not the pleader's) is the assertion that Mr Windsor was a mole within the National Union of Mineworkers providing information in relation to that dispute to MI5 and thereby to the government through the offices of Mrs Stella Rimington.
3. The judge had to decide a contest as to the defendants' pleaded Lucas Box meaning. He did so by limiting the permissible Lucas Box meaning, as being that the claimant was indeed a key mole within the NUM, responsible for leaking material to the Security Service and/or the media in relation to the miners' strike.
4. In consequence of that ruling, which reduced the ambit of Lucas Box meaning which the defendant might rely on, there was a detailed battle about the permissibility of a large number of particulars of justification. There was also a contest about whether certain of those particulars might be permitted in the alternative as particulars in diminution of damage.
5. The judge made rulings to a considerable extent, but not entirely, adverse to the defendants as to the particulars of justification. They were reduced to some eight paragraphs, those paragraphs appearing in schedule 1 to Mr Suttle's skeleton argument. The judge also made a ruling disallowing reliance on certain particulars in diminution of damage.
6. There are four grounds of appeal. The first two grounds of appeal seek to challenge the judge's ruling in relation to five only of the paragraphs of the particulars of justification. Those two paragraphs of the notice of appeal are the subject of the application before me this morning. The third ground of appeal relates to the judge's ruling excluding material in mitigation of damage; the fourth ground of appeal relates to the judge's award of costs.
7. Mantell LJ gave permission to appeal on grounds three and four but refused permission on grounds one and two. He said of those grounds that it seemed to him that the judge had correctly applied well-known principles of law or was properly fulfilling his case management function.
8. One of the passages in the publication complained of says that the success of the MI5 operation included the disclosure of covert financial support given to the NUM by Libya's Colonel Gadaffi. The particulars of justification which the judge has permitted include that on or about 25th October 1984, Mr Windsor met Colonel Gadaffi in Tripoli. The meeting was formal and broadcast by a Libyan news agency, and the broadcast, it is alleged, took place at the claimant's' request after Colonel Gadaffi asked him whether it would cause harm if the meeting were revealed. A further particular also refers to events in Libya subsequent to that.
9. The particulars which the judge disallowed, and which are the subject of today's renewed application, are set out in schedule 2 to Mr Suttle's skeleton argument. They cover a page and a half, but in essence they seek to refer to and rely on what is alleged to have been the claimant's role, not during the miners strike and its immediate aftermath, but in 1990 when it is alleged that he made false allegations against Mr Scargill and Mr Heathfield which were published in the Daily Mirror and in the Cook Report to Central Television.
10. The heart of the allegation is that Mr Windsor was reported to have said that some of the money which Libyans provided to help striking NUM miners was in fact used for different purposes personal to Mr Scargill and Mr Heathfield. It is said that what Mr Windsor then said was untrue, and that this was disinformation influenced by Mrs Rimington and MI5.
11. The judge ruled these allegations out of the particulars of justification in these terms in his judgment:

"I do not consider that this paragraph, when shorn of that which is impermissible, adds anything to the bald assertion in sub-paragraph (6) which I have already dealt with, save that Mr Windsor was said to have been working later for MI5, in 1990, and in a different capacity from that of agent provocateur. Here Miss Sharp returns to her theme that either the defendants succeed in showing that he was a mole in 1984 to 1985, or they do not. The 1990 allegations will not add anything. It seems to me in any event, as a matter of case management, that I should require the parties to focus on the real issue and not permit investigation of allegations made by the claimant after he left the NUM, which was in 1989, and could not any longer be a mole. He may have had other reasons, good or bad, for what he said to The Mirror in 1990, but in my judgment it has no sufficient nexus to the allegation of his having been an MI5 mole. For those reasons, therefore, I would strike out sub-paragraph (7)."

12. When it came to the subsequent paragraphs which Mr Suttle would like to have back into the pleading, the judge said:

"I now propose to treat sub-paragraphs (21)-(27) compendiously. These make a number of allegations about the claimants dealings with The Daily Mirror and Central Television's Cook Report programme in 1990. It is said that he made a number of allegations which were false and damaging to Mr Scargill and others associated with the NUM. Reference is made again to various financial transactions said to have involved Mr Scargill and Mr Heathfield. Mr Windsor is accused, in relation to those allegations, of cyncism and lying.

I have already given my reasons, when considering sub-paragraph (7) of the particulars of justification, for not permitting enquiry into these allegations about The Mirror and Central Television in 1990, or the underlying allegations; so I would therefore strike out those sub-paragraphs."

13. On reading the papers before I came into Court and during the first part of Mr Suttle's submissions this morning, I was fairly strongly of the view that Mantell LJ was correct that the 1990 allegations are not sufficiently connected with the sting of this libel and indeed are not particulars which could go to justifying the Lucas Box meaning which is now the defendant's case. It seemed to me that at best, and arguably, but no more than that, it might be possible to persuade the Court that this material might be admitted as evidence going towards the plea of justification and the particulars that have been permitted, but it is not in itself proper particulars of justification. However, this being an application for permission only, I have been persuaded by Mr Suttle that he should at least be permitted to argue the matter out before the full court.
14. The essential point which he seeks to make is that the permitted Lucas Box meaning does not necessarily tie the defendants to the allegation that the claimant was and acted a mole for MI5 during the miners strike or during his tenure of office with the NUM. It might be stretching the meaning a bit, but the permitted meaning does include the words" in relation to the miners strike". Mr Suttle submits that if the material that he wishes to rely on were established, and if it were indeed established that what the claimant said to the media in 1990 was untrue, this could then be seen as disinformation by someone who was, it would be alleged, still acting in 1990 as a mole for MI5 in relation to the miners' strike. I do not think it is by any means the case that this is a submission which would succeed before the full Court. But I am persuaded that it has a sufficient prospect of success for it to be added to the matters for which Mantell LJ has already given permission.
15. For those reasons I give permission for these additional grounds to be advanced.
(Application for permission to appeal allowed; costs in the appeal)