England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE TETLOW)

		Royal Courts of Justice Strand London WC2 Monday, 22nd October 2001

Monday, 22nd October 2001

1. LORD JUSTICE JUDGE: This case is sensitive. It has generated a great deal of emotion, probably arising from a common interest most of the protagonists have, and indeed their passion for, Irish dancing. The application is an application for permission to appeal against a decision of Judge Tetlow, dated 15th March 2001. The Statement of Claim in this case begins by telling the story: the claimant is and was at all material times a teacher of Irish dancing, and then adds the words "of worldwide renown". Among other students four of the defendant's children attended his school of dancing. But the defendant, who is the present applicant, opened an Irish dancing school in Manchester, according to the papers as best I have been able to understand them, apparently situated in the same complex as the claimant's school.
2. The Great Britain Championship took place on 25th October. At the end of the championship there was some sort of altercation between the claimant and the defendant. It was said that the defendant was inebriated. The claimant alleged that he was assaulted by her husband, and indeed that he returned to continue the attack, which led to his ejection from the premises where this happened.
3. Taking the incident (that is the incident with which the case is largely concerned) in more detail, the championship actually took place between 22nd and 25th October; 25th October was its culmination. Apparently Mrs McLaughlin, the defendant, spent some time talking to the parents of children who attended Mr Morgan's school and, not to put too fine a point on it, Mr Morgan believed that this was an attempt to poach his students.
4. On 25th October while everybody was waiting for the competition results (or at a later time and for the moment the time does not matter) Mr Morgan approached Mrs McLaughlin asking for a private word. From then on the facts were hotly disputed. In the end, of course, the judgment as to who was telling the truth and who was accurate in the description of the facts was for the judge. Even the time when it took place was in dispute. One dance teacher says that he saw the two protagonists talking to each other at 1.00 in the morning. Mrs McLaughlin said that it was about 10.40 in the same evening. In her witness statement she said that there were many children present during the conversation. By the time she gave evidence she conceded that only one child was present. Two other witnesses claim that no children were present. That gives some very brief idea of the extreme dispute about the facts which had to be resolved. But Mrs McLaughlin's essential version of events was that it was Mr Morgan who was drunk; he insulted her; he approached her, waving a finger; his eyes were bulging and he was spitting as he spoke. To this she objected, and he is alleged to have said in response: "Have you never been spat at before?" Then at 2.30 in the morning came the first physical attack, according to Mr McLaughlin, and a report was made to the police. Precisely when is a matter on which I have been addressed this morning.
5. On 2nd November solicitors acting on the instructions of the defendant wrote to the claimant sending a copy to the Commission responsible for Irish dancing and its north west regional branch. The complaints were considered in the presence of a number of interested parties by both those institutions. The date is important to a point the defendant wishes me to bear in mind. The allegation in the letter reads:

"On the evening of 25 October, when you were drunk, you accosted our client in front of her children, waving your finger in her face and shouting insults at her. Our client complained about your behaviour and, in particular, that you were spitting in her face. You responded 'have you not been spat at before?'

We are instructed to advise you that if there is a repetition of this behaviour at any other function our client will have no alternative but to institute proceedings against you. You are in clear breach of the Association's Code of Ethics in dealing with other dancing teachers and our clients intends to take the matter up with the Association.

For the record, I was also subjected to verbal abuse at the Open Forum for Irish Dancing Teachers of the North West Region in August, 1998, by John and Margaret Morgan [the claimant in this action and his wife]."

6. It was alleged in the Statement of Claim that by sending those letters the defendant was actuated by malice. The allegation of malice was strongly denied by the defendant. Her motive is fairly pleaded in paragraph 16 of the defence. She confirmed that she had sent a letter via her solicitors to the defendant, and the copy of that letter to the Commission. She considered:

"This was a fair action and done only in a bid to resolve the differences between her and the Claimant. The Defendant was most distressed by the comments and actions of the Claimant and felt that the Claimant needed to be rebuked over his attitude towards her."

7. There was reference to a further incident in 1999 at the World Championships of Irish Dancing held in County Clare, when the defendant alleged that again she had been physically and verbally abused by the claimant.
8. The judge was therefore faced with a lengthy trial. I understand that it took some four-and-a-half days or so for the evidence to be given. At the end of the evidence he produced a lengthy and detailed analysis of the evidence before him, in the course of which he explained the reason for his conclusion that the claim had indeed been established, and assessed damages by way of compensation at £10,000, and aggravated damages at a further £10,000. I cannot justify the use of court time by reading out the whole of the judgment, although I have read it with care; and I am conscious of the danger of reading extracts, on the face of it apparently out of context. But it is only right that I should record these passages:

"I have the concern as to where the truth lies, given the two rival camps. I have come to the conclusion that the nearest I shall get to the truth is from the last witness, Mr Griffin, who had no side to him... Further, but for Mr Griffin's intervention the claimant might well have done something he regretted...

On my findings of fact the allegations made in the solicitor's letter and the accompanying letter to the Commission were false. Even allowing for some display of anger by the claimant they were false. The defendant knew they were false and sent the letters to the Commission maliciously, with the intent of making things difficult for the claimant with the Commission."

9. Then describing the effect of the arrival of the letters, the judge said:

"The die was cast when the defendant sent the letters to the Commission. The defendant would know that word would spread quickly through the dancing fraternity. I am quite satisfied that the publication to the Commission and the re-publication of the contents of the letters to the meeting of the Commission was injurious to Mr Morgan's character, credit and reputation and hurt his feelings; further, that it harmed his professional standing and the reputation of his school.

And I must add this further sentence in view of an additional submission made:

"It is not alleged that the publication has caused actual loss of business."

10. He then went on:

"Although many at the meeting of the Commission in Dublin did not believe the allegations it is apparent that there are others who do. In my judgment, the lie needs to be nailed, both as to Mr Morgan's general character and standing, but also as to his standing in the profession."

11. He assessed the damages and then turned to aggravated damages, saying:

"I have to take into account the fact that the defendant has been actuated by express malice, as I find, ie she knew she was adding an untrue extra dimension. She has made sure the Irish dancing world knew of the lie. She has thrown in further false allegations of appalling behaviour in 1999 at Ennis."

12. This application was first brought before me in July. It was quickly apparent that there was a great deal of concern about the judge's findings of fact and considerable intensity of feeling. It is perfectly apparent that the applicant (as she now is) feels a very profound sense of grievance at what she regards as a wrong decision, in effect procured because she was a victim of trumped-up false evidence and misrepresentation. This material was before the judge and misled him. There is no particular criticism of the judge's conclusion, in the sense that he is treated, according to the submission, as himself a victim of the false case.
13. There is no basis on which this court would normally interfere in a case like this with clear findings of fact made at the end of a careful judgment by a trial judge; so for the purposes of considering the application I have focused on what was described then and now as fresh evidence. The interval has been used by the applicant and her helpers to produce further evidence in support of the present application, and it is perfectly obvious (and I pay tribute to Mr Mooney who has been working hard on the applicant's behalf) that a good deal of work and effort has gone into the exercise, which has not, at every stage at any rate, been met with any easy or rapid response. But the considerations which apply when an application for permission to appeal is based on fresh evidence, in general terms - and I am intentionally not laying down any principles, but this is how I have guided myself - is first, the evidence could not have been obtained for use at trial through the use of reasonable diligence; second, that it must be such that, if given, it would probably have an important influence on the result of the case, although it need not be finally decisive of it; and thirdly, the evidence must be evidence which is presumably to be believed in the sense that it must, on the face of it, be apparently credible, though again it does not have to be incontrovertible.
14. The particular features of the case can be taken point by point. The first concerns evidence about the ethics constitution and function of the Commission and its Council. These are said to have been misrepresented to the judge. Mr Mooney is, on the material I have, an expert with a vast knowledge and experience of (as he puts it) various Irish cultural organisations, including the Commission for Irish Dancing. He has worked a great deal in this field generally, and is a historian and promoter of Celtic culture. There is a lengthy statement from him dated 5th October 2001, in which he sets out his own concerns which, in summary, amount to a concern that the Commission itself did not treat Mrs Morgan in a way which was consistent with its own rules.
15. As the narrative of the facts shows although there is a very important background to this case in the fact that the incident arose during the course of or immediately after the important competition at the end of October, it was not in truth the issue decided by Judge Tetlow, and, however the argument may be now, it would have been largely irrelevant, save by way of background, to those issues. At the heart of the judge's decision was the question: what happened? Was there an incident or more than one incident? Who was responsible for it? And the material based on the evidence of Mr Mooney about the way in which the Commission should operate and did operate or failed to operate in this case does not, in my view, come anywhere near the heart of the issues decided by the judge. If it was important the issue should have been canvassed before him in whatever detail was appropriate. I do not think that that material takes this case any further. It fails to come within the criteria which I have indicated, or at least two of them, because I am prepared to say that if Mr Mooney says what he says in his statement, on the face of it at any rate, I shall be prepared to treat it as at least apparently credible.
16. The next point which is taken in detail is that the claimant has only recently proclaimed his huge and continuing success in this field. These were not Mr Mooney's words, but it is plain that the claimant has secured a good deal of publicity and is unsparing in describing himself to those who ask him in glowing terms: Morgan marches on, or, the Manchester United of Irish Dancing. So from this it is suggested that no damage was or can have been suffered. It will be remembered that the judge did not award any damages for loss of business. None was claimed before him. But even if he had, with respect to the contention of Mr Mooney, it does not follow that there was no damage. On the judge's findings it is in truth impossible to conclude that the letter sent on the defendant's behalf did not cause some damage to the claimant's reputation. As I say that, of course, is on the basis of the judge's findings accepting the case brought against her and rejecting her case; and the fact that vast success is asserted now does not show that no damage of the kind for which damages were sought was caused then.
17. In any event, this evidence goes to what I describe as the damages issue. It does not affect the liability issue. It provides no basis for interfering with the judge's conclusions on liability, and given the way in which this court takes extreme care before interfering with the assessment of damages by the trial judge, I have to say that I can see no prospect of that material proclaiming the success of the claimant would lead this court to reduce the damages awarded by the judge.
18. When in the end the material is analysed, the essential point of the so-called fresh evidence relates to the involvement or otherwise of the police in connection with the October 1998 incident, and whether it was referred to the security officials at Pontins at the place where the event was being organised.
19. Here, the latest evidence, which comes in the form of a letter dated 16th July 2001, shows that an incident was reported to the police by telephone on 4th November at 12.20 hours. The call was received by a Woman Police Constable Allen. She made these comments on the report:

"(a) Phone-call received from aggrieved 10 days after incident.

(b) Reason for reporting received solicitor's letter from wife of culprit stating that she found aggrieved's language abusive. Advice from aggrieved's solicitor to ignore letter but report the incident with us

(c) No medical advice sought. Bruises not yet gone. Advised to go to GP for report on his bruises. (Details of Doctor supplied but unable to disclose).

(d) All at (address supplied but unable to disclose) were also participating in a dance weekend.

(e) Wife of culprit is known to aggrieved. The solicitor's letter from her is a warning for the 'aggrieved's behaviour' not to be repeated. Although the aggrieved states that he did not indulge in any offensive behaviour.

(f) He merely wishes the matter to be reported for information."

20. From the papers it is clear that although this report was made that the defendant's husband had perpetrated an assault on the claimant, the claimant as the victim declined to support any prosecution. Accordingly, that is plainly credible evidence which passes at least one of the relevant criteria. It is possible (and I think it has happened here) for this issue to have become slightly unbalanced. Let me remind myself how the judge dealt with it in his judgment:

"The claimant suffered bruising and reported the matter to the local police. There is a crime reference number which supports his contention that he reported the matter. Whatever the truth of the matter might be he certainly reported it, and that has been confirmed by the police to the claimant's solicitor that a report was made."

- then these important words:

"That of course does not prove whether the report was true or not".

(That is a reference from page 12). Then at page 34 of the judgment he returned very briefly to this point:

"The absence of Mr McLaughlin [that is the defendant's husband] is a matter which could be weighed in the scale as is the reporting of the matter by the claimant to the police, that finding in one sense is not material but it does go to reinforce any conclusion as to the incident itself."

21. What I have done is to read those two passages from two substantially separate parts of the judgment. I have of course omitted the 20 or so pages between them, in which the judge sets out the evidence of the witnesses as they gave it to him. Having read the judgment, it is clear from what the judge has said that the evidence (and assuming it could not have been obtained for the trial) would not have had any influence on the outcome of the case; it merely went to reinforce his conclusion as to the incident. As the judge put it, the report to the police proved nothing either way. What is said is that if the judge had appreciated, for example, that the report to the police had not been made on the night of the incident (or shortly afterwards), but rather ten days later, following the receipt of the letter from the defendant, he would have had a completely different view of the truth or otherwise of the allegations. In my judgment that argument in this case is not sustainable, given the evidence that was before the judge and the way in which he approached the conclusions he had to reach. As I say, even assuming the evidence could not have been obtained with reasonable diligence for use at the trial, in my judgment this additional material fails on the criteria that it would not have had an important influence on the result of this particular case. Plainly, in other cases where the evidence is different, it might do.
22. Other matters were drawn to my attention but in the end I can find nothing of any significance. I understand the concern. I adjourned the application so that the issues could be examined with as much depth as possible. I have to remind myself of two things. First, I can only give permission as a matter of law if I consider that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. I am not satisfied of either of those two matters on the material which I have read in this case and the argument which has been deployed before me. Second, though this is not a matter of comfort to the applicant, I have to face the fact that if I were to give leave for her to appeal, whether she accepts it from me or not, in the result I am sure that her appeal would fail and all I would have done by giving her the satisfaction of allowing her permission to appeal would simply involve her in the trouble and the expense of additional and substantial costs. I know that costs is not what is on her mind. What is on her mind is an intensity of feeling about the way in which she feels this case came to dramatically and diametrically the wrong conclusion.
23. That is not a basis to justify me granting permission to appeal, and accordingly, I am afraid I have to refuse the application.