England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(HEDLEY J)

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 31st July, 2002

Lord Justice Schiemann :

1. This is the judgment of the Court to which we have all contributed. It is structured as follows :-

i) An Overview – paragraphs 2 - 20

ii) Legal Principles – paragraphs 21 – 36

iii) The Police evidence in relation to videos – paragraphs 37 – 43

iv) The newspaper's case as to how it had obtained the Bober video – paragraphs 44 & 45

v) The evolution of the claimant's case in relation to the videos – paragraphs 46 – 89

vi) The summing up – paragraphs 90 – 105

vii) Conclusions regarding the facts – paragraphs 106 – 116

viii) The appropriate amount – paragraphs 117 – 119

ix) Annex on authorities on the quantum of libel damages

An Overview

2. Before us is an appeal by the owners of the News of the World and its editor against an award by a jury of £350,000 general damages to the claimant Alan Campbell in respect of an article published in that paper on 3^rd December 1995. They accept liability but say the award is too high. The appeal is brought by permission of the judge. The claimant sought permission to cross-appeal on the basis that the award was too low. However, it seems that he has not paid the relevant fee and before us he has abandoned that application. So we are left purely with the appeal.
3. The article alleged that the claimant was an active paedophile. In particular, it alleged that he (a) sexually abused children whom he had lured into his house with the promise of money; (b) made videos of the abuse and marketed those videos; (c) demanded money for the return of a video; (d) admitted enjoying watching teenagers through peep-holes in public lavatories; and (e) generally had a perverted interest in children. The article suggested that various people had told the newspaper that they could substantiate various allegations and that the newspaper had seen a video made by the claimant which corroborated its allegations.
4. The newspaper had a video in its possession which was referred to as the Bober video because of the name of the young man who was shown on it with the claimant. It turned out that Mr Bober was not under age and no witnesses were called to say that they had seen the claimant engage in any form of sexual activity with children. This made the newspaper's defence in relation to allegations (a), (b) and (c) more difficult. Nevertheless, at the trial the newspaper sought to persuade the jury that it could justify all of its allegations. It failed to do so and now accepts that it could not justify allegations (a), (b) and (c) to which we shall refer as "the Unjustified Allegations". However, it still maintains that it could and did justify allegations (d) and (e) to which we shall refer as "the Remaining Allegations". In order to justify the Remaining Allegations the newspaper relied on the Bober video, and in particular conversations apparently between the claimant and Mr Bober about watching children in public lavatories ("the child sex conversations"). It has been common ground that, if the Bober video was genuine, then it contained material which on its face justified the Remaining Allegations.
5. However, whether or not the Remaining Allegations could be justified, it is now clear and uncontested that the article contained a grave libel justifying substantial damages.
6. However, the submissions at trial went far beyond submissions as to the appropriate sum for such a libel. The claimant relied on several matters as justifying an enhanced award : in particular, he asserted that the newspaper knowing that the Bober video was not what it appeared to be had deliberately put before the court as justifying the allegations in the article. The defendants relied on other matters as justifying a diminished award: in particular, it asserted that the claimant had deliberately created a video, which became known as the Duffy video, in order to lend colour to his assertion that the newspaper had created the Bober video. The newspaper submits that the judge failed to direct the jury adequately and that in consequence the jury fell into error and thus awarded a sum which this court should set aside.
7. The claimant's case. As finally left to the jury, the claimant's case, nearly all of which was disputed by the newspaper but which the claimant submits must have been accepted by the jury in its entirety, was as follows. He had on one occasion only had a sexual encounter with Bober. He had made a single video of that encounter ("The First Video"), from which any subsequent copies must have been made. The First Video, while containing both audio-visual material of a homo-erotic nature, did not feature anyone under age and did not contain the child sex conversations. The First Video had been seized by the police on a search of his home in 1993. That search had been instigated by an erstwhile business partner of his by the name of Bloom with whom he had quarrelled. Bloom had put it about that the claimant had regular sexual encounters with children and that the claimant had then placed these on video and distributed the videos in the market place. This was, the claimant said, all lies. The police had seen the First Video, and agreed that this had not contained the child sex conversations. They had investigated the matter thoroughly and had not preferred any charges. They had returned the First Video to the claimant in 1994. The First Video had then been stolen from the claimant's house a few days later at the instigation of Bloom. Bloom had persuaded the claimant's son (to whom I shall refer as Tony) to doctor the First Video by inserting the child sex conversations so as to create a video which contained verbal references to children and lavatories. It was this newly created video which was the Bober video relied on by the newspaper as justifying its allegations. Tony had supplied the voice track on the Bober video by imitating the claimant's voice. (We can leave on one side the suggestion made at one point by the claimant in submissions before us that the Bober video was further re-dubbed by the newspaper between the issue of the writ and the trial, so that the voice was no longer Tony's. This would represent an entirely new case, which would appear to make a nonsense of much of the expert and other evidence called at trial about the Bober video and Tony's supposed dubbing of it.) Tony was, the claimant said, a very vulnerable individual with a drink problem. The technical work of doctoring the First Video had been done at the house of a man called Squires in Hampton Road, Southport. The Bober video had come into the newspaper's hands sometime in 1995 via an investigative journalist named Merry. That journalist had arrived unannounced at the claimant's house with television cameras for Channel 4 and with the features editor of the News of the World. Mr Merry had then and there sought an interview which the claimant had refused to give. Mr Merry had then invented various quotations which he sent to the newspaper. Despite the claimant professing his innocence, the newspaper had insisted on publishing the defamatory article. Thereafter Channel 4 had screened a defamatory programme. Although Tony had, in the past, given statements denying taking any part in the dubbing process, this denial had been procured by the newspaper promising Tony a house if he would perjure himself. The claimant produced at trial a video, which in some respects resembled the Bober video but contained no references to children. This video, for reasons which will become apparent, was referred to as the Duffy video. The Duffy video was at least quarter of an hour shorter than the Bober video, but the claimant suggested that the Duffy video was a copy (dating from 1994) of the First Video, or at least of part of it, into which scenes showing a chair had been inserted to show where dubbing was to take place. However, the scenes showing a chair appeared, almost all of them, in the first part of the Duffy video, which otherwise corresponded with the first part of the Bober video; whereas the material which the claimant was suggesting had been dubbed appeared in the second half of the Bober video, which was visually reproduced only to the most limited extent in the Duffy video.
8. We examine the legal principles which govern libel damages in greater detail in paragraphs 21-35 below. It is sufficient at this point to say that it is common ground that if the claimant's allegations in relation to the creation of the Bober video are established then this could raise the claimant's damages to a level higher than they would otherwise have been. This is for at least three cumulative reasons. First, the Bober video is all that was relied on in support of the remaining allegations. Therefore, if the Bober video can not be relied on then there is no justification for the remaining allegations. Second, a deliberate attempt by the newspaper and its agents and advisers to put false evidence before the court has the potential to raise the claimant's level of damages. Third, the alleged bribery of a vulnerable son to give false evidence against his father is scandalous behaviour. It is common ground that, if the claimant makes good his doctoring allegation, then in principle the damages awarded should contain an element reflecting these aggravating features.
9. By contrast, if the claimant fails to make good his assertion that the newspaper was privy to a doctoring of the First Video so as to produce the Bober video, then the claimant's level of damages is liable to be reduced because he has cast unjustified aspersions on the newspaper.
10. The defendants' case. The newspaper and Mr Squires have consistently denied doctoring any video. Rather, the newspaper made a counter-allegation against the claimant which mirrored the claimant's allegations against the newspaper. The counter-allegation was that the claimant had himself doctored the Bober video so as to create the Duffy video in order to deceive the court. The newspaper asserted that the claimant had done this in order to lend colour to his allegation that the newspaper has doctored the First Video so as to create the Bober video.
11. If this counter-allegation by the newspaper is established, then it would go further to reduce the damages payable to the claimant, because he has deliberately sought to mislead the court and to establish a fraudulent claim against the newspaper. By contrast, if the newspaper fails to establish its counter-allegation then the claimant's damages fall to be raised. This is because the newspaper would have cast an unjustified slur on him.
12. With this background, it is clear that in order to determine the appropriate level of damages, it was important to establish whether the Bober video was genuine or whether it had been created at the behest of the newspaper and also to establish whether the Duffy video was genuine or whether it had been created at the behest of the claimant.
13. The problems which faced the judge. It is obvious, even from this very simplified overview, that the case was a difficult one to try. The difficulties were increased by a number of factors.
14. The claimant was acting in person and, wittingly or unwittingly, broke nearly every rule which would bind any professional and which bound counsel for the defendants, thus putting the defendants at a disadvantage. In particular, the claimant regularly put words into the mouths of witnesses to which words they then assented. He inserted in cross-examination assertions of fact which an uninstructed jury might have regarded as evidence of the truth of those assertions. Repeated judicial admonitions were of no avail. However, in the nature of things they may have given the jury the impression that the judge was biased against the claimant and led them to a counter-bias. The case generally, coupled with the form of the claimant's examinations, cross-examinations and re-examinations and his speeches, must have been extremely difficult for anyone to follow. Even with the benefit of a transcript and the possibility of re-reading the relevant passages, it is extremely difficult to make sense of who is saying what. Many of the witnesses give internally contradictory answers.
15. A further complication was that witnesses were frequently interposed and recalled. Moreover, a vast amount of evidence was given in relation to various background matters going to motivation and blackening the characters of various persons who featured in the centre or the fringes of this story.
16. Further, after the first 10 days of the trial, the claimant's son Tony was killed in a car crash. The claimant implied in front of the jury that the newspaper had provided him with the car, although, according to the claimant, the newspaper knew that Tony was disqualified from driving. This allegation, the truth of which is denied by the newspaper, was understandably never investigated at the trial. The judge had to make a difficult decision: should he just hope that the jury would forget the implication or should he deal with the matter in his summing up and then tell them to ignore it? He chose the latter course. While we understand the reasoning, we think that the point was so potentially prejudicial to the newspaper that, in fairness, some further reference to its irrelevance was necessary either when it was first made by the claimant or in the summing up. Coupled with a natural sympathy for a bereaved father, there was a danger that this allegation could persuade the jury to be improperly generous.
17. The judge adjourned the trial for what turned out to be 3 months. In an endeavour to make life easier for the jury, he then produced a note for them purporting to summarise what had happened in the first part of the trial.
18. The newspaper's criticisms of the Judge. The newspaper submits that the allegations of doctoring upon which the claimant now relies have only appeared very late in the day. A whole series of different and inconsistent allegations were made by or on behalf of the claimant before then. It submits that, if the twists and turns of the claimant's case in relation to his assertions of doctoring by the newspaper and of his case in relation to the newspaper's counter-allegation had been clearly exposed to the jury, then they could not have believed the claimant in relation to those matters. It submits that it was important for the jury to be carefully directed both in relation to the claimant's doctoring allegation and in relation to the newspaper's counter-allegation. They should have been told the factors which pointed in favour of and against each side.
19. The newspaper alleges that the judge did not direct the jury with sufficient care but instead adopted a broad brush approach which was not adequate to deal with the complexities of the case and failed to put the defendant's case with adequate clarity. This failure, it submits, should cause this court to set aside the verdict of the jury.
20. The newspaper complains that the adjournment, coupled with the form which the note took – which involved no references to cross-examination or changes of stance by the claimant's witnesses – made a careful summing up all the more important.

Legal Principles

21. It is accepted by the appellants, now that they have failed before the jury, that there is nothing which can fully justify the very serious defamatory statements in the appellants' publication. This is not in other words a case that can be brought within the scope of s.5 of the Defamation Act 1952, which provides:

"In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges."

That is why the present appeal is limited to quantum and does not touch on liability.

22. An appeal in this type of case can succeed if the court comes to any of the following conclusions : (i) that the judge either misdirected, or failed adequately to sum the case up to, the jury in a material respect; (ii) that there was procedural unfairness during the course of the trial, sufficient to undermine the jury's award; (iii) that the amount awarded by the jury by way of damages was excessive. Either of conclusions (i) and (ii) could have led to a re-trial. However, at the conclusion of the argument both parties agreed that, if the jury verdict is set aside, then this court should substitute such verdict as it thinks proper rather than send the case back for retrial.
23. We indicate later that we have come to the conclusion that the award should be set aside. We are therefore faced with deciding the factual basis upon which any award should be based. The only guidance cited before us in relation to this problem is found in the decision of this court in Jones v. Pollard [1997] EMLR 233. The Court of Appeal there observed that it faced the difficulty that

"we do not know for certain what meanings they [the jury] upheld, ... . The lack of certain answers to these questions is a significant handicap when considering the issues raised in the appeal, but this does not absolve us from endeavouring as best we can to interpret the jury's decision."

24. Counsel for the plaintiff in Jones v. Pollard, who was as it happens Mr Caldecott QC, submitted to this court that "having regard to the scale of damages awarded", it "should assume that all reasonably disputed points were resolved by the jury in the plaintiff's favour". But he cited no authority to that effect and recognised that it presented some difficulties when it came to drawing the line. Hirst LJ, giving the only full judgment, said:

"I cannot accept the validity of Mr Caldecott's broad assumption, and in my judgment the [correct] approach … is to examine the two issues [which arose in that case] individually, and to ask what conclusion a reasonable jury would inevitably have come to, giving the benefit of any doubt to the plaintiff having regard to the large scale of the award."

The court went on to conclude that (A) any reasonable jury would have upheld in their entirety the meanings contended for by the claimant, but that (B) no reasonable jury could have failed to conclude that justification was made out in part.

25. Since we have concluded that there was material misdirection of the jury, in a manner likely to affect its conclusions on the issues before it, any guidance afforded by the jury's award is manifestly diminished.
26. Before turning to the facts, we examine in greater detail the legal principles which govern libel damages. A list of the factors which may arise for consideration was advanced, again by Mr Caldecott as counsel, in Jones v. Pollard and received the approval of the court there and of Sedley LJ in Kiam v. MGN Ltd. [2002] EMLR 475. It reads as follows:

"1. The objective features of the libel itself, such as its gravity, its prominence, the circulation of the medium in which it is published, and any repetition.

2. The subjective effect on the plaintiff's feelings (usually characterised as aggravating features) not only from the publication itself but from the defendant's conduct thereafter both up to and including the trial itself.

3. Matters tending to mitigate damages, such as the publication of an apology.

4. Matters tending to reduce damages, e.g. evidence of the plaintiff's bad reputation, or evidence given at the trial which the jury are entitled to take into account in accordance with the decision of this court in Pamplin v.Express Newspapers Ltd [1988] 1 WLR 166 ….

5. Special damages.

6. Vindication of the plaintiff's reputation past and present."

27. We are not concerned with special damages, which have been reserved to be considered separately. We are also not concerned with any claim for punitive damages, since this was struck out. We turn to the other factors identified in the list. The first and the fourth are linked, since it is the gravity only of those parts of the defamatory material which were not justified that calls for assessment under point 1. The appellants accept that those parts of the appellants' publication which cannot be justified, in particular those parts alleging that the claimant was an actual abuser of boys, constitute an extremely grave libel, and they were prominently published in a Sunday newspaper with a circulation of millions. Further, there is no question of the appellants ever having published any apology, so that point 3 can be put on one side. On the contrary, they ran a case of full justification throughout a long and public trial; and this is capable of aggravating damages under point 2 because of the obvious likely effect on any claimant's feelings of the whole process, including the extra publicity, the stress and the spectacle of a defendant brazening out what the claimant knows to be an unjustified defence.
28. There are only two qualifications which the appellants introduce in relation to the above. The first is that there had previously been published in the Scallywag material of considerably broader and just as serious defamatory nature. This qualification goes to the claimant's prior reputation (cf point 4 in the list) and so to the damage which can properly be said to have been caused by the appellants' publication. But it is not in our judgment a point of great weight, since the Scallywag is a very small circulation magazine (to which we would add that the claimant sought and obtained a partial injunction in relation to any further publication by it). The second is that there was no repetition of the defamation. There was, it is true, the subsequent Channel Four television programme, in which Mr Merry, the freelance investigative journalist who produced the story which formed the basis of the appellants' newspaper article, also played a key role. But he was acting as a freelance investigative journalist and supplied information separately to Channel Four, and the appellants have no control over or responsibility for what goes out as a Channel Four programme. The claimant has also on foot separate proceedings for defamation against Channel Four. The appellants can say, rightly in our view, that the screening of that programme is immaterial to the assessment of damages against them for their newspaper publication. We add that we regard this conclusion as consistent with and supported by the reasoning in McManus v. Beckham [2002] EWCA Civ 939, decided in this court since the conclusion of the hearing before us.
29. Point 4 allows and requires the court to take into account general evidence about a claimant's prior bad reputation (and, one can add, any specific evidence of prior convictions). The claimant had no prior convictions, but the appellants were able to call very general evidence to the effect that "he had a bad reputation in terms of sexual activities" in Southport.
30. Of greater relevance in this case is, however, the evidence admissible on the authority of Pamplin v. Express Newspapers Ltd. [1988] 1 WLR 166. In that case, after referring to s.5 of the Defamation Act 1952, the court said:

"There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence contained in section 5 …. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages."

31. Thus it is that so much importance attached at trial to issues regarding the genuineness of the Bober video tape, because, if the video tape was genuine, it established beyond doubt a highly perverted interest on the claimant's part in, although not actual abuse of, under age boys. Moreover, if the video tape was genuine, then (a) the claimant's allegations (in the context of point 2 in the list) of misconduct by the appellants in its compilation and by attempts to suborn witnesses to establish its genuineness have no basis and (b) the claimant himself engaged during the litigation in an elaborate and long-lasting attempt to pervert the course of justice by adducing a false case and false evidence and making false accusations against witnesses called by the appellants, not merely with a view to rebutting the appellants' case of partial justification, but at the same time potentially to increase the damages recoverable from the appellants (pursuant to point 2 in the list).
32. If a defendant's conduct "both up to and including the trial itself" may aggravate damages because of its effect on a claimant's feelings (point 2), can a claimant's conduct up to and including the trial reduce damages? This question is not concerned with the effect under Pamplin (above) of evidence establishing a partial justification of the defamation, although if the claimant was at such pains, as the newspaper's case alleges, to disclaim the Bober video tape, that speaks volumes for the prejudice which he must have realised that its genuineness would cause to his claim. The present question concerns the relevance, if any, of wholly disreputable conduct which was established in the course of determining the issues in the litigation itself. We have no doubt that such conduct is relevant and that, in a case where it is as severe as it is here, it is of the utmost relevance. In Broome v. Cassell & Co. [1972] AC 1027, Lord Hailsham said this, at page 1071f-1072a:

"Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being "at large." In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well - as for instance by a handsome apology - or the plaintiff badly, as for instance by provoking the defendant, or defaming him in return. In all such cases it must be appropriate to say with Lord Esher M.R. in Praed v. Graham, 24 QBD 53, 55:

"… in actions of libel … the jury in assessing damages are entitled to look at the whole conduct of the defendant" (I would add personally "and of the plaintiff") "from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in court during the trial."

33. It would be an affront to justice if a claimant's own disreputable conduct – here established in, and directed to improving materially the outcome of, the litigation itself - had to be ignored in assessing the damages that the claimant would otherwise merit for a defamation which could be shown to have injured his reputation prior to the libel.
34. Lastly, it is appropriate to say a word about the general aim of libel damages. This is clearly stated in another passage in Lord Hailsham's speech in Broome v. Cassell at p.1071c-e:

"In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in Uren v. John Fairfax & Sons Pty. Ltd., 117 C.L.R. 115, 150:

"It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money."

35. Lord Hailsham went on to say that it was, for that reason, not necessarily fair to compare awards of damages in this field with damages for personal injuries. More recent authorities do however show the need to ensure an appropriate relationship. In order to keep this judgment more manageable, we have summarised the law's development in this regard, and the facts, figures and outcomes of relevant previous authorities, in Annex A to this judgment.

The facts

36. We turn therefore to the facts of the present case. The foundation of this appeal is the evolution of the claimant's case in relation to the videos. But it is useful to start by recording some of the less controversial parts of the evidence.

The police evidence in relation to videos

37. The claimant submitted to the jury that he had made the First Video featuring him and Mr Bober, that this had been seized by the police in 1993 and examined by them, that this had not had any child sex conversation on it, that they had returned that film to him in 1994, that it had been stolen from him a week later at the instigation of Mr Bloom, that Bloom and Tony had gone to Mr Squires in 1994 in order to doctor the video so as to produce the Bober video. The claimant submitted that, since the police accepted that the film which they had seized in 1993 did not have any child sex conversation on it, whereas the Bober film did, tampering had been clearly demonstrated. On any view that would defeat most of the defendants' case on justification. If the defendants knew anything about the tampering or were privy to it, then this would go to increase the amount of the damages.
38. The police evidence did establish that the film which they saw in 1993 was different from the Bober video but did contain images of the claimant and Bober. If, but only if, one accepts that the claimant only made one film featuring him and Bober, then his case that there must have been tampering is made out.

Expert evidence

39. Before the jury was a transcript of the conversation on the Bober video.
40. The claimant called C.M. Mills, who is clearly a very experienced expert on forensic phonetics. His evidence, however, did not support the claimant's case. He subjected the Bober tape to a detailed visual, auditory, physical, and, where necessary, computerised examination. This lasted some 16 hours. He found it to be a copy tape some number of generations from the original. He found it to be a continuous copy from another tape and could find no evidence of editing, tampering or other deliberate acts which would have altered the continuity of the three sections of the video in their sound or video content. He considered that the actions, gestures and facial movements of the two males quite clearly correlated with the speech and sounds heard on the videotape. This correlation was such that in his opinion no dubbing had taken place. He found no evidence to suggest that there was any degree of variation between the older male's voice in different parts of the videotape. However, the quality of the sound heard on this video was not of sufficient clarity for him to be able to judge in phonetic terms whether the same voice was responsible for all of the speech attributed to the claimant. His evidence at trial can be summed up by saying that he found no evidence of dubbing and that the degree of correlation with the physical movements which could be seen was such that dubbing was highly unlikely.
41. The newspaper called Dr. J.P. French, who was also an extremely experienced expert witness in relation to the authentication of tapes. He also came to the conclusion that the voices on the tape were the same throughout. He also made a tape of Tony seeking to imitate his father. He said that the two voices were distinguishable.
42. Thus ,the evidence of these two witnesses lent no support to the suggestion that the Bober tape was the result of dubbing.
43. Evidence was also called in relation to lip-reading. The two witnesses spoke as to what could be deduced from lip reading the Bober video. They produced what appeared to be a joint report but from which the newspaper's witness then resiled. It was accepted on behalf of the newspaper that its expert witness did not in the event help the newspaper's case. However, the evidence of the claimant's witness was also in some ways unsatisfactory. At the end of the day, one had to choose between the common phonetic evidence of the witnesses on each side and the lip reading evidence of the claimant's expert. The latter was not in our judgment such as to lead to the conclusion that the Bober video had been dubbed. Indeed, the claimant sensibly laid little stress upon it.

The newspaper's case as to how it had obtained the Bober video

44. The person responsible for writing the article was John Merry. He was an investigative journalist. He said he had received a phone call in 1995 suggesting that there was a possible story about the claimant and that evidence would be produced in a hotel in Preston. He went there and received a package containing a video from a person whom he did not know. He looked at it. He put in train the making of a possible Channel 4 documentary. He contacted the News of the World. They commissioned an article from him. He sent the raw material to a journalist called Helen Carter at the News of the World and she in due course turned it into the article. At one point he turned up with television crews and the features editor of the News of the World at the claimant's doorstep wanting to interview him. The claimant refused and the film of that refusal was in due course shown on Channel 4. It was accepted before us on behalf of the newspaper that his conduct there was such as to entitle the claimant to some enhanced damages. It was further accepted for present purposes that the jury could have concluded that Mr Merry had invented a second visit to the claimant's house and invented the quotations from the children which featured in the article.
45. The video which was allegedly given to Mr Merry was not in evidence. It got to Helen Carter in 1995 and she watched it before the article was published. The writ in this action was issued in March 1997. Thereafter, the claimant asked several times that year to have a sight of the video referred to in the Statement of Claim. It was not produced because, said the newspaper, no-one could find it. However, the newspaper's case is that it came by another copy of the Bober video (apparently as a result of its being delivered by motor-cycle rider to their Wapping premises, by a source whom the newspaper refused to identify). The claimant was given a copy of this copy in November 1997.

The evolution of the claimant's case in relation to the videos

46. The newspaper points to a number of stages in the evolution of the claimant's case. I have placed in italics the main points which, the newspaper suggests, should have been made clear to the jury in the summing-up.
47. The Pleadings. In the Particulars of Justification contained in its Defence, the newspaper said that it would rely upon "a film produced by the claimant in or about 1993. In an early part of the film the claimant is shown masturbating while standing over a boy lying almost naked on a bed and is himself also masturbating. The boy appears to be under 16. Later in the same film the claimant is shown masturbating the same boy who is seated on a chair dressed in a woman's corset. The boy is also shown masturbating the claimant. During the film the claimant describes in detail furtively ogling 13 and 14 year old boys in public toilets in Warrington, Ormskirk, Southport, Bootle and Crosby. The Defendants will invite the court to infer from these descriptions either that the claimant himself indulged in such behaviour or alternatively that the claimant derived sexual excitement from paedophile fantasies."
48. To these allegations, the claimant pleaded on 17 June 1997 as follows in his Reply. "The Plaintiff admits the said video does feature homosexual act, or acts, between himself and a second male however [both were over age] … As to what 'appears' to be the description and perpetration of paedophilic acts, they are simply the Plaintiff's exploration of the second male's sexual preferences… the Plaintiff admits he participated in the said film described by him … and that it was produced in or around 1993. … [the second male was 30] The Plaintiff admits speaking of and, seemingly fantasising about younger males, however, this was only a fishing expedition to explore the second male's sexual preferences… The plaintiff has never visited toilets in Warrington, Ormskirk, Bootle or Crosby and only ever visited two public toilets in Southport during his lifetime."
49. The newspaper submits that this is a clear admission that the claimant spoke the words on the video about furtively ogling boys in public lavatories whereas now he maintains that he did not speak those words. The claimant ripostes accurately that, at the time he made those admissions he had not seen the video to which the newspaper was referring, namely, the Bober video. That riposte does not meet the point.
50. The claimant's reaction on receiving the Bober video. The claimant was given a copy of the Bober video in November 1997. Before us, the claimant said: "As soon as I saw the video I knew straightaway that it had been dubbed". On 18 May 1998, the defendants served a request for Particulars of the Reply and asked him to state "whether the Plaintiff admits or denies describing in detail furtively ogling 13 and 14 year old boys in public toilets during the film." On 16 November 1998 (a year after he had been given a copy of the Bober video), the claimant answers this request and expressly admits this allegation whilst denying another one. The newspaper submits that this is another clear admission that the words were spoken by him and that on this occasion he cannot rely on the fact that he had not seen the Bober video. The claimant served a written statement in March 2000 in which he describes the making of the video and says of Bober "I now turn to the toilet issue. I remember he spoke a long time about his experiences. He detailed many. Not at any time did he ever mention boys, neither did I. The toilet issue might have been a part of our discussion on the films (sic), but not as described. That part which is now shown to be discussing toilets and boys is just not on. It is not us. It is false. It was never a part of our filming. It has been inserted."
51. The newspaper says that this is a clear admission that there was discussion on the film.
52. The failure of early witness statements to give details now relied on. In March 2000, the claimant served a witness statement by his son, Tony. He says "I was present when Mark Bloom commenced doctoring the two videos which featured my father and another man and woman. ... I know several experts who were also helping him with the various cuts and sound effects. It was my voice which was rehearsed many times to speak about toilets and under age boys. This is not the first time Mark Bloom has used my voice to copy my father's voice. We speak exactly alike and Mr Bloom had soon worked that one out." The newspaper stresses the fact that this statement is noticeably short on details as to when and where the dubbing took place which appeared in later statements and at trial. It makes no mention of Mr Squires or any person other than Bloom and Tony being involved.
53. The visits by the claimant to Mr Squires shortly before the date fixed for trial. On 9 June 2000, shortly before the date fixed for trial, as the claimant admitted at the trial which eventually took place in the following year, he had visited a Mr Kelly to ask him to explain the workings of dubbing videos. Mr Kelly gave the claimant the name and phone number of Mr Squires who lived in Hampton Road. The claimant went with his friend Mr Duffy to see Mr Squires. The claimant gave Mr Squires his home and mobile phone numbers, a false name, and a false story in order to persuade Mr Squires to explain the dubbing process. He asked whether he could hire the equipment but was told Mr Squires did not do this.
54. The newspaper suggests that this interest in the dubbing process was in order to obtain details for the second written statement by Tony in which he sets out those details as being something he had observed at the time when he was engaged in creating the Bober video.
55. On the same day, according to Mr Duffy's first statement dated 12 June 2000, Duffy first told the claimant that he had been given a video by Mark Bloom. It is this video which is referred to as the Duffy video.
56. At the trial Duffy asserted that, when Kelly named Squires, Duffy realised that he had seen Bloom go to Mr Squires back in 1994. This was relied on by the claimant as being the occasion when Bloom must have asked Mr Squires to doctor the First Video. Yet there is no mention of this Bloom incident in Duffy's first written statement.
57. At the trial, Duffy said that on 9 June 2000 on their way to Mr Squires, the claimant had told him that he suspected that Mr Squires had doctored the safe video. When he and the claimant saw Mr Squires, they thought that Mr Squires was the man who had doctored the safe video.
58. The newspaper suggests that, if that was their state of mind on 9 June, it is astonishing that Duffy's first witness statement dated 12 June makes no mention of Duffy going with the claimant to Mr Squires on 9 June.
59. On 12^th June, the claimant visited Mr Squires again, this time with Tony. He requested Mr Squires once more to give a detailed explanation of the dubbing equipment. The claimant took video equipment with him. According to the unchallenged evidence of Mr Squires, the claimant made a video of the dubbing equipment.
60. The newspaper suggests that this interest in the dubbing process just before the trial was in order to obtain details for a second written statement by Tony in which the dubbing process is described in detail.
61. On 13^th June 2000, the first trial began. The claimant's opening was so prejudicial that Penry-Davey J ordered the discharge of the Jury and refixed the trial for the following week on the 19^th June 2000.
62. On the same day, according to Duffy in his second written statement which was dated 14 November 2000 and at trial, he gave the claimant the Duffy video which, according to Duffy, Bloom had given to Duffy in 1994.
63. The invention of Don of Kingston. On 15^th June 2000, the claimant served a 2^nd witness statement made by Tony who stated that he had seen the Duffy video. He describes the dubbing equipment in detail. He describes Bloom making 30 attempts to do the dubbing. He describes himself doing the speaking. He says that later he went with Bloom to a man called Don in Kingston with 10 copies of the safe video which Bloom had made and also 10 voice tapes of Tony's voice. He says Don told them he charged £1000 an hour. He describes a second visit to Don where Bloom took a video film of all the dubbing machinery.
64. This written statement also contains no mention of the visit to Mr Squires which all now agree took place. In a curious passage in submissions before us, the claimant said that it would have been very easy for him to alter Tony's witness statement to mention Mr Squires and mention his believed involvement in the dubbing. Although, in a rare lapse from his otherwise lucid submissions, the claimant evidently perceived this as a point in his favour, it is the very reason why this part of the case against him is so forceful.
65. The newspaper suggests that the claimant, in an attempt to deceive the court, was seeking to hide the genuine visits to the honest Mr Squires and instead substituting a non-existent visit to a fictitious Don in Kingston who according to Tony in his telephone conversation with Mr Ross on the 27^th April 2001 (see paragraph 81 below) had never existed and according to Tony at the trial was not responsible for the relevant dubbing.
66. The trial did not proceed in 2000 for reasons not presently relevant.
67. Thereafter, according to Mr Squires, someone told him of a trial – presumably the first abortive trial - to do with dubbing involving the newspaper and he, being worried lest he was somehow being involved in something improper, contacted the newspaper. It became clear that the phone numbers he had been given on the 9^th June were those of the claimant. So he gave a statement to the newspaper which the newspaper then served on the claimant on 31 October 2000.
68. The newspaper suggests that it would be bizarre for Mr Squires to contact the newspaper, who had previously never heard of him, if he had in truth been involved in the dubbing.
69. The first mention of Mr Squires in the claimant's case. Three days after receiving the Squires statement, the claimant serves a third statement by Tony which for the first time alleges that it is Mr Squires of Southport in Lancashire (as opposed to Bloom and Don of Kingston in Surrey) who is responsible for dubbing the safe film.
70. The newspaper suggests that this shift in the claimant's case was forced upon him by the fortuitous contact which Mr Squires had made with the newspaper.
71. The only explanation given in this third statement for the mention of Don of Kingston in the second statement is that Tony was drunk at the time of the visit and was confused both as to the name and as to the place, although Tony asserts that every other detail in the second statement is right.
72. The newspaper suggests the explanation for the confusion of names and places is incredible, not least because the act of dubbing could not take place satisfactorily if Tony was that drunk.
73. The newspaper further draws attention to the fact that, in the third statement, Tony states that when he arrived at Mr Squires' house in Southport, he recognised Mr Squires as the man who had done the dubbing with him. The third statement wrongly asserts that the second statement had been made at the end of May 2000. In fact it is dated 15 June 2000. Since Tony's visit to Mr Squires took place on 12 June 2000, three days before, and since, on his account, he had by then recognised the error in his second statement, it is wholly inexplicable how, three days later, he comes to make his second statement which incorporates that very error.
74. The claimant sought to meet this point by suggesting that, although the second statement is dated 15 June 2000, it was in truth made at the end of May 2000. The newspaper suggests that this cannot be right since the second statement refers to Tony having seen the Duffy video which did not come into the claimant's hands until 13^th June 2000 – see para. 52 above. Moreover, at the trial, the claimant himself had repeatedly said that Tony's second statement was taken as well as signed on 15^th June 2000.
75. The newspaper suggests that this change of tack by the claimant – to suggest that it is Mr Squires, not Don of Kingston, who was responsible for the dubbing – explains the late emergence of Duffy's second statement dated 14 November 2000 in which he for the first time suggests that Bloom had visited Mr Squires.
76. The newspaper relies on the consistency of Mr Squires' evidence and conduct throughout and on the fact that there is no independent reason to suspect him of dishonesty. His unchallenged evidence was that, although in 2000 he had dubbing equipment such as was described by the Campbells as belonging to him/Don of Kingston, he did not have such equipment until 1998 after the service of the Defence in the action, which was in 1997. Since the Bober video is referred to in the Defence it could not have been made by Mr Squires.
77. The Trials Hotel : Tony turns against his father. There then followed another bolt out of the blue which must have surprised the claimant. There was a meeting on 18^th January 2001 at the Trials Hotel in Liverpool. Present were Mr Ross (the newspaper's in-house solicitor), Mr McAllister (an independent solicitor there at Mr Ross' request), Tony and Tony's girlfriend, Jill Farrington. At that meeting, which had been arranged at his request, Tony said that his previous statements were false and that he had not been involved in the dubbing of the video. He said his father had threatened and bribed Kath Green (see below) to make her give evidence. All this was set out in written statements made by Messrs Ross and McAllister and served on the claimant in late March 2001.
78. This elicited a furious letter dated 4 April 2001 from the claimant to Tony, who at that point was in prison because of a driving offence, warning him that if he made any written statement confirming the truth of what he had said to Messrs Ross and McAllister, then he would be prosecuted for perjury. In the letter the claimant suggests that Bloom probably told Tony that the newspaper would buy him a house if he would change his evidence. On the same day, the claimant rang Kath Green, taping the telephone call, and told her that Bloom probably said that the newspaper would buy Tony a house.
79. The claimant sent this transcript to Mr Ross on the following day the 5^th April.
80. Kath Green was another vulnerable witness. She lived in sheltered accommodation, had a record of criminal dishonesty, with her last conviction being for possessing a class A drug in 1998. At the trial, without having mentioned this in her written statement, she gave evidence to the effect that she had overheard a telephone conversation on a speaker-phone in Tony's house in which the offer of a house was discussed. She said that the newspaper used to offer Tony money in order to persuade him to change his statements – something never alleged by Tony himself.
81. On 27^th April 2001, there was a lengthy telephone conversation between Mr Ross and Tony. This was taped and the transcript was in evidence. In this, Tony gives no indication either that he was cross with the newspaper for not providing him with a house or that he intended to resile from what he had told the newspaper on 18^th January 2000. He asserts that Mr Squires is an innocent man and states that he has not been offered a house by Bloom. He asserts that the claimant and Duffy between them have altered the Bober video so as to produce the Duffy video and that this was done at the claimant's house. He asserts that Don never existed. He asserts that the claimant is in contact with Kath Green about the Trials Hotel and has deliberately set up the telephone conversation with her which he taped and subsequently sent to Mr Ross.
82. At the conclusion of that telephone conversation, Mr Ross rang up Kath Green and taped the conversation of which we were shown a transcript. She indicates that she is not prepared to go into court and is not going to stand by the bribery allegations.
83. Tony and Jill turn against the newspaper. But then came another bolt out of the blue. This time it is the newspaper which was surprised. At the end of May 2001, the claimant served Tony's fifth and Jill Farrington's first written statement. Tony, broadly corroborated by Jill Farrington, states that Bloom had told him prior to the Trials Hotel meeting that the newspaper would offer him a house if he gave the sort of evidence they wanted at the trial. He states that Bloom rehearsed him as to what he was to say at the meeting with Mr Ross at the Trials Hotel, in particular that he had not dubbed his father's voice on the Bober video. He states that, at the Trials Hotel Mr Ross, out of earshot of Mr McAllister, had told him in terms that he would get him his house when he signed a satisfactory statement. He states that it became evident very soon in January 2001 that he had been tricked by the newspaper.
84. The newspaper makes the point that if Tony thought in January 2001 that the newspaper had indeed resiled from a promise to provide him with a house, then he would not have spoken in the terms in which he did speak on the telephone in April 2001 as set out in paragraph 71 above. He would have been livid.
85. The trial finally started on 2^nd July 2001. The claimant, Tony and others of the claimant's witnesses were called. Tony gave evidence along the lines of his last statement and was cross-examined with a view to showing that his telephone conversation of the 27^th April 2001 referred to in paragraph 71 above did not sound like the phone conversation of a man who was furious with the newspaper and had been let down by them. The claimant said that the force of this point hit him like a bombshell. In re-examination, wholly out of the blue and in answer to a series of strikingly leading questions, Tony agreed that he had been visited by a man called Nick who was allegedly a representative of the News of the World who asked him to give evidence against his father, told him that the call on 27^th April 2001 would be taped and promised him a house if only he would hive evidence against his father. The newspaper say that none of this was expected, all was wholly new and none of it could in practice be objected to in front of the jury. They complain that the judge, in the summary which he gave to the jury in November 2001 after the adjournment, merely recorded all this highly prejudicial evidence about Nick without reminding them of how late in the day it came to be given.
86. On the night of 17^th July 2001 Tony dies in the car crash and the trial was adjourned. It was fixed to resume on 15^th October 2001.
87. The Hill Dickinson meeting : Jill turns against the Claimant. On 10^th October 2001, a few days before the trial resumed, there came another bolt out of the blue. Jill Farrington and her father's solicitor initiated a meeting with Mr Ross, the newspaper's solicitor, which was held at the offices of Hill Dickinson solicitors. Mr Ross' account of that meeting which he gave at trial and which was broadly corroborated by Mr McAllister was that Jill Farrington had opened it by saying that the claimant had asked her to lie about the car in which Tony had been killed. She also said that she had lied in the evidence she had given during the first part of the trial in July 2001 when she had supported Tony's last version of the dubbing saga. Her father was at the meeting. According to Mr Ross, corroborated by Mr McAllister, the father said that his daughter had confessed to him that she had lied during the first part of the trial. Mr Ross said that the father was keen to secure a financial deal whereby the newspaper would pay her for her life story. Mr Ross claimed that he said that he could not countenance any sort of payment and had no authority to offer it. The newspaper, on 11 October 2001, served statements by Messrs Ross and McAllister setting out their version of this meeting.
88. Jill Farrington turns against the newspaper : allegations of bribery. The claimant sought to meet this evidence [which he had not challenged in cross-examination of the solicitors] by evidence at trial from Jill Farrington asserting that Mr Ross, out of the hearing of Mr McAllister, had offered a bribe to her to give perjured evidence.
89. Kath Green's allegations of bribery. At trial, Kath Green gave evidence for the claimant. She gave evidence of an attempt by a man called Roger who she said was the newspaper's solicitor to bribe her to say that the claimant was a paedophile and how she refused to do so. She also spoke of another attempt by Bloom to persuade her to change her statement made for the claimant.

The Summing Up

90. The judge's task is well set out in the speech of Lord Bingham of Cornhill in Reynolds v Times Newspapers Ltd [2001]2 AC 127 at page 145. It is :

"To summarise the significant admissible evidence … relevant to each issue the jury have to determine in a clear, accurate and fair manner. …In a case of any complexity, the jury is very greatly assisted in its task if the evidence is analysed and broken down by the judge so that the jury have in mind the evidence which they should consider in relation to each of the questions which they have to decide. This is of course a counsel of perfection and there is no such thing as a perfect summing up."

91. In the present case, through no fault of his own, the Judge was faced with an enormously difficult situation and we have every sympathy with him. He had to keep a balance between a litigant in person and the professional team on the other side. In such a situation it is easy for a judge, in an attempt to be fair to the layman, unfairly to disadvantage the client of the professional team. But the judge is in a difficult situation because, if he rebukes the layman for doing things which his opponents are not allowed to do, an impression of unfairness can easily be given to the jury.
92. Whereas the defence case was simple, the claimant's case had kept on changing. The claimant, acting in person, had, despite warnings from the Judge, regularly led witnesses - even in re-examination - so that their own evidence was different at the end of their testimony from what had been pleaded and what it had been in chief. The late appearance of Nick to which we refer in paragraph 85 is one of many examples.
93. The claimant had regularly made speeches and assertions in the middle of his questions and had asserted things for which there was no evidential basis. However, the judge did not draw the attention of the jury to this.
94. The death of Tony had led to a long adjournment which had been followed by an attempt by the Judge to remind the jury of what had happened 3 months before. He did that in such a way as to rehearse to them what had been said in chief without following through the cross-examination and pointing out all the changes of stance which the witnesses had adopted, some of which we have sought to highlight in the earlier parts of this judgment.
95. The judge's problem in the present case was that, in the event, the tale was so complicated and had changed so often that a full exposition might well have left a jury completely befuddled. Yet an understanding of the timing of these very changes was a potentially significant factor in coming to a conclusion on who was to be believed about what, in many ways, were crucial issues on the question of damages, namely, whether the newspaper had faked the Bober film and whether the claimant had faked the Duffy film.
96. Moreover, the judge was operating against the time constraints of a trial which had already lasted far too long without any fault on his part. In the event, the Judge, faced with a choice of either going through the various changes of stance in detail – as we have done in this judgment – or adopting a broad brush approach chose the latter course.
97. Unfortunately, this has, in our judgment, resulted in the defendants not having had their case fairly presented to the jury. Something on the lines of what we have attempted in paragraphs 37-89 above would we think have been more helpful to the jury. The defendants make a number of criticisms which we think have, at any event cumulatively, a considerable amount of force.
98. The summing-up barely addresses the central issues of chronology and changes of stance which are indicated in italics in those paragraphs. On the contrary, the jury are told several times that the details were not important. The jury were not reminded that Mr Squires was not challenged at all as to his evidence that he had no dubbing equipment before 1998.
99. The judge erred in his treatment of Mr Merry in the summing-up. The newspaper had used him as a freelance journalist and there was ample material to discredit him. There was material which could lead to an enhanced award of damages for the way in which Mr Merry had 'door-stepped' the claimant and had perhaps invented quotations for his article. However, none of this was relevant to the question whether the Bober video or the dialogue on it was faxed. Yet the judge directed the jury that the account of Mr Merry as to how the story came to be written was a matter

"which you will need to think about in order to form a view about whose evidence you believe".

The Judge did not point out to the jury that, even if they found Merry wholly incredible, this would not help them in deciding the faking issues. This was particularly important in view of the fact that, as it turned out at trial, Mr Merry had several convictions, including one for perjury, although there was no evidence that the newspaper had any knowledge of these.

100. The Jury was left to decide the case on a general impression as to the truthfulness of witnesses without any sustained attempt to separate out the various issues and who had said what in relation to that particular issue.
101. As we have indicated in paragraphs 7, 28 and 44 above, Mr Merry put in hand the making of a Channel 4 documentary which showed the claimant in a very unattractive light and in respect of which the claimant has an outstanding claim for damages against the makers of the programme. However, the newspaper is in no way responsible for the making of that documentary and in so far as the documentary harmed the claimant's reputation, the newspaper should not be held liable for the consequences: see paragraph 44 above. The judge did not tell the jury this.
102. Throughout the case the claimant asserted or insinuated that the newspaper were responsible for the death of his son. There was no evidence whatever for this and yet the judge gave no direction to the jury on this highly emotive point. We believe, as we have said in paragraph 16 above, that it was incumbent on him to do so, although in this as in many respects the judge was in a very difficult situation.
103. The judge did not ask the jury to consider what was the appropriate amount of damages if their view of the matter was that the newspaper had not shown that the claimant had had physical sexual relations with children but had shown that he had a sexual interest in them which extended to watching them through lavatory peepholes and talking about them to Mr Bober in a sexual context.
104. We are very conscious that counsel for the newspaper had addressed the jury for 25 pages in a forceful speech. However, the claimant followed with 60 pages of mixed evidence and speech which we have no doubt from having heard him address us was eminently persuasive.
105. We conclude that, because of the matters which we have mentioned, the defendants, who had had the most serious of charges levelled against them, have not had a fair trial of their case. That conclusion would normally lead to a remittal of the case. As we have indicated, the parties have asked us instead to substitute what we regard as an appropriate figure. This involves us both in finding the appropriate primary facts and in fixing the appropriate sum.

Conclusions regarding the facts

106. The claimant's case as presented finally to the jury is that the First Video was dubbed in 1994, a year before the News of the World published the article upon which the claimant sues. It suffers from the crucial defect that, if it was a truthful account, there is no rational explanation why it was not advanced earlier. The manner of its emerging late in the day tells strongly against its credibility.
107. We are conscious that it is dangerous for this court to assess the credibility of witnesses whom it has not seen give their evidence. Nevertheless, a detailed perusal of the transcripts reveals many of them to be singularly unimpressive and inconsistent internally and with each other.
108. The evidence of Tony is full of inconsistencies and changes again and again. He was a man with an extensive criminal record involving dishonesty. As he himself put it "I have been a liar. I am not creditworthy." We note, of course, that he was claiming on this occasion to be telling the truth at trial. We find his evidence unreliable so far as the dubbing is concerned though no doubt it contained fragments of the truth from time to time. We do not think it right to rely on any part of it.
109. We were taken through Jill Farrington's evidence in detail on the lines which had been set out in Appendix 8 to the defendant's submissions. In our judgment, the evidence is so confused and changing that it would be unjust to place any reliance on any particular part of it. As the judge said to her, it was "all over the place". Her father's evidence to the same effect we treat with the same lack of confidence. He was, on any view, prepared for the court to be misled by his daughter and to seek to exploit that false evidence for reward.
110. Kath Green's evidence was so confused that it is, in our judgment, impossible to place any reliance upon it. Roger Insall denied having offered any bribe. There seems by contrast no reason to doubt the credibility of Mr McAllister or Mr Ross.
111. Moreover, the evidence of Mr Squires appears to us to be reliable. Although he had been convicted of having a counterfeit note 20 years earlier, he appears since then to have an unblemished record. Perhaps more importantly, his evidence was consistent throughout. We accept that he had no dubbing equipment at the time that the Bober video was first relied upon by the newspaper in justification and we accept that he did not dub the Bober video.
112. We see no reason to accept the claimant's evidence that he only made one video featuring him and Bober. His assertion to that effect is the only evidence in support. There is much which indicates the contrary. In particular, there are several images of him and Bober engaged in sexual conduct wearing different clothing at different times and the expert evidence is to the effect that the probability is that the Bober film was not the result of tampering. In general, for the reasons advanced earlier in this judgment, his frequent changes of case in relation to other matters leaves one with a total lack of faith in the truth of much of what he says.
113. We conclude that the Bober video as played to the jury showed the claimant and Bober and that the child sex conversation took place between them. We reject the suggestion that the Bober video or the dialogue on it was manufactured by Mr Squires and Tony and that the newspapers knowingly put before the court a video which was not what it appeared to be.
114. We have considered but rejected the possibility that the claimant was misled by his son. On the contrary, we take the view that he himself persuaded his son to lie to the court and thus deliberately tried to pervert the course of justice. As to whether the Duffy video was itself the result of deliberate tampering in order to produce false evidence, as opposed to being just another pornographic tape manufactured by the claimant, we think it probable that this was the case. However, it is not necessary to come to a firm conclusion about that, given the conclusion that the claimant was trying to pervert the course of justice by suborning his son.
115. The upshot of these conclusions is that the claimant was involved in the grossest misconduct up to and including the trial, of which we only highlight the following aspects: (a) He procured his son, Tony, to make false statements regarding the alleged dubbing of the video tape, first by "Don" of Kingston and, later, after it became necessary to meet Mr Squires' evidence, by Mr Squires. (b) After the playing in court of the recording of Tony's conversation of 27^th April 2001, the claimant also procured Tony and Tony's partner, Gillian Farrington, to make false statements about its background and to invent the story of the existence and intervention on behalf of the appellants of "Nick". (c) As regards Mr Squires, the claimant's case involved a most serious attack on the credibility and honesty of an entirely innocent third party, who had come forward to assist in a public spirited fashion. (d) Further, in the claimant's pleading in one respect (the plea that Mr Ross sought to bribe Tony with a house) and on a much wider basis in the course of preparing evidence for and running his dishonest defence of dubbing at trial, the claimant sought to implicate Mr Ross and even Mr McAllister in the most serious professional misconduct. The professional consequences, if the claimant had succeeded in this dishonest defence, for both Mr Ross, the appellants' in-house solicitor, and Mr McAllister, as an independent solicitor brought in by Mr Ross to ensure the fairness of the meetings at the Trials Hotel and at Hill Dickinson and the accuracy of evidence given about them, need no underlining.
116. There remain, however, some factual aspects in the history of this case on which the appellants accept that the claimant can nonetheless rely as aggravating factors within point 2. They relate primarily to the conduct and evidence of Mr Merry, the freelance investigative reporter who was responsible for the material on which the appellants' newspaper article was based. He was unable to produce a copy of a letter, under cover of which he said that the video tape had been sent to him anonymously. Further, his evidence, regarding effective admissions that he said that the claimant made to him late one night through the door of the claimant's home, was contradicted by witnesses called by the claimant, who were in the claimant's house at the time; they had been asked to stay there because of the very possibility that Mr Merry would return and seek once again to "door-step" the claimant. Mr Merry had received £5000 before the publication of the article, which the jury could infer was for the "information" which it contained. Mr Caldecott effectively accepted that we should in this court view the jury's award, and make any assessment which we thought it appropriate for us to make, on the basis that the jury must have accepted the claimant's case in all these respects in relation to Mr Merry. Although Mr Merry was acting freelance, Mr Caldecott also accepts that the appellants must accept responsibility for his conduct in these respects. It follows that there were further potentially aggravating features within the scope of point 2 in the list set out in paragraph 26 above.

The appropriate amount

117. We turn now to apply the principles and guidance contained provided by the authorities on libel damages considered in Annex A to the present facts. Had the present libel been made good in full, without any partial justification – in other words, had the Bober videotape been dubbed and falsified – the present libel would have been near the top of the range of seriousness. There would have been not only allegations of criminal conduct, persisted in to the end, but the libel would have been aggravated by Mr Merry's conduct and above all by most disgraceful conduct by the appellants in seeking falsely to justify all or part of the allegations. The claimant's poor sexual reputation would not have gone very far to diminish the damages. Further, the allegations would have been such as must have had a further major adverse effect on the claimant's reputation, likely to impact on all aspects of his personal and business life. Damages in excess of those awarded to Miss Rantzen in this court would have been justified. In so far as it is possible to understand the present jury's award, it may, perhaps, be that it was reached on the basis identified in this paragraph. But, even if that hypothesis were accepted and acceptable (which it is not, both because of the unfairness and misdirection which we have identified and because we decline to approach the jury's award on a factual basis which no reasonable jury could have adopted), the award would have to be regarded as considerably in excess of any award that this court could uphold.
118. As it is, however, the Bober video tape was genuine, and while the appellants have persisted in and failed to establish any full justification of the far more serious allegations of actual (and criminal) abuse of boys, they have established significant partial justification, in the form of a highly perverted interest in boys. This alone must have a substantial reducing effect on the highest award that the jury could possibly have considered appropriate. We do not consider that damages in excess of £100,000 could be expected on this basis.
119. This does not however take any account of the fact that it is now clear that the claimant has himself engaged during the litigation in an elaborate and long-lasting attempt to pervert the course of justice, and has, in that connection, shown himself prepared not only to make and procure false testimony, but to make against innocent third parties, including layman and professionals, the most damaging allegations of corruption and lying. Any damages to which the claimant is entitled in respect of the allegations of sexual abuse against boys must be further and severely reduced to reflect his own willingness and consistent attempts to abuse the process of the court and others' rights to their own good reputations in the course of this litigation. We would in these very serious circumstances reduce the general damages awarded to £30,000.
ANNEX A AUTHORITIES ON THE QUANTUM OF LIBEL DAMAGES (paragraphs 35 and 117)
120. Hirst LJ has summarised the historical position in Jones v. Pollard [1997] EMLR 233, and Simon Brown LJ has listed the cases in Kiam v. MGN Ltd. [2002] EMLR 475.
121. Gorman v. Mudd (unreported, October 15, 1992) arose from a mock press release issued by a prominent member and chairman of a local Conservative Party businessmen's association, who had a quarrel with the local MP, to 91 other members of the association. It suggested that the MP had sought to destroy the association and to humiliate the writer out of personal spite, and its tone was unpleasant, casting aspersions on the plaintiff's female charms. There was no apology, and unpleasant cross-examination. Qualified privilege was rebutted by a finding of express malice. The jury's award of £150,000 was reduced to £50,000 (worth it would seem at least £65,000 today).
122. In Rantzen v. Mirror Group Newspapers (1986) Ltd. [1994] QB 670, the court, considering the impact of s.8 of the 1990 Act, declined to sanction reference to personal injuries awards, but recommended that juries should be invited to consider the purchasing power of any award, and be asked to ensure that is "proportionate to the damage which the plaintiff has suffered and is a sum which is necessary to award him to provide adequate compensation and to re-establish his reputation". The plaintiff, a successful television presenter and the founder and chairman of the "Childline" charitable services for sexually abused children, was libelled in four articles published by the defendants in The People, which alleged:

"(a) that the plaintiff had protected a teacher who had helped her to expose sexual abuse at a boys' school by keeping secret the fact that he was himself an abuser, thereby abandoning all her moral standards and in particular her publicly professed concern for abused children; (b) that the plaintiff, notwithstanding her position as founder of ChildLine, had taken no action in respect of what she knew thus putting at risk the children at the school where the alleged abuser was still teaching; (c) that the plaintiff's public statements and activities on behalf of sexually abused children, given her misconduct and culpable omissions, were insincere and hypocritical; and (d) that the plaintiff had untruthfully told the editor of "The People" that publication of the story would hamper police inquiries into the matter whereas the reason was to avoid publication of the facts of her misconduct and culpable omissions."

The Court of Appeal described the publication and its aftermath as a "terrible ordeal" for Miss Rantzen, but pointed out that she still had an extremely successful career as a television presenter, that she was a distinguished and highly respected figure in the world of broadcasting, and that her work in combating child abuse had also achieved wide acclaim. In these circumstances (i.e. in circumstances where the defamation could not be said to have ruined either her career or her reputation), the court reduced the damages awarded from £250,000 to £110,000 (equivalent to about £133,000 at today's values). The court also expressed the hope that, over a period, awards considered in the Court of Appeal might come to constitute a corpus of authority, which could be relied upon as indicating a prescribed norm.

123. In Houston v. Smith (unreported, December 16, 1993) the court was concerned with an action for slander by a male doctor, a general practitioner specialising in gynaecology and obstetrics, against a female partner, who had accused him of sexually harassing her and female staff members. The accusation was made originally before a small audience in the waiting room, but repeated more widely. Further, a defence of partial justification was advanced and persisted in at trial, which brought it into the public domain with the full glare of publicity. There were other aggravating features, including "particularly poignant evidence from the plaintiff as to his sense of hurt and outrage, particularly in view of his speciality" (see per Hirst LJ in Jones v. Pollard at p.254). The jury's award was nonetheless reduced from £150,000 to £50,000 (about £62,000 today).
124. Next in John v. MGN Ltd. [1997] QB 586, the libel, relating to the well-known musician and entertainer Mr Elton John, consisted in an article on an inside page, but prominently advertised on the front page with a photograph, claiming that he engaged in the bizarre habit of chewing but not swallowing food and had been observed spitting food into a napkin at a Hollywood Christmas party, coupled with a quotation of medical opinion that such conduct constituted a form of bulimia and was potentially fatal. There was evidence from which the jury could conclude that it had been published with a reckless disregard for its truth or falsity. The jury awarded £75,000 compensatory and £275,000 exemplary damages. The Court of Appeal reduced these sums (having regard to the fact that the article did not attack the plaintiff's personal integrity or artistic reputation) to respectively £25,000 ((some £28,000 today) and £50,000.
125. The case is, however, of especial importance for two linked reasons. First, the court said at p.614e-h that the time had come when judges and counsel should be free to draw the attention of juries to comparisons with personal injuries awards:

"It has often and rightly been said that there can be no precise correlation between a personal injury and a sum of money. The same is true, perhaps even more true, of injury to reputation. There is force in the argument that to permit reference in libel cases to conventional levels of award in personal injury cases is simply to admit yet another incommensurable into the field of consideration. There is also weight in the argument, often heard, that conventional levels of award in personal injury cases are too low, and therefore provide an uncertain guide. But these awards would not be relied on as any exact guide, and of course there can be no precise correlation between loss of a limb, or of sight, or quadriplegia, and damage to reputation. But if these personal injuries respectively command conventional awards of, at most, about £52,000, £90,000 and £125,000 for pain and suffering and loss of amenity (of course excluding claims based on loss of earnings, the cost of care and other specific financial claims), juries may properly be asked to consider whether the injury to his reputation of which the plaintiff complains should fairly justify any greater compensation. The conventional compensatory scales in personal injury cases must be taken to represent fair compensation in such cases unless and until those scales are amended by the courts or by Parliament. It is in our view offensive to public opinion, and rightly so, that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable."

126. Second, the court saw no reason why counsel and the judge should not indicate to the jury the level of award which they considered to be appropriate on the facts as they were submitted to be. We interpose to say that this passage should now itself be read in the light of observations by Simon Brown LJ (with whose reasoning Waller LJ agreed) in Kiam v. MGN Ltd. (above) to the effect that "generally speaking the only detailed guidance on figures should come from the judge", after having been argued by counsel before the judge (paras. 55-56). In the present case, the judge did not venture any such indication. He indicated to the jury that the diversity of possible views as to the facts made it impracticable.
127. Continuing with the authorities, in Neill v. Kiam (No.2) [1996] EMLR 493, Mr Kiam, an American businessman, well-known to television viewers as the man who liked the Remington Razor so much that he bought the company (Remington Ltd.), was libelled in The Sunday Times by an article that alleged that he was being sued by National Westminster Bank plc for defaulting on a US$13.5m loan he had used to buy an American football team. The allegation was wholly untrue, and the publishers published an apology three weeks later, although that did not stop the libel being copied by a third party in a book some two years later. The court upheld an award of £45,000 (c. £51,000 today) for this "widespread, grave and irresponsible assertion of insolvency against a prominent entrepreneur" (per Beldam LJ).
128. This brings us back in chronological order to the decision in Jones v. Pollard itself. In reducing to £40,000 the general damages of £100,000 which the jury had there awarded, the court said that it saw "no justification for an award which is comparable with Rantzen, approximately double the awards either approved or substituted by the Court of Appeal in Houston and Neill, and no less than four times the award substituted in John". Secondly, the court considered that £100,000 was "out of all proportion to personal injury awards of a comparable nature, which embrace such very serious injuries as paraplegia and total blindness", and would have been so, even if the plaintiff had enjoyed an unblemished reputation. Thirdly, when the material in reduction of damages was taken into account, the award was still more gravely disproportionate to the injury caused. The upshot was the court placed the award "in the scale modestly above Houston and Neill, but substantially below Rantzen".
129. Lastly, there is the further authority involving Mr Kiam, Kiam v. MGN Ltd. (above), which provides both the most recent and also most valuable assistance as to the court's approach. The quite separate libel which it concerned consisted in an article in The Mirror, the effect of which was alleged to be that Mr Kiam had lost his entrepreneurial skill and was fit only for retirement, that he was prepared to give up and close down Remington Ltd. with devastating consequences for staff, share-holders and customers and that his imminent financial collapse was attributable to his own business failures, in particular a failed refinancing programme leading to resignation of his finance director. The article was untrue in numerous respects, was written without any attempt to check the facts and involved some distortion of the materials on which it was based. An apology was only offered three days before trial, and shortly before trial the defendant had published three further articles which contained unchecked and inaccurate factual matter. A defence that it was not defamatory was persisted in at trial, when the defence also suggested to the jury that the claimant was impossible to satisfy and that no amount of money would do so. The court by a majority upheld the jury's award of compensatory and aggravated damages in the sum of £105,000. It did so, although the judge had suggested to the jury a bracket of between £40,000 and £75,000-£80,000, which the court of appeal described as an "entirely reasonable" bracket (per Simon Brown LJ at para. 53(i)).
130. Simon Brown LJ at paras. 35-44 also undertook a helpful review of all the comparables, including those which we have mentioned and one other. He pointed out that, since 2000, the maximum general damages available in personal injury cases have been increased from £150,000 to £200,000 following this court's decision in Heil v. Rankin [2001] QB 272. He observed that this, albeit to a degree fortuitously, has the effect of raising the ceiling for juries' libel awards, leaving greater margin to accommodate the graver libels which have to be slotted into the overall bracket. He also considered the correct approach in this court when assessing whether a jury's award is "excessive". The court can only intervene if it concludes that no reasonable jury "could have thought the award necessary to compensate the claimant and to re-establish his reputation". In a case where it does so conclude, its duty is to substitute a "proper" award, meaning not "whatever sum the court thinks appropriate, wholly uninfluenced by the jury's view", but, rather, "the highest award which the jury could reasonably have thought necessary" (para. 48). Bearing in mind these considerations as well as the deference to be shown to jury awards and the very large differences in all previous cases in which this court has intervened between the jury's award and the amount that the court of appeal considered proper, the majority in Kiam v. MGN Ltd. upheld the jury's award.
131. We would, however, observe that Simon Brown LJ's conclusion that this court should assess "the highest award which the jury could reasonably have thought necessary" must be viewed in its context. There was in Kiam v. MGN Ltd no material procedural unfairness during the trial and no material misdirection of the jury. Where (as here) there is material procedural unfairness and misdirection of the jury, and the court is invited to substitute its own award, the position seems to us different. It can no longer be assumed that the jury would, if it had not erred, have arrived at the nearest award to that which it gave. Because of the unfairness and misdirection which we have identified, it seems likely to us that the jury proceeded on a basis considerably more favourable to the claimant than could have been justified on any proper appraisal of the evidence, after a fair trial by a properly directed jury. So, in the present case, it seems to us that this court has no option but to substitute its own assessment, as we have done in the main body of this judgment.
Order: Appeal allowed; order as per minute. (Order does not form part of the approved Judgment).