England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		14th October 2009

MRS. JUSTICE SHARP:

1. This is the hearing of the pre-trial review in relation to two actions which are currently due to be tried on 9^th November, brought by Cristiano Ronaldo, a very well-known footballer, for libel against two national newspapers: the Daily Mirror and the Daily Telegraph in respect of two separate articles published by the Daily Mirror on 17^th July, 2008 and by the Daily Telegraph on 18^th July, 2008.
2. The first application before me is whether the two actions should be heard at the same time or separately. At the hearing of the case management conference in both actions which were listed together, an order was made in the following terms:

"-- there should be a hearing in both claims and the judge is to be invited to make such further directions as may be appropriate, including directing whether the claims should be tried together or consecutively and the venue for trial".

3. It is right that I should say something about each claim. The Daily Mirror article was published, as I have said, on 17^th July, 2008. It was published on the front and inside pages. The article was headed, "Ron The Lash", with sub-headings:

"Manchester United's crocked star 'dancing' at club ... He spends £10,000 on bubbly and vodka. He snubs Paris Hilton for posse of sexy models".

Over the page:

"Star's £10,000 night of booze and dancing. One hell of a do, Ron".

The opening paragraph of the article then says this:

"Cristiano Ronaldo consoled himself after splitting from his girlfriend - by going on a bender in a Hollywood club with four beautiful models

The Manchester United striker, recovering from an ankle operation splashed out more than £10,000 on wine, vodka and bottles of Cristal champagne after arriving at trendy nightclub Villa with two friends ... As the booze flowed, the twenty-three year old got into the party spirit. He even threw his crutches to the ground and tried to dance on his uninjured foot - although it turned into more of an ungainly shuffle. So he ripped open his white shirt instead - as the models squealed with delight".

4. The meanings complained of are contained in paragraphs 5 and 6 of the Particulars of Claim. It is said that,

"5. In their natural and ordinary meaning the said words meant, and were understood to mean, that the claimant, instead of resting his injured ankle, having had an operation on it that meant he could not play football and had to use crutches, went on a drunken bender, consuming large quantities of wine, vodka and champagne, and got so drunk that he threw his crutches to the ground and attempted to dance. In the circumstances his behaviour was unprofessional and irresponsible, and showed a reckless disregard for his recovery.

6. By way of innuendo the said words meant and were understood to mean by way of innuendo that the claimant, who was following his ankle operation, supposed to be recuperating at a rehabilitation clinic in order to ensure that he would be able to return to playing football as soon as possible, instead flew to Hollywood where he went on a drunken bender, consuming large quantities of wine, vodka and champagne, and got so drunk that he threw his crutches to the ground and attempted to dance. In the circumstances his behaviour was unprofessional and irresponsible and showed a reckless disregard for his recovery".

5. There is a claim for aggravated damages in paragraph 8. Amongst other matters, in paragraph 8.2 the Claimant relies on the widespread re-publication of the allegations in this jurisdiction, including on the internet and in the Evening Standard, The Sun, and Daily Star newspapers.
6. The defence in the Mirror action takes issue with the meanings pleaded and relied on by the Claimant. The substantive plea is one of justification. The meaning justified is in paragraph 6 of the Defence and is as follows:

"The Claimant, who was supposed to be recuperating from ankle surgery, which had left him unable to football and using crutches instead flew to Los Angeles where upon his arrival he went out partying until the early hours, drinking alcohol, carousing, and getting into the party spirit by trying to dance without instructors. In these circumstances his behaviour was imprudent and irresponsible because it could have jeopardised his recovery".

7. Various particulars of justification are then set out. It is alleged in paragraph 6.11 of the Defence that the Claimant drank alcohol during the evening out in Los Angeles and in paragraph 6.12 that:

"Whilst in the club the claimant on several occasions stood up next to his table without the aid of his crutches and moved his body rhythmically to the music being played, including to the whole of the song 'American Boy' by Estelle. As he revelled in the late night party atmosphere and tried to dance, he shuffled on his uninjured foot and moved his upper body to the beat of the music. His attempts at dancing were unaided by any physical support".

In paragraph 7 of the Defence it is said that:

"Further or alternatively, the words complained of were fair comment on a matter of public interest. The opinion expressed was that the Claimant's behaviour in flying to Los Angeles and going out partying, drinking alcohol and trying to dance without his crutches when he was supposed to be recuperating from ankle surgery was imprudent and irresponsible because it could have jeopardised his recovery".

The same particulars are relied on in support of the plea of fair comment as are relied on in support of the plea of justification.

8. One further matter is pleaded, which I should refer to. By way of mitigation, in paragraph 10.5, the Mirror Defendant relies upon s.12 of the Defamation Act 1952 and, in particular, it is said that:

"The claimant has issued proceedings for damages for libel against the publishers of the Daily Telegraph in respect of the publication of words to the same, or similar, effect as the words on which he has brought these proceedings".

9. For the sake of completeness I should refer to the Reply. In short, it is not disputed that the Claimant had ankle surgery or that he made the various statements attributed to him with regard to the seriousness of his injury. However, what is hotly disputed is that he drank any alcohol when he was in Los Angeles at the various clubs which he does not dispute he went to for an evening out. It is also disputed that at any stage he threw down his crutches and attempted to dance or shuffle around.
10. Fourteen witness statements have been served in the Mirror action on behalf of the Claimant. They include eye witnesses to the evening out, and evidence from the Claimant's surgeon and his physiotherapist in relation to the operation on his ankle and what the medical advice was in relation to it. One statement has been served in support of the plea of justification and fair comment by the Mirror. It is from a Miss Hannah Hargrave, a journalist, who says that she witnessed the Claimant drinking champagne at a club and attempting to dance on one foot.
11. I now turn to the Telegraph action. The Telegraph is sued in respect of an article it published in the Daily Telegraph sports section on the day after the article in the Daily Mirror appeared, that is on the 18th July 2008. The first matter complained of is on the front page of that section, where, with a side bar, it says this:

"Slave watch. Ronaldo, all in white and on crutches, attends US awards after being spotted in Hollywood nightclub with four models".

12. On the following page, under the title, "Ronaldo back in the limelight", with the sub-heading, "Sight of United winger living it up in Los Angeles nightspots will dismay manager Ferguson" the words complained of are as follows:

"Sir Alex Ferguson's battle to keep Cristiano Ronaldo in line suffered a double setback yesterday.

The unsettled Manchester United winger, who is recovering from an ankle operation, was pictured out on the town in Los Angeles, and then former United captain Roy Keane pitched in by saying the Portuguese international could use the tactics of frustration to secure a move to Real Madrid.

Images of Ronaldo in a dazzling white suit hobbling between star-studded engagements were splashed across tabloid newspapers and Ferguson will be dismayed at some of the reports of how his prized possession is spending his free time.

After arriving in Los Angeles on Tuesday, Ronaldo headed for the trendy nightclub Villa with two friends in tow. At one point the 23-year-old , who split with his girlfriend, Nereida Gallardo this week, reportedly put his crutches down to take to the dance floor with four models, before being served £10,000 worth of Cristal champagne. Not bad for a player who only last week agreed with Fifa president Sepp Blatter that he was being treated like a slave because of United's refusal to grant him his dream move to Spain.

At one point in the evening, Paris Hilton, the heiress and party animal, allegedly tried flirting with him, only to be spurned.

Ronaldo then went on to the ESPY sports award ceremony, at which he was nominated for best international male athlete. Among those attending the 'sporting Oscars' were singer Justin Timberlake and David and Victoria Beckham.

Ronaldo's behaviour may ultimately wear down Ferguson, according to Keane, the Sunderland manager. 'If a player wants to leave all he has to do is come in every day, not train with the right attitude and I guarantee you that would **** any manager off', he said".

13. In the Particulars of Claim, as originally served on 2^nd October, 2008 the Claimant complained of the following meanings:

"5. In their natural and ordinary meaning the said words meant and were understood to mean that by partying in Hollywood nightclubs, dancing without his crutches and drinking champagne when he should have been recovering from his recent ankle operation, the claimant was deliberately behaving in a manner calculated to dismay and/or anger his manager, Sir Alex Ferguson.

6. By way of innuendo the said words meant and were understood to mean that the claimant, who was, following his ankle operation, supposed to be resting and recuperating at a rehabilitation clinic in order to ensure that he would be able to return to playing football as soon as possible, instead flew to Hollywood where he went partying in nightclubs, dancing without his crutches, drinking champagne and deliberately behaving in a manner calculated to dismay and/or anger his manager, Sir Alex Ferguson".

14. On 3^rd September, 2009 amended Particulars of Claim were prepared in draft. They appear to have been served on 5^th October, 2009. The meaning now complained of is set out in paragraph 5:

"In their natural and ordinary meaning the said words meant, and were understood to mean, that by partying in a Hollywood nightclub villa, where he danced without his crutches, and drank copious amounts of champagne when he was recovering from his recent ankle operation, the claimant was behaving unprofessionally, irresponsibly and with a reckless indifference to his recovery".

The innuendo meaning and any reference in the natural and ordinary meaning to Sir Alex Ferguson had now been dropped.

15. In the re-amended Defence, served in response to the amended Particulars of Claim, the substantive defence is one of justification, although issue is taken, as in the Mirror action, as to whether the words complained of bear the meanings which are pleaded in the amended Particulars of Claim. In particular, the Telegraph pleads its case on meaning as follows:

"5. The ordinary reader would not have engaged in any elaborate thought process in relation to the sentence complained of nor reached any adverse impression of the claimant in relation to his recovery. Without prejudice to the generality of this contention:

5.1 The article is not about the claimant's operation or his recovery programme.

5.2 The central theme of the article is Sir Alex Ferguson's battle to keep the claimant to his contract with Manchester United. There is nothing in the article to suggest that the speed of the claimant's recuperation has any relevance to this.

5.3 The 'setback' to Sir Alex arises from the claimant choosing to pursue and flaunt a celebrity lifestyle in Los Angeles while complaining that he is being treated like a slave by Sir Alex for refusing to sanction his transfer. Various instances are set out in the article leading to the conclusion that 'Ronaldo's behaviour may ultimately wear down Ferguson'. There is nothing to suggest that the 'setback' relates to the claimant's recuperation from injury.

5.4 The obvious purpose of the sentence complained of is to contrast the claimant's lifestyle in Los Angeles with his claim to have been treated like a 'slave' for being tied to his contract; not to make any point about his recuperation.

5.5 The reader is given no information about the nature of the surgery or any recommendations for the claimant's recovery. The reader is simply told that the surgery was to the ankle, that the claimant is recovering from it, that he has crutches available to him and is hobbling.

5.6 The reader is given no information about what the claimant allegedly did on the dance floor. The reader is simply told that 'he reportedly put down his crutches and took to the dance floor with four models'. There is no claim that he placed any weight on his ankle - he was allegedly accompanied by four models - or that if he did, it would have been necessarily harmful to his recovery programme.

5.7 The taking to the dance floor is reported to have taken place before the service of the champagne.

5.8 As regards the consumption of alcohol, the article reports a claim that the claimant was 'served £10,000 worth of Cristal champagne'. It does not state that he drank all of it (or any of it), let alone that he was drunk. The reader is told that he was accompanied by 'four models' and 'two friends in tow'. Cristal champagne is well-know as being disproportionately expensive and popular with celebrities as a demonstration of wealth. The ordinary reader would have no reason to assume that £10,000 necessarily bought a large amount of Cristal champagne in a trendy Hollywood nightclub frequented by Paris Hilton.

5.9 The ordinary reader would have no reason to assume that drinking champagne on that occasion was detrimental to the claimant's recovery.

5.10 The article stated that the claimant 'went on' to the ESPY sports award ceremony, described as the 'sporting Oscars' and does not suggest that he was drunk while there.

5.11 If the article was intended to suggest that the claimant was drunk or had done something inconsistent with his recovery programme the reader would have expected this to have been stated explicitly".

16. The substantive plea of justification is set out in paragraph 6. The meaning that the Telegraph justifies is as follows:

"Shortly after having undergone surgery on his ankle and when he would otherwise have been due to return for pre-season training, and having publicly agreed with the suggestion that he was being treated like a 'slave' because of Manchester United's refusal to allow him to terminate his contract in order for him to fulfil his wish to move to Real Madrid, and having behaved out of line with the reasonable expectations of Manchester United, the claimant went on an unnecessary trip to Los Angeles, unconnected with Manchester United, notwithstanding the reservations of his medical team, during which he 'lived it up' and went 'out on the town' on crutches, thereby unnecessarily increasing the risk of injury to the ankle and/or lengthening the requisite period of recovery and absence from football, and generating inevitable media coverage, including photographs.

17. It is to be noted that in the particulars of justification which follow, the Telegraph does not suggest that the Claimant was drinking alcohol at any stage during his evening out in Los Angeles; nor is it suggested that he attempted to dance with or without crutches.
18. In paragraph 10 of the re-amended Defence the Telegraph relies (as does the Mirror) on section 12 of the Defamation Act 1952. It is said in paragraph 10.2,

"The Claimant has made claims against MGN Ltd and Sports Newspapers Ltd. in respect of the publication of words to the same or similar effect as the words on which he has brought these proceedings. The Defendant reserves the right to rely on these and any other claim under s.12 of the Defamation Act 1952".

19. The Claimant's witness statements are, as I understand it, in virtually identical form in both actions, save that there is one additional witness statement - that is, from Roy Keane in the Telegraph action. The Telegraph relies on a witness summary of Sir Alex Ferguson and a hearsay notice of Miss Niki Ghazian. I will shortly have to decide, after the hearing of this application whether the Telegraph should be permitted to adduce that evidence because I understand that its relevance and admissibility is disputed by the Claimant.
20. All that is by way of a very lengthy but necessary introduction to the application made on behalf of the Claimant that these two actions should be tried together.
21. The points made on behalf of the Telegraph by Mr. Price, who appears on its behalf, are these:

a. First, in essence, the character and content of the two articles which are complained of in these two actions are very different, even though the meanings complained of now are the same or very similar;

b. The reality is that the focus of the complaint as originally formulated in the Telegraph action concerned was what was said to be the reaction of Sir Alex Ferguson. Had it not been for that, the Telegraph article would have simply appeared as a particular relied on in aggravation of damages in the Mirror action, as did other articles which appeared following the publication of the Mirror article. The Claimant's real complaint is about what is published in the Mirror action, and the Telegraph article is really a tail-end to that complaint;

c. There is a real risk of prejudice to the Telegraph if the two actions are tried together because there are important differences between them, first of all, as to the nature and character of the articles complained of; and secondly, as to the defences which are relied on in both actions. It is said, for example, that the plea of justification relied on by the Telegraph is both narrower and broader as to the matters which are relied on; and there is a defence of fair comment in the Mirror action but not in the Telegraph action;

d. When looked at in the round therefore, there is a real risk of injustice to the Telegraph if its action is tried with that of the Mirror because the Telegraph, if one can put it in colloquial language, will be tarred with the same brush as the Mirror, in particular on the issue of meaning, even though the articles are very different.

22. Mr. Price also submits that though section 12 is relied on by each defendant, it would be better if the jury in the Telegraph action had the benefit of considering what actual sum was awarded against the Mirror, if any, when considering what sum, if any, should be awarded in respect of the words complained of in the Telegraph action.
23. Mr. Adam Speker, who appears on behalf of the Claimant, submits that it will be cheaper if both actions are tried together. It will be more convenient because the same witnesses are relied on by the Claimant in both actions. He also suggested that it may avoid different and inconsistent verdicts being given in both actions. He submits there is a substantial overlap so that it would be in accordance with the overriding objective if the actions were heard and tried together.
24. Miss Evans appears on behalf of the Defendant in the Mirror action. Her stance is that she takes no objection to the actions being tried together. She submits that when one looks at the matter in terms of the overriding objective, there may be some saving in costs, but effectively the Mirror's stance is a neutral one.
25. So far as the question of the length of the trials is concerned, the current time estimate if there is a joint trial, as I understand it, is five to seven days, but the estimate for each trial, if it were tried separately, is three to four days.
26. I have come to the clear view that it would be better if these actions were not tried at the same time, and that the trial of the Telegraph action should follow that of the Mirror action. It seems to me that there are significant differences between them, in particular in relation to the meanings that are justified and as to the character of each of the articles complained of; and I think Mr. Price is right when he says that there is a risk, whatever direction is given by the judge, that the jury's view of the meaning of the Telegraph's article will be affected by the view that it takes of the Mirror article.
27. Mr. Speker submits that juries up and down the land in criminal cases are well able to distinguish, for example, between defendants, and they are considered capable of following directions that are given in relation to any particular issue that arises against one defendant, and to consider the position of each defendant separately. Of course, he is right about that. However, he is unable in my view to identify any real prejudice to the Claimant if the actions are tried separately, save in respect of costs. It seems to me that when one balances the extra costs - and I accept that there may be some extra costs if the actions are tried separately - against the risk of injustice to the Defendant in the Telegraph action if the jury were unable to approach the matter properly, then it seems to me that the balance lies in favour of having these two actions tried separately. That therefore is the order that I make.
(LATER)
28. I am invited to rule now in relation to the question of costs which has arisen following the various amendments that have been made to the pleadings in this case.
29. The Particulars of Claim, in the Telegraph action, were served on 2^nd October, 2008. The Defence was served on 24^th November, 2008 pleading justification and fair comment. There was an amended Defence on 26^th June, 2009. The amended Particulars of Claim were served on 3^rd September 2009. The re-amended Defence was served on 23^rd September, 2009.
30. The issue in relation to costs, which I have been invited to resolve at this stage, is whether the costs of the abandonment by the Telegraph of its defence of fair comment should be paid by it or whether it should not have to do so because the abandonment of the defence of fair comment was consequential upon an amendment to the meaning made by the Claimant in the amended Particulars of Claim.
31. Mr. Speker draws my attention to a ruling by Mr. Justice Eady in the case of Taranissi -v- BBC where he was invited to deal with the question of costs in relation to the abandonment of a defence of qualified privilege. He said this:

"Secondly, there is the issue of principle. Should the claimant have the costs of this discreet issue? The defendants chose to raise it and chose to abandon it. For all I know their reasons may have been good in the first instance, but that does not detract from the principle. The reasons do not particularly matter and I am not going to come to a conclusion as to what those reasons are. As so often in litigation, there may very well be a combination of reasons, but no doubt if it had been the case that they had been led to plead matters as a result of being misled by the other side, that might justify a special order. In the present circumstances, however, it seems to me that costs should follow the event".

I do not take what Mr. Justice Eady there says as his view that it is only in circumstances where a pleading has been withdrawn as a result of a party being misled by the other side, that the party withdrawing the pleaded issue, whatever it might be, should be entitled to their costs. It seems to me that if a party withdraws an issue as a result of change of or a narrowing of case by the other side, then the court is entitled to look at the matter in the round and decide what the fair order for costs should be.

32. I have before me a witness statement of Mr. Rhidian Wyn Davies on behalf of the Telegraph. He is the consulting editor of the Daily Telegraph. He makes this statement specifically in relation to the recent amendment of the Particulars of Claim and the re-amendment of the Defence. He says:

"On 3^rd September amended particulars of claim were served. The main amendment was significantly to narrow the pleaded meaning. It was said that the purpose of the amendment was to bring the pleaded meaning in line with the meaning in the Mirror Group claim".

I think all I need note in relation to that amendment, as I have already indicated, is that the reference to Sir Alex Ferguson in the original pleaded meaning, both in the natural ordinary meaning and in the innuendo meaning has been deleted by amendment. Mr. Wyn Davies goes on:

"From the outset, the Sir Alex Ferguson element had been central to the claim. We were satisfied that we could defend what was written primarily as fair comment; alternatively, as substantially true. However, once the claimant dropped this aspect of his claim there was no need for us to do so. That is why we did not pursue para. 7.2, 7.2(4), 7.2(6) and 8 of the amended defence. I confirm that the only reason that these paragraphs were not pursued was because of the change to the meaning complained of in the amended particulars of claim. It had nothing to do with any change of assessment relating to the prospect of success".

Mr. Speker has sought to persuade me to infer, notwithstanding what is said in the witness statement, that the real reason the plea of fair comment was withdrawn was because the Defendant was running scared as a result of the emergence of the fact that the person who is identified in the newspaper article as having written it, namely a Mr. Charles Carrick, in fact does not exist and that the person who really wrote the article is, I think, a Mr. Hayes.

33. The second matter Mr. Speker relies on is the emergence of material which he suggests puts a completely different complexion on statements by Mr. Roy Keane which were quoted in the Telegraph article. He says when looked at in their context, the statements that were quoted and relied on in the Defence were plainly a misrepresentation of what Mr. Keane actually said. In the light of that, and the potential therefore for a plea of malice which would defeat the defence of fair comment, he invites me to infer the real reason the defence of fair comment was abandoned was that the Telegraph were concerned that if it remained in play, embarrassing matters supportive of malice would emerge, and would defeat that defence. In this context he also draws attention to the fact that a 'Reynolds' plea of privilege was withdrawn by the Telegraph at the same time.
34. I am not prepared to draw that inference for these reasons: first of all, in the light of the witness evidence of Mr. Wyn Davies; and, secondly, because it seems to me that on the face of it, the withdrawal of the plea of the defence of fair comment was a legitimate response to the change in the way the Claimant put his case. He originally complained of a meaning relating to Sir Alex Ferguson, which, in my view, gave rise to the defence of fair comment as originally pleaded, and then chose to change that meaning at a very late stage. It may not be without significance that this was done after the Claimant, Mr. Ronaldo, had left Manchester United. I know not, but the fact remains that that is a sequence of events. In the result, I am not prepared in the face of the evidence from Mr. Wyn Davies, and what appears to be a legitimate response to the change of case of the Claimant, to hold that the withdrawal of the plea of fair comment must be met by an order of costs adverse to the Telegraph.
35. In those circumstances it seems to me that the draft orders which have been placed before me by Mr. Price in his skeleton argument at paragraph 6, with the addition of the words 'supplementary disclosure' in sub-paragraph (a) are appropriate orders to make in this case. I should add for the avoidance of doubt that Mr. Price accepts on behalf of the Telegraph as he states in paragraph (c): "Our client pays to your client in any event any costs of and caused by the re-amendments to the defence that are not attributable to (a) above", namely that the costs of and occasioned by the defence of qualified privilege, which has been withdrawn, and which insofar as those costs are over and above the matters which relate to fair comment, should be paid by the Telegraph to the Claimant in any event.
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