JUDGMENT-1:
TUGENDHAT J:
[1] The Defendant in this claim for libel applies to dismiss or stay the
action on the grounds that Scotland is the more appropriate forum in
which to bring this claim, alternatively that the words complained of are
incapable of bearing the meanings pleaded by the Claimant.
[2] The Claimant is a well known footballer who plays for C.. The
Defendant publishes the D. R.. The action is brought in respect of articles
published in the D. R. on 20 December 2002.
[3] The words complained of will need to be set out in full when I come
to consider the issue of meaning. For the purposes of the application
for a stay they can be summarised as follows. The page 1 story (which
continued on pages 6 and 7) is headed "Toon cops will quiz ALL C. squad".
It recounts that members of the C. team emerged from a nightclub in
Newcastle and chased a D. R. photographer, P. Ch., robbing him of £
12000 worth of camera equipment. It is fundamental to the claim that the
court find that the Claimant will have been understood by readers to have
been one of the guilty players, or, in a lesser meaning, probably one of
the players.
FORUM NON-CONVENIENS - THE CORRECT APPROACH IN LAW
[4] Both counsel agree that there is jurisdiction to order a stay of
proceedings brought in England if on the principle of forum non-
conveniens the action ought to be tried in Scotland. However, jurisdiction
cannot be conferred on a court by agreement, and both counsel drew my
attention to the possibility that there might in fact not be such jurisdiction
and invited me to consider whether there is or not.
[5] The point is discussed in Gatley on Libel and Slander 10th ed para
24.35 note 99. It arises from a note in the 3rd cumulative supplement to
Dicey & Morris on Conflict of Laws 13th ed para 12-014. That reads:
". . . in cases where the Judgments Regulation . . . confers jurisdiction
on the courts for the place where the harmful event occurred, as would
be the case under Art 5(3) of the Regulation . . . it would be inconsistent
with the Regulation . . . for a stay of proceedings to be ordered in favour
of the courts of another place (such as Scotland) within the United
Kingdom."
[6] The Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act")
brought the Brussels Convention on Jurisdiction and Enforcement of
Judgments in Civil and Commercial Matters into English law. A further
Act of that name in 1991 Act did the same for the Lugano Convention,
which introduced a number of EFTA states into the same legal framework.
The Brussels Convention itself laid down jurisdictional rules as between
member states, not as between parts of member states such as England
and Scotland. The 1982 Act (s 16 and Sch 4) provided an equivalent set
of rules for the parts of the United Kingdom. Since then, the Judgments
Regulation (Council Regulation (EC) No.44/2001 of 22 December 2000)
has resulted in amendments to the 1982 Act, introduced by the Civil
Jurisdiction and Judgments Order 2001, SI 2001 No 3929.
[7] The Regulation, Art 1 provides that 'Subject to this Regulation,
persons domiciled in a Member State shall, whatever their nationality,
be sued in the courts of that Member State'. Accordingly, the defendant,
being domiciled in the United Kingdom, must be sued in the United
Kingdom. The requirements of the Regulation are met, whether the
defendant is sued in England and Wales, or in Scotland.
[8] Article 5 of the Regulation provides:
"A person domiciled in a Member State may, in another Member State, be
sued ... (c) In matters relating to tort, delict or quasi-delict, in the courts
for the place where the harmful act occurred or may occur.'"
[9] That has no application to the present case. The defendant is being
sued in the United Kingdom (in England), and is not being sued in another
Member State.
[10] The 1982 Act s.16, (as amended by SI 2001 No 3929) reads as
follows (so far as is relevant):
'(1) The provisions of Schedule 4 (which contains a modified version of
Chapter II of the Regulation) shall have effect for determining, for each
part of the United Kingdom, whether the courts of law of that part, or any
particular court of law of that part, have or has jurisdiction in proceedings
where
(a) the subject matter of the proceedings is within the scope of the
Regulation as determined by Art 1 of the Regulation (whether or not the
Regulation has effect in relation to the proceedings); and
(b) the defendant or defender is domiciled in the United Kingdom or the
proceedings are of a kind mentioned in Art 22 of the Regulation (exclusive
jurisdiction regardless of domicile).'
[11] Schedule 4 now reads as follows:
'Art 1 Subject to the rules of this Schedule, persons domiciled in a part of
the United Kingdom shall be sued in the courts of that part.
Art 2 Persons domiciled in a part of the United Kingdom may be sued in
the courts of another part of the United Kingdom only by virtue of rules 3
to 13 of this schedule.
Art 3 A person domiciled in a part of the United Kingdom may, in another
part of the United Kingdom, be sued . . . (c) In matters relating to tort,
delict or quasi-delict, in the courts for the place where the harmful act
occurred or may occur.'
[12] Section 49 of the 1982 Act was not amended by the Judgments
Regulation or the 2001 Order. It therefore still reads:
'Nothing in this Act shall prevent any court in the United Kingdom from
staying, sisting, striking out or dismissing any proceedings, before it, on
the grounds of forum non conveniens or otherwise, where to do so is not
inconsistent with the 1968 Convention or, as the case may be, the Lugano
Convention.'
[13] In Cumming v Scottish D. R. & S. M. Ltd [1995] EMLR 538, Drake
J held that the Brussels Convention 1968, as incorporated into English
law by the 1982 Act, did not prevent English courts from applying the
doctrine of forum non conveniens with respect to territorial jurisdictional
disputes within the United Kingdom, as opposed to such disputes between
the United Kingdom and any other Contracting State (in relation to which
the 1982 Act applied the allocation regime prescribed by the Convention).
[14] The Judgments Regulation has made no difference to the juridical
principle identified by Drake J in Cumming. Article 5 to the "old" Sch 4
to the 1982 Act provided as follows, which is substantially similar to the
words of the amended Schedule set out above:
'A person domiciled in a part of the United Kingdom may, in another
part of the United Kingdom, be sued: . . . (3) in matters relating to tort,
delict or quasi-delict, in the courts for the place where the harmful event
occurred or in the case of a threatened wrong is likely to occur.'
[15] Put simply, the position always was, and remains, that no legislation
allocating jurisdiction within the United Kingdom will be inconsistent with
the Brussels Convention, or the Lugano Convention or the Regulation,
because those instruments allocate jurisdiction between Member States.
Scotland and England and Wales are two separate jurisdictions, but they
are parts of the United Kingdom, not separate Member States. See Collins
and Davenport 110 LQR 325 and Dicey & Morris 13th ed para 12-014.
[16] Accordingly, in my judgment, the agreement between counsel
properly reflects the law applicable in this case.
[17] The footnote in the Supplement to Dicey & Morris appears to me to
be addressed to a different factual scenario from the one applying here.
If the defendant were domiciled in the Republic of Ireland, then Art 1 of
the Regulation would require that it be sued in Ireland, subject to Art 5.
If the action were brought against it on a newspaper distributed by it in
England then the English courts would be the courts of the place where
the harmful event occurred (within Art 5(3)). The question might then
arise whether the English court was entitled to stay the action on the
ground that Scotland was a more appropriate forum. The answer to that
question might then depend on whether 'the place' referred to in Art 5(3)
is (a) the United Kingdom, or (b) a part of the United Kingdom, namely
England. If 'the place' is the United Kingdom, then it would not appear
to be inconsistent with the Regulation to stay the proceedings in favour
of the courts of Scotland (any more than it would be inconsistent with
the Regulation to transfer the case from London to Newcastle). But if
'the place' is to be understood as meaning one of the three jurisdictions
which make up the United Kingdom, namely Scotland, Northern Ireland
or England and Wales, then an inconsistency appears. The authors of
the footnote appear to interpret 'place' in Art 5(3) of the Regulation
as referring to a part of the United Kingdom, for example Scotland, as
opposed to England and Wales. Whether they are right or not does not
arise in the present case. Since this has not been argued before me, I
express no view upon it.
[18] Both counsel also agree on the general principles which are
embodied in the doctrine of forum non conveniens. I am content to take
them as summarised by Mr Barca for the Defendant in his Skeleton
argument as follows, deriving them from Spiliada Maritime Corpn v
Cansulex [1987] AC 460, [1986] 3 All ER 843, HL, where Lord Goff
reviewed and re-stated the requirements for granting a stay on principles
of forum non conveniens.
[19] In a case where the defendant has been served within the
jurisdiction, the approach to be adopted by the court is essentially as
follows:
"i) The basic principle is that a stay will only be granted on the grounds
of forum non conveniens where the court is satisfied that there is some
other available forum, having competent jurisdiction, which is the
appropriate forum for the trial of the action, ie in which the case may
be tried more suitably for the interests of all the parties and the ends of
justice. (476B-C)
ii) Initially, the burden rests upon the Defendant, " not just to show
that England is not the natural or appropriate forum for the trial, but to
establish that there is another available forum which is clearly or distinctly
more appropriate than the English forum: (477D-E)
iii) In considering this initial question, the court considers whether there
are "connecting factors" which point to the conclusion that some other
forum is prima facie more appropriate, in the sense of being "that with
which the action has the most real and substantial connection". Such
"connecting factors" include those affecting convenience and expense,
the law affecting the relevant transaction, and the place where the parties
respectively reside or carry on business. (477F-478B)
iv) If the court's conclusion at this stage is that there is:
". . . some other available forum which is prima facie clearly more
appropriate for the trial of the action, it will ordinarily grant a stay,
unless the plaintiff can discharge the burden of showing that there are
nonetheless circumstances by reason of which justice requires that a
stay should not be granted. In this inquiry, the court will consider all the
circumstances of the case, including circumstances which go beyond
those taken into account when considering connecting factors with other
jurisdictions." (478C-D).
v) At 475D-476B, Lord Goff explicitly stated that:
"it was necessary to strike a note of caution regarding the prominence
given to a "legitimate personal or juridical advantage" of the plaintiff",
indicating (at 482B-483D) that such an advantage was not decisive and
was just one factor to be considered in assessing "the interests of all the
parties and the ends of justice."
[20] Lord Goff also recognised (at 478F-479C and 481B-G) that where
a claimant brought proceedings only with the permission of the court,
and not as a matter of right, the court's jurisdiction to permit service out
of the jurisdiction was "extraordinary" and to be exercised consistently
with principles of comity. This is not a factor in cases where the two
jurisdictions in question are both within the UK, because service will be as
a matter of right.
[21] One "juridical advantage" which parties habitually perceive is the
fact, where it be such, that damages -are more generously awarded in
one jurisdiction as compared with the other. Claimants are attracted to
jurisdictions which award higher damages and defendants by those which
award lower damages, other things being equal.
[22] Here Mr Barca submits that it is a well-known fact that awards
for damages in defamation are higher in England than Scotland. This,
he submits, is because Scots law only permits general damages to be
awarded by way of a solatium for the "affront" caused by the libel. The
absence of any allowance in the award for public vindication means that
awards are invariably modest (and often nominal) in the absence of any
evidence of actual damage by way of economic loss or injury to health.
He cites Norrie on Defamation and Related Actions in Scots Law (1995),
at pp 164-73. He submits that the English courts must thus be vigilant to
ensure that they are not used as a vehicle to circumvent what claimants
perceive to be the less "remunerative" attitude to damages under Scots
law. Any other approach, he argues, would result in the English courts
having a jurisdictional trump-card with respect to any defamatory Scottish
publication involving a comparatively small cross-border publication.
[23] I am not impressed by this submission. The argument is
symmetrical. The fact that the jurisdiction contended for by a defendant
in an application for a stay is more favourable to defendants generally
would, on this footing, result in Scottish courts having a jurisdictional
trump-card.
[24] Lord Goff addressed this question at p483 as follows:
'Clearly, the mere fact that the plaintiff has such an [juridical] advantage
in proceedings in England cannot be decisive. As Lord Sumner said of the
parties in the Société du Gaz case, 1926 SC (HL) 13, 22:
"I do not see how one can guide oneself profitably by endeavouring to
conciliate and promote the interests of both these antagonists, except in
that ironical sense, in which one says that it is in the interests of both that
the case should be tried in the best way and in the best tribunal, and that
the best man should win."
Indeed, as Oliver LJ [1985] 2 Lloyd's Rep 116, 135, pointed out in his
judgment in the present case, an advantage to the plaintiff will ordinarily
give rise to a comparable disadvantage to the defendant; and simply
to give the plaintiff his advantage at the expense of the defendant is
not consistent with the objective approach inherent in Lord Kinnear's
statement of principle in Sim v Robinow, (1892) 19 R 665, 668.
The key to the solution of this problem lies, in my judgment, in the
underlying fundamental principle. We have to consider where the case
may be tried "suitably for the interests of all the parties and for the ends
of justice." Let me consider the application of that principle in relation
to advantages which the plaintiff may derive from invoking the English
jurisdiction.
Typical. examples are: damages awarded on a higher scale; a more.
complete procedure of discovery; a power to award interest; a more
generous limitation period. Now, as a general rule, I do not think that the
court should be deterred from granting a stay of proceedings, or from
exercising its discretion against granting leave under RSC Ord. 11, simply
because the plaintiff will be deprived of such an advantage, provided that
the court is satisfied that substantial justice will be done in the available
appropriate forum . . .'
[25] Defendants applying for a stay will commonly advance their case by
setting out what they submit the issues of fact in the action are likely to
be, what witnesses will be required to give evidence, and what the issues
of law will be, and how they will be presented. Powerful arguments can
be advanced on the basis that, for example, the main issue in the action
is one of fact where all or most of the witnesses are in the jurisdiction
contended for by the defendant, or that the issues of law are ones
governed by the law of the jurisdiction contended for by the defendant.
[26] In a libel action where the central issue is meaning it might also be
possible to argue in an appropriate case that the tribunal of fact, usually
a jury, should be drawn from the community within which the words
complained of had a substantial circulation. There may be cases where
the reasonable reader of a Scottish newspaper would have a knowledge
or understanding relevant to meaning (or for that matter to reference)
which a tribunal elsewhere (for example a London jury) might lack. There
are cases where the issue of meaning, or the seriousness of a meaning,
is sensitive to facts known, or understandings held, amongst particular
communities.
[27] That is not how the defendants have advanced their case before
me. When I asked what the issues were likely to be (none being
identified in their skeleton argument) I was told that it was unlikely that
the defendants would attempt to prove the truth of the allegation of
involvement in robbery which the claimant alleges is the meaning of
the words complained of. I was told that the central issues will be the
meaning of the words complained of, and, if that is resolved in favour
of the claimant, then damages. Since the claimant is suing only on the
publication in England, issues other than damages (see Norrie p186)
would in principle fall to be decided by English law. It was not suggested,
nor could it have been, that on the particular facts of this case an English
jury would be less well equipped to decide the issue of meaning than
would a Scots jury.
[28] In fact it is unrealistic to contemplate the trial of the precise claim in
this action in Scotland. If the proceedings are stayed, and if the claimant
is minded to sue in Scotland, the realistic outlook would be that he would
then sue on the Scottish publication, as well as all foreign publications,
without either side considering it necessary to plead or prove either
English or any other foreign law. That is what commonly happens in libel
actions in England. So unlike almost all other types of litigation where the
issue of forum conveniens is considered, the realistic outcome here (if the
defendant succeeds) would be that this action (specifically on the English
publications) would not be tried at all, but an entirely different action (on
Scottish publications, with or without worldwide publication) would be
pursued in Scotland under Scots law.
[29] Not being in. a position to advance arguments such as the
convenience of witnesses, or the difficulty of proving foreign law in the
claimant's chosen jurisdiction, or the appropriateness of an English jury,
the arguments on what is the appropriate forum were directed by Mr
Barca at the merits of the claim. He pointed out that the defendants, and
other newspapers circulating in Scotland had published a great deal of
material concerning the claimant on days either side of 20 December (the
date of the publication sued on) and that the claimant had not sued on
these. He cast doubt on the motivation of the claimant, pointing to the
fact that proceedings were issued only just within the one year English
limitation period, and that the only letter before action had been on 20
December itself, and had referred to publications on 19 December, not
those now sued on.
[30] The defendants also point out that on 20 December 2002, over 20
times as many copies of their newspaper were sold in Scotland as in
England: 461,294 copies compared with a mere 22,069 in England. Using
their own, and commonly accepted calculations, it can be taken that the
readership would have been up to three times those figures. But these
figures seem to me to assist the claimant rather than the defendant.
22,069 copies, and up to three times as many readers, represent a
substantial circulation upon which to sue for libel. The fact that there may
be twenty times as many readers in Scotland is not, of itself, a reason for
not suing in England.
[31] In summary, Mr Barca accepted that the action is not an abuse of
process, although he submitted that it comes close to that. I do not find
these arguments helpful on this application. If a claimant brings the action
in England as of right, and if the defendant otherwise fails to satisfy the
burden of showing that Scotland is a more appropriate forum, it does not
seem to me that the alleged weakness of his case on the merits, or his
failure to sue on other possible libels, is a reason for holding that Scotland
is the more appropriate forum.
[32] Mr Parkes QC for the claimant submits that other relevant facts
relied on by the Claimant may be summarised as follows. The Claimant
was born in Northern Ireland but left it in October 1987 when he was
aged sixteen. He then played for English clubs for thirteen years, until
December 2000, when transferred to C.. He has played for C. since
December 2000 (ie for two years at the date of publication). As a C.
player he has a reputation in England. He played for Leicester City since
February 1996 and made his home in Leicester. That is where he has
put down roots and where his permanent home remains. He has many
friends there, both within and outside football, and returns there as often
as he can (two to three weeks in the summer and at least five times
per season). His connections there remain strong, and he was made
"Leicester City's Best Player in the Last Decade" at a dinner in spring
2003. He is likely to retire there when his career is over. His 11 year
old daughter lives in Manchester with her mother. He visits her at least
once a fortnight. He has played international football for Northern Ireland
and captained the team until forced to give up international football
by "Loyalist" terrorist threats. Those events were widely publicised in
England. The Claimant presently has a flat in Glasgow, and has great
affection for Scotland and C.. If he leaves C. the chances are that his next
club would be English. The incident referred to in the article took place in
England.
[33] None of these matters is in issue. On the other hand, the defendant
emphasises that the Claimant does now live in Scotland, and plays for a
Scottish team.
[34] The Claimant also states that (as a Northern Irish Roman Catholic)
he is unhappy about the religious sectarianism of Glaswegian life, and
does not want to conduct libel litigation against a sectarian backdrop. This
is a submission that appears to assume that litigation in Scotland would
be conducted in Glasgow. Mr Barca submits that a libel action such as this
would almost certainly be litigated in Edinburgh. I do not need to make
any finding on this submission, and do not do so. However, I do observe
that there have been criminal cases in involving allegations of assault
by famous footballers, and it is sometimes considered appropriate that
such cases be tried away from the place where the footballers in question
habitually play, in order that the jury should appear independent and
impartial. There could be similar arguments in a case such as the present.
[35] The upshot is that I accept that the Claimant has real connections
with England, as he does with Scotland, and that he has an existing and
substantial reputation in both jurisdictions.
[36] In support of his contention that England is the appropriate forum,
Mr Parkes QC makes the following submissions:
i) The relevant tort (the "harmful event" within Sch 4, Art 3(c) of the
1982 Act) occurred in England, by publication of a very substantial
number of copies of the D. R.. The Claimant only sues on publication in
England, where damage is presumed (Shevill v Press Alliance [1996] AC
959).
ii) There is a general presumption, on which the Claimant is entitled
to rely, that the natural forum in which to try a dispute is that of the
jurisdiction where the tort was committed (The Albaforth [1984] 2 Lloyd's
Rep 91; Berezovsky v Michaels [2000] 1 WLR 1004). That is a "weighty
factor" pointing to the appropriateness of the English jurisdiction.
iii) The Claimant plainly has an important reputation to defend in England,
and the English courts are the natural forum for achieving vindication of a
reputation in England (King v Lewis [2004] EWHC 168 (QB)).
iv) It is uncertain what (if any) substantive defences might be pleaded,
but it is unlikely that there could be any significant difference in terms
of costs and convenience between trying the Claimant's complaint
in England or in Scotland (none being suggested in the Defendant's
evidence).
[37] I accept Mr Parkes QC's submissions. The defendant has failed to
satisfy me that Scotland is the appropriate forum for the trial of the
action, that is to say, that it is the jurisdiction in which the case may be
tried more suitably for the interests of all the parties and the ends of
justice. The application for a stay will be dismissed.
MEANING - THE APPLICABLE PRINCIPLES
[38] The applicable principles are uncontroversial. The judge's function,
namely to delimit the range of meanings of which the words are capable
and to rule out any meanings outside that range, is an "exercise in
generosity, not in parsimony" (Berezovsky v Forbes [2001] EMLR 45 at
[16], per Sedley LJ). Eady J produced an "impeccable synthesis" of the
authorities (Lord Phillips MR, on appeal: [2001] EWCA Civ 1263 at [7]) in
Gillick v Brook Advisory Centres:
'The proper role for the judge when adjudicating a question of this kind
is -to evaluate the words complained of and to delimit the range of
meanings of which the words are reasonably capable, exercising his or
her own judgment in the light of the principles laid down in the authorities
and without any of the former Order 18 Rule 19 overtones. If the judge
decides that any pleaded meaning falls outside the permissible range,
then it will be his duty to rule accordingly. In deciding whether words are
capable of conveying a defamatory meaning, the court should reject those
meanings which can only emerge as the produce of some strained or
forced or utterly unreasonable interpretation. The purpose of the new rule
is to enable the court to fix in advance the ground rules and permissible
meanings, which are of cardinal importance in defamation actions, not
only for the purpose of assessing the degree of injury to the claimant's
reputation but also for the purpose of evaluating any defences raised, in
particular, justification and fair comment.
The court should give the article the natural and ordinary meaning which
it would have conveyed to the ordinary reasonable reader reading the
article once. Hypothetical reasonable readers should not be treated
as either naive or unduly suspicious. They should be treated as being
capable of reading between the lines and engaging in some loose
thinking, but not as being avid for scandal. The court should avoid
an over-elaborate analysis of the article, because an ordinary reader
would not analyse the article as a lawyer or accountant would analyse
documents or accounts. Judges should have regard to the impression the
article has made upon them themselves in considering what impact it
would have made on the hypothetical reasonable reader. The court should
certainly not take a too literal approach to its task.'
[39] Mr Barca also submits that in assessing the attitude and disposition
of the "hypothetical reasonable reader", as summarised by Neill LJ in
Gillick, the Court must apply contemporary standards of reasonableness
relevant to an age of almost constant exposure to all manner of media
(traditional and electronic). It would be wrong to hark back to a time
when the courts were perhaps prepared to assume a greater potential
for suggestibility among members of the public. As Eady J observed in
Lukoviak v Unidad Editorial SA [2001] EMLR 46 (at para 47, speaking in
the context of qualified privilege):
"Under the Human Rights Act 1998, the courts must have regard to
the latest developments in the jurisprudence of the European Court of
Human Rights. This would include the situation when an English judge
is called upon to rule on 'social or moral' duty. It would seem also to be
necessary, in view of the elasticity of this form of qualified privilege, for
a judge to have an eye to the continuing changes in social conditions in
most of the developed countries. It is necessary, in particular, to take
account of the rapid growth in electronic communications over the last
few years and the consequences of now living, in effect, in a global
village. Moreover, the media are now widely recognised as having the
right, and indeed duty, to impart information and ideas, and especially
with regard to matters of public interest: see eg Bladet Tromso v Norway
(1999) 29 EHRR 125; Thorgeirson v Iceland 14 EHRR 843; Reynolds v
Times Newspapers Ltd (cited above), and McCartan Turkington v Times
Newspapers Ltd [2000] 4 All ER 913. Correspondingly, the public is
more readily acknowledged nowadays as having a right to receive such
information and to be kept up to date. It is perhaps also fair to say that
ordinary citizens are now perceived by the courts, both domestic and
international, as having stronger stomachs and more discriminating
judgment than was traditionally recognised." (emphasis added by the
defendant)
[40] Mr Barca explicitly recognises that that passage is in the context of
qualified privilege, and there is no corresponding passage in relation to
meaning. Nevertheless, it seems to me that there is force in his point that
a modem readership can be treated as more discriminating and better
able to understand what they read. The ordinary reader must presumably
now be credited with having achieved a level of education which was not
widely accessible to earlier generations.
[41] Mr Parkes QC also relies on Jameel v Wall Street Journal [2003]
EWCA Civ 1694. At paras [9] and [14] Simon Brown LJ (as he then
was) drew attention to what a judge's ruling excluding a meaning really
amounts to. At para [9] he said it involves his saying that 'no reader could
reasonably understand the words to bear any meaning outside the range
delimited . . . by the judge; and that it would be "perverse" for any jury
to do so . . .'
[42] The words complained of, as set out in the Particulars of Claim, are
as follows:
"(on the front page)
Toon cops will quiz ALL C. Squad
EXCLUSIVE
By ROBERT FAIRBURN
Detectives are preparing to travel to Scotland to quiz the entire C. squad
after their Christmas night of shame in Newcastle.
Officers in Northumbria are now studying CCTV footage - and also have
appealed for witnesses.
The move comes after D. R. photographer P. Ch.'s £ 12,000 cameras were
taken from him outside B. J.'s nightclub in Newcastle, on Tuesday night.
The digital memory cards were stolen.
Three C. players – B. P., Jo. M. and J. V. - were held in police cells on
suspicion of robbery.
They were released on police bail on Wednesday evening.
They are due to return to Gateshead police station on March 24, when
they will find out whether they have been charged, if bail will continue or
the case has been dropped.
A Northumbrian Police source said last night:
"This is not finished by a long shot. We intend to travel north and speak to
anyone else who might have been involved."
The police have held on to the damaged cameras for forensic tests. They
also took P.'s jacket, shirt and camera bag to assist their inquiries.
The R. told yesterday. how the (text continues on p 7)
Cops head to Glasgow to quiz C.
FROM PAGE ONE
C. party had been involved in a rumpus with bouncers at B. J.'s and were
snapped by P. and other photographers.
Several players surrounded P. and wrenched his cameras from him,
ripping out the digital cards . . .
(immediately above Cops head to Glasgow to quiz C. appeared copies of
two previous front pages of the D. R. which read as follows)
(first reproduction of a former D. R. front page)
EXCLUSIVE
THE TRUTH BEHIND C. STARS' SHAME
THUGS & THIEVES
"I was terrified . . . they were out to give me a doing."
(second reproduction of a former D. R. front page)
C. STARS RUN AMOK
L. led away in handcuffs
(the following article appeared on page 6)
Our man hands over clothes as evidence
by R. F.
The clothes worn by R. photographer P. Ch. during the Newcastle fracas
have been taken for examination by police.
In the wake of his allegations, officers took his jacket and shirt and they
will be examined by forensic experts as they search for key evidence to
identify his attackers.
They have also kept his badly damaged cameras for fingerprinting and
possible DNA testing. P. had joined other photographers situated outside
B. J.'s.
The C. party was already inside.
. . .
Journalists from another newspaper were inside when trouble broke out
and the players were ejected.
P. captured the scene before his flash attracted the attention of the C.
party and he was chased, pinned to the ground and had his kit removed
and damaged.
When officers from Northumbria Police interviewed P. later at his
Newcastle hotel, it was evident they were taking the matter very
seriously.
They took away his coat and also a grey shirt for evidence purposes.
His cameras were already in the possession of the police but a camera
bag was also taken the following morning with the police anxious not
leave any stone unturned during the investigation.
(in the adjacent column to Our man hands over clothes as evidence
appeared the following piece)
R. DEBATE
What do you think of the behaviour of C. players in Newcastle?
. . .
They have let the club down badly. It's amazing how N. L. can chase a
photographer down but he can barely run on the pitch!
[43] The meanings pleaded by the Claimant are that the Claimant
pursued and robbed a D. R. photographer of £ 12,000 worth of camera
equipment, or that it is highly likely that he did so. In other words there is
a higher pleaded meaning of actual guilt of robbery, and a lesser meaning
expressed in terms of that being 'highly likely'. Less defamatory meanings
than either of these could be formulated as possible meanings.
[44] Mr Parkes QC submits that the real issue is how far the articles are
capable of implicating the Claimant. He stresses the following factors in
his submission:
i) It is plainly suggested that a substantial number of C. players were
involved in the incident outside B. J.'s: see the headline, "Toon cops
will quiz all C. squad"; and that the entire party had been involved in a
rumpus with bouncers and was ejected together from the nightclub, to
be photographed by Mr Ch., whereupon he was chased and set upon.
"Several" players are said to have surrounded Mr Ch. and taken his
equipment. The arrest of three players (not including the Claimant) for
robbery is said to be far from the end of the matter, and further evidence
is sought with a view to identifying his attackers. Hence it is made clear
that more players are under suspicion of involvement than the three
arrested on suspicion of robbery.
ii) Four players are described as having been arrested, three on suspicion
of robbery and one for arguing with the police. The reference to the
Claimant as having been arrested places him squarely with the group
under investigation and at the scene of the incident, even though his
arrest was not on suspicion of robbery.
iii) Crucially, a reader's observation is printed that:
"It's amazing how N. L. can chase a photographer down but he can barely
run on the pitch."
[45] Mr Barca's submissions are as follows. He says that the 20 December
articles are simply incapable of ascribing guilt or a suspicion of guilt to
the Claimant with respect to the "stolen" cameras. The front page article
expressly identifies the three players (V., M. and P.) who were held in
police cells for 18 hours on suspicion of robbery, and who were due return
to Gateshead police station the following March to find out whether they
were to be charged or bailed, or the case was to be dropped. It is made
abundantly clear that these three players are the only ones facing charges
and that the police would be interviewing other C. players present during
the "night of shame" not as potential further suspects, but as part of the
"appeal for witnesses". Continuing from the front page on page 7, the
same article again makes it clear that it was P., M. and V. who "were led
away for questioning". By way of contradistinction - further highlighted
by the use of italics - the very next paragraph expressly records that
the Claimant "was arrested after arguing with a police officer, but was
later released without charge." For good measure, the article on page 8
also identifies M., P. and V. as the "three players arrested in Newcastle"
who "hung their heads in shame as they passed the Press" during a
charitable visit to a Glasgow hospital. Since the main (front-page/p 7)
article plainly identifies the police's three suspects facing charges, and
specifies precisely why the Claimant was arrested and later released
without charge (namely, after arguing with an officer), Mr Barca submits
that only an unreasonable reader avid for scandal could conclude that
the Claimant was still under "suspicion of robbery" (still less that he
was actually guilty) by reference to the photomontage and/or the text
message. Taken at face value (even to a reader who had read or knew
nothing of the previous two days' reports in the D. R.) the text message
reasonably suggests (albeit incorrectly) no more than that the Claimant
chased a photographer: it is of itself incapable of conveying any inference
that the Claimant stole a photographer's cameras.
[46] The words are, in my judgment, plainly capable of bearing the
meaning that someone robbed Mr Ch.. A reasonable reader could well
understand that to be the allegation being made by Mr Ch. which the
defendant is reporting. Similarly, there is no doubt that the text message
sent by the reader is capable of bearing the meaning that the Claimant
chased Mr Ch. down.
[47] But there is no express allegation that the Claimant was party to
a robbery. If that meaning is to be derived from the words complained
of, then it must be by inference. It seems to me that only a reader who
was unduly suspicious and avid for scandal could understand the words
complained of, taken as a whole and in their context, as meaning that
the Claimant robbed a D. R. photographer of £ 12,000 worth of camera
equipment. I would regard a reader who understood that as utterly
unreasonable and perverse.
[48] It is less clear whether any one but such a reader could understand
the words complained of to mean that that was highly likely, as opposed
to something less, such as probable or possible. However, my task is not
to decide what the words do mean, but to delimit the range of meanings
of which the words are reasonably capable, and to reject any pleaded
meaning that falls outside the permissible range. Treating this, as I must,
as an exercise in generosity, not in parsimony, I find that the lesser
pleaded meaning is within the permissible range.
DISPOSITION:
Judgment accordingly.