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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Ward v Associated Newspapers Ltd & Anor [2020] EWHC 2797 (QB) (05 October 2020) URL: http://www.bailii.org/ew/cases/EWHC/QB/2020/2797.html Cite as: [2020] EWHC 2797 (QB) |
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QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Strand London, WC2A 2LL |
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B e f o r e :
(By Telephone Hearing)
BETWEEN:
____________________
| MICHAEL WARD |
Claimant |
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- and – |
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| (1) ASSOCIATED NEWSPAPERS LIMITED (2) MAIL ON SUNDAY |
Defendants |
____________________
MS C. EVANS QC and MS C. HAMER (instructed by Reynolds Porter Chamberlain LLP) appeared on behalf of Defendants.
____________________
Crown Copyright ©
MR JUSTICE NICKLIN:
Mail on Sunday Journalists Accused of Burgling House and Bribing Witnesses, High Court Hears
Ex-Mail on Sunday Finance Editor Lawrence Lever allegedly stole businessman's documents. Alleged victim Michael Ward later convicted of Fraud. But he claims Ex-Mail on Sunday City Editor Clive Wolman allegedly paid prosecution witnesses to lie. Mail on Sunday say allegations have 'no merit.'
[1] The Mail on Sunday newspaper was involved in a conspiracy to pervert the course of justice, the High Court has heard.
[2] One of its journalists was accused of burgling a Belgravia property to steal documents for a story - and then bribing a prosecution witness.
[3] Another editor was alleged to have paid money in a bid to get a witness to lie under oath.
[4] The allegations were made by former businessman Michael Ward, who is campaigning to get the second part of the Leveson Inquiry reinstated.
[5] Mr. Ward said that the Mail on Sunday illegally targeted him in a plot to undermine libel proceedings which he had launched against the Rothermere-owned paper.
[6] A spokesman for the Mail on Sunday said Mr. Ward's claims had no merit, and had been officially rejected by two criminal courts, and separately by an official body.
[7] Leveson Part 2 was cancelled by the government one year ago, in March last year.
[8] However, last month on Wednesday February 13th Mr. Ward asked the High Court for permission to Judicially Review the decision taken by the Secretary of State for Digital, Culture, Media and Sport.
[9] The judge in the hearing, The Hon. Mrs Justice May, refused him permission to take his case forward, but not before Mr. Ward had outlined a series of extraordinary allegations which he claimed amounted to 'serious press abuse' which then led to a criminal 'miscarriage of justice' which in turn 'destroyed his career.'
[10] The story started in 1987 when Mr. Ward, a Cambridge university graduate, founded a company called European Leisure.
[11] Between May and July 1991, he said that the Mail on Sunday published a series of articles alleging that he'd been involved in financial misconduct, promising Mr. Ward, who had become Chairman of the company, to sue publishers Associated News for libel.
[12] After reading the articles, Mr. Ward said that in July 1991, the Department of Trade and Industry (DTI) commenced an inquiry into share dealings, followed by a Serious Fraud Office (SFO) probe nine months later.
[13] Mr Ward told the court that while he was preparing his defence, the then Mail on Sunday's Finance Editor Lawrence Lever got into his house in Chester Square, Belgravia, and stole his files.
[14] In a legal document presented to the court, Mr Ward - who was arguing his own case in the Queen's Bench Division - wrote:
[a] 'From the earliest days of the SFO investigation, the claimant (Mr. Ward) started to discover evidence of serious criminal and other misconduct being perpetrated by the Mail on Sunday in the shadows of the SFO investigation.
[b] 'The newspaper was corrupting the SFO investigation in order to ensure the claimant was charged and convicted and, thereby, escape the writs for libel which the claimant had launched.
[c] 'For example, the claimant's defence documents, including private business and personal records upon which the claimant was intending to rely in the proceedings, were stolen and destroyed by the newspaper.'
[15] The Statement of Facts continued:
[a] 'On the first occasion, the Finance Editor of the Mail on Sunday Lawrence Lever, broke into the claimant's home when the claimant was abroad, forcing open the claimant's filing cabinet in his study.
[b] 'On the second occasion, the Mail on Sunday's City Editor, Clive Wolman, paid a decorator working in the claimant's house telling him to bleed the house of every document he could find.'
[16] Neither Mr. Wolman or Mr. Lever, who no longer work for the Mail on Sunday, were in court to dispute what Mr. Ward had written in his Statement of Facts.
[17] This is because Mr Ward's case was being brought against the Government for cancelling Leveson 2, not the Mail on Sunday, which he was claiming was an example of press abuse which should have been investigated by Lord Leveson.
[18] It was for this reason, he claimed, that the Government had conspired to cancel Leveson 2, in a bid to 'conceal' his 'travesty of a case' from being aired in a public forum.
[19] The Mail on Sunday said Mr Ward's claims had been repeatedly rejected over the last 24 years.
[20] Byline Investigates emailed Mr Wolman and Mr Lever this story, and offered them a right-of-reply.
[21] But no comment from either has yet been received.
[22] Following a three-year investigation by the SFO, the criminal case went to trial in 1995.
[23] However, Mr. Ward claimed he could not adequately defend himself because his paperwork had been stolen by the Mail on Sunday.
[24] In addition, he claimed that key prosecution witnesses were paid by the Mail on Sunday.
[25] A legal document stated:
[a] 'Wolman and Lever paid money to their agents, telling them to lie under oath.
[b] 'The claimant discovered that the Mail on Sunday was bribing witnesses with secret payments in cash.
[c] 'Witnesses were being encouraged by the Mail on Sunday to lie under oath at any future trial.
[d] 'The Mail on Sunday was feeding false allegations into third party witness statements in return for additional secret cash payments.
[e] 'It was also offering special 'conviction bonuses' to witnesses in return for securing the claimant's conviction.
[f] 'The newspaper swore a false witness statement of its own for the SFO, making up allegations about the claimant it well knew were untrue as well as devastatingly prejudicial towards the claimant.
[g] 'The newspaper was leaking unauthorised confidential information about the course of the SFO inquiry to witnesses, encouraging them to turn against the claimant who, the newspaper told the witnesses, was bound to be convicted.
[h] 'Potential defence witnesses were being harassed and threatened by the newspaper.
[i] 'In short, the Mail on Sunday was orchestrating a conspiracy to pervert the course of justice against the claimant.'
[26] Mr. Ward produced to the court, a newspaper article from The Independent dated 14th September 1995, which claimed that a principal witness in his fraud trial was paid £4000 by Clive Wolman.
[27] In the article, the witness - a painter and decorator Brook Anderson who allegedly helped the Mail on Sunday - was quoted as saying: 'He (Clive Wolman) said it (the money) didn't really matter. No one would find out.'
[28] Despite his claims, Mr. Ward was eventually convicted at two different trials at Southwark Crown Court in 1995 of conspiracy to defraud in the course of a takeover bid, and of lying to the SFO and procuring a false receipt.
[29] He served two prison sentences, and claimed that his career was destroyed.
[30] However, in the civil court last month he said that he'd been fighting for 24 years to expose the 'juggernaut' of 'press abuse' which lead onto a 'miscarriage of justice.'
[31] But the court heard that he had been unsuccessful to date, losing at the Court of Appeal to overturn his convictions - and later an investigation by the Criminal Cases Review Commission had also not found in his favour.
[32] Mr. Ward had hoped to reboot his campaign for justice at the Leveson Inquiry in 2012, highlighting the Mail on Sunday's alleged conspiracy.
[33] However, he had been advised by that 'complex' case maybe better suited to the second part of the Leveson Inquiry, which would concentrate on the relationships between the press and the police.
[34] But when this was cancelled last year, he felt indignant and was asking the court to overturn former DCMS minister Matt Hancock's decision.
[35] Both the DCMS and the Home Department were represented at the Administrative Court by barrister David Pievsky and a solicitor.
[36] In his skeleton argument, Mr Pievsky wrote that Mr. Ward's case should be refused permission for three reasons.
[37] Firstly, he said the claim was 'badly out of time' after Mr. Ward filed his documents three months late on 18th June last year.
[38] Secondly, Mr Pievsky said that a previous judicial review to overturn Leveson's cancellation failed in November last year.
[39] In that case - brought by retired schoolteacher Christopher Jefferies, who'd been defamed by the tabloid press during a police investigation, and others - Mr Pievsky said that the Division Court had 'comprehensively rejected' arguments to reopen the public inquiry.
[40] Mr Pievsky said: 'It concluded that the government's decision not to proceed with Leveson 2 was not unfair or an abuse of ... legitimate expectations.'
[41] Mr. Ward argued that the DCMS decision was 'irrational', and taken in 'bad faith', claiming that his case was 'so big' that the government had deliberately conspired to keep it out of its decision-making process.
[42] However, Mr. Pievsky rejected this with his third point.
[a] He added: 'Any internal document establishing or even suggesting that there were undisclosed or improper reason for the decision ... would have been found and disclosed.
[b] 'The claimants various criticisms of the Solicitor General and the SFO and others involved in the criminal proceedings ... against the claimant have no bearing on whether the March 2018 decision concerning the Leveson Inquiry was unlawful.
[c] Mr. Pievsky added: 'If he has evidence of that, and/or that the press were to blame for his conviction which were unjust, the remedy lies elsewhere.'
[43] The judge, The Hon. Mrs Justice May, concluded that Mr. Ward did not have 'arguable grounds to challenge the Secretary of State's decision' - or that he'd been given a legitimate expectation that Leveson 2 would happen.
[44] She also said that there was no bad faith on behalf of the government arising from an improper conspiracy.
[45] The Hon. Mrs Justice May said that she had struggled with Mr Ward's claim that his case was so very significant that it must have been suppressed by the government.
[46] She said that she 'could not accept' that it was much bigger than the cases that had been heard at the Jefferies Judicial Review.
[47] For those reasons, The Hon. Mrs Justice May, concluded: 'I refuse permission.'
[48] Mr Ward was ordered to pay court costs of £1987.00.
[49] A Mail on Sunday spokesman: 'Mr Ward's claims were raised and rejected at the trial, some 24 years ago, where he was convicted of financial crimes. They have subsequently been examined and rejected again at the Court of Appeal and by the Criminal Cases Review Commission. There is no merit in Mr Ward's allegations.'
"30. The meaning of the sentence 'Mr Ward's claims were raised and rejected at the trial, some 24 years ago, where he was convicted of financial crimes' is that, as matters of fact, at his trial in 1995, the Claimant had referred to these same claims concerning the Mail on Sunday's misconduct as were recited in the Byline.com article; that there had been an examination of these claims either by the judge or by the jury (or both); and that the claims had been found to be factually incorrect and untrue.
31. The meaning of the sentence 'They have subsequently been examined and rejected again at the Court of Appeal and by the Criminal Cases Review Commission' is that, as matters of fact, at his appeal to the Court of Appeal in 1997, the Claimant had referred to these same claims concerning the Mail on Sunday's misconduct as were recited in the Byline.com article; that there had been an examination of these claims by the Court of Appeal; and that the claims had been found to be factually incorrect and untrue. In the same way, when requesting the Criminal Cases Review Commission in 2000-2005 to refer his case to the Court of Appeal, the Claimant, as matters of fact, had referred to these same claims concerning the Mail on Sunday's misconduct as were recited in the Byline-com article; that there had been an examination of these claims by the Commission; and that the claims had been found to be factually incorrect and untrue.
32. The meaning of the sentence 'There is no merit in Mr Ward's allegations...' is that, as matters of fact, there is no truth in any of the allegations concerning the Mail on Sunday's misconduct as were recited in the Byline.com article. The allegations were legally and factually baseless, without foundation, groundless, false, and spurious.
33. The meaning of the Statement taken as a whole (and the meaning which an ordinary reader would have taken away) from 'Mr Ward's claims were raised and rejected at the trial, some 24 years ago, where he was convicted of financial crimes. They have subsequently been examined and rejected again at the Court of Appeal and by the Criminal Cases Review Commission. There is no merit in Mr Ward's allegations' is that, as matters of fact, the allegations the Claimant advanced concerning the Mail on Sunday's misconduct as recited in the Byline.com article had been proven to be untrue by various tribunals and public bodies, and that the Mail on Sunday 'did not do the things which the claimant had alleged'.
.....
39. In their natural and ordinary meaning, the words in the Mail on Sunday's Statement ('Mr Ward's claims were raised and rejected at the trial, some 24 years ago, where he was convicted of financial crimes. They have subsequently been examined and rejected again at the Court of Appeal and by the Criminal Cases Review Commission. There is no merit in Mr Ward's allegations.'):
A. were defamatory of the Claimant
B. meant and were understood to mean that the Claimant had lied to the Divisional Court by making claims and allegations concerning the Mail on Sunday which he knew to be untrue
C. meant and were understood to mean that the Claimant had lied to courts and tribunals on past occasions as well as to public bodies."
a. That the claim be struck out pursuant to CPR 3.4(2)(a) and/or (b) on the grounds that the Particulars of Claim discloses no reasonable grounds for bringing the claim, and is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings.
b. That the Defendant be granted summary judgment against the Claimant on the claim pursuant to CPR 24.2 on the grounds that (a) the Claimant has no real prospect of succeeding with the claim; and (b) there is no other compelling reason why the case should be disposed of at a trial;
c. Further or alternatively, if necessary, that there be a trial of the following preliminary issues pursuant to CPR 3.1(2)(i)(j) and paragraph 6 of CPR PD53B and, if permission for the trial is granted, that the trial follow on immediately from permission being granted and be heard at the same hearing as the applications in paragraphs [a] and [b] above:
i. The natural and ordinary meaning of the Defendant's statement complained of in the context of the [Byline Article] ... and
ii. whether the statement is defamatory of the Claimant at common law.
"1. The claim (in libel and malicious falsehood) amounts to an abuse of the court's process because it is a collateral attack on final decisions adverse to Claimant made by a court of competent jurisdiction, namely:
i. the conviction of the Claimant by a jury sitting at Southwark Crown Court on 10 February 1995 of the following offences: (a) one count of conspiracy to defraud at common law, and (b) three counts of theft; for which the Claimant received a sentence of two years imprisonment and seven years disqualification as a director (following a successful Attorney-General's 'undue leniency' appeal on 21 March 1997; and
ii. the conviction of the Claimant by a jury sitting at Southwark Crown Court on 27 September 1995 of the following offences: (a) one count of making a false or misleading statement contrary to s.2(14)(a) Criminal Justice Act 1987, and (b) one count of causing the falsification of a document, contrary to s.2(16) Criminal Justice Act 1987, for which the Claimant received a sentence of 12 months' imprisonment; and
iii. the Claimant's appeal and application for permission to appeal respectively against the above convictions and his sentence in the second case was dismissed on 25 March 1997 and 6 June 1997.
2. Further or alternatively, the Claimant has no real prospect of establishing serious harm or the likelihood of it, as required by s.1 Defamation Act 2013; and/or special damage or damage (if alleged) pursuant to s.3 Defamation Act 1952; and/or the claim amounts to an abuse of the court's process pursuant to the Jameel v Dow Jones doctrine.
i. The Defendant will rely on (i) s.13 Civil Evidence Act 1968 (as amended by s.12(1) Defamation Act 2013) as conclusive evidence that the Claimant committed the offences referred to in paragraph (1) above, and (ii) s.8(3) Rehabilitation of Offenders Act 1974.
ii. The sting of the Claimant's allegations against the Defendant, which was the focus of the Byline Article, was that the Mail on Sunday had been involved in a conspiracy to pervert the course of justice in the criminal proceedings against the Claimant, which had led to the Claimant's being wrongly convicted on the above counts and suffering a miscarriage of justice (the Claimant's allegation).
iii. The Claimant's allegation, as to which the Defendant's statement complained of in paragraph 49 of the Byline Article was a response, has been repeatedly rejected and/or held to be unsupported by the evidence of in 25 years since the Claimant was convicted, including by the Criminal Court of Appeal and the Criminal Cases Review Commission. Specifically, the Claimant's individual allegations of misconduct by the Mail on Sunday's journalists, as set out in the Byline Article, have not been found to substantiate his allegation of perversion of the course of justice or miscarriage of justice.
iv. The Claimant's allegation has also been the subject (directly and indirectly) of unsuccessful judicial review challenges by the Claimant, on 25 May 2005 and 13 February 2019.
v. By repeatedly seeking, and failing, over the last 24 years to challenge the correctness of his convictions on the ground that they were the result of a conspiracy to pervert the course of justice which involved the Mail on Sunday, the Claimant has himself intended and ensured that his criminal convictions, and their underlying circumstances, have remained in the public domain until the present day.
vi. In all these circumstances:
1. the Claimant's reputation was irreparably harmed by the convictions and he has no real prospect of satisfying s.1(1) Defamation Act 2013; and/or
2. he has no real prospect of showing that he has suffered actual pecuniary damage or probable pecuniary damage pursuant to s.3 Defamation Act 1952; and/or
3. the Claimant cannot complain of a loss of reputation which is the foreseeable consequence of his own actions in committing the criminal offences in question and/or giving them long term publicity; and/or
4. the Claimant could not achieve anything of value in pursuing the claim and the proceedings would be pointless, wasteful of costs and court resources and an unjustified infringement of the Defendant's Article 10 European Convention right to freedom of expression.
3. Further or alternatively:
i. The Defendant's statement complained of in paragraph 49 of the Byline Article constituted a legitimate and proportionate public reply to the Claimant's defamatory public attack upon the Defendant which had accused it, with the benefit of the absolute privilege attaching to the Claimant's submissions to the High Court, of conspiring to pervert the course of justice in the criminal proceedings and causing him to suffer a miscarriage of justice.
ii. The Claimant has no real prospect of showing that the Defendant was malicious in providing its statement in reply for publication in the Article."
a. The Claimant's claim amounts to an abuse of process of this court as it is a collateral attack on final decisions of a court of competent jurisdiction, namely the Claimant's convictions.
b. Further or alternatively, the Claimant has no real prospect of establishing serious harm or the likelihood of it, as required by s.1 Defamation Act 2013; and/or special damage or damage pursuant to s.3 Defamation Act 1952 (if alleged) and/or the claim amounts to an abuse of the court's process pursuant to Jameel.
c. Further or alternatively, the Mail on Sunday Statement was a legitimate and proportionate public reply to the Claimant's defamatory public attack on the Defendant made in the Administrative Court. Therefore it is protected by qualified privilege and the Claimant has no real prospect of showing that the Defendant's relevant officers or agents were malicious.
a. Should Mr Ward's claim be struck out or dismissed as an abuse of process on the ground that it is a collateral attack on the final decisions of a court of competent jurisdiction, namely Mr Ward's criminal conviction?
b. Should the Defendant be granted summary judgment on the defamation claim on the basis that Mr Ward has no real prospect of demonstrating serious harm to reputation under s.1 Defamation Act 2013?
c. Should the Defendant be granted summary judgment on the defamation claim on the basis that publication is protected by reply to attack qualified privilege and Mr Ward has no real prospect of demonstrating malice?
d. Should the Defendant be granted summary judgment on the malicious falsehood claim on the basis that Mr Ward has no real prospect of demonstrating malice?
e. Should the Defendant be granted summary judgment on the malicious falsehood claim on the grounds that, as Mr Ward has not included any claim for special damage in his particulars of claim, he has no real prospect of relying successfully upon s.3(1) Defamation Act 1952?
f. If any part of Mr Ward's claim remains, should the court strike out the remaining part on the ground that allowing the claim to proceed would amount to an abuse of process within the principle embodied in the decision in Jameel?
A: Should Mr Ward's claim be struck out or dismissed as an abuse of process on the ground that is a collateral attack on the final decisions of a court of competent jurisdiction, namely Mr Ward's criminal convictions?
"... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."
[13] "In Hunter's case their Lordships were in no doubt that the whole purpose of the civil proceedings was to undermine the appellants' convictions with a view to putting pressure on the Home Secretary to release them, but it has since been established that an improper motive is not necessary in order for subsequent proceedings to constitute an abuse of process. In Smith -v- Linskills [1996] 1 WLR 763 the claimant, who had been convicted of an offence of aggravated burglary, brought proceedings against his solicitors seeking damages on the grounds that their negligent preparation of his defence had resulted in his conviction. As in the present case, the claimant contended that the issues raised by his claim were different from those that arose at his trial, but that did not prevent the proceedings from constituting an abuse of process. Sir Thomas Bingham M.R. giving the judgment of the court said at page 768H:
'Mr. Andrew Nicol, for Mr. Smith, argues that the issue in the present proceedings is not the same issue as was decided in the Crown Court. To an extent this is so. In the Crown Court the question was whether, applying the criminal standard of proof, Mr. Smith was shown to have committed the crime with which he was charged. In the present proceedings the issue is whether his former solicitor handled his defence negligently. It is, however, plain that the thrust of his case in these proceedings is that if his criminal defence had been handled with proper care he would not, and should not, have been convicted. Thus the soundness or otherwise of his criminal conviction is an issue at the heart of these proceedings. Were he to recover substantial damages, it could only be on the basis that he should not have been convicted. Even if he were to establish negligence, he could recover no more than nominal damages at best if the court were to conclude that even if his case had been handled with proper care he would still have been convicted. It follows, in our judgment, that these proceedings do involve a collateral attack upon the decision of the Crown Court. We understand Lord Diplock, by "collateral," to have meant an attack not made in the proceedings which gave rise to the decision which it is sought to impugn; not, in other words, an attack made by way of appeal in the earlier proceedings themselves.'
…
[15] In Arthur J S Hall & Co -v- Simons [2002] 1 AC 615 their Lordships were concerned with the question whether the advocate's immunity from suit should be retained. Since immunity applied to criminal as well as civil proceedings, it was appropriate to consider the extent to which the principle in Hunter's case provided an adequate safeguard against actions for negligence against their lawyers by those convicted of criminal offences. None of their Lordships doubted the correctness of the principle in Hunter's case and it is worth noting that Lord Hoffmann, with whom Lord Browne-Wilkinson, Lord Hutton and Lord Millett agreed, thought that when considering abuse of process there was a relevant distinction between criminal and civil proceedings resulting from the scope and application of the procedures for challenging decisions reached at trial. He said at page 706A:
'It follows that in my opinion it would ordinarily be an abuse of process for a civil court to be asked to decide that a subsisting conviction was wrong. This applies to a conviction on a plea of guilty as well as after a trial. The resulting conflict of judgments is likely to bring the administration of justice into disrepute. The arguments of Lord Diplock in the long passage which I have quoted from Saif Ali -v- Sydney Mitchell & Co [1980] AC 198, 222-223 are compelling. The proper procedure is to appeal, or if the right of appeal has been exhausted, to apply to the Criminal Cases Review Commission under section 14 of the 1995 Act. I say it will ordinarily be an abuse because there are bound to be exceptional cases in which the issue can be tried without a risk that the conflict of judgments would bring the administration of justice into disrepute. Walpole -v- Partridge & Wilson [1994] QB 106 was such a case'."
"[That] is another case in which the question of abuse of process arose in a purely civil context. Having considered the line of authority to which I have referred Sir Andrew Morritt V.C. said:
'[38] In my view, these cases establish the following proposition:(a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court.(b) If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of ss. 11 to 13 Civil Evidence Act 1968, the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings ...(c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings.(d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute."
"(1) In an action for libel or slander in which the question whether the plaintiff did or did not commit a criminal offence is relevant to an issue arising in the action, proof that, at the time when that issue falls to be determined, he stands convicted of that offence shall be conclusive evidence that he committed that offence; and his conviction thereof shall be admissible in evidence accordingly.
(2) In any such action as aforesaid in which by virtue of this section the plaintiff is proved to have been convicted of an offence, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which he was convicted, shall, without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, be admissible in evidence for the purpose of identifying those facts."
"The defence, on the other hand, say: No. This document had nothing to do with the defendant at all; and, referring to page 1, it was the product of an exercise in 1992 when Brooke Anderson was for payment providing the Mail on Sunday newspaper, and Mr Wolman of that paper, in particular, with information about the defendant. The defence say that in a very dishonest excess zeal, Mr Anderson got his friend, Lynn Russell, to provide this receipt in the hope by doing so it would increase the chances of him getting more money out of the Mail on Sunday. They say, that is the defence say, that the defendant knew nothing about this document at all."
Summing-up the issue for the jury, the judge said this:
"Again, you may think that there is then the simple issue to which I have referred: Have the prosecution made you sure that the defendant was in fact behind and indeed caused the obtaining of this admittedly untrue document? If they have, the defendant is guilty. If they have not proved that so that you are sure about it, if you think that the defendant may not have committed that offence then, of course, you will find him not guilty."
"In this case Mr Trollope on behalf of Mr Ward has very importantly drawn a number of matters to your attention in this regard. He has analysed and compared Mr Anderson's own account to you and the Serious Fraud Office. He has also analysed and compared Mr Anderson's accounts to you with things that are said by him on the tape recordings. Mr Trollope has drawn your attention to a number of glaring and obvious inconsistencies between what Mr Anderson had to say on one occasion and what he had to say on another occasion.
Then, to go on Mr Trollope has drawn to your attention inconsistencies between the evidence of Mr Anderson and other witnesses who have given evidence in this case. For example, Miss Russell herself or Mr Wolman, who was the City Editor of the Mail on Sunday or the Detective Constable who has given evidence. As you will remember Mr Trollope has furthermore directed your attention to certain dramatic passages in the tape recordings where you can hear Mr Anderson talking about, for example, being fed information by the Mail on Sunday which he turned into evidence or the other dramatic passage to which particular reference has been made where Mr Anderson referred to the truth and his ideas of the truth, that is on the last tape; and I shall remind you of that.
Mr Trollope has suggested a motive for Mr Anderson to tell lies. In the first place he suggests there is a financial motive in that if he told lies about Mr Ward he might be rewarded by the Mail on Sunday. Says, Mr Trollope, he, Mr Anderson, still hopes to benefit financially from these lies when the trial is over. Then, another motive is suggested for perpetrating and continuing these lies before you namely, the fear that he, Mr Anderson, might otherwise be accused of wasting police time.
What should your proper approach be to the evidence of Mr Anderson? In the first place, you should, as I have indicated, approach his evidence with special care. You should look first to see if there is any [quite] independent evidence which tends to support the evidence of Mr Anderson and to implicate the defendant in these crimes. If there is such independent evidence then that, of course, may reflect upon your views of Mr Anderson's credibility. Credibility simply means the confidence which you may have in the truthfulness of his account. If, in your judgment, there is no such independent evidence then of course you will only act on Mr Anderson's evidence, if having taken [into] account [it must mean] the strong words of caution I have given you, you are nevertheless quite sure that he has been telling you the truth in this court.
Is there any evidence which is quite independent of Mr Anderson's evidence which is capable of supporting his evidence about the defendant and implicating the defendant in these offences? The answer is: Yes, there is. Although, as I have indicated, it is for you to assess it and for you to decide what you make of it. We will be looking at this evidence in greater detail at a later stage, but let me tell you here and now what that evidence is. First Counts 1, 2 and Count 3 particularly number 1. The note in the defendant's own handwriting ... is capable of amounting to independent corroboration or support of what Mr Anderson has had to say."
"You have heard a deal about the press. Very strong criticism and complaint has been made on the defendant's behalf that Mr. Anderson went to a newspaper; and the newspaper in question, the Mail on Sunday, in effect paid him and Mr. Ward's ex-wife for information and for documentation. It is said that there are writs for defamation -- that is libel -- outstanding against the Mail on Sunday; and that both the newspaper and Mr. Anderson have a financial interest in this trial ending in a conviction.
These are all points perfectly properly made on Mr. Ward's behalf. Of course, you are entitled to consider them in light of the evidence which you have heard and to take them into account. If you believe them to be well made then, of course, you will have regard to them when you come to consider whether you accept the evidence which Mr. Anderson and Mr. Woolman have given you in this case. But if, having taken these matters into account as you have been asked to by Mr. Trollope, you are, nevertheless, sure that the case is made out and that the defendant is proved to be guilty of any of these charges, then you must not let all the talk about newspapers and money deflect you from your duty to return true verdicts."
"We all know that many crimes and criminals are exposed either by people giving information to newspapers or giving information to the police. Newspapers do sometimes pay for that information and the police do sometimes pay for that information. The whole idea of informants may be very unattractive but informants are, I am afraid, a very necessary and important part of the criminal justice system. If someone has truly committed a crime it might be very galling for them to be exposed by someone they thought they could trust, it might be worse for them to learn that they have made money out of it, but that is hard luck ....
So, if this defendant has, in fact, committed any of these offences, you should not be affected at all by the criticisms which you have heard about Mr. Anderson or The Mail on Sunday acting, I think the word was 'unethically'. Crime is not cricket and a person who commits crime should not be able to escape conviction by complaining that those who have exposed his crime have, in effect, not been playing cricket."
"The evidential background to this point is that Anderson agreed in evidence that he had been offered money by The Mail on Sunday for his story. He said that a figure of £12,000 had been mentioned. He had been paid £4,000, and there was a possibility of more. He realised, he said, that whether or not he would get any more [money] would depend upon whether there was a conviction in the case. He also agreed that he had lied to the Serious Fraud Office and told them that he only received about £500. He said that he had done that at the prompting of Mr Woolman of the Mail on Sunday, who had also told the police that Anderson had been paid £500 and who wanted Anderson to keep in line with that account.
The position of the Mail on Sunday had to be borne in mind. As a result of their articles, the applicant had started libel proceedings against the newspaper. It clearly would have served the interest of that paper if the applicant was to be convicted. Indeed, although the applicant chose not to give evidence, this was the line of defence adopted on his behalf.
It was said that the Mail on Sunday had, with the assistance of Anderson, set up the applicant so as to justify their actions in taking property from his home and so as to assist them in the libel proceedings arising from their articles which were on-going. Thus, it was suggested that Anderson, for financial reward, had made up the false story of the sale to Lynn Russell without the knowledge of the applicant and led the applicant to believe that it was a true account. So that in passing on the information to the Serious Fraud Office, he was unaware that he was misleading anyone. The letter which gave rise to count 2 it was suggested had been written at the request of Anderson and then forward to the Serious Fraud Office so as to implicate the applicant further in the matter entirely without the knowledge of the applicant.
[Counsel for Mr Ward] contends that the situation of a witness being paid money concerning his evidence and being left with the understanding that, whether or not he would receive any more depended upon whether the applicant was convicted or not, was something which was quite repugnant to our system of criminal justice. With that comment, we have no difficulty in agreeing.
There can be no doubt that Mr. Trollope QC, who appeared at the trial, made, and was fully justified in making, considerable criticism of this situation. [Counsel for Mr Ward] however, contends that there was a duty on the trial judge not merely to remind the jury of this criticism, but to endorse it."
The judge then quoted the section of the trial judge's summing-up that I have set out in [24] above, and continued:
"We understand the criticisms of this passage to have three distinct features. First, there was a duty on the judge to go further and himself condemn what had happened. As to that, the judge made reference to the submissions of defence counsel and commended them as being perfectly properly made. We do not believe that there was any requirement for him to go further than that. Counsel had made the points forcefully. It was for the jury to consider them, and the judge was making clear that they were points that deserved consideration. That, we consider in all the circumstances, sufficient.
Secondly, it is said that the judge was asking the jury to decide if the applicant was guilty first and then to consider these points. Reliance is placed on that part which reads: 'So, if the defendant has, in fact, committed any of these offences, you should not be affected at all by the criticisms'. However, the judge made clear at the outset that they should have regard to those matters in deciding whether or not the applicant was guilty. Having said that, he went on to make clear that once they were sure of guilt, they should not be deflected from their duty by their feelings about the way in which the newspaper had behaved. We can see nothing wrong in that approach.
Thirdly, it is said that the passage could read as a defence of the conduct of the Mail on Sunday. We do not read it in that way at all. We consider that the jury would have been left realising that if, having reflected on these important matters, they were persuaded of guilt, these matters then became irrelevant to their verdict. That properly stated the legal situation and was a point legitimately made by the judge."
"Now, some 25 years after his conviction, Mr Ward remains convinced that he was subject to a gross miscarriage of justice, at the heart of which were the criminal activities of journalists who stole documents from his home, taped conversations and wrote lies about him. Mr Ward appears to have pursued every avenue over the years in trying to have his complaints examined and dealt with, to no avail. It is not difficult to understand therefore that when the government at the time announced the Leveson Inquiry into the activities of the press, Mr Ward welcomed it. He saw it as, at last, the opportunity for him to expose the activities of journalists and others whom he said had caused him to lose so much so many years before. As he put it in one of the many documents I have read for the purposes of this application, his sense of injustice does not diminish with time."
"The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court ..."
B: Should the Defendant be granted summary judgment on the defamation claim on the basis that Mr Ward has no real prospect of demonstrating serious harm to reputation under s.1 Defamation Act 2013?
"A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."
"The Defendant will if necessary contend that the [Mail on Sunday Statement] in its proper context meant that the Claimant had been unable to accept the correctness of his convictions in 1995 and had waged an obsessional and delusional campaign ever since which included an accusation against the Mail on Sunday of involvement in a conspiracy to pervert the course of justice in his trials and of causing a miscarriage of justice, an accusation which has been repeatedly rejected in the course of his appeals and challenges to it and was accordingly without merit."
C: Should the Defendant be granted summary judgment on the defamation claim on the basis that the publication is protected by reply to attack qualified privilege and Mr Ward has no real prospect of demonstrating malice?
D: Should the Defendant be granted summary judgment on the malicious falsehood claim on the basis that Mr Ward has no real prospect of demonstrating malice?
"A defamatory attack made publicly gives its victim a right to reply publicly. In doing so, the victim is entitled to make statements defamatory of his attacker, including statements impugning the attacker's credibility and motives. Provided that such statements are fairly relevant to a rebuttal of the attack and that the ambit of their dissemination does not significantly exceed that of the original attack, their publication will be the subject of qualified privilege."
"64. ... on 26 February 2019, Byline contacted John Wellington, Managing Editor of the Mail on Sunday with an email headed 'RIGHT OF REPLY - MICHAEL WARD ALLEGATIONS - HIGH COURT (the 'Byline email').
65. The Byline email stated that 'Byline investigates intends to publish the story written below' and invited the Defendant to 'comment on the allegations made by Mr. Ward in the High Court'. The story in the body of the email included the full run of copy which was eventually published in the Article. Significantly, it included the Claimant's Allegation that 'The Mail on Sunday newspaper was involved in a conspiracy to pervert the course of justice, the High Court has heard', which was highlighted in its first sentence. The draft copy went on to outline a number of the specific allegations that the Claimant had made (once again) against the Defendant's journalism and two of its former journalists in the Administrative Court.
66. A statement in response was drafted by Mr Wellington on 26 February 2019 and was approved by Peter Wright, editor emeritus of Associated Newspapers' titles, on the same day. Before drafting, approving and authorising the statement, Mr Wellington and Mr Wright internally discussed the history of the matter including by reference to the copious letters the Defendant had received from the Claimant concerning his allegations against Mail on Sunday since his convictions, and particularly since the inception of the Leveson Inquiry which had generated any (sic) even greater amount. The purpose of the statement was to answer the Claimant's defamatory public attack on [the] Mail on Sunday and its former journalists, made in open court, which were to be published in the Article.
67. The two former journalists about whom the Claimant made allegations in open court ceased working for the Defendant in 1995. None of the editorial staff who were involved in drafting, approving or authorising the statement had any personal involvement in the original matter (either in relation to the Claimant's libel claims from 1992, or in relation to the claims made by the Claimant against two former journalists between 1991 and 1997)."
"... none of the current editorial staff at the Defendant, who were involved in providing or approving the reply had any direct personal involvement in the original matter or libel complaints brought by the Claimant [and so] it is ... inconceivable that ... the Claimant has any prospect of showing that the Defendant was malicious in providing its statement in reply for publication in the Article."
E: Should the Defendant be granted summary judgment on the malicious falsehood claim on the grounds that, as Mr Ward has not included any claim for special damage, he has no real prospect of relying successfully on s.3(1) of the Defamation Act 1952?
"43. A claimant in a claim for malicious falsehood can be relieved of the obligation to prove pecuniary damage, if he can bring his claim within s.3(1) Defamation Act 1952, which provides:
'In an action for … malicious falsehood, it shall not be necessary to allege or prove special damage -
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form, or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.'
44. As to damages in malicious falsehood:
(i) A claimant can recover general damages under s.3(1) Defamation Act 1952 if s/he can show that the alleged false statements were more likely than not to cause him pecuniary damage: Cruddas -v- Calvert [2013] EWHC 2298 (QB) [195] per Tugendhat J; Niche Products Ltd -v- MacDermid Offshore Solutions LLC [2014] EMLR 9 [14(1)] per Birss J.
(ii) Pecuniary damage is financial loss or damage capable of being estimated in money (as opposed to compensated in money, e.g. general damages in defamation): Niche Products [39].
(iii) If the claimant's claim falls within s.3(1) Defamation Act 1952, the fact that s/he cannot demonstrate actual financial loss does not mean that the Court must award only nominal damages: Joyce -v- Sengupta [1993] 1 WLR 337, 346H-347C per Sir Donald Nicholls V-C; Niche Products [14(2)]; but the size of the award will necessarily be dependent upon the established impact of the publication of the falsehood and may, in some cases, be only modest: Fielding -v- Variety Incorporated [1967] 1 QB 841.
iv) The Court of Appeal in Joyce -v- Sengupta (p.349A-B) left open the question of whether damages for hurt feelings could be awarded in a malicious falsehood action, but subsequently in Khodaparast -v- Shad [2000] 1 WLR 619 held that, if the claimant establishes an entitlement to damages for malicious falsehood, either on proof of special damage or by reason of s.3(1), then the award of general damages may reflect injury to the claimant's feelings: [42] per Stuart-Smith LJ.
v) Harm to the claimant's reputation cannot form part of the basis of an award of damages for malicious falsehood: Khodaparast p.631H per Otton LJ; Joyce -v- Sengupta p.348F-G per Sir Donald Nicholls V-C; and Niche Products [39].
45. Since the hearing in this case, I have handed down judgment in Peck -v- Williams Trade Supplies Limited [2020] EWHC 966 (QB) in which I considered the tort of malicious falsehood and reviewed the role played by s.3(1) in such actions ([12]-[15]). For present purposes, the important principles are that, even where s.3(1) is relied upon, a claimant must be able to show that the damage suffered by him flowed directly from the untruth of the statements of which he complains, i.e. that the damage complained of is attributable to and caused by the falsehood: [13]. Difficult questions of causation of damage can arise in many cases: see discussion in Niche Products [48]. At the pleading stage, the claimant must identify (a) the nature of the loss which it is alleged the falsehoods caused; and (b) the mechanism by which s/he contends that loss is likely to have been sustained: Tesla Motors Ltd -v- BBC [2013] EWCA Civ 152 [37]; Niche Products [35], [45]."
F: If any part of Mr Ward's claim remains, should the court strike out the remaining part on the ground that allowing the claim to proceed would amount to an abuse of process within the principle expounded in Jameel?
"[44] At the heart of any assessment of whether a claim is Jameel abusive is an assessment of two things: (1) what is the value of what is legitimately sought to be obtained by the proceedings; and (2) what is the likely cost of achieving it?
[45] But it is clear from Sullivan that this cannot be a mechanical assessment. The Court cannot strike out a claim for £50 debt simply because, assessed against the costs of the claim, it is not 'worth' pursuing. Inherent in the value of any legitimate claim is the right to have a legal wrong redressed. The value of indicating legal rights - as part of the rule of law - goes beyond the worth of the claim. The fair resolution of legal disputes benefits not only the individual litigant but society as a whole."
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