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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> X v Y & Anor [2001] EWCA Civ 664 (3 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/664.html Cite as: [2001] EWCA Civ 664

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

		Royal Courts of Justice Strand London WC2 Friday, 3rd May 2001

Friday, 4th May 2001

1. LORD JUSTICE LONGMORE: The matter now before the Court is an application by the losing party at a defamation trial in front of Eady J and a jury. The matter was listed before Eady J and the jury as X v Y and X v Z. I will adopt those initials for this purpose.
2. Dr X brought the defamation action against Y and Z, his son and his ex-wife. The action related to assertions made by Y and Z of paedophilia and brutality to his children as well as lesser matters of harassing them with litigation and that sort of thing. Dr X failed in his action and as a result of the jury's verdicts Eady J dismissed his claim and ordered him to pay indemnity costs with an order for £10,000 by way of interim costs.
3. Dr X refers me to article 6 of the Convention of Human Rights and asserts that at least it is arguable that he did not have a fair trial so that this Court should consider his complaints against the way the trial was conducted and the way the case was summed up to the jury with a view to this Court in due course ordering a new trial.
4. He has many complaints based on his assertion that the judge was biased, that there was no equality of arms and that he had no proper opportunity to present his case. He says, for example, that he was not allowed to continue his cross-examination of some of the witnesses produced, nor was he allowed by the judge to continue his examination of his own witnesses. He asserts that although the cases had been ordered to be tried together, the cases were in fact separate cases so that when Z gave evidence in the case against Y, that was not sufficient evidence because he ought to have had, and did not have, the opportunity either to call her in her own case as a witness against herself or to require the Court to call her so that he could cross-examine her in her own case.
5. I asked Dr X to show me any examples of bias on the part of judge in the summing up, but that he was unable to do, so I shall concentrate on the opportunities that Dr X said that he was denied to present his own case and his complaints about equality of arms.
6. The third matter that he raises is a complaint that the defence of qualified privilege asserted by both Y and Z came into the case at a late time, when he had no opportunity properly to deal with it. He also submits, and this is a matter of law, that qualified privilege can only exist where there is an occasion of public interest and where there is a duty on the part of the person publishing the allegedly defamatory material to communicate that information.
7. As to that, this judge, who is an acknowledged expert in the field of defamation, considered the question of qualified privilege with care and decided that the written communications (as opposed to the remarks that were made outside Court or in the precincts of Court, which also formed part of the claimant's case) were the subject matter of qualified privilege. In that, it seems to me that he was clearly right and there is no arguable case for the Court of Appeal on that point of law.
8. Going back to the other complaints made, I have already mentioned two of them in particular. Various passages in the summing up are criticised, for example, at page 3 E, it is said that there was no evidence to contradict the allegation that a copy of a particular letter had been sent, whereas Dr X said there was such evidence. At page 38 H, Dr X complains that the judge referred to what Y and Z called ritualised sex abuse and Dr X submits that did not come into the matter at all because that was not what his son and daughter had said.
9. Next, complaint is made of the direction on burden of proof at page 21 of the summing up, because it is said that the learned judge did not have regard to the seriousness of the allegations that were being made against Dr X and in respect of which he brought the defamation proceedings. It is also said that no adequate warning was given to the jury that the events, which were relied on by Y and Z, but the publication of which was said by Dr X to be defamatory, had taken place so long ago that the jury ought to be very cautious about accepting the word of Y and Z in relation to them. It is also said that the learned judge did not warn the jury about the risk of contamination in view of the opportunities that there had been for Y, Z and his daughter, R, to discuss the evidence which they were about to give.
10. As far as all those matters are concerned, it seems to me, that there is no prospect of any argument being put forward to the Court of Appeal which would have the effect that a new trial should be ordered. Dealing with them in order, in the first place the judge is the master of his own Court. He has to decide particularly if he sits with a jury what the relevant evidence is that the jury should hear. Dr X complains that the judge referred to this as a short case and said that it was only short because the judge prevented Dr X from deploying his evidence in the way that he wished to do. But I can see no argument that the judge excluded evidence that was relevant. As a matter of fact, the case lasted ten days and I do not suppose that the jury considered that the case was a particularly short case.
11. Referring to the complaint that the cases were heard together but that Z was only a witness in the first case and should have been called or cross-examined in the second case, in my judgment, there is nothing in that point. The cases were ordered to be tried together and, as the judge said at an early stage in his summing up addressing the jury:

" ... there are before you two actions, one against the son and one against the former wife, that is why the questions which you have been given earlier today... which you will be asked at the end of your deliberations are set out in those two sets, one for one action and one for the other."

12. There were of course two actions; they were being tried together. The thought that Z should be giving evidence twice in what were associated proceedings is not consonant with the way in which the case proceeded or indeed the way in which the courts endeavour to do justice.
13. As far as the individual complaints that I have mentioned in the summing up are concerned, it seems to me they are so minor that no Court of Appeal would be induced on those grounds to order a new trial. In relation to the direction on the burden of proof, it seems to me that the judge got the matter wholly right. He said this:

"Had you been trying the case at the Old Bailey, a criminal case, you would have been told by the judge that the prosecution has to prove the case so that the jury is sure of guilt or, as it is sometimes put, beyond a reasonable doubt. I have to make it clear to you that this being a civil case and not a criminal case the standard of proof as we call it is different. It is the balance of probabilities always, and not beyond a reasonable doubt. So for example in a libel action it is for the claimant to prove on the balance of probabilities if there is any doubt about it that the words were published. Correspondingly it is for the defendant to prove on the balance of probabilities that the words published were substantially true – on a balance of probabilities."

14. Dr X complains that it ought to have been made clear to the jury by the judge that these being such serious allegations, the standard of proof even on the basis of the civil balance of probabilities was still very high. It does not seem to me that the jury can conceivably heve been left in any doubt about the seriousness of the allegations.
15. The same considerations apply, in my judgment, to the last two complaints. It is said by Dr X that there should have been a warning about the length of time that had passed since the allegations had been made. In fact, the judge did say at the top of page 39 in relation to what the son and daughter said:

"Both the son and the daughter spoke of a ritualised sex abuse occurring regularly on Friday and Sunday evening in their early childhood, although by no means every week. This was the late 1960s or early 1970s. Obviously you will need to make all due allowance for the fact that this is said to have happened a long time ago and that you are concerned with evidence based on recollections from the time when they were very young children and not as fully aware of sexual matters as older witnesses would be. That is a warning that has to be given in all cases, usually criminal cases, in which allegations are made of a sexual nature going back for many years."

16. I do not think I need read any more, but the warning nevertheless continues, and the judge says it is an important warning. It seems to me that the direction the judge gave was entirely adequate there. As far as the last complaint is concerned, that no express reference was made to the possibility of contamination, this jury heard the evidence over a period of ten days, and I cannot for one moment accept that it could be an argument that they were not alive to that possibility.
17. More importantly overall, it seems to me, the question that this Court has to address on an application of this kind, and of course I have been much assisted by the specific points that Dr X has made, is the question whether the summing up was arguably unfair so that arguably it produced the wrong verdict. I have read this summing up with care. It is a model as it seems to me of a fair summing up. Of course Dr X is unhappy with the results that the jury reached by way of their verdicts but, in my judgment, it is not arguable that there was anything wrong with this trial which would justify my giving permission to appeal.
18. There remains the question of costs. Of course the judge ordered that Dr X as the claimant who failed should pay the costs, and Dr X reminds me that he has an absolute right to have those costs assessed. He complains, or will complain at the assessment, that it is improper for the defendant Y to have charged for his services as a solicitor either at all or at any rate to the extent that he has. That will be a matter for the costs judge in due course. What, however, Dr X complains about is the interim order made by Eady J that he should pay £10,000 by way of hearing interim costs forthwith, in other words within 14 days of the verdict. This is a separate application as to whether it is appropriate for that order to have been made even on the basis that Dr X has lost the case.
19. In my judgment there is no possibility of any successful argument in relation to that. It seems to me that the order is, in all the circumstances of a ten-day case having been brought and failed, a modest one. It is clearly right that some order by way of interim payment forthwith should been made. When I asked Dr X what would be the appropriate sum, he said that in his submission no sum was appropriate. That I cannot accept. In my judgment, the judge made exactly the right order. Of course if it turns out on the assessment by the costs judge that the final sum is less than £10,000, then the excess would have to be re-paid so the matter is not closed against Dr X in any sense, but he should certainly pay the £10,000 forthwith, and indeed I am rather surprised to find that it has not been paid already despite the fact that Dr X has been seeking permission to appeal. It is perhaps understandable, though regrettable, that it has not happened. It must now happen that that sum be paid.
(Application for permission to appeal refused; costs of application to be paid to respondent in the appeal to be assessed)