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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 >> Telegraph Media Group Ltd v Thornton [2011] EWCA Civ 748 (22 June 2011)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/748.html
Cite as: [2011] EWCA Civ 748, [2011] EMLR 29

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Neutral Citation Number: [2011] EWCA Civ 748
Case Nos: A2/2011/1517 & 1517(Z)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN' S BENCH DIVISION
(MR JUSTICE TUGENDHAT)

Royal Courts of Justice
Strand, London, WC2A 2LL
22nd June 2011

B e f o r e :

LORD JUSTICE CARNWATH
and
LORD JUSTICE LEVESON
____________________

TELEGRAPH MEDIA GROUP LIMITED
 Appellant
- and -
SARAH THORNTON
 Respondent

____________________

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr David Price QC appeared as a Solicitor Advocate on behalf of the Appellant.
Mr Justin Rushbrooke (instructed by Messrs Taylor Hampton) appeared on behalf of the Respondent.
____________________

HTML VERSION OF JUDGMENT
 ____________________

Crown Copyright ©

    See Post-Judgment Discussion

    Lord Justice Leveson:

  1. On 1 November 2008 the Telegraph Media Group Limited, hereafter referred to as the Daily Telegraph, published a review of a book by Sarah Thornton, entitled "Seven Days in the Art World". The review was written by Ms Lynn Barber and contained the words:

    2. "She [Dr Thornton] also claims that she practices 'reflexive ethnography', which means that her interviewees have the right to read what she says about them and alter it. In journalism, we call that 'copy approval' and disapprove..."
  2. Dr Thornton has commenced an action based in libel and malicious falsehood. In relation to the libel, an offer of amends was made which has not been accepted; subsequently, Tugendhat J granted summary judgment in favour of the Daily Telegraph in respect of aspects of the libel.

  3. As for the malicious falsehood it is alleged that the words were false because Dr Thornton did not give her interviewees the right to alter what she proposed to say about them and that there was no basis upon which the practice of reflexive ethnography could fairly or properly be described as the giving of "copy approval", which provides the interviewee with a right of veto. Malice is pleaded.

  4. The defence pleads that Ms Barber expressed her honest opinion about the practice of reflexive ethnography on the basis that copy approval, in a journalistic context, involves the grant of a right to approve what is to be published about an interviewee; what she said was not motivated by any wish to vilify Dr Thornton.

  5. Following an order for directions dated 4 February, which in this regard was not contested, the action was ordered to take place with a jury. On 18 May 2010, with a trial date fixed of 4 July, the Daily Telegraph made a number of applications for orders, including for the variation of the mode of trial, and also for an order requiring specific disclosure of documents relating to communications between Dr Thornton and her interviewees. In an ex tempore judgment, Tugendhat J refused the second application and, in a reserved judgment, also refused the first.

  6. The Daily Telegraph now seeks to appeal both orders. Sir Henry Brooke refused leave in relation to the first on the basis that it was a case management decision by an experienced judge against a background of consent to that mode of trial. In relation to the application for specific disclosure, however, although equally a case management direction close to trial, he granted leave on the grounds that there was a real prospect of success.

  7. I can deal with the substantive appeal in relation to disclosure shortly, because the parties have sensibly now reached agreement. That agreement is to the effect that the court should make an order for specific disclosure of any document evidencing the occasions on which the interviewees identified in paragraph 21 of Dr Thornton's witness statement objected to material that Dr Thornton was intending to include in her book and any responses thereto. For my part I would require disclosure pursuant to this order by 4.00pm on Friday, 24 June on the basis that copies of the relevant documents would also be made available contemporaneously. If the late disclosure causes difficulty to the defendants, doubtless the trial judge will consider what impact that should have.

  8. I now deal with the mode of trial. Mr David Price QC argues that the decision of 4 February did not represent a case management decision, for although the judge had power to make the order, he was required to address his mind to all the relevant factors before doing so, irrespective of the consent of the parties, and he simply did not do so. Neither did he say that he would have ordered a jury trial if he considered the matter on that date.

  9. He submits that Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB) makes it clear that the power of the court to order a jury trial is derived from s.69(1) of the Senior Courts Act 1981, which requires the making of an application within 28 days of service to the defence (see CPR 26.11) in default of which the entitlement is lost. In that event, an application under s.69(3) must be made which proceeds on the premise that the presumption is for trial by judge alone and that this presumption can only be displaced by application, whereupon the court must decide mode of trial, having addressed its mind to all relevant factors. The consent of the parties is but one factor to be taken into account. Both Mr Price and the learned judge were very familiar with this authority. Mr Price acted in the case and the judge decided it.

  10. The judge dealt with this application in a reserved judgment in this way:

    11. "28. In my judgment the exchange of letters about trial by jury, and the conduct of the hearing before Sir Charles Gray make this a very different case from that of Cook. I accept that in the circumstances of this case an application for an extension of time could have been made under CPR 3.1(2)(a). I see no reason why CPR 3.1(2)(a) should not apply to CPR 26.11. And Mr Price accepted that this is so in the course of his oral submissions.

    29. I also accept that such an application would have had a fair prospect of success, in so far as I can form a view on the evidence and submissions now before me. But I cannot say how I would have ruled upon it if it had been made and contested, because I have not seen or heard the evidence or submissions that would have been put before the court if such an application had been made.

    30. Alternatively, if the point that I took of my own motion in Cook had been taken on 4 February (namely that the mode of trial was by then a matter within the discretion of the court and no longer a right under s.69(1)), I might nevertheless have dispensed with the requirement of an application notice, as I did in fact, and made the order as an exercise of the discretion given to me whether by CPR 3.1(2)(a) or s.69(3).

    31. But whatever I would have done, it is not in my judgment open to Mr Price to say that the order of 4 February was made without jurisdiction. It is an order which was apt to carry into effect the purpose the court was seeking to achieve...and was not in that sense a fundamental procedural error. It was also made on the application of Dr Thornton, albeit one that was out of time, and for which an application notice had been dispensed with. It was an order that was within the power of the court to make under CPR 3.1(2)(a) or s.69(3).

    32. I accept that it is open to the court at any time to change the mode of trial. ... However, in the interests of justice to the parties, there must be a degree of certainty that directions once given will continue to have effect, as is provided for in the Practice Direction paras 6.1 to 6.4."

  11. Mr Rushbrooke prays in aid this analysis by the learned judge, which he submits was clearly right. Analysing the judgment of the learned judge however, it is clear that he accepts the court could change its mind and he does not reject the proposition that the consensual order of 4 February approached the question of jury trial on a premise that failed to take account of what was later decided in Cook and was based upon s.69(1) of the 1981 Act rather than s.69(3).

  12. His reason for rejecting the submission that he ought to reconsider the matter and exercise his discretion against the appropriate principles was the interests of finality. In this case, however, it is difficult to imagine that the parties have taken any steps on the basis that the trial was to be before a jury that would have been different if the trial had been ordered to be by judge alone: no such step has been suggested. In those circumstances finality, although important in many cases, need not be decisive in this.

  13. In the circumstances, I believe that the learned judge unnecessarily fettered his consideration of Mr Price's application. In addition to allowing the appeal in the terms agreed in relation to disclosure, I would grant permission to appeal the refusal to reconsider mode of trial, allow that appeal and direct the judge to consider the issue on its merits.

    14. Lord Justice Carnwath:

  14. I agree. This is a very unusual case. I would normally hesitate long before disagreeing with this judge in an area in which he has enormous experience in relation to cases which he has been handling. However, the circumstances as Leveson LJ has outlined them mean that, in following the consensual order seeking to order a jury trial in February, there was something of a sea change in the approach to the relevant provisions in May, when the judge decided Cook.

  15. We have not been asked to review the reasoning in Cook and we must proceed on the basis that it is correct. The practical effect is that, where a party seeking jury trial in circumstances where that is permitted by s.69(1)(b), which includes libel, fails to make the application within the period prescribed, which is 28 days, then the right which it could be said that s.69(1) confers goes and the matter then becomes in the discretion of the judge.

  16. This may either be because it falls under s.69(3), where it comes within the general provision for judge trial unless the court in its discretion orders a jury trial, or alternatively, on an application to extend time under Part 3.1(2)(a), where the matter would be at large in the judge's discretion.

  17. Now I say all that without in any way seeking to analyse the detail, because the judge here had to deal with the matter in a practical way. It came back before him on the respondent's application to vary the order in the light of the change of approach which was represented by Cook. The emphasis of the argument before him seems to have been largely on the question of jurisdiction. With respect to Mr Price, it seems to be a hopeless argument that the court did not have jurisdiction to deal with the matter in the way that it did in February or indeed in the way it was doing it in May. That is not a particularly helpful way of analysing matters.

  18. On the other hand, I do think that when the matter came back in May there was a change of position, because certainly the note we have of the exchanges before the judge in February indicated, as was, I think, generally thought to be the case, that there was still a right to jury trial, even though there had not been a formal application. And indeed, against a background where that had been the assumption for many months, one can understand why that approach was taken in February.

  19. But when one comes to the position before the judge in May, it seems to me that he accepted that he had jurisdiction and that it was a question for his discretion, and, as my Lord has said, when one comes to the end of the judgment, the only substantive reasons he gives for not exercising his discretion to order a judge-only trial was the question of certainty.

  20. In my view, he ought at that stage to have considered the matter more broadly and asked: "Well, what is the right position now?" Although I pressed Mr Rushbrooke, it did not seem to me that there was any suggestion that somehow there was any special reason why a judge-only trial would be inappropriate in this case or would cause any prejudice to his client, or that the fact that this application is made at a late stage would cause any difficulty.

  21. In those circumstances, it seems to me that the judge's view was, with great respect, too narrow and I would agree with the order my Lord has proposed.

    22. Order: Application for permission to appeal granted; Appeal allowed.

Post-Judgment Discussion

LORD JUSTICE CARNWATH : Yes, I think you will have to have just me I am afraid.

MR PRICE: I am just grateful for your Lordship coming back. I am sorry to trouble your Lordship. Unfortunately an issue has arisen over the meaning of paragraph 21 of the claimant's witness statement, which is at tab 15 page 91 and it's the second sentence.

LORD JUSTICE CARNWATH : Yes. I mean do we have a formal wording for an order?

MR PRICE : Well that form of wording is ....

LORD JUSTICE CARNWATH : Well no, I just want to see what ...

MR PRICE : We have stalled on this. Because ... what my learned friend says is the words "things I said, what are my descriptions of them", does not include where they objected to quotes being attributed to them, so it is drawing a distinction between things that their quotes and things that she said about them. However, that distinction is not a relevant distinction.

LORD JUSTICE CARNWATH : Now I want to see what form of wording ... what form of order are you seeking? What I want to see is the wording of the order you are now seeking?

MR PRICE : I would insert after "things I said ..."

LORD JUSTICE CARNWATH : Sorry, no, this is from a witness statement. I am looking for a form of what is an order

MR PRICE : Well, perhaps your Lordship can go to page 60. I have taken it out of my bundle.

LORD JUSTICE CARNWATH : Page 60?

MR PRICE : Yes, I am not sure what tab it is but it's the application notice ...

LORD JUSTICE CARNWATH : So it's ...

MR PRICE : I think it's tab 12.

LORD JUSTICE CARNWATH : And what do you want

MR PRICE : Well I would ask for an order. If you look in Part A, the second line starts "Order, the claimant to make and serve on the defendant a supplemental list of documents", and we will put in the time, "in the following category" ... and then I would go to the witness statement paragraph 21 to identify that category, and I would ask for documents "evidencing the occasions."

LORD JUSTICE CARNWATH : Yes.

MR PRICE : ... and just to the end of that sentence.

LORD JUSTICE CARNWATH : "Where interviewees" and so on?

MR PRICE : Yes.

LORD JUSTICE CARNWATH : Yes.

MR PRICE : So "documents evidencing the occasions where interviewees objected to things I said, what are my descriptions of them and sought to persuade me to alter them."

LORD JUSTICE CARNWATH : Yes.

MR PRICE : "And the issue that has arisen in relation to things I said". And so what the claimant was seeking to do is to draw a distinction between people who objected to attribution of quotes and people who objected to her descriptions of them.

LORD JUSTICE CARNWATH : Well, I will ask Mr Rushbrooke to explain that

MR RUSHBROOKE : Well my Lord it is the ...

LORD JUSTICE CARNWATH : So what are you prepared to offer? I mean that is what he is asking, what do you want?

MR RUSHBROOKE: We are prepared to offer exactly what 21 says. The problem is with the interpretation of it. I am very surprised by my learned friend's interpretation because the witness statement of the claimant, draws a very clear distinction indeed her disclosure evinces, between the prior process of clearing quotations with her interviewees and then having cleared the quotations she circulates -- this is now the feedback process -- she circulates the chapter or extracts from the chapter to certain of her interviewees who have been mentioned in it. The problem is, what I have always understood to be the case even on the original application notice, was the defendant was not seeking to challenge that there is a distinction between those two processes and indeed we admit that the back and forth between the claimant and her interviewees about quotations, permission to quote them, was a quote approval process -- that has been admitted. It is even in her own witness statement draft. What surprises us, if you just look back to paragraph 17, when one considers what it is that the defendant now is asking the claimant to do at page 88, "my best estimate is that I have several thousand emails evidencing the back and forth between my interviewees and me concerning quotations and feedback", in other words a) quotations and b) feedback. If one then goes on to page 96. "Please find below the quotes that I would like to use, I hope they look good to you. I would be happy to send you the entire chapter when it is ready. I would be interested in your thoughts." Now if the defendant wants the claimant, as we have not understood it to do, to search through all these thousands of emails that include the quote approval process as opposed to the feedback process, which is now at page 98. If your Lordship will just note the last sentence, it is a sample request for feedback ...

LORD JUSTICE CARNWATH : Yes

MR RUSHBROOKE : "I would be delighted for feedback about factual problems, clichéd passages and any other infelicities." If my learned friend wants to go back into the quote approval back and forth that will take probably weeks for my client to go through and pick out the objections to what the interviewee says, not what the claimant says, and that is why when one goes back to paragraph 21. I had thought it was perfectly clear to my learned friend that all of 21 is under the rubric of the feedback process and indeed that is what she says. In almost all cases the feedback process was constructive et cetera, I can recall there are occasions when interviewees objected to things I said, what are my descriptions of them, I stress "I said" and not what "they said".

LORD JUSTICE CARNWATH : Yes, and I mean how many documents are we talking about ?

MR RUSHBROOKE : I understand that there is about four classic ... four examples of interviewees trying to persuade the claimant to as it were change her descriptions of them where the claimant either accepts or rejects those suggestions.

LORD JUSTICE CARNWATH : I mean in order to ... I mean if there is going to be an element of dispute about this we better try and pin down, is there some way you could sort of put in something to clarify precisely what it is you are ...

MR RUSHBROOKE : Well I hoped it was implicit from the entire wording of 21 but ...

LORD JUSTICE CARNWATH : Yes.

MR RUSHBROOKE : That there were occasions in the feedback process

LORD JUSTICE CARNWATH : Yes.

MR RUSHBROOKE : And with that ...

LORD JUSTICE CARNWATH : You would say that's implicit...

MR RUSHBROOKE : I would say it's implicit

LORD JUSTICE CARNWATH : ...in paragraph 1 anyway.

MR RUSHBROOKE : Yes, but if we have to re-argue it -- the entire application on a wider basis, I am afraid my Lord that's ...

LORD JUSTICE CARNWATH : ...not going to do that. Right, well.

MR PRICE : May I just say one thing, my Lord, because it is not quite that straightforward. Did you not have a statement of reasons ....

LORD JUSTICE CARNWATH : A statement of reasons ?

MR PRICE : Reasons why the appeal should be allowed notwithstanding permission to appeal.

LORD JUSTICE CARNWATH : Oh yes, this is.

MR PRICE : I mean I did add a paragraph in relation to the disclosure application which is paragraph 8, I think it's 18D ...

LORD JUSTICE CARNWATH : I am not sure I do have it. I mean I have certainly seen your statement of reasons. Where would it be in the bundle ... ?

MR PRICE : It's 18 D of the bundle ...

LORD JUSTICE CARNWATH : 18D ....

MR PRICE : ...to 2C?

LORD JUSTICE CARNWATH : Oh here we are, sorry I've got it here. Right now what are you looking at?

MR PRICE : At paragraph 8 my Lord. Now this is the only interviewee who I think appears to be giving evidence. We have had witness statements exchanged on Friday and the claimant relies on Mr Gurana (?) as evidence that she doesn't give copy approval. Can I just ask your Lordship to read paragraph 7?

LORD JUSTICE CARNWATH : Yes.

MR PRICE : So, my Lord, that isn't an objection taken to a quote, the attribution of a quote. If one is going to make a distinction between what the interviewee says and what Dr Thornton said about interviewee and the disclosure is only going to go to the second category because that is the only relevant category, we have a situation here where the claimant is relying on a first category, an interviewee who objects to an attribution of the quote as evidence that she does not give copy approval and on my learned friend's construction of paragraph 21 the documents relating to this exchange notwithstanding that this witness is to give evidence would not be disclosable because ...

LORD JUSTICE CARNWATH : Well I think you are widening the debate now. I mean we proceeded with this application on the basis that we would be talking about paragraph 21. Paragraph 21 is clearly dealing with what is called the feedback process and that is what I understand it to be about.

MR PRICE : Perhaps I should raise with the judge paragraph 7 of the witness statement.

LORD JUSTICE CARNWATH : Well I hope you do not because I mean this has got to stop somewhere. But anyway, I mean as far as I am concerned, it seems to me that the qualification which Mr Rushbrooke has proposed clarifies what is already I would have thought pretty clear.

MR PRICE : I apologise.

LORD JUSTICE CARNWATH : So the order will be to serve on the defendant a supplemental list of documents in the following category, that is "documents evidencing occasions (in the feedback process) where interviewees objected to things I said or to my description of them and sought to persuade me to alter them". Is that clear?

MR PRICE : Very clear, my Lord.

LORD JUSTICE CARNWATH : Now I don't know I mean ... in terms of trying to get a transcript of our judgment I mean. It would be obviously useful if you were to have it ...

MR PRICE : Yes, we will make sure the judge has it

LORD JUSTICE CARNWATH : We will expedite it and try and get it as quickly as possible. Thank you.

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/748.html