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Judgments - Grobbelaar (Appellant) v News Group Newspapers Ltd and Another (Respondents)

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Steyn Lord Hobhouse of Woodborough Lord Millett Lord Scott of Foscote

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

GROBBELAAR

(APPELLANT)

v.

NEWS GROUP NEWSPAPERS LTD AND ANOTHER

(RESPONDENTS)

ON 24 OCTOBER 2002

[2002] UKHL 40

LORD BINGHAM OF CORNHILL

My Lords,

    1. In November 1994 The Sun newspaper published a series of very prominent articles charging the appellant, a well-known premiership goalkeeper, with corruption. He promptly issued writs claiming damages for libel. After some delay caused by an intervening criminal prosecution of the appellant and others, these libel proceedings came before Gray J and a jury. The jury found in favour of the appellant and awarded him compensatory damages of £85,000. On the newspaper's appeal against this decision the Court of Appeal (Simon Brown, Thorpe and Jonathan Parker LJJ) set it aside as perverse and entered judgment for the newspaper: [2001] 2 All ER 437. At issue in this appeal to the House is the correctness of the Court of Appeal's decision.

    2. It has been common ground throughout these proceedings that the newspaper's articles referred to the appellant and were defamatory of him. There has also, unusually, been agreement between the parties on the defamatory meaning borne by the articles complained of. This meaning, as pleaded by the appellant in his statement of claim and admitted by the newspaper in its defence, was that the appellant

    "(a)  having dishonestly taken bribes had fixed or attempted to fix the result of games of football in which he had played and

    (b)  had dishonestly taken bribes with a view to fixing the result of games in which he would be playing."

This compendious statement, on which the conduct of the proceedings by both parties has necessarily turned, expresses two linked but separate allegations. The first is that, having dishonestly taken bribes, he had actually fixed or attempted to fix (ie deliberately lost or attempted to lose) games of football in which he had (in the past) played. The second is that the appellant had dishonestly accepted bribes with a view to fixing (ie deliberately losing) games of football in which he would (in future) be playing. I shall in this opinion use the expression "fix" to mean "deliberately lose".

    3. The appellant's case at trial was that he had never dishonestly accepted any bribe, had never made a corrupt agreement to fix or attempt to fix any game of football and had never in fact fixed or attempted to fix any game.

    4. The burden of justifying the agreed defamatory meaning of the words published lay, as in any libel action, on the publisher of the words, here the newspaper (and its editor, whose position calls for no separate consideration). But the trial judge correctly directed the jury that the newspaper did not have to prove the truth of every sentence or paragraph of the articles it published, and he continued:

    "What The Sun has to do in order to succeed with this defence is to establish the substantial truth of the defamatory charges or accusations published about Mr Grobbelaar. That is why I drew your attention a moment ago to what the admitted defamatory meanings of the articles are. It is the substantial truth of those defamatory meanings which The Sun has to prove to be true. In other words, the The Sun has to satisfy you of the substantial truth of the message that Mr Grobbelaar dishonestly took bribes and fixed or attempted to fix matches, those being the meanings which, as I have told you, are agreed.

    What that means, members of the jury, is that you must be satisfied by the evidence that the dishonest taking of bribes to fix the outcome of matches was something that Mr Grobbelaar did or at least was prepared to do or to try to do. As I say, the defence will not fail because you are not satisfied that the defendants have proved every alleged incident of dishonest bribery or every meeting or conversation on which they rely, provided that they have proved to your satisfaction sufficient [incidents] on or off the pitch for you to conclude that the charge against Mr Grobbelaar in those articles is substantially justified.

    Let me just expand a little further on what I mean by substantial justification or substantial truth. Suppose (and it is just a hypothesis to help you) you were to conclude that Mr Grobbelaar did indeed agree to take bribes and took bribes from the short man and later on agreed to take bribes and took a bribe from Mr Vincent but that for one reason or another he did not actually do anything in any match by way of attempting to fix the result by deliberately letting in goals; just suppose that was your conclusion on the evidence; but then you would want to stand back and ask yourselves: 'Are we satisfied, having arrived at that conclusion, that what was published about Mr Grobbelaar was substantially true?' The arguments might then be this: Mr Hartley [counsel for Mr Grobbelaar] might say, and indeed has said, that if there was no match that was actually fixed, that Mr Grobbelaar did not let in any goal deliberately, then that is a fatal flaw, says Mr Hartley, in the defence of justification and it should fail.

    Not so, says Mr Carman [counsel for the newspaper]; if it is established by the defendants that there were corrupt agreements then the sting of the articles is justified and the defence of justification should not fail, says Mr Carman, because the defendants cannot point to a particular match where there was any goal deliberately let in. I hope that helps you on what is meant by 'substantial truth' and of course it is your province; you are the people who decide whether the substantial truth of the article has been made out."

Towards the end of his jury direction the judge turned to the issue of damages, which he related to the issue of substantial justification:

    "But there is one important rider that I want to add, members of the jury. It is this. Supposing you were to come to the conclusion that you were not satisfied that the articles are substantially justified in the sense that I have explained to you, so that the plea of justification does not actually succeed, but you were to conclude that the defendants have proved a significant part of their case. For example, suppose, and this is just an example to try and illustrate the principle that I am trying to explain, you were to conclude that The Sun have proved the willingness of Mr Grobbelaar to enter into a corrupt agreement with Mr Vincent to fix matches [for] £2,000 a fortnight, or whatever it was, but you are not satisfied on the evidence that there was any corrupt agreement with the short man. Just suppose you come to that conclusion. Well, you might think: Well, here is a man who has, on our view of the evidence, been shown to have entered into a corrupt conspiracy, the one with Vincent, although not the one with the short man. Now, that, too, can be reflected in your award of damages, because you might in that situation feel it appropriate to reduce any award you might otherwise make quite significantly to reflect the fact that in good part what was published was true. So, that would be a reason for reducing perhaps - it is a matter for you - very, very significantly any amount of damages. But, of course, if you decide that the articles are substantially justified then of course you do not get to damages at all, so this is just an example to help you understand the way it works."

In accordance with the modern practice the judge made reference, for purposes of comparison, to prevailing levels of personal injury damages and gave the jury some assistance on the bracket within which, depending on its findings, damages (if awarded at all) might fall:

    "At the top end in a case of this kind you might think that an award of £150,000, something of that order, might be justified. At the lower end - but it all depends, really, on your view of the evidence. If you were to conclude that this is a case where a significant part of the defence of justification has been made good even if the defence does not succeed, then you might want to come up with a very small award indeed, I do not know. So the lower end of the bracket comes quite low if you feel that to a significant extent the case has been proved against Mr Grobbelaar."

    5. Before all the courts seised of this case it has been forcefully argued on behalf of the newspaper that the sting of the articles published lay in their very clear accusation that the appellant had corruptly agreed to fix and had accepted payment for fixing matches and that whether he had actually fixed matches or attempted to do so was a matter of relatively minor significance. In argument before the House, the first extract from the judge's jury direction quoted in the preceding paragraph was criticised by the newspaper for its failure to put the newspaper's version of the sting to the jury as the true and only sting. The Court of Appeal, I think, treated the newspaper's version of the sting in this way. I would for my part accept, without hesitation, that the newspaper's version of the sting could well be understood as expressing the real thrust of the articles. It is unnecessary to recite extracts from the articles themselves to make good that proposition. They were replete with references to corrupt agreements allegedly made by the appellant and to his corrupt acceptance of money. The judge would certainly have been wrong not to leave this version to the jury and a reasonable jury could well have accepted it. But the judge was also right to leave the appellant's version of the sting to the jury for its consideration. It is again unnecessary to make detailed reference to the articles. On the first day of publication on this subject the newspaper's headline on its front page was "GROBBELAAR TOOK BRIBES TO FIX GAMES" and its first paragraph read: "Soccer star Bruce Grobbelaar is exposed by The Sun today for taking massive bribes to throw key matches." On page 2 of the same issue its headline read "GROB I let in 3 goals and picked up £40,000". So the articles continued, with references, cartoons and jokes suggesting that the appellant had fixed matches, let in goals deliberately, saved goals by mistake and deliberately dropped the ball. A reasonable jury could well have accepted the appellant's version of the sting as expressing the real thrust of the articles. A reader of The Sun would no doubt be very shocked to learn that a professional footballer of the appellant's standing had corruptly agreed to fix matches and had accepted bribes to do so, but might well be even more deeply horrified to learn that a professional footballer of the appellant's standing had let down his team-mates, betrayed his club, blackened the name of English football and made fools of those who spent good money on watching what they took to be a genuine contest by fixing or attempting to fix matches in which he appeared. It could well be that the average reader of the newspaper, having read the articles complained of with the degree of attention many readers would give them, if asked a month later what they knew of the appellant, would remember him as the premiership goalkeeper who had deliberately let in goals for money. It is not for the House to choose between these competing versions. The choice was one to be made by the jury to which, pursuant to section 69(1)(b) of the Supreme Court Act 1981, the decision of such questions was committed. It was open to the jury to choose either version.

    6. The second extract from the judge's direction quoted in paragraph 4 above was also criticised by the newspaper, on the ground that it was not the case of either party that the appellant might have made one of the corrupt agreements alleged against him but not the other. I would reject that criticism also. The judge made it plain that he was giving an example to illustrate the relevant principle. The jury was not bound by the parties' views on the facts, provided there was evidence to support the view it took. And it would not in my opinion have been necessarily irrational or perverse to be satisfied about one of the two agreements but entertain doubts about the facts relating to the other (see paragraph 20 below).

    7. How, then, is the jury's verdict to be understood? All that is known for certain is that the jury found for the appellant, awarded him damages of £85,000 and did not award any sum by way of exemplary damages. The oracular utterance of the jury contains no reasoning, no elaboration. But it is not immune from review. The jury is a judicial decision-maker of a very special kind, but it is a judicial decision-maker nonetheless. While speculation about the jury's reasoning and train of thought is impermissible, the drawing of inevitable or proper inferences from the jury's decision is not, and is indeed inherent in the process of review. Thus it may be stated with certainty that the jury found that the newspaper had failed to justify, to the required standard, whatever it found the sting of the articles to be. There are two possibilities. Either the jury accepted the newspaper's version of the sting and found that the newspaper had failed to justify it. Or it accepted the appellant's version of the sting and found the newspaper had failed to justify that. Assuming that the members of the jury endeavoured to follow the judge's direction, there is no third possibility.

    8. Before the strengths and weaknesses of these two possible interpretations are considered, some reference must be made to the facts. This may be done with extreme brevity since the background facts, the evidence and the history of these proceedings have been summarised with great thoroughness and accuracy by the Court of Appeal: see the judgment of Simon Brown LJ at [2001] 2 All ER 437, pp 440-443, paras 4-22 and pp 452-457, paras 57-78; and the judgment of Jonathan Parker LJ, pp 467-482, paras 118-194. This opinion assumes that that material has been assimilated.

    9. On 6 September 1994 Mr Christopher Vincent contacted The Sun. He was described by the judge as "a thoroughly dishonest con-man". He was a native of Zimbabwe, where the appellant had been brought up, and they had formerly been associates in a business venture which had failed and caused considerable loss to the appellant. Mr Vincent had given evidence at both the criminal trials of the appellant, but he was not called by the newspaper at this trial because he was regarded by the newspaper as a wholly unreliable witness whose evidence might be highly suspect and whose whole character might be deeply flawed. Mr Vincent told the newspaper that the appellant had been acting corruptly. The newspaper armed Mr Vincent with equipment to record future exchanges between himself and the appellant with a view to obtaining evidence of the appellant's corrupt behaviour. The first meeting between Mr Vincent and the appellant after this date was on 12 September 1994 at the Swallow Hotel, Waltham Abbey. On this occasion the recording equipment failed to function and so the only evidence of the conversation which took place was the appellant's. He said that Mr Vincent had made a corrupt suggestion which he had rejected, before beginning to wonder what Mr Vincent was up to. A second meeting took place on 6 October 1994 at the De Vere Grand Hotel in Southampton. To begin with, the appellant and Mr Vincent played snooker together and their conversation at that stage was not recorded. They then went to Mr Vincent's bedroom where their conversation was recorded and video-taped. A further meeting in the same room, again recorded and video-taped, followed on 25 October 1994. A fourth meeting, recorded and video-taped, took place on 3 November 1994 in a flat at Osborne House, Southampton.

    10. The authenticity of the audio and video tapes obtained by the newspaper of these meetings between the appellant and Mr Vincent was not challenged at the trial, and in seeking to justify what had been published in the articles the newspaper very largely relied on what the appellant had himself said. During the course of the meetings Mr Vincent put corrupt proposals to the appellant who responded positively to them and also stated that he had acted corruptly in the past. At the last of the meetings, on 3 November 1994, the appellant received £2,000 in cash in an envelope from Mr Vincent.

    11. Knowledge of events before the appellant's first meeting with Mr Vincent on 12 September 1994 derives almost entirely from what the appellant is recorded as saying on the tapes. In November 1992 the appellant had been introduced by Mr John Fashanu, another football star, to Mr Richard Lim, usually referred to as "the short man", who was said to be the front man of a Far Eastern syndicate betting on English football. According to the appellant's evidence at trial he at first agreed to forecast the result of matches for Mr Lim, but later provided information instead, for which services he had received some £8,000 in cash. On 30 September 1993 the appellant and Mr Vincent had driven together from Chester to the Hilton Hotel at Manchester International Airport where the appellant received £1,000 or £1,500 in cash from Mr Lim. On 21 November 1993 Liverpool, the appellant's club, lost 0-3 to Newcastle at home. According to the appellant's statements on the tapes, Mr Lim had asked the appellant to fix this game and had paid him £40,000 for his services. Despite a headline in one of the articles clearly suggesting that he had let in three goals and had received £40,000, however, the newspaper did not allege in its defence that the appellant had deliberately let in any of those goals.

    12. On 25 November 1993 the appellant and Mr Vincent visited Mr Fashanu at his home and it was then, the newspaper contended, that payment was made for the Newcastle result. The appellant accepted that during November 1993 he paid Mr Vincent £20,000 in cash, partly in payment of a bill but largely as a deposit on a development scheme in Zimbabwe, and also admitted that he had paid £5,000 into his testimonial fund on 26 November 1993. The timing of the £20,000 payment and the origin of these monies was disputed between the parties. The appellant said that the cash was drawn from a store of cash which he kept in his sock drawer. His habit of keeping cash in that drawer, and the payment of a substantial sum out of it, were corroborated by the appellant's wife.

    13. On 4 January 1994 Liverpool played Manchester United at home and drew 3-3. The newspaper, basing itself on the tapes, contended that if Liverpool had lost that match the appellant would have received £125,000. The newspaper did not allege in its defence that any of the three goals scored by Manchester United were deliberately let in by the appellant but did contend that he had made two "blinding saves" accidentally. On 4 February 1994 the appellant was staying in the team hotel in Norwich and on the eve of Liverpool's match against Norwich the following day, in breach of club rules, he drove with Mr Vincent to London where he met Mr Lim and received £1,500 before returning to Norwich in the small hours of the next day. In the match against Norwich, Liverpool drew 2-2. The newspaper did not allege in its defence that either goal scored by Norwich was deliberately let in by the appellant, but did allege that one of his saves was made accidentally. During July 1994 the appellant went to Malaysia and played in an invitation match. According to his statement on the tapes he was being "sussed out by the . . . short man's people".

    14. In August 1994 the appellant transferred from Liverpool, which he had joined in 1981, to Southampton. In a match against Coventry on 24 September 1994, after the appellant's first (unrecorded) meeting with Mr Vincent at the Swallow Hotel, Southampton won 3-1. Relying on what the appellant later said on the tapes, the newspaper contended that the Coventry goal had been scored when the appellant had pushed the ball into the back of the net. Southampton's next match mentioned in the evidence was played away against Manchester City on 5 November 1994, two days after the appellant's last meeting with Mr Vincent at which he had received £2,000 in cash, and was drawn 3-3. The newspaper did not contend in its defence that any of the Manchester City goals had been deliberately let in by the appellant.

    15. On 8 November 1994 the appellant was due to fly from Gatwick Airport to Zimbabwe. Shortly before that date Mr Vincent telephoned him to suggest that they should meet at the airport, so that he (Vincent) could give the appellant his next £2,000 instalment. This was, it seems, agreed, but when the appellant arrived at the airport he was instead confronted by a posse of journalists who (as Jonathan Parker LJ put it [2001] 2 All ER 437 at 480, para 184) "bombarded him with questions and accusations". These questions and accusations were in the main based on the contents of the tapes. There followed, at the suggestion of the journalists, a less pressured telephone conversation between the appellant and the editor of the newspaper.

    16. There can be no doubt but that the appellant's statements recorded on the tapes, if accepted as wholly true, were very clear evidence of a corrupt agreement between him and Mr Lim, of the corrupt receipt of money by him from Mr Lim, of a corrupt agreement between him and Mr Vincent, of the corrupt receipt of money by him from Mr Vincent and of his deliberately fixing or attempting to fix matches. The appellant however denied that he had ever made any corrupt agreement with Mr Lim or received bribes from him to fix matches. His only agreement with him had been to make forecasts and provide information for which he had received about £8,000, as already mentioned. In describing his dealings with Mr Lim to Mr Vincent, as he had, he had been seeking to earn Mr Vincent's confidence and trust, as part of an overall scheme to discover the identity of those who were behind Mr Vincent and gain evidence of their corrupt activities with a view to exposing both him and them to the appropriate authorities in this country. His suggestions that he had deliberately let in goals were untrue and were, again, made to earn the trust and confidence of Mr Vincent.

    17. In thus seeking to explain away his apparently incriminating statements, the appellant faced certain formidable difficulties. Most formidable of all is the content of the tapes themselves. Transcribed, these tapes run to over 50 pages. Some of the conversation recorded is personal. Some relates to the parties' business ventures. But much is devoted to discussing and working out the terms of the corrupt bargain which Mr Vincent was offering to the appellant. In these passages the appellant shows himself ready enough to deal, but anxious about the risk of exposure and concerned to plan his response if the facts came to light. He makes no more than a half-hearted attempt to discover the names of Mr Vincent's backers, apparently keener to conceal his own identity than discover theirs. I do not think any reasonable juror, hearing or reading this material, could have concluded that the appellant's making of a corrupt bargain with Mr Vincent and his acceptance of money from him could have been a pretence on his part.

    18. Allowance must of course be made for the immense advantage enjoyed by the jury in hearing the appellant give his evidence, both when examined by his counsel Mr Hartley QC and when cross-examined by the late Mr Carman QC for the newspaper. But even if the appellant's account, standing alone, were treated as plausible, his difficulties do not end. In his pleaded reply in these proceedings the appellant denied the existence of "the short man", who was said to be a figment of his own imagination. This lie, which remained uncorrected for three years, was attributed by the appellant to his concern that his forecasting arrangement with Mr Lim might be contrary to the rules of the Football Association. Also in his reply the appellant denied that there had been a meeting with Mr Fashanu on 25 November 1993, a lie for which he was unable at the trial to offer any explanation at all. Again, the appellant in his reply denied that he had visited London with Mr Vincent on the eve of Liverpool's match against Norwich, a lie which he attributed to his concern that his breach of club discipline should not become known. The appellant's difficulties do not even end there. During the period of his meetings with Mr Vincent he made no mention to anyone of his plan to obtain evidence of wrongdoing so as to expose Mr Vincent and his backers. When he received payment of £2,000 in cash he did not take or report it to the authorities but instead (according to him) put it in the glove compartment of the car, intending to make disclosure after his receipt of the second instalment and on his return from Zimbabwe. When confronted at the airport his initial reaction was to challenge the reporters to prove their allegations and to resort to half-truths. Even in his conversation with the editor he gave no more than a passing hint of what was, at the trial, to be the bedrock of his case.

    19. In his exchanges with the reporters at the airport and with the editor, the appellant was emphatic (as he was in evidence at the trial) that he had never fixed or attempted to fix a match. That assertion conflicted with what the appellant was recorded on the tapes as saying about the five matches mentioned above. In his evidence at the trial he again testified that he had never fixed or attempted to fix a match. His evidence might not, without more, carry great weight, since his credibility was at best questionable and he was vulnerable to the suggestion that a professional footballer would not make such admissions, gravely damaging to himself, unless they were true. But there was no extraneous evidence to support the truth of the appellant's admissions and there was in this instance strong evidence to show their untruth. For there were videos, played before the jury, showing all the instances in which the appellant had claimed to have made, or tried to make, goalkeeping errors and there was expert evidence strongly supportive of the appellant's evidence from Mr Bob Wilson, formerly a professional goalkeeper of the highest standing, and Mr Alan Ball, formerly a professional footballer of renown who had been the appellant's manager at Southampton. Mr Wilson saw no evidence of anything other than good (and on occasion outstanding) goalkeeping in any of the five games. Mr Ball saw nothing odd or suspicious in the appellant's play in either of the two Southampton games, both of which he had watched. The newspaper called no evidence to contradict that adduced by the appellant, but instead accepted (as noted above) that in four of the five games in question the appellant had not deliberately let in any goals. Of the Coventry match, in which the appellant said he had pushed the ball into the back of the net, Mr Wilson's opinion was that a goalkeeper less agile than the appellant would not possibly have touched the ball at all and that the appellant had made every attempt to save it.

 
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