|Judgments - Grobbelaar (Appellant) v News Group Newspapers Ltd and Another (Respondents)
20. Consideration may now be given to the two possible interpretations of the jury's verdict identified in paragraph 7 above: first, that the jury accepted the newspaper's version of the sting of the articles and found that the newspaper had failed to justify it. It was this interpretation which was accepted in the Court of Appeal, with the agreement or acquiescence of Mr Hartley, as the correct interpretation of the verdict. Simon Brown LJ referred to this in paragraph 23 (p 443) of his judgment, and again in paragraph 80 (p 458) where he said
Thorpe LJ also referred to it in paragraph 115 (p 466), and Jonathan Parker LJ in paragraph 219 (p 487):
It was this blanket exoneration of the appellant which the Court of Appeal found to be irreconcilable with the evidence before the jury and so perverse. If this is the correct interpretation of the jury's verdict I should be compelled to share the Court of Appeal's conclusion. As Simon Brown LJ put it (p 461, para 92):
On all the evidence it defies reason to accept that the appellant did not make a corrupt agreement with Mr Vincent and accept a bribe from him. In relation to Mr Lim, the position is possibly less clear. The tapes contain apparently clear admissions of a corrupt agreement and the acceptance of bribes. But the appellant's fixing and attempted fixing of matches was said to have been done in pursuance of that agreement. If the jury concluded that the appellant had not been shown to have fixed or attempted to fix matches, it could perhaps have felt some doubt about the agreement itself.
21. Only rarely, and with extreme caution, will the House permit counsel to withdraw from a concession which has formed the basis of argument and judgment in the Court of Appeal. But Mr Hartley has sought the leave of the House to do so, and I would, exceptionally, permit him to do so for two reasons. First, it is a very serious thing to stigmatise as perverse the unanimous finding of jurors who have solemnly sworn to return a true verdict according to the evidence. A jury may, of course, from time to time act in a wholly irrational way, but that is not a conclusion to be reached lightly or if any alternative explanation not involving perversity presents itself. Secondly, the common position of counsel on this issue was, although for quite different reasons, dictated by their respective forensic positions. Mr Hartley represented a client who had faced two criminal charges. He had been acquitted of one and two juries had been unable to agree on the other, leading to his discharge. He had pursued these libel proceedings in the hope of salvaging his reputation after a highly publicised attack upon it in the newspaper and elsewhere. At the end of the trial he had won the jury's verdict and recovered what was, by any standards, a substantial award of damages. Counsel representing the appellant was bound, in his client's interests, to portray this outcome as a complete vindication of his client's reputation. To have portrayed the result as anything other than complete vindication could scarcely have reflected the client's wishes or indeed his instructions. But, curiously, it served the newspaper's turn to portray the verdict in the same way, for the more complete the jury's exoneration of the appellant was taken to be, the more susceptible to challenge, given the weight of the evidence against him on the Vincent agreement, the jury's verdict would be. So it served what both sides understandably saw as their interests to put the same case on this point to the Court of Appeal. This unusual situation in my opinion provides additional ground for considering whether any alternative, and preferable, explanation of the verdict exists.
22. The alternative explanation, as expressed in paragraph 7 above, is that the jury accepted the appellant's version of the sting and found that the newspaper had failed to justify it. This version, it will be recalled, is directed to the appellant's conduct in actually fixing or attempting to fix matches. If the jury found this to be the true sting of the articles, its finding in favour of the appellant is explicable, since the jury could not on the evidence have found that the newspaper had justified it. It is plain from the urgency of Mr Carman's submissions to the judge in the absence of the jury that he, as one would expect, fully appreciated the vulnerability of the newspaper if the appellant's version of the sting were to be accepted as the true sting of the articles. But for one feature of the jury's decision, it would seem very probable that the jury, as it was entitled to do, accepted the appellant's version of the sting and found for him accordingly.
23. That feature is the award of £85,000 compensatory damages. That is a substantial award and the newspaper relied on it to contend that the jury must have found that no corrupt act had been established against the appellant, even on the balance of probabilities. Mr Hartley suggested that the jury, basing itself on the maximum figure indicated by the judge, had discounted that figure because of the lies admittedly told by the appellant. Both contentions raise problems. Acceptance of the newspaper's contention requires acceptance that the jury acted perversely, a conclusion one is reluctant to reach unless driven to it. But the appellant's explanation is unpersuasive. If the jury found that no corruption had been proved against the appellant, it must have accepted his evidence. If it accepted his evidence on the main issues it would be surprising if his explanation of his lies about the existence of Mr Lim and the trip from Norwich to London had not been accepted. The appellant's lie about the visit to Mr Fashanu's house would remain unexplained, but would (if no corruption were found proved against the appellant) have been a motiveless and somewhat irrelevant lie, not meriting any substantial reduction of damages.
24. It seems to me safe to infer
1) that the jury accepted the appellant's version of the sting of the articles, as the judge had directed was open to it;
2) that the jury found that the sting had not been justified, as on the evidence it had plainly not; and
3) that the jury found that the appellant had made a corrupt agreement with and corruptly accepted money from Mr Vincent, as it would have been perverse to do otherwise.
The question then arises whether on that basis the jury's award of damages can be upheld. The jury will have had in mind the newspaper's banner headline on the front page of its first issue devoted to this topic and the similar headline on page 2, quoted in paragraph 5 above. The jury may well have held it against the newspaper that this allegation of match-fixing and attempted match-fixing was persisted in and never withdrawn despite the lack of extraneous evidence to support it. The ambush of the appellant at the airport may have been seen as oppressive, the weight of the newspaper's journalistic onslaught as excessive and the newspaper's attempt to involve the appellant's children as offensive ("How much of what's been happening have you told the children about? Have they been getting a hard time at school as the result of the allegations against you?"). The jury's generosity towards the appellant is perhaps understandable. But it cannot be supported. The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection. Until 9 November 1994 when the newspaper published its first articles about him, the appellant's public reputation was unblemished. But he had in fact acted in a way in which no decent or honest footballer would act and in a way which could, if not exposed and stamped on, undermine the integrity of a game which earns the loyalty and support of millions. Even if the newspaper had published no more than what, on my interpretation of the jury's verdict, it was entitled to have published, the appellant would have been shown to have acted in a way which any right-thinking person would unequivocally condemn. It would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations.
25. The newspaper contended in its written case that the power conferred on the Court of Appeal by section 8(2) of the Courts and Legal Services Act 1990, to substitute for a sum of damages awarded by a jury such sum as appeared to the court to be proper instead of ordering a new trial, is a power exercisable only by the Court of Appeal and not by the House. Reliance was placed on the express reference in the subsection to the Court of Appeal, to the definition of "Court of Appeal" in section 5 of and Schedule 1 to the Interpretation Act 1978 and to the language of CPR Part 52.10(3), which reflects the terms of section 8. My Lords I regard this contention as misconceived. By section 4 of the Appellate Jurisdiction Act 1876 it is provided that the House may, on an appeal to it, "determine what of right, and according to the law and custom of this realm, ought to be done in the subject-matter of such appeal". A petition to the House routinely asks, as does that of the appellant, that the order of the Court of Appeal "may be reviewed by Her Majesty the Queen, in Her Court of Parliament, and that the said Order may be reversed, varied or altered or that your Petitioner may have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, may seem meet". The House is not, like the Court of Appeal, a creature of statute, and in the absence of statutory or judicial restriction has inherent power to exercise any power vested in the Court of Appeal. In his article "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems 23, Jacob was largely concerned with the inherent jurisdiction of the High Court, and the procedural aspects of that jurisdiction. But he propounded (page 51) a definition which has never perhaps been bettered:
It would be strange indeed if the House, having jurisdiction to entertain the appellant's appeal against the decision of the Court of Appeal, did not have power to substitute the order which it concludes the Court of Appeal should have made.
26. If the jury's finding in favour of the appellant could not be explained on any ground not indicative of perversity, the Court of Appeal would have been not only entitled but bound to quash it, and the contrary was not argued. But the task of an appellate court, whether the Court of Appeal or the House, is to seek to interpret the jury's decision and not, because of justifiable dissatisfaction at the outcome, to take upon itself the determination of factual issues which lay within the exclusive province of the jury. In its approach to the quantum of damages the jury fell into serious error, failing to respond to the steer which the trial judge had given, and its award cannot be supported. But that was not a perverse error and to conclude, on the evidence and the judge's direction, that the jury must have acted perversely in making the finding it did is not in my opinion justified.
27. For the foregoing reasons, I would quash the Court of Appeal's decision and restore the first instance finding in favour of the appellant. I would however quash the jury's award of damages and substitute an award of £1 nominal damages. The appellant is entitled to protection against repetition of the allegation that he actually fixed or attempted to fix matches, and I would give him leave to apply to the High Court for the grant of a suitably-worded injunction limited to restraining the publication of words which mean or could reasonably be understood to mean that he had fixed or attempted to fix matches and extending no further, unless a suitable undertaking is offered. The newspaper's important right of free expression is not infringed by restraining re-publication of what the jury has found to be a falsehood. As asked by both parties, I would invite written submissions on the costs of these proceedings.
28. After a comprehensive and careful analysis of the facts the Court of Appeal came to the conclusion that the jury verdict of £85,000 in favour of Mr Bruce Grobbelaar was an affront to justice and had to be quashed: Grobbelaar v News Group Newspapers Ltd  2 All ER 437. While the members of the Court of Appeal were reluctant to find that a jury verdict was perverse, they concluded that Mr Grobbelaar's case stretched credulity beyond breaking point. It was therefore one of those rare cases where a jury verdict had to be quashed. To allow Mr Grobbelaar to retain a wholly unmerited award of damages would have been wrong. That is how the Court of Appeal reasoned. Disagreeing with the other members of the Appellate Committee, I am in full accord with the conclusion and reasons of the Court of Appeal. Having unquestionably conspired, with two different fraudsters, in return for bribes, to attempt to fix football matches, it is an unjust result, in the circumstances of this case, to affirm a verdict on liability in favour of Mr Grobbelaar. By recovering only derisory damages Mr Grobbelaar has, of course, effectively lost his action to clear his name. But as a systematic taker of bribes to fix football matches he is not entitled to a verdict on liability on the ground that it was never proved that he deliberately let in goals. As Thorpe LJ observed in the Court of Appeal "one act, the corrupt agreement, is capable of clear proof, whereas the other, betrayal on the pitch, is not": para 106.
29. The facts and circumstances are set out in great detail in the Court of Appeal judgments to which I would wish to pay tribute. I can therefore refer to the background quite shortly. Based on a tip-off from a Mr Vincent, the Sun newspaper arranged in the period September to November 1994 for meetings between Mr Grobbelaar and Mr Vincent to be secretly recorded. The tapes showed that Mr Grobbelaar accepted bribes through a Mr Lim and Mr Vincent to fix football matches. He also explained during recorded interviews that as a goalkeeper he had in the past let in or attempted to let in goals. The Sun newspaper confronted Mr Grobbelaar with this evidence at Heathrow Airport on 8 November 1994. Mr Grobbelaar's responses, particularly to the editor of the Sun, were manifestly untruthful and consistent only with guilt.
30. The Sun published its exposé of Mr Grobbelaar's conduct over the next eight days under banner headlines to the effect that "Grobbelaar took bribes to fix games". Football is the national sport and there was enormous public interest in the story. In the Sun there was saturation coverage. The recurring theme of the reports, based on the tapes, was that Mr Grobbelaar took bribes to fix football matches and also deliberately let in goals.
31. Mr Grobbelaar sued for damages. The trial of the civil case had to await the conclusion of criminal proceedings against him. Those proceedings did not result in his conviction. In July 1999 Mr Justice Gray and a jury heard the libel action. Mr Grobbelaar called two football experts who testified that video evidence of five games did not show that he let in any goals. As against this there was before the jury the tapes which cumulatively demonstrated the corrupt dealings of Mr Grobbelaar. Gray J directed the jury correctly on all points of law and reviewed the background and issues in a fair and balanced way. In his summing up the judge left it open to the jury to consider, if they concluded that no match fixing had been established, but they were satisfied that one or two corrupt agreements were made, to find for the Sun on substantial justification or to reduce Mr Grobbelaar's damages to a nominal sum. This is the context in which the jury returned a verdict in favour of Mr Grobbelaar and awarded him £85,000 damages.
32. In the Court of Appeal Lord Justice Simon Brown recorded that "it was common ground before us that the award of £85,000 was consistent only with the jury having rejected the defence of justification in respect of both alleged conspiracies - i.e. both the corrupt agreement with Mr Lim in the past and that with Mr Vincent for the future": para 23; see also paras 115 & 219 of the other judgments of Thorpe LJ and Jonathan Parker LJ. This reflected the considered position of both parties which had crystallised before the oral hearing. Clearly, each member of the Court of Appeal regarded this inference as the most plausible. Given this agreed interpretation of the jury verdict the members of the Court of Appeal judgments did not need to explain their reasons for accepting this position. This also explains the structure of the judgments. On appeal to the House counsel argued that the Court of Appeal erred in the following respects:
I would hesitate long and hard before accepting such a new interpretation which is plainly inspired by tactical considerations. In any event, the agreed basis placed before the Court of Appeal is in my view the most likely explanation. The jury must have accepted the argument advanced on behalf of Mr Grobbelaar at trial that, since he let in no goals, his explanation that during the taped interviews he was merely trying to trap Mr Vincent, was probably also true. Counsel for Mr Grobbelaar observed to the Court of Appeal that the reduction of the damages from a substantially higher figure mentioned by the judge was in recognition of the lies told by Mr Grobbelaar: para 23. The heavy concentration at trial on the expert evidence caused the jury to take their eye off the forensic ball. It is inappropriate therefore to depart from the agreed basis put before the Court of Appeal.
33. On the agreed interpretation of the jury verdict, the next question is whether the Court of Appeal was correct to find that the jury verdict was perverse. Like the members of the Court of Appeal I am satisfied that both conspiracies were established. The roles of Mr Grobbelaar, Mr Lim and Mr Vincent were interwoven. The conspiracy with Mr Vincent was established beyond rational argument. The conspiracy with Mr Lim did not solely depend on Mr Grobbelaar's admissions. As counsel for the Sun demonstrated there was ample corroboration and confirmation of this conspiracy. The jig-saw is complete: both conspiracies were proved with compelling clarity and certainty. The consequence of this conclusion was summarised by Thorpe LJ as follows (para 106):
The jury's complete exoneration of Mr Grobbelaar was perverse. The verdict had to be quashed.
34. The consequence of the Court of Appeal's conclusion must now be considered. It would have been within the power of the Court of Appeal to order a retrial. It was, however, a result for which understandably neither side argued. The Court of Appeal rightly did not order a retrial. In these circumstances, the duty devolved upon the Court of Appeal to substitute a fair and realistic verdict which was open to the jury on the evidence and on the judge's directions. Given that Mr Grobbelaar was shown to be a corrupt goalkeeper it was within the discretion of the Court of Appeal to adopt one of two courses, namely (a) to find in favour of the Sun on substantial justification or (b) to find on liability in favour of Mr Grobbelaar but award a nominal sum of £1. Either decision was open to the jury and therefore open to the Court of Appeal. The decision of the Court to adopt course (a) was sound in law and just.
35. It follows that the appeal of Mr Grobbelaar should be dismissed.
36. If, contrary to my view, the correct disposal of this case is to allow the appeal, to restore the verdict in favour of Mr Grobbelaar and to reflect his systematic corrupt dealings with a reduced award of damages, he should in my view only be entitled to a derisory award of £1. His reputation as a sportsman has been destroyed by his corrupt dealings. To award him anything more would be an affront to sport, public justice and public policy.
37. In dealing with damages, I have not lost sight of an argument by counsel for the Sun that the House does not have the power to determine the award of damages. The argument was that section 8 of the Courts and Legal Services Act 1990 entrust such a power only to the Court of Appeal. In my view the House of Lords as the highest court in the land has inherent jurisdiction to make any order which the Court of Appeal is by statute empowered to make: see Halsbury's Laws, Vol 37, para 12; I. H. Jacob, The Inherent Jurisdiction of the Court, (1970) 23 CLP 23. The House has plenary power to determine the award of damages.
38. Faced with Mr Grobbelaar's participation in two criminal conspiracies counsel for Mr Grobbelaar tried to justify a significant award in favour of Mr Grobbelaar on the ground of excessive coverage of the story and the ridicule heaped on Mr Grobbelaar. I would reject this argument as contrary to freedom of expression. The right of the Sun to decide on the extent of the coverage and the right of the Sun to employ wounding ridicule in respect of a corrupt goalkeeper is protected by a constitutional right of free speech under domestic law and under article 10.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to freedom of expression under article 10.1 extends to information and ideas "that offend, shock or disturb": Gatley on Libel and Slander, 1998, 9th ed, para 23.19. To curtail the right of a satirist to deploy ridicule to the extent and in the manner in which he chooses would be a far reaching incursion on freedom of speech. There is no warrant in our legal history, modern principles of public law, convention principles, or policy for such an approach. It would therefore be wrong to grant substantial damages to Mr Grobbelaar on the basis suggested by counsel.
39. I would not accede to counsel's request to grant to Mr Grobbelaar the discretionary remedy of an injunction restraining the Sun from repeating the allegation that he had actually fixed matches. Despite Mr Grobbelaar's proved participation in two football related criminal conspiracies his counsel asked the House to grant to Mr Grobbelaar the discretionary remedy of an injunction restraining the Sun from repeating the allegation that he had actually fixed matches. If there was any merit in such a contention it could have been raised in the Court of Appeal. It was not. It does not appear in the Statement of Facts and Issues. It is not mentioned in the printed case of Mr Grobbelaar. The contention has the hallmarks of an eleventh hour tactical attempt to salvage something in respect of costs. After all, as a footballer Mr Grobbelaar has no reputation to protect.
40. I would reject the claim for an injunction on its legal merits. Under section 12(1) and (4) of the Human Rights Act the court must "have particular regard to the Convention right of freedom of expression". Clayton and Tomlinson, The Law of Human Rights, 2000, para 15.244-15.246, point out that generally section 12(4) is intended to "tip the balance" in favour of freedom of expression in applications to restrain breaches of privacy. The same must apply to injunctions in defamation cases. This is particularly relevant to the exercise of the discretion to grant an injunction. Mr Grobbelaar is about as far away from being an applicant with clean hands as one can imagine. To grant him an injunction because his reputation is worthless would devalue the solemnity of an order of court. In any event, the extensive qualifications which would have to be inserted in any injunction would have to leave newspapers free to report and comment on his systematic corrupt dealings, as well as the fact that he had asserted in recorded meetings that he had tried to fix matches. The usefulness of such an injunction to Mr Grobbelaar would be nil. He must be content with such meagre solace as he can derive from the judgments of the majority.
LORD HOBHOUSE OF WOODBOROUGH
41. This libel action between a well known footballer and a wide circulation tabloid newspaper has given rise to starkly differing responses from the courts. The trial before Gray J and a jury led to rulings that the newspaper was not entitled to rely upon qualified privilege and jury verdicts that there should be judgment for the plaintiff and that his damages should be £85,000 but should not include any exemplary damages. The newspaper's appeal against the judge's ruling on privilege was dismissed by the Court of Appeal but its appeal against the jury verdict in favour of the plaintiff was successful on the ground that it was perverse. The Court of Appeal set aside the verdict for the plaintiff and entered judgment for the defendants. In your Lordships' House there is a division of opinion, the majority upholding the verdict for the plaintiff but not the verdict for the damages.
42. The features of this case which have led to this range of outcomes are far from unique but are present to a more stark degree than is usually encountered. They confirm the need to keep a firm grasp of the principles of the law of defamation and guard against being swayed by, albeit understandable, indignation. Also fundamental is the fact that there was more than one issue for the jury to determine. They were asked to answer three distinct questions. The first concerned the issue of substantial justification which asked for a verdict for the plaintiff [claimant] or the defendants. This was the issue of liability: as I have said, the verdict of the jury was for the plaintiff. The second, which only arose if the first verdict was for the plaintiff, concerned the amount of the damages which should be awarded to him. The third concerned whether it should include exemplary damages.