[GA2 of 3] Simon Regan v Thomas David Barton Taylor 29 Apr 1999 High Court

This is the second of three applications or appeals in which Anglesea is mentioned.

This was an application by Mr Taylor in a claim for damages for libel by Mr Regan, Editor of Scallywag against Mr Taylor, solicitor for Gordon Anglesea in a libel trial. The application succeeded and Mr Regans case was dismissed.

Relevant are Scallywag 22 an article entitled “Raped” and Private Eye in January 1993 which mentioned Anglesea.

Mentioned is Lord Y, which was Lord A McAlpine

Mentioned also is Beck. This is Alan Beck not the more infamous Frank Beck.

This is from the Scallywag piece in question [6]

We have documentary evidence that former Tory party treasurer Lord
McAlpine indulged in oral sex with an underage boy. We have evidence
that Derek Laud, close friend of  Michael Brown MP, sodomised an
underage boy at one children’s home so savagely that the child received
hospital treatment for a ruptured anus. And we have evidence that Alan
Beck, known in gay circles as Sister Latex, and a confidant of Michael
Portillo since Peterhouse College, Cambridge, was accused of raping an
underage boy in his care. 1994 Scallywag 22 LORD McALPINE AND THE PAEDOPHILE [6]

Bryn Estyn mentioned as venue of abuse is part of the Bryn Alyn Community of childrens homes where much abuse occurred.

Simon Regan who may be chuckling at this turn of events and who did so much to expose child abuse at personal risk to himself. RIP Simon.

Redaction

Some reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redacted” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This particular post is victim sensitive data redacted on only two occasions.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[1999] EWHC J0429-11

No. 1994 R NO. 1483

IN THE HIGH COURT OF JUSTICE

Thursday, 29th April 1999

Mr Justice Gray

Simon Regan v Thomas David Barton Taylor


Taped transcript of Smith Bernal Reporting Ltd 180 Fleet Street, London, EC4A 2HD Tel: 0171 404 1400. Fax: 0171 404 1424

MR D PRICE appeared on behalf of the APPLICANT

MR ELLIOT (instructed by Russell Jones & Walker, Swinton House, 324 Grays Inn Road, London, WC1X 8DH) appeared on behalf of the DEFENDANT

JUDGMENT

(AS APPROVED BY THE COURT)

Thursday, 29th April 1999

JUDGMENT  MR JUSTICE GRAY:

Yesterday I discharged the jury in this case, and I am now going to give the reasons for taking that course. I give the reasons in open court with the agreement of the parties.

This is an application by the defendant, Mr Barton Taylor, which was made on the first day of the trial of this libel action, whereby he seeks an order in effect dismissing the claim of Mr Simon Regan, the claimant in the action. The application is made under part 24(2) of the Civil Procedure Rules which is in the following terms:

“The Court may give summary judgment against a claimant or defendant on the whole of the claim or on a particular issue, if (a) it considers that (i) the claimant has no real prospect of succeeding on the claim or issue.”

I need not read the rest.

It is common ground that this being after 26th April 1999 the Civil Procedure Rules apply. It is plain that the hurdle to be surmounted by a party making an application under the CPR is substantially lower than was the hurdle on an application to strike out under the provisions of order 18 rule 19 of the rules of the Supreme Court.

Nevertheless in a jury action, such as is the present, I bear in mind that at least one of the issues would be for the decision of the jury at trial. A degree of caution is appropriate before removing such an issue from the jury.

The basis on which the application is made can be summarised as follows. One of the defences relied on is qualified privilege. Mr Caldecott, QC, for the defendant, contends that it is clear beyond argument on facts which are either admitted or which do not brook any argument that the occasion of the publication of the words complained of was one of qualified privilege.

Qualified privilege will not, of course, avail a defendant who is actuated by malice. The pleadings contain an allegation of malice against the defendant, but, argues Mr Caldecott, the allegation of malice is doomed to failure, either because there is no evidence to support the allegations made in support of the claim of malice, or because on analysis those allegations are not in reality probative of malice.

For these reasons, runs the argument, this libel claim has no reasonable prospect of success and judgment should accordingly be entered for the defendant.

I should address first the issue whether the occasion of the publication of the words complained of was one of qualified privilege. The facts which are material to this question are these. In 1993 a retired superintendent of police, Mr Anglesea, brought libel proceedings against a number of media defendants who had variously published allegations that Mr Anglesea had committed sexual offences against boys at a children’s home in Wales. The claimant, Mr Taylor, was at that time a partner in the firm of Russell Jones & Walker and he had the conduct of Mr Anglesea’s libel claim on his behalf.

The defendant, Mr Regan, is a journalist who was at the material time the editor of a journal called Scallywag. In April 1994, whilst Mr Anglesea’s libel action was pending, there was published in issue number 22 of Scallywag an article which included a number of grave allegations about Mr Anglesea and about his libel claim. It had this, amongst other things, to say about Mr Anglesea: “Gordon Anglesea, who has since retired and is at present under prosecution for raping a minor, the police are aware of allegations of paedophile activities against all the above.” About had been named a number of well-known figures.

The article further had this to say about allegations of sexual impropriety with boys to whom I shall refer by letters of the alphabet in order to protect their anonymity. Under the cross heading “Raped” the Scallywag article says this:

“Press coverage centred on the testimony of A and B, boys who gave a gruesome account of how they’d been raped repeatedly by Anglesea. B described in vivid detail one Christmas holiday at Clwyd House in the Brenestyn [Bryn Estyn] School.”

Then the boys are quoted as having said: “On one occasion he [that is a reference to Mr Anglesea] entered my bedroom, attacked me and grabbed my penis. On the second occasion several days later he entered my room, pounced on me and held my wrists with his hand so I could not move. He ripped my pyjama shirt and trousers off and pinned me to the bed face down and raped me. I believe I was 13 years old at the time.”

Further the allegation is made in the same article in Scallywag as follows:

“[H] left Summerhill a deeply confused and depressed young man. For a while he lived in Brighton and was supported by Mr X, until finally he broke away and severed all ties. But it was not until Brian Thomas’s article about Superintendent Anglesea appeared in Private Eye in January 1993 that H summoned up the courage to speak out. He contacted Thomas and after several detailed interviews was persuaded to give evidence to the police.”

Further on in the article the following allegation is made:

“While at the farm in Leicestershire C was raped savagely by Beck. The day afterwards a distraught Sellers told Wrexham police everything that had happened. Beck was questioned at length but mysteriously no prosecution followed. This was almost certainly due to the fact that superintendent Anglesea was the man in charge.”

Finally this passage appears in the Scallywag article in which I again use a letter of the alphabet to protect an individual’s anonymity) :

“Should Lord Y choose to consult his solicitors over the story we have printed we would welcome the opportunity of dragging his name through the courts. Should he choose not to take action then let his silence incriminate him. We shall defend our story assiduously for no one was there to defend the children continually abused by their rich and powerful overseers.”

That last paragraph indicates quite clearly that if someone who is pilloried in the columns of Scallywag chooses not to take action then the journal will take silence to be an admission of guilt.

It is in my judgment incontrovertible that that article is a sustained and grave attack on the reputation of Mr Anglesea, an attack mounted at a time when the trial of his libel action in respect of similar allegations was no more than a few months off. At that time Mr Anglesea was abroad on a family holiday and so did not see the Scallywag article until later. But his solicitor, Mr Taylor, read it in early April 1994 and, according to his witness statement, was amazed and shocked at its contents.

The sequence of events thereafter, according again to the witness statement of Mr Taylor, was as follows: On 8th April 1994 Mr Taylor was telephoned by a journalist, Michael Settle, from the publication Wales on Sunday.

Mr Settle introduced himself and referred to the Scallywag article of the previous week and then said this:”Now having just read it there are a couple of things, well a few things spring to mind, one of which there is a reference there to the police prosecuting your client.”

Mr Taylor replies: “Tell me exactly where it is.”

Then later on Mr Settle asks: “Is it at present under prosecution for raping a minor, is that true?”

Mr Taylor replies: “What do you think?”

Then later in the conversation Mr Taylor says: “It is symptomatic of the standard of journalism which surrounds this issue generally. You’re a journalist who checks his facts and is sure to quote accurately.” Et cetera et cetera.

Mr Settle says: “Well the last thing that I want to do is to get sued.”

Mr Taylor then says: “Yes, because you have something to lose, people who publish the likes of Scallywag have nothing to lose. The only sanction that they would have regard to is locking up.”

Later Mr Taylor adds this: “Anyway, on behalf of Mr Anglesea I formally deny the truth of that paragraph, or any element thereof so far as it pertains to Mr Anglesea.”

Mr Settle asks: “Is Mr Anglesea suing Scallywag?”

Mr Taylor says: “I doubt it, what’s the point? I mean the magazine is held in nothing but contempt by anyone with half a brain in his head. But I think that somebody ought to give some thought to locking these people up, or making an application to do so.”

Later, and finally from this conversation, Mr Taylor says: “There is an offence called criminal libel. You probably know that.”

To which Mr Settle says yes.

Mr Taylor says: “It hasn’t yet been tested for a while, but if someone would pay me half my fee I’ll have a go at it.”

That was a conversation which took place on 8th April. Some two weeks afterwards a man named Richard Clayton telephoned Mr Taylor, and Mr Taylor said this : “Taylor, again, of Russell Jones & Walker, we spoke 10 minutes ago. As I am presently advising a client on his cause of action for criminal libel against Scallywag it probably isn’t too appropriate that I give them additional copy, however, interesting on my views on the reform of libel.”

Mr Clayton replies: “No, understood, I didn’t know you were.”

Mr Taylor says: “There is no reason why you should, and I thought I had better reflect on that, and having done so I think it probably sensible that you seek comment elsewhere.”

What Mr Caldecott suggests is significant about that conversation is that Mr Clayton, to whom I shall return, does not appear to know who Mr Taylor’s client is, and Mr Taylor does not identify him to Mr Clayton.

There then follows some 5 or 6 days later another conversation between Mr Taylor and a journalist named Hayward who telephones without any prior notice, introduces himself to Mr Taylor and says this: “I was just ringing up with regard to a tip-off that we had your partnership is bringing action against the magazine Scallywag for libel or criminal libel.”

Then Mr Hayward asks on whose behalf that will be and Mr Taylor replies that it will be “on the instructions of Superintendent Anglesea”.

Reference is then made to the article which had appeared in issue number 22 of Scallywag, and Mr Taylor says this: “So I think it is important to bear that in mind. It is about the only accurate statement in the whole publication, and a lot of the allegations they make in the Scallywag magazine are lifted from the witness statements served in those proceedings, so one wonders where they got that from.”

Mr Taylor goes on to tell Mr Hayward that no writ has been issued against Scallywag, nor has any summons been issued, but that it will be a summons for criminal libel because civil action for libel is pointless.

Later in the conversation Mr Taylor makes the point that the libel actions against the various publications were due to come on for trial in November of that year.

On 1st June 1994 another telephone conversation takes place between Mr Taylor and a journalist named Grant Ringshaw who says this: “So the main suggestion, just looking through the title, is when Mr Anglesea is mentioned there is no suggestion that he is under prosecution currently at the moment.”

Mr Taylor says:  “For raping a minor, most certainly not.”

What is there being referred to is an article which appeared in the United Kingdom Press Gazette on 6th June 1994 under the heading “Criminal libel jail threat for Regan”.

The article — which is by Mr Ringshaw, who had the conversation to which I have referred with Mr Taylor — refers to the Scallywag article from April of that year and summarises the article in the following terms:

“The article written by managing editor Angus James alleges that Anglesea was part of a paedophile ring and involved in a police cover-up.”

Then there is a reference to the conversation which had taken place between Mr Ringshaw and Mr Taylor in the following terms: “Anglesea’s solicitor, Barton Taylor, senior commercial litigation partner of Russell Jones & Walker said there is no purpose in claiming damages for civil libel against Scallywag because they have consistently claimed they have no money. The Court will decide whether the libel is such that it requires the imposition of a criminal penalty. It is extremely serious: the allegations are nothing short of scandalous.”

End of quotation of Mr Taylor.

The article concludes with a quotation from Mr Regan in the following terms: “David Price, our lawyer, is relishing the chance of testing the law for another historic action and feels very confident.”

Although the uninitiated might not be aware that justification is no defence to a charge of criminal libel, the message being conveyed to readers of the UK Press Gazette by Mr Regan is clear: the charge of criminal libel to be brought by Mr Anglesea against Mr Regan is likely to fail.

I break off the narrative to observe that the circulation of the allegations contained in the April issue of Scallywag had, it is apparent, within a matter of days attracted a considerable degree of journalistic interest. There was no sign of Mr Regan or Scallywag backing down, rather the reverse.

It was against this background that a matter of days after the publication of the UK Press Gazette article, Mr Taylor was telephoned by Mr Eifion Bleeze, a journalist with a local newspaper in North Wales called the North Wales Pioneer. In the course of their conversation Mr Taylor, as he accepts, spoke the following words. Asked by Mr Bleeze why Mr Anglesea has chosen a criminal libel action against Scallywag Mr Taylor replies: “It’s his only remedy. It is a worthless publication who simply seek publicity for themselves and are not interested in accurate reporting, still less fair reporting. They are not journalists by any stretch of the imagination and they are a disgrace to the profession of journalism.”

Asked is it true that there is no purpose in claiming damages for civil libel against Scallywag because they have consistently claim they have no money. The Court will decide whether the libel is such that it requires the imposition of a criminal penalty, it is extremely serious. The allegations are nothing short of scandalous”, Mr Taylor replied “That’s fine.”

The sentences from that conversation, of which Mr Regan complains in this action, are as follows: “There is no purpose in claiming damages for civil libel against Scallywag because they consistently claim they have no money. Criminal libel is the only remedy against this worthless organisation who simply seek publicity for themselves. They are not interested in accuracy, even less in fair reporting and they are a disgrace to the profession of journalism.”

It is alleged on behalf of Mr Regan that those words bear the meaning that he habitually publishes allegations in Scallywag knowing them to be untrue, or not caring whether or not they were true or false, simply in order to attract publicity, and that he did so in respect of the material published about Gordon Anglesea.

By his defence Mr Taylor makes no admissions as to the meaning conveyed by what he said. He further relies on the defences of justification and fair comment. It is to be observed in passing that the part of the particulars supporting those defences are voluminous and would take many days to try. But nothing turns on those defences for present purposes.

In addition Mr Taylor relies on the defence of qualified privilege which is pleaded in the following terms. I quote from paragraph 8 of the defence: “The words complained of were published on an occasion of qualified privilege.”

Then particulars are set out:

“(1) the defendant is, and at all material times was

Mr Anglesea’s solicitor as pleaded above. Mr Anglesea formally served as a superintendent in the North Wales Police, and he and his family still reside in North Wales;

(2) Mr Anglesea had been gravely defamed by the issue in issue 22 of Scallywag;

(3) on 6th June 1994 the UK Press Gazette published an article headed “Criminal libel jail threat for Regan” which reported the fact that the defendant was considering proceedings for criminal libel against the plaintiff on behalf of Mr Anglesea. The defendant will refer to the whole of this article at trial;

(4) on 13th June 1994 the defendant was telephoned by Eifion Bleeze, a journalist employed by the North Wales Pioneer, who had read the article in the UK Press Gazette for 6th June and asked the defendant the following question: “Why has Mr Anglesea chosen a criminal libel against Scallywag?” or similar words to the same effect. In response to this question the defendant spoke substantially the words complained of;

(5) in publishing those words the defendant was speaking as Mr Anglesea’s solicitor acting within the scope of his general instructions to deal with the media on Mr Anglesea’s behalf, and in response to the serious attack upon Mr Anglesea which the plaintiff had made in Scallywag;

(6) further as pleaded above the plaintiff frequently asserts that articles which he has published in Scallywag are true because their subjects have not sued for libel;

(7) in the premises the defendant was under a social or moral duty to publish the words complained of to a person or persons with a corresponding interest to receive them, and/or the defendant published the words complained of in the protection or furtherance of a legitimate interest of the defendant, and/or his principal to a person or persons with a common or corresponding interest to receive them.”

In argument Mr Caldecott has made clear that he relies on two separate species of qualified privilege. Firstly the qualified privilege which attaches to a reply made by a defendant to an attack and, secondly, the qualified privilege which attaches to a response to an enquiry made of the defendant where the enquirer has a legitimate interest in making the enquiry.

It is necessary at this stage to say something about the law as it applies to the qualified privilege relied on in the present case.

The foundation of the defence is the public interest frequently expressed as being “the common convenience and welfare of society”, or “the general interest of society”. Those quotations are taken from the cases of Mackintosh v Dunn , (1908) AC 390 , and Toogood good v Spiring , [1834] 1 CM & R 181.

The classic exposition of the doctrine of qualified privilege is to be found in the judgment of Baron Park in the latter case where he held that defamatory publications will be protected by common law privilege in cases where:

“The occasion of the publication affords a defence in the absence of express malice. In general an action lies from malicious publication of statements which are false in fact and injurious to the character of another within the well-known limits as to verbal slander. And the law considers such publications as malicious unless it is fairly made by a person in discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.

“In such occasions the occasion prevents the inference of malice which the law draws from unauthorised communications, and affords a qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits. The business of life could not be well carried on if such restraints were imposed upon this and similar communications, and if on every occasion on which they were made they were not protected unless strictly private”.

The cases of Lawton v the Bishop of Sodor and Mann [1872] LRPC volume 4, 495, and Adam v Ward [1917] AC 309 , are early examples of one of the species of qualified privilege on which the defendant relies, namely the qualified privilege attaching to a reply to an attack.

In the former case the claimant was a barrister who had made a speech in which he impugned the conduct of the defendant, the Bishop, attributing to him motives and conduct unworthy of his episcopal position. It was held that the publication by the Bishop to the local press of a reply which defamed the complainant was protected by qualified privilege.

Sir Robert Collier said at page 504: “It does not necessarily follow that the publication of the charge by the Bishop in the local newspaper was equally privileged. Considering, however, that the laity as well as the clergy are deeply interested in the character of their Bishop in his conduct of the affairs of his diocese, and that the speech impugning his conduct and character had been addressed to both clergy and laity and conveyed to both by the press their Lordships are of opinion that the Bishop was privileged in addressing his defence to both through the same channel which had conveyed the attack, provided that he did this bona fide for the purpose of vindicating himself, or of informing the public upon matters which they were concerned to know, and not of defaming or injuring the appellant.”

In Adam v Ward the plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing the charge into the national arena.

The Army Council investigated the charge, rejected it, and directed their secretary, Sir Edward Ward, the defendant, to write a letter to General Scobell which was released to the press vindicating him and containing defamatory statements about the plaintiff.

The nature of the qualified privilege which was contended for by the defendant was that this was a reply to an attack. The House of Lords upheld the claim for privilege. In the speeches the nature of the privilege is formulated in a number of somewhat differing ways. It suffices to cite the formulation by Lord Atkinson at page 339 where he says: “These authorities in my view clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protected the interest or discharge the duty which is the foundation of his privilege, but that on the contrary he would be protected, even though his language should be violent and excessively strong, if having regard to all the circumstances of the case he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.”

A more recent example of what has become a recognised and established species of privilege is the case of Watts v. Times Newspapers [1997] QB 650 , where on the facts the defence of privilege was not upheld.

Turning to the other species of qualified privilege relied on by Mr Caldecott, a convenient summary of the circumstances under which the privilege may be available is to be found in Gatley, paragraph 14–16, which is in the following terms:

“Where a person is asked a question about another by or on behalf of someone who appears to have a legitimate interest in knowing the answer, the law has recognised that he is under a duty to answer and that the occasion is privileged. So long as he speaks honestly he is protected and the law will not usually enquire into the reasonableness or otherwise of his beliefs.

“The mere fact a that an enquiry is made about the character or position of another does not necessarily render the answer privileged. It is no part of a man’s duty to go into the confessional to every chance person who may choose to ask impertinent questions. But where a person who is asked a question touching the character, financial position or responsibility of another, bona fide believes that his enquiries asking for questions not to gratify idle curiosity, but for some other purpose in which he has a legitimate interest of his own, it is not merely his right but his duty to answer, and if he does so in the honest belief that his answer is true and without any malice towards the person whose character or position is the subject matter of the enquiry, his answer is a privileged communication.”

One of the better known cases cited in the footnotes to that passage from Gatley is the case of London Association for the Protection of Trade v. Greenlands [1916] 2 AC 15 , where at page 35 Lord Atkinson says this:

“It was decided long ago, as long ago, I think, as Bromage v Prosser and many times since, that if one person makes an enquiry of another touching the position or character of a third, and the person enquired of makes a reply which he bona fide believes to be true and also bona fide believes that the enquirer desires the information, not merely to gratify idle curiosity but for some purpose in which he, the enquirer, has a legitimate interest of his own, the occasion upon which the answer is communicated to him is a privileged occasion.”

If I may respectfully say so, that formulation of the privilege is couched in wide terms, and it is necessary to bear in mind that it was expressed in the context of a case where the enquiry was made in the normal course of business by a member of the Trade Association as to the credit of another trader, and privilege was sought to the response to that enquiry. The facts of that case are therefore removed by some distance from the present one where the legitimate interest urged is the interest of the journalist.

As I understood it Mr David Price for the claimant does not dispute the principles of law which I have attempted to summarise. Mr Price does, however, vigorously dispute that on the facts of this case the defendant is entitled to the protection of either of the species of qualified privilege on which Mr Caldecott relies. I shall return to that question shortly.

Before I do so there is an argument essentially of law which is raised by Mr Price and with which I should deal at this point. The argument derives from the fact that the person who uttered the words complained of was not the person whose interests are said to require protection, namely Mr Anglesea, but rather his solicitor. Mr Price contends that whatever might have been the position of Mr Anglesea, the protection of the privilege is not available to Mr Taylor in his capacity as Mr Anglesea’s solicitor, and certainly not available, so Mr Price argues, in respect of expressions of Mr Taylor’s personal opinions.

Mr Price puts his argument in the following way: he points out, correctly, that the effect of the defence of qualified privilege is to relieve the defendant from the obligation which would otherwise fall on him to prove the truth of what he published. It must, he argues, be demonstrated to be in the public interest that the defendant should be so relieved. Mr Price contends that it cannot be in the public interest for the defence of qualified privilege to be available to protect the publication by a solicitor of his personal opinions in relation to contemplated litigation. This last contention is based on a letter written on behalf of the defendant where it was said:

“For the avoidance of doubt the opinions expressed by Mr Taylor to Mr Bleeze that the North Wales Pioneer were entirely Mr Taylor’s, they were not specifically referred to Mr Anglesea in advance as they represented Mr Taylor’s opinion rather than Mr Anglesea’s who had not previously read Scallywag.”

I interpose that the suggestion that Mr Anglesea had not read the issue of Scallywag would appear not to be correct.

In support of his argument that it is contrary to the public interest for solicitors to express their personal opinions in relation to matters on which they are engaged on behalf of clients, Mr Price refers me to paragraph 6(3) of the Law Society’s Code for Advocacy which is in the following terms:

“Advocates must not, in relation to any current matter in which they are or have been briefed, offer their personal views or opinions to or in any news or current affairs media upon the facts of or the issues arising in that matter.”

Mr Price points to the undesirability of solicitors becoming media advocates for their clients.

Mr Price buttresses his argument that the protection of qualified privilege should not be available for the expression of the personal opinions of a solicitor in relation to litigation in which his client is involved by reference to a number of authorities which, according to his argument, support the proposition that the cloak of privilege will be lost where the solicitor (or, indeed, any other agent acting for his principal) introduces material of his own, including opinions held by him as opposed to by his client.

Mr Price referred me in this connection to what Lord Atkinson said at page 340 in the case of Adam v Ward :

“For reasons I shall presently adduce I do not think any foreign or irrelevant matter has been introduced into the libel, but as the point has been raised and fully argued and is itself of importance it is, I think, desirable to decide it. I have accordingly expressed my opinion upon it. Some argument was directed to the defendant’s precise position in relation to this libel, his rights, duties and privileges, his feelings towards the appellant and his express or implied malice. I think his position is plain—he was the mere agent of the Army Council, bound to obey their orders or resign his post. The mere instrument through his hands the libel passed for publication. His own personal feelings or privileges are not, I think, involved in the case at all. He had nothing whatever to do with the composition of the libel or the approval of its contents.”

Mr Price also relies on the case of Crawford v Dunlop [1900] 2 FAM 987 , a case decided in the Court of Session.

That was a case where the defendant was a solicitor who had written to the contractors in connection with a building dispute a letter critical of the plaintiff architect. The case turned on malice but Lord Moncrieff did say obiter at page 997:

“Even if privilege had been pleaded I should have been of the opinion that the writings complained of were deprived of any privilege which they might otherwise have possessed by the palpable excess of the language used and the deliberate imputation to the pursuer of dishonest motives.

“The case against the agent, Mr Murray Dunlop, is somewhat different, he pleaded privilege. The law has allowed an issue on the footing that the agent acted on the instructions of his client, and that accordingly the letters prima facie were privileged. The word maliciously has therefore been inserted in the issue.

“We were told by counsel that the pursuer is content with the issue as it stands. Had it not been so I should have doubted whether the agent’s letters were privileged. The privilege of a law agent depends upon his acting strictly on the instructions and as the mouthpiece of his client. As long as he confines himself to doing this any pertinent statements which he may make in his client’s interest will, I assume, be held to be privileged and in general he will not be held responsible for their truth or accuracy.”

Mr Price further relied on the case of Slipper v Braisby where the appellant, a solicitor, was appealing against convictions under two sections of the Samoa Act, 1921—1922. The letter which gave rise to those criminal proceedings included one sentence in the following terms: “It is regrettable that death and bloodshed appear to be a small consequence to your Excellency as compared with the desire evident and expressed of absolutism.”

In that case Chief Justice Myers said: “Even if qualified privilege did attach to the letter by reason of the fact that it was written by the appellant, a solicitor for the Samoan woman. The privilege is lost if the solicitor chooses to introduce a defamatory statement of his own, and it seems to us that this is exactly what he has done in the italicised portion of the letter as set out above.”

In my judgment for present purposes a solicitor is in no different position from any other agent. His retainer, and therefore his authority, may be narrow and limited, or it may be broad and general. To the extent at least that the solicitor is acting within the scope of his retainer, he is properly to be regarded as standing in the shoes of his client, whether it be for the purpose of protecting his client’s interest against an attack by responding to that attack, or for the purpose of responding on behalf of his client to an enquiry by someone with a legitimate interest.

I base that conclusion on Baker v Carrick [1894] 1 QBD , and in particular upon the passage in the speech of Lord Esher at page 840:

“The first matter in dispute is whether as regards the defendant the occasion was privileged. He was acting for clients who allege they were creditors of the plaintiff, and he was instructed by his clients to take the necessary steps towards securing payment of the alleged debt and to see that its recovery was not put in jeopardy. That seems to me to be within the ordinary duties of a solicitor. It is suggested that the solicitor is only authorised to act for his client in the conduct of the action would only be protected in respect of such matters. I think, however, that at all events nowadays the duties of a solicitor go beyond that, and that it is part of his ordinary duty to see that nothing occurs which will affect his client’s claim. If so, and if the occasion was one to which privilege will have attached had the clients themselves done that which the defendant did, it is also privileged in the case of a solicitor acting for his clients.”

The judgments of Lord Justices Lopes and Davey are to very similar effect. I note that this was agreed to be the correct analysis in the case of Watts v. The Times Newspapers : see page 666.

As to the legitimacy or otherwise of a solicitor introducing his own opinions or other input when seeking to protect his client’s interest, I do not accept that the protection of the privilege is thereby forfeited.

It is nowadays commonplace for solicitors to be called on to answer questions from the media about their client’s affairs, including pending or current litigation. Solicitors sometimes volunteer such information to the media. Provided the other conditions for the existence of privilege are satisfied I do not consider that the privilege is lost because the solicitor introduce opinions of his own or draws on his own knowledge and experience. Indeed it may even be said that in certain circumstances he is under a duty to do so in the discharge of his obligations towards his client.

I do not regard the authorities on which Mr Price has relied as inconsistent with the conclusion I have reached. The decision in Crawford turned on the issue of malice, and the passage relied on by Mr Price is, in my judgment, rightly doubted in Gatley: see paragraph 18–53. I do not read that case, or any of the other authorities on which Mr Price relied, as saying any more on the issue of privilege than that the introduction of extraneous or irrelevant matter may result in what would otherwise have been a privileged occasion losing that protection.

I derive little assistance from the Law Society’s Code for Advocacy. In the first place the defendant was not an advocate and he had not been briefed in any current matter. There is in the Code no comparable restriction on a solicitor when acting otherwise than as advocate. I would go with argument of Mr Price on this aspect to this extent: the fact that the solicitor is expressing his own opinions is or may be one of the circumstances which the court should take into account when deciding whether privilege attaches.

The further point is taken by Mr Price that Mr Taylor addressed the words complained of to the readers of the North Wales Pioneer who would not be the same as the readers of Scallywag, with the consequence, so it is argued, that the necessary reciprocity of interest is lacking.

I accept that in many cases it is a requirement that all publishees are shown to have an interest in the words reciprocal to that of the publisher. But where, as here, the defamatory attack has been published in the media — that is, in the present case in the columns of Scallywag, and to an extent in the UK Press Gazette — the defendant or his agent is entitled to have recourse to the same medium to defend himself, provided of course the defence is fairly relevant to rebut the attack.

The position is summarised in paragraph 14–79 of Gatley  as follows:

“As has been seen above a publication in the mass media will not often be protected by privilege because the communication will reach a large number of people will no legally recognised interest in the matter. However, an important qualification to this is that a person whose character or conduct has been attacked in the public press is entitled to have recourse to the press in his defence and vindication, and if in answering such attack he makes relevant defamatory statements about the person who has attacked him such statements are prima facie privileged.”

As it happens the evidence of Mr Regan in the present case suggests that Scallywag did have many readers in Wales. It has also to be remembered that it was the journalist, plainly contemplating writing a story on the topic, who contacted Mr Taylor and not vice versa.

The question is therefore whether in the circumstances of the present case the occasion on which Mr Taylor spoke to the journalist from the North Wales Pioneer is protected by qualified privilege, either because he was replying on behalf of his client to an attack made on him, or because he was replying on behalf of his client to an enquiry made about Mr Regan by a journalist with a legitimate interest in doing so.

The existence of privilege in cases such as the present is to borrow a phrase from Mr Caldecott “fact sensitive”. I shall summarise the facts which appear to me to be material.

Mr Taylor was at all material times acting for Mr Anglesea in actions brought by him in respect of articles alleging that he had engaged in paedophiliac activities with boys. The article in the April 1994 issue of Scallywag not only made similar allegations against Mr Anglesea but also added other allegations of grave sexual and professional impropriety. The claimant does not claim that any of these allegations is true.

The Scallywag article generated interest in the media about Mr Anglesea. Mr Taylor was telephoned on several occasions by journalists in consequence of the interest generated by the Scallywag article. In dealing with these enquiries Mr Taylor was properly concerned both to protect his client’s reputation and to avoid prejudice in the impending libel actions.

He had considered with his client the question of issuing proceedings for criminal libel. This was the subject of publicity in the UK Press Gazette on 6th June 1994, which article had, I am satisfied, been prompted by Mr Clayton on behalf of Mr Regan, and which included the claim that Mr Regan’s solicitor was confident as to the outcome of any such prosecution. When telephoned by the journalist from the North Wales Pioneer Mr Taylor gave an answer which was germane to the questions he was asked. In doing so

Mr Taylor drew on his considerable knowledge of articles previously published. The reasons he gave for not suing Scallywag for damages are at the very least plausible.

In the circumstances I have summarised I conclude that in speaking the words of which Mr Regan complains in this action Mr Taylor was replying on behalf of his client to an attack which had been made on Mr Anglesea in the columns of Scallywag, and which had generated the further publicity to which I have referred.

Accordingly I conclude that on this ground the occasion was one of privilege and the claimant has no reasonable prospect of establishing the contrary at trial.

That conclusion is sufficient to dispose of this issue, but I should for completeness consider whether the occasion was privileged on the further ground that Mr Taylor was acting under a duty to respond to an enquiry from someone with a legitimate interest in making that enquiry.

In my judgment this ground of privilege is not so clearly established that it can be said that there is no reasonable prospect of it being rejected at trial.

I come now to the second issue, namely whether the claim for qualified privilege is defeated by malice has a reasonable prospect of success at trial.

Malice is pleaded in paragraph 3 of the reply. I will return to the particulars hereafter. It is important to note that the dominant motive pleaded is that in publishing the words complained of the defendant was seeking to maintain or enhance improperly his reputation as an aggressive and inventive litigation solicitor. Needless to say the claimant is confined to that motive when he seeks to make out a case of malice. Moreover this is not a case where the claimant alleges that the defendant had no honest belief in the truth of what he said. Hence I must proceed on the basis that Mr Taylor did honestly believe what he told the North Wales Pioneer journalist. That is an unpromising start for a case of malice against him.

In order to decide whether the claim of malice has a reasonable prospect of success it is first of all necessary to have in mind the well-known dicta of Lord Diplock in Horrocks v Lowe , [1975] AC 135 at 151.A:

“Qualified privilege would be illusory and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection or a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it.

“It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that express malice can properly be found.”

To see whether that relatively heavy burden has been discharged it is necessary and legitimate for the court to consider the supporting particulars and the witness statements in the case. The former require to be looked at in order to determine whether and to what extent the facts pleaded point in the direction of malice rather than being neutral or against it. The latter require to be looked at in order to ascertain whether there is probative evidential support for such particulars as are legitimate pointers towards malice. The overall test deriving from Somerville v Hawkins [1851] 10 CB 583 , and approved by the Court of Appeal in Telnikoff v Matusevitch [1991] 1 QB 102 at page 120 , is this:

“In order to enable the plaintiff to have the question of malice submitted to the jury it is necessary that the evidence should raise a probability of malice and be more consistent with its existence than with its non-existence.”

Taking the particulars together with the evidence: subparagraph (1) is introductory. Subparagraph (2) is in the following terms:

“The statements made by the defendant were, he claims, his personal opinions and not those of his client who had never read Scallywag. It is to be inferred that the defendant was aware that as Mr Anglesea’s solicitor and an officer of the court he should only have been acting as his client’s mouthpiece and not offering any personal opinion. All the more so when he was stating that an intended defendant in a criminal matter was guilty.”

That does not appear to me to bear on the question of malice at all, still less to the motive alleged.

Particular (3) reads: “The plaintiff will rely on the defendant’s failure to answer the letters of the plaintiff’s solicitor of 4th, 23rd, 30th August and 14th September 1994 in which the defendant was invited to state whether or not he published the words complained of on the authority of his client.”

As to that, there may be many reasons why a person does not answer a letter. In the present case the earlier correspondence demonstrates that there may have been good reasons, apart from publicity-seeking, why Mr Taylor did not want to engage in correspondence with the claimant’s solicitor.

Particular (4) is that the defendant represented to Mr Bleeze that Mr Anglesea was intending to prosecute Scallywag for criminal libel, even though that was not the case.

The evidence does not support the proposition that Mr Anglesea was not intending to prosecute Scallywag. But, even if it did, this particular does not appear to me to be probative of the motive alleged.

Particular (5) is that it is to be inferred that the defendant was aware that in order to answer the question referred to in paragraph 8(4) of the amended defence it would merely be necessary to state that Scallywag claimed that it had no money. Nevertheless the defendant chose to make a general attack against the magazine suggesting they made up stories and were a disgrace to journalism.

As to that the issue is not whether it was necessary to speak the words, and I do not accept that the fact that a general attack was made on Scallywag is, per se, indicative of malice. In any case in certain key respects the Scallywag article was admittedly untrue.

Particular (6) is that it is to be inferred that the defendant knew if he was exercising any privilege to reply to the allegations in Scallywag concerning Mr Anglesea (and for the avoidance of doubt it is denied he was doing so) he should have limited himself to those allegations and not made a general attack as pleaded above, particularly since Mr Anglesea had never read Scallywag and was therefore in no position to make such attack.

This does not appear me to add anything to particulars (2) and (5) which I have already read.

Particular (7) reads: “The defendant was aware that his statement would be understood to mean that the plaintiff had alleged that Mr Anglesea was a paedophile without caring whether it was true or false. The defendant had no basis on which to make such an allegation. He was aware that a number of previous inmates in Brenestyn with no apparent motive for lying had alleged that they had been abused by Mr Anglesea and that the plaintiff had every reason to believe it to be true.”

As I understood Mr Price to accept, this allegation does not offer any support for the pleaded motivation of Mr Taylor.

Furthermore the evidence does not suggest that Mr Taylor had any reason to believe that the charge in the Scallywag article that Mr Anglesea was being prosecuted for raping a minor.

Particular (8) reads: “The publicity over the proposed criminal prosecution was generated by the defendant announcing Mr Anglesea was planning to prosecute. It was to be inferred that the defendant was aware that criminal libel actions are very rare. Consequently his announcement was likely to generate publicity. The factual premise for this allegation is doubtful since Mr Taylor did not initiate any of the telephone conversations with journalists.”

Particulars (9) and (10) should read together: “Further it is to be inferred that the defendant was aware that his announcement could portray him as a hardhitting litigator who had hit upon a rarely used remedy to bring to heel a magazine which had never been successfully sued for libel. The defendant has a reputation as an aggressive defamation litigation solicitor who vigorously pursues defamation actions on behalf of police officers with the backing of the substantial resources of the police federation.”

I do not read the rest of particular 10 since it is no longer relied on.

As to the remainder, the fact of Mr Taylor’s allegedly existing reputation is not probative of the motive alleged.

Standing back from the particulars I ask myself whether the facts and events which I have summarised, when taken in conjunction with the tenor of the conversations, transcripts of which are before me, bear out the charge that Mr Taylor, a solicitor of some standing, was motivated by a desire to maintain or enhance improperly his reputation as an aggressive and inventive solicitor, rather than by a desire to protect the interests of his client.

I do not think so. In my judgment the matters relied on by the claimant in support of his claim for malice insofar as they are supported by evidence fall far short of what is required for that claim to have a reasonable prospect of success at trial.

It follows that this claim for damages for libel by Mr Regan must be dismissed. It was for these reasons that I discharged the jury yesterday.

Other relevant posts

2016 Oct 21 Cathy Fox Blog [GA1 of 3] Gordon Anglesea v Newspaper Publishing PLC and Others, 22 Nov 1994 Supreme Court [3] 

2016 Oct 21 Cathy Fox Blog [GA 3 of 3] Simon Regan v Thomas David Barton Taylor 9 Mar 2000 Supreme Court of Judicature [5] 

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • Other useful sites are One in Four [C]
  • and Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area

Links

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[3] 2016 Oct 21 Cathy Fox Blog [GA1 of 3] Gordon Anglesea v Newspaper Publishing PLC and Others, 22 Nov 1994 Supreme Court https://cathyfox.wordpress.com/2016/10/21/ga1-of-3-gordon-anglesea-v-newspaper-publishing-plc-and-others-22-nov-1994-supreme-court/

[4] 2016 Oct 21 Cathy Fox Blog [GA 2 of 3] Simon Regan v Thomas David Barton Taylor 29 Apr 1999 High Court https://cathyfox.wordpress.com/2016/10/21/ga2-of-3-simon-regan-v-thomas-david-barton-taylor-29-apr-1999-high-court/

[5] 2016 Oct 21 Cathy Fox Blog [GA 3 of 3] Simon Regan v Thomas David Barton Taylor 9 Mar 2000 Supreme Court of Judicature https://cathyfox.wordpress.com/2016/10/21/ga3-of-3-simon-regan-v-thomas-david-barton-taylor-9-mar-2000-supreme-court-of-judicature/

[6] 1994 Scallywag 22 LORD McALPINE AND THE PAEDOPHILE RING via 2012 Nov 15 Justice Denied SCALLYWAG MAGAZINE ARTICLE LORD MCALPINE AND THE PAEDOPHILE RING http://google-law.blogspot.co.uk/2012/11/scallywag-article-lord-mcalpine-and.html

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
This entry was posted in Bryn Alyn, cathy fox blog, Child Abuse, Child sexual abuse, Childrens home, Conservative Party, Court, Judges Remarks, Justice System, North Wales, Police, VIP CSA, VIPs MPs Lords etc, Wales and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

5 Responses to [GA2 of 3] Simon Regan v Thomas David Barton Taylor 29 Apr 1999 High Court

  1. Pingback: [GA3 of 3] Simon Regan v Thomas David Barton Taylor 9 Mar 2000 Supreme Court of Judicature | cathy fox blog

  2. Pingback: [GA1 of 3] Gordon Anglesea v Newspaper Publishing PLC and Others, 22 Nov 1994 Supreme Court | cathy fox blog

  3. Pingback: An Index and Timeline of Court & Court of Appeal Documents on Cathy Fox Blog | cathy fox blog

  4. Pingback: Alan Beck | cathy fox blog on child abuse

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