Jockeys and libel lawyers might be thought to be unusual bedfellows. However in McKeown v Attheraces Ltd [2011] EWHC 179 (QB) racing met the law in an interim application that raised potentially important questions about the operation of the principle of res judicata in defamation claims. Tugendhat J’s judgment contains an interesting analysis of the relationship between evidential presumptions, statutory privilege and the court’s general jurisdiction to strike out for abuse of process.

The facts

The Claimant was an experienced jockey who had become embroiled in serious disciplinary proceedings before the British Horseracing Authority (“BHA”). In October 2008 a Disciplinary Panel of the BHA found the Claimant guilty of four charges of deliberately failing to ride a horse on its merits and one charge of conspiring to commit a corrupt practice. He was disqualified for four years (suspended until the conclusion of any appeal). However despite these adverse findings the Claimant continued to maintain his innocence. To this end he unsuccessfully pursued an appeal before the BHA Appeal Board and later brought an unsuccessful application for judicial review against the Authority.

Whilst his challenge to the BHA’s decision was pending, the Claimant continued to take part in races. In early November 2008 he rode the aptly-named “Rascal in the Mix” at Southwell. Immediately after the race, however, a Steward’s Enquiry found that the Claimant had again failed to run the horse on its merits.

The following day the Claimant was interviewed about the incident by the Defendant television channel. In the course of the interview, the interviewer put some robust questions to the Claimant (e.g. “It’s clear that you’re not hitting the horse…You’ve been caught. It’s as simple as that isn’t it?”) and made reference to the guilty verdicts in the earlier disciplinary proceedings. He also referred to the outcome of the Stewards’ Enquiry the previous day and commented that “Most people watching this…would reach the same conclusion.”

In October 2009, in a last-ditch effort to clear his name the Claimant (who was also seeking to re-open the BHA disciplinary proceedings) brought a libel claim against the Defendant in respect of the interview.

Application for the claim to be struck out

In response, the Defendant applied for the claim to be struck out on four alternative grounds. The Defendant argued:

  • First, that it was bound to succeed on the defences of qualified privilege and/or honest comment.
  • Secondly, in any event the claim was not a complaint of a real and substantial tort. Therefore, it would be an abuse of process to allow the claim to continue (referring to Jameel (Youssef) v. Dow Jones [2005] QB 946).
  • Thirdly (and related to the previous argument) the Claimant had no reputation worth vindicating at the time of the publication.
  • Lastly, that the Claimant was seeking to re-litigate issues that had already been finally determined on their merits against him in circumstances where he was bound by that earlier determination. This, too, amounted to an abuse of process.

Qualified privilege

The Defendant argued that the broadcast was protected by qualified privilege under the Defamation Act 1996. Section 15(1) and paragraph 14(c) of Schedule 1 extend protection to a “fair and accurate report of any finding or decision” of an association that exists for the purpose of protecting the interests of a sport that is open to members of the public. But that privilege will be lost if the maker of the report “adopts” the allegations as his own (see Cursitan v Times Newspapers Ltd [2008] EWCA Civ 432; [2009] QB 231 at [22]).

On the facts, Tugendhat J held that the Claimant did have a real prospect of successfully establishing that the interviewer had adopted the findings of the Disciplinary Panel and the Stewards as his own. In reaching this conclusion, Tugendhat J considered the nature of the medium of publication to be important:

“I must bear in mind that what is complained of is not a newspaper article but a TV broadcast. Where the words complained of are written words, the court is simply interpreting those words. In the case of a broadcast, what must be interpreted includes not just the words spoken, but the tone of voice and the body language of the speaker. There may be more scope of a difference of view as to how a reasonable viewer would understand a TV broadcast.” [28]

 

Honest comment

Tugendhat J also swiftly disposed of the argument based on honest comment. According to the Defendant, the interviewer’s suggestions that the findings of the Disciplinary Panel and the Stewards Enquiry were correct were expressions of opinion not fact (referring to Branson v Bower [2001] EWCA Civ 791; [2001] EMLR 32). The Defendant argued that the question of whether the Claimant had intentionally failed to ensure that his horse ran on its merits was a question about his state of mind, which was to be inferred from his outward conduct. However Tugendhat J held that the defence of honest comment was also not bound to succeed at trial. On this point he explained that:

“….Intention is a state of mind, as is motive. But the law treats intention as a matter of fact not only in the criminal courts (where it is a necessary constituent of numerous common offences) but also for the purpose of pleas of justification in libel.” [35]

Re-litigation abuse

This is the most interesting and complex issue presented by the Defendant’s application to strike out. In essence the Defendant argued that, in relation to the disciplinary offences, it would be an abuse of process to give the Claimant the opportunity of re-litigating allegations that had already been conclusively dealt with by three other tribunals, namely: the Disciplinary Panel, the Appeal Board, and the High Court. In support of its argument the Defendant referred to the recent decision in R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1, where the Supreme Court unanimously held that the principle of res judicata applied to “non-statutory disciplinary proceedings” in certain circumstances.

However the applicability of res judicata was complicated by various factors in the present case. First, the decision regarding Rascal in the Mix was made by Stewards and not by a BHA tribunal or a court of law. A Stewards’ Enquiry was obviously rather different to the proceedings that had taken place before the various disciplinary tribunals [39]. Secondly, there was a potentially important evidential issue, since the Disciplinary Panel had not had access to the full set of video recordings of some of the races in question (which were only now available) [40].

A third complicating factor was the fact that the parties to the libel claim were obviously not the same as the parties who had been involved in the earlier disciplinary litigation. Tugendhat J was therefore bound by the Court of Appeal’s decision in Secretary of State for Trade and Industry v Bairstow [2003] EWCA Viv 321; [2004] Ch 1. In Bairstow, the court held that res judicata would only apply in these circumstances if it would be “manifestly unfair” to a party in the later proceedings that the same issues should be re-litigated or if permitting re-litigation would bring the administration of justice into disrepute. Since there was no suggestion of the former in the present case, the only question was whether allowing the claim to proceed would bring the administration of justice into disrepute.

Tugendhat J began by noting that differences in procedures and evidence meant that there was “a real risk of inconsistent decisions” [48]. On the other hand, however, Parliament had intervened on this topic on several occasions and had not adopted a policy that re-litigation (and therefore inconsistent decisions) was to be avoided in this field. Only one statutory provision makes a previous finding conclusive in defamation actions: section 13 of the Civil Evidence Act. But this provision only applies to convictions occurring in “a court in the United Kingdom or a court-martial there or elsewhere”. Consequently, s. 13 does not apply to convictions before the BHA Disciplinary Tribunal [49].

Tugendhat J next drew a comparison between the present legislative regime and two other statutory provisions: section 74(3) of the Police and Criminal Evidence Act 1984 and section 103(2) of the Criminal Justice Act 2003. Under those sections, not even criminal convictions are conclusive evidence of bad character in a criminal trial. This analogy was appropriate, since in the present case the Defendant was effectively seeking to use the Disciplinary Panel’s findings as evidence of the Claimant’s bad character and propensity to commit the conduct alleged [50].

Tugendhat J noted that the Defendant’s argument would lead to surprising results. First, it would give the Defendant something close to a defence of absolute privilege, whereas Schedule 1 to the Defamation Act 1996 only confers qualified privilege [51]. If a Disciplinary Tribunal’s pre-existing findings automatically make it an abuse of process for a Claimant to bring a libel claim, then no accurate report of those findings would ever be actionable. However under s. 15(2) and Part II of Schedule 1 such a report is only privileged if particular conditions are met. Specifically, the Defendant must not have neglected or refused a request by the Claimant to publish a reasonable statement of explanation or contradiction. The Defendant’s argument in the present case would effectively bypass this requirement altogether.

Secondly, it would give the Defendant something very close to the irrebuttable presumption created by s. 13 of the Civil Evidence Act 1968. However s. 13 does not apply to BHA proceedings and all other relevant statutory presumptions are rebuttable [52]. There was therefore a potential mismatch between the statutory regimes and the outcome that the Defendant’s argument would produce.

However in the end the Judge held that he did not actually need to decide this aspect of the re-litigation issue. Instead, he declined to strike out the claim on the basis that (a) the case did not turn solely on findings upheld by the High Court; and (b) the claim also covered matters that went “far beyond” anything decided by the Stewards’ Enquiry. Consequently, this was not a case where “the identical question sought to be raised has been already decided by a competent court” [56].

Jameel abuse; did the Claimant have a reputation worth vindicating

In view of his conclusions on the above issues, Tugendhat J also rejected the Defendant’s remaining arguments. It would be open to the Claimant to ask the jury to vindicate his reputation, including by rejecting a defence of justification. If he succeeds the vindication would be of real and substantial value to the Claimant. Tugendhat J added that whilst a jury would be aware of the BHA findings, it did not follow that any award of damages would inevitably be very low [57].

Discussion

McKeown v Attheraces exposes a tension between two important principles. On the one side, there is the general role of libel law as a mechanism for vindicating reputations that have been damaged by unfounded allegations. On the other, there is the need to prevent defamation actions becoming a back door means of upsetting earlier judgments reached by other tribunals. Since all disciplinary findings are expressed in some form of words, the scope for collateral challenges via the libel courts is potentially very wide.

Whilst Tugendhat J did not need to decide several of the questions that arose on the re-litigation point, the discussion of those issues in his judgment is nonetheless persuasive. The Defendant’s approach would indeed have yielded peculiar results. The Defamation Act 1996 draws a conscious distinction between publications protected by absolute privilege and publications that are only protected by qualified privileged. The Defendant’s argument threatened to emasculate this distinction insofar as it applies to findings of disciplinary tribunals such as the BHA. It would also have created what was in effect an irrebuttable evidential presumption, which would have sat uneasily with the regime established by the statutes governing the admission of evidence in civil and criminal cases. There are therefore powerful statutory pointers against that course.

The ability to strike out for abuse of process is a powerful and potentially malleable tool in the court’s case management armoury. On the unusual facts of McKeown, Tugendhat J sensibly refrained from exercising that power. However it remains to be seen how the Claimant will fare at the final hearing. After managing to avoid falling at the first, he still faces an uphill struggle to clear his name.

Edward Craven is trainee barrister at Matrix Chambers.