Case Law: Sir Cliff Richard v BBC, Statements in open court in defamation and privacy claims – Max Campbell

5 07 2017

In Sir Cliff Richard OBE v the BBC and Chief Constable of South Yorkshire Police ([2017] EWHC 1648 (Ch)), Mr Justice Mann reviewed the law on statements in open court, and the grounds upon which the court might refuse to permit them.

Upon acceptance of a settlement offer in a libel, slander, malicious falsehood, and/or misuse of private information claim, a party may apply for permission to make a statement in open court (CPR PD 53 paragraph 6).  The statement that the applicant wishes to make must be submitted to the court for approval.  Defendants can elect to make them in circumstances where they have had an offer of amends accepted, but the parties cannot then reach agreement on the steps to be taken (section 3(4)(a) Defamation Act 1996), but in the vast majority of cases, they will be made by Claimants. Statements in open court are a powerful means of vindication as they will invariably attract some press interest.  They can also be cathartic for Claimants who might ideally want their ‘day in Court’, but for whom the terms of an offer are too good to refuse, or the costs of pursuing a case to trial too burdensome.  They can be made unilaterally, but are more commonly made by agreement, whereupon the Defendant ‘joins in’ the making of the statement, acknowledging their wrongdoing.

In another facet of the privacy proceedings between Sir Cliff Richard OBE, the BBC and South Yorkshire Police (see our other blogs on the subject: herehere, and here), Sir Cliff’s settlement with the Police included an agreed statement in open court.  A copy of the proposed statement was provided to the BBC, who continue to defend the claim against them.  The BBC objected to various parts of the statement on the basis that it was unfair to them. In the resulting judgment Mr Justice Mann considered the relevant legal principles.

Mann J turned first to Barnet v Crozier [1987] 1 WLR 272, in which the scholar Claimant, Mr Barnet, had sued a journalist, Mr Crozier, and The Spectator, in libel.  As in Sir Cliff’s case, the Claimant settled his action against one of the defendants, The Spectator, on terms which provided for an agreed statement in open court.  Mr Crozier objected to the statement, on the basis that it would prejudice his defence of the claim against him.  Having lost the argument at first instance, Mr Crozier took the matter to the Court of Appeal. In rejecting the appeal, Lord Justice Ralph Gibson acknowledged that the court should take into account the interest of all parties affected and the risks of prejudice to any outstanding issue, when exercising its discretion to allow a statement in open court.  However, he held that the settlement of proceedings was a public good, and therefore the starting position is that parties who have made a bona fide settlement and seek a statement in open court, may expect to be allowed to make it.  Even though it was anticipated that the claim against Mr Crozier would proceed to a trial by jury (as was then commonplace), the Court nevertheless held that the making of the statement in open court would have no bearing on it.  Any jurors who remembered the statement in open court, would not conclude that The Spectator’s opinion must dictate their own or that Mr Crozier’s opinion must be wrong.  In considering Barnet v Crozier, Mann J noted that this conclusion must be even stronger in modern day cases which will be tried by a Judge alone: a ‘trial judge can be expected to ignore such non-evidential material, even if that judge is aware of it’.

The other leading case is Murray v Associated Newspapers Ltd [2015] EWCA Civ 488.  In that case, Mrs Murray, better known by her pen name J.K. Rowling, was given permission to make a unilateral statement in open court, after she accepted an offer of amends by the Defendant publisher of the Daily Mail and Mail Online.  On appeal, the Defendant argued that the statement went outside the Claimant’s pleaded case, by mischaracterising the libellous meaning complained of, and referring to matters which went beyond those complained of in the Particulars of Claim. Rejecting the appeal, and applying Barnet v Crozier, Sharp LJ observed that ‘the court is unlikely to intervene in the absence of any real or substantial unfairness to the objecting or other third party and ‘nit-picks’ are to be discouraged’.  She too, acknowledged that ‘a statement in open court (whether unilateral or joint) must be fair and proportionate. It should not misrepresent a party’s case, or the nature of any settlement that is reached.  The interests of third parties should also be borne in mind having regard to the fact that a statement in open court is made with the benefit of absolute privilege, and so can be freely reported’.  However, the bar is a high one, and what is fair will depend on the individual facts.

From those cases, Mann J derived the following points of general applicability to statements in open court: –

(i) A party making a statement should not be allowed to abuse a privilege which attaches to a statement in open court and the publicity which it is doubtless intended to attract. Unfair statements about a third party or another defendant would be an example of an abuse.

(ii) The court must be live to the fact that a statement in open court is intended to attract publicity and ensure that fairness, or unfairness, to a third party or another defendant is viewed in that light.

(iii) It seems to me the parties are generally entitled to state their respective cases in such a statement and their respective admissions. A conceding party is entitled to express its objections in terms which it wishes to use, particularly if they have been agreed with the claimant as part of a settlement. If there are objections as between a third party or another party then that is very likely to be of little consequence.

(iv) Short of an apparent abuse, a statement should be allowed against the objections of a third party or another defendant unless it is sufficiently unfair to require the court to refuse to approve it.

(v) Causing prejudice to a fair trial involving others would be an obvious unfairness. However, unless the trial is a jury trial, it is hard to see how a statement in open court can prejudice that trial given that the trial judge can be expected to ignore such non-evidential material, even if that judge is aware of it. The Barnet case demonstrates that even if there is to be a jury trial the same may still apply.

(vi) Any unfairness which is relied on should be significant and the statement should not be disallowed because of what might be debatable and/or slightly unfair or nit-picking.

(vii) If the case of a non-settling party is referred to in the statement in open court by way of a proper summary, without setting out all the details, that is highly unlikely to be unfair. The case of a non-settling party, if referred to in the statement, does not have to be set out extensively.

Turning to Sir Cliff’s case, the BBC’s objections, by the time they came before the Court, fell broadly into two categories. Firstly, they objected to the consistent reference to their journalist, Dan Johnson, by name.  It was submitted that it was unnecessary, unfair, and oppressive to single him out in that way, and that it may be intended to put pressure on him.  It was suggested that he might simply be referred to as ‘a BBC reporter’.  Mann J saw nothing in this objection.  The reference to Mr Johnson reflected the reality of the situation, and would not increase the pressure that Mr Johnson would already be under as a result of the scrutiny of the litigation.  Secondly, the BBC objected to various wordings which they considered to be misrepresentative of their case.  Mann J rejected each of these, either because he saw no meaningful distinction between the words complained of and the words suggested, or, more broadly because the complaint mistook the purpose of the statement in open court: ‘The purpose of the statement is not to contain a representation of the BBC’s case.  The defined purpose of this statement is to reflect the terms which are agreed between the Claimant and SYP.  The BBC might not agree with the terms which have been agreed, and the facts which are agreed, but nonetheless they are facts which have been agreed.’

Comment

This case preserves the position as it was under Barnet v Crozier and Murray v Associated Newspapers Ltd, but the first reading for anyone wishing to challenge a statement in open court in the future is now likely to be Mann J’s guidance set out at i) to vii) above.  The case is a reminder of the importance of statements in open court in reputation and privacy claims, and further authority that the bar to interference is necessarily a very high one.

This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks.


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