Ipsofactoj.com: International Cases [2003] Part 3 Case 3 [HL]


HOUSE OF LORDS

Coram

Grobbelaar

- vs -

News Group Newspapers Ltd

LORD BINGHAM OF CORNHILL

LORD STEYN

LORD HOBHOUSE OF WOODBOROUGH

LORD MILLETT

LORD SCOTT OF FOSCOTE

24 OCTOBER 2002


Judgment

Lord Bingham of Cornhill

My Lords,

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

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

    (a)

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

    (b)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  20. Consideration may now be given to the two possible interpretations of the jury's verdict identified in para [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 para [23] (p 443) of his judgment, and again in para [80] (p 458) where he said

    .... the jury's verdict is accepted on all sides to be consistent only with their having found Mr. Grobbelaar innocent (or rather not proved on the balance of probabilities guilty) of all corruption, guilty merely of subsequent lies.

    Thorpe LJ also referred to it in para [115] (p 466), and Jonathan Parker LJ in para [219] (p 487):

    Mr. Hartley concedes that in awarding damages of £85,000 the jury must have been satisfied not only that no actual match-fixing had taken place (i.e. that Mr. Grobbelaar had not deliberately let in any goals in the matches in question), but also that he had not been party to any corrupt arrangement, either with Mr. Lim or with Mr. Vincent: in other words, that none of the charges made against him by the Sun had been proved.

    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]):

    .... one is left with an inescapable core of fact and circumstance which to my mind leads inexorably to the view that Mr. Grobbelaar's story is, quite simply, incredible. All logic, common sense and reason compel one to that conclusion.

    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 para [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 para [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:

    .... the inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

    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.

    Lord Steyn

    My Lords,

  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 [2001] 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 exposť 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:

    (1)

    [The agreed interpretation] overlooks the possibility that the jury may have gone wrong in assessing the separate question of damages. 

    (2)

    It does not follow that another jury might not also find for the appellant but award a lesser sum of damages.

    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]):

    .... Any agreement to accept a bribe constitutes an actionable tort as well as a criminal offence. As Mr. Spearman demonstrated in reply an agreement to receive a bribe constitutes a breach of fiduciary duty and it is no defence to prove that the recipient was not influenced to depart or did not depart from his duty. Equally in crime the burden on the prosecution is only to prove receipt of the bribe and it is no defence for the recipient to show that he did not intend to keep his side of the dishonest bargain.

    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 of England, 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

    My Lords,

  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.

  43. I am grateful to my noble and learned friend Lord Bingham for his review of the facts which will release me from that task and permit me to proceed straight to the critical features of this case and the reasons which have led me to conclude that the appeal should be allowed.

  44. This is a case where there is an agreed natural and ordinary meaning of the libellous publications:

    The Plaintiff,

    (a)

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

    (b)

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

    This was the meaning which the plaintiff had pleaded and the defendants had admitted. The first limb, (a), related to what it was said had occurred with a man known as 'the short man' (one Richard Lim) earlier than the time of the taped meetings with Vincent and the second limb, (b), to what it was said the plaintiff agreed with Vincent to do for Vincent's supposed principals in the future. Further, in each limb, the agreed meaning contained two aspects: one was fixing, or attempting to fix, or intending to fix, the result of football matches in which the plaintiff was playing and the other was the dishonest taking of bribes to do so. The plaintiff had pleaded the whole of the published material and the defendants had abandoned any reliance upon s.5 of the Defamation Act 1952. It was therefore for the jury to decide where the sting of the defamatory statements lay and to decide whether the defendants had proved that it was in substance true - i.e. substantially justified.

  45. But there was a complication: although the parties had agreed the meaning of the defamatory publications, they were not, anyway by the closing stages of the trial, agreeing about where the sting of the libel lay. The plaintiff had argued throughout that it lay in the allegation that he had deliberately fixed or 'thrown' matches and was prepared to do so again. The defendants by the end of the trial were arguing that the sting lay simply in the statement that he had taken bribes. The reason for this development was, so far as the defendants were concerned, not far to seek. In their pleading, they pleaded the defence of justification but they alleged that there was only one match where the plaintiff had deliberately let in a goal: Coventry City v Southampton, 24th September 1994. At the trial the plaintiff had made a positive case that he had never deliberately let in any goal, that he had never attempted to and that he never would. He not only gave evidence to that effect himself but relied upon film evidence of the games in which he had played and the unimpeached expert evidence already referred to by my noble and learned friend. The defendants called no evidence to contradict this part of the plaintiff's case. The defendants were therefore inevitably going to fail on the issue of justification unless they could persuade the jury that the sting lay in the taking of bribes rather than in the fixing of the result of matches and willingness to do so again.

  46. The defendants failed in this endeavour and it is not difficult to see why. This was a trial by jury: the relevant issues were for the jury to decide. The assessment of the jurors would be closer to that of the football fans, who go to football matches and who would be outraged by the idea that one of their footballing heroes was only pretending to play and the match which they had paid to watch was only a charade, than it would be to that of others, like lawyers, who would be outraged by the taking of bribes whether or not accompanied by the deception of the would-be briber. The plaintiff's view of the sting of the libel was amply supported by the way in which the newspaper had itself presented the story to its readers with references to

    • "The £40,000 was his reward for cheating fans and team mates by making sure Liverpool crashed 3-0 away to Newcastle last November"

    • ".... despite him giving away goals"

    • ".... for throwing a Premiership match"

    • ".... cheating Grobbelaar"

    • ".... unlike Grobbelaar, [M] was never accused of fixing games, just betting on results"

    • "Grobbelaar could be jailed for two years for match rigging"

    • "he has betrayed every soccer fan in the country by cynically reducing the game they love to a sham"

    • "the shame of his game-throwing will haunt him for the rest of his life"

    • "making a fan on the Kop a fool on the hill"

    [Quotes taken from the 9th and 10th November.]

    The newspaper and its editor clearly knew where the real impact of the story lay with the public. This impact was reflected in the agreed meaning of the words published. One of the first things which the plaintiff said to the second defendant on the telephone after the confrontation at the airport on 8th November was: "I've never attempted to throw a game in my life." (The newspaper quoted this statement the next day clearly implying that it was a lie.)

  47. Under these circumstances, the jury could not be criticised for taking the view that the sting was the accusation of match fixing. Even standing alone, it was a very serious accusation to make against a professional footballer and, if true, completely destructive of his reputation as a professional footballer. A goal keeper who deliberately lets in goals is betraying the fans and reducing the game to a sham. For myself, I would have been surprised if the jury had come to any other verdict on the justification issue. But, in any event, it was a matter for them and their conclusion was not unreasonable. It was a conclusion which was open to them. The issue was properly left to them by the trial judge with proper directions and their first verdict was in no way perverse.

  48. Two arguments have been advanced in response. The first is that advanced in argument by the newspaper. It can be expressed in words such as these: That a professional sportsman has deliberately underperformed in a match is bound to be very difficult to prove - all sportsmen make mistakes in the course of play - an international class striker may miss the goal from point blank range - deliberate errors are virtually impossible to prove. If this argument is meant to suggest that when the truth of a defamatory statement is difficult to prove, and has not been proved, then the truth of the statement may be treated as proved nevertheless, it is not the law, nor should it be. The law is that so far as the issue of justification is concerned, the publisher of the defamatory statement must allege and prove that the statements of fact were substantially true, no more, no less. In the present case, the defendants did not at the trial attempt to rebut the plaintiff's evidence that he had never attempted to throw a game. The legitimate relevance of the argument is to the defence of qualified privilege: Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The defendants attempted to set up the defence of qualified privilege. If they had succeeded, the defendants would then not have had to prove truth and the plaintiff would have had to prove malice. But they failed both before the judge and the Court of Appeal in their claim to qualified privilege. If the publication is not privileged, the publisher must prove that the relevant statement was substantially true. If he thinks that he may be unable to prove its truth, he must make sure that he conducts himself responsibly so as to be able to rely upon qualified privilege. Few would quarrel with the proposition that newspapers which are publishing defamatory statements of fact which they may not be able to prove are true must behave responsibly if they wish to take advantage of the protection of the law of qualified privilege.

  49. The other argument is in essence that which succeeded before the Court of Appeal. It is said that the jury misunderstood the gravamen of the accusation. Corruption is much more serious than letting in goals deliberately. The one is a criminal offence and the other, as such, is not. Thus, Thorpe LJ, having (at p.464) stressed the criminality of even accepting a bribe, identified what he described as "the relevant realities" and distinguishing between the corrupt agreement "capable of clear proof" and (overlooking the fact that this was a case where the evidence had actually disproved any "betrayal on the pitch") the "betrayal on the pitch" which was not, said (at p.467):

    The proper recognition of corruption rather than fixing as the primary issue renders Mr. Hartley's submission [for the plaintiff] almost repugnant.

    At p.461 Simon Brown summed up his own view of the case:

    All that had to be decided was whether Mr. Grobbelaar took corrupt payments.

  50. There are two straight forward and obvious answers to this line of argument. The first is that it was a matter for the jury and the Court of Appeal should have accepted the jury's verdict on this point unless they were prepared to decide that there was no issue to go to the jury on this point. It was correctly accepted that there was an issue to go to the jury and that the agreed meaning and the publication were capable of having the significance contended for by the plaintiff. The second is that, for the purposes of the law of defamation, what is relevant is the effect of the publication upon the perceptions of the ordinary reader of the Sun newspaper, not upon those of a judge of the Court of Appeal, and how it would alter such a reader's view of the plaintiff. Thus, the Court of Appeal not only confused the respective roles of judge and jury but also confused what might be relevant in other legal contexts with what is relevant in relation to defamatory publications. As counsel succinctly put it, citations from Bowstead and Reynolds on Agency, A-G v Blake, and judgments in the Court of Appeal Criminal Division (R v Carr and R v Mills), see per Simon Brown LJ at p.458, do not have much of a place in the consciousness of the ordinary reader of a tabloid newspaper. The Lord Justice was seriously in error when he summed up his own view of the case, supplanting the principled approach to the issues and usurping the function of the jury.

  51. The judgment of the Court of Appeal set aside the first verdict of the jury as perverse. It followed from this that judgment was to be entered for the defendants, not the plaintiff, and the question of the perversity or otherwise of the other two verdicts did not formally arise. Thus, they decided that it was perverse of the jury to remain unpersuaded that the agreed meaning of the defamatory material had been proved to have been substantially true. This was a remarkable decision since it was always open to the jury to remain unpersuaded upon an issue which has been properly left to them by the trial judge and of which the burden of proof rested upon the party against whom they are finding, as was the case here.

  52. Leaving on one side the fact that there was ample justification for the jury's first verdict, it is instructive to identify the route by which the Court of Appeal arrived at their conclusion. The defendants had by their notice of appeal included the ground of appeal:

    and/or the damages [the jury] awarded were excessive and were such that no reasonable jury could have thought that such an award was necessary to compensate the Claimant and to re-establish his reputation.

    By their second verdict, the jury had awarded the plaintiff damages in the sum of £85,000.

  53. In argument before the Court of Appeal, counsel for the plaintiff inevitably had to accept that he could not contend that £85,000 was not excessive unless he could persuade the Court of Appeal that (as was his client's case) the bribery allegations were also unjustified. This led the Court of Appeal to reason that the award of excessive damages by the jury's second verdict led to the conclusion not that, like many juries, they had gone over the top in their award of damages (about which I will have something to say later) but that their first verdict must have been perverse. This reasoning is remarkable: it reasons that because the jury has gone wrong on verdict No.2, it has gone wrong on verdict No.1 - perversely wrong. This is simply a non sequitur. Verdict No.1 is not dependent upon the correctness of verdict No.2.

  54. This was a case in which the quantum of damages was a real issue and, at the request of the defendants, a Pamplin direction was given: see Pamplin v Express Newspapers Ltd [1988] 1 WLR 116. A Pamplin direction addresses the situation where a plaintiff is entitled to a verdict in his favour on the justification issue but the evidence properly before the jury on the issue of justification has disclosed that the reputation to which he is entitled is so depreciated that the damages which he should be awarded for the damage to his reputation by the (ex hypothesi) defamatory publication should be reduced below the level that would be appropriate for a plaintiff with an impeccable reputation, maybe even to a nominal figure: as Neill LJ said in Pamplin at [1988] 1 WLR p.120,

    There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in s.5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely upon such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.

  55. The problem of the defamation of persons of bad character is not new. The law has, with the assistance of the legislature, worked out a principled approach. What Neill LJ has said and the summing-up in the present case of Gray J reflects that principled approach. Before the publications in question, the plaintiff had a very high reputation in the world of football as an outstanding goalkeeper. The publications were designed to destroy that reputation. The defendants were unable fully to justify the libel. It was, as the Court of Appeal would have been entitled to conclude, a case of partial justification. On this basis the award of damages was excessive and liable to be set aside. But it is not principled to say that, because the damages should be reduced on grounds of partial justification, maybe even to a nominal sum, the defendants were entitled to a verdict and judgment on liability. It is to be noted that the only reference to the Pamplin case in the Court of Appeal judgments is at p.459 in the judgment of Simon Brown LJ where he dismisses it as irrelevant and the Pamplin direction as "most unhelpful". With respect to the learned Lord Justice, this shows a serious error on his part in the understanding of the issues in a defamation action and the correct treatment of the question of a plaintiff who has been defamed but shown by admissible evidence to have a defective character. In so far as the learned Lord Justice in the same passage comments upon the facts of the case and expresses his own view about them, he is improperly trespassing upon the function of the jury.

  56. But the unsatisfactory consequences of the Court of Appeal's treatment of the damages issue do not stop there. The forensic position in which counsel for the plaintiff found himself led to his making only a restricted response to the appeal on the amount of the damages award (the jury's second verdict). The way Jonathan Parker LJ described it (at para [219]) was-

    Mr. Hartley concedes that in awarding damages of £85,000 the jury must have been satisfied not only that no actual match-fixing had taken place .... but also that he had not been party to any corrupt arrangement, either with Mr. Lim or with Mr. Vincent: ....

    This restricted response was then treated as a concession and used as a basis for discrediting the jury's first verdict as well. The so-called 'concession' has now been advanced as a reason for dismissing the plaintiff's appeal to your Lordship's House. It is said that the 'concession' having been made, the plaintiff should be held to it (although no prejudice to the defendants is suggested) and the decision of the Court of Appeal upheld without further examination. To accede to this submission would serve no greater purpose than to compound the Court of Appeal's error. Your Lordships have been shown the passages in the transcript of the Court of Appeal upon which the argument is based. To my reading they are of very limited significance and do not extend beyond what would be expected in exchanges which take place when an advocate is being subjected to close questioning by an unsympathetic court. It is a misuse of the privilege of having an oral hearing with oral arguments for a court to try to decide the case by obtaining 'concessions' from counsel. The purpose of oral argument is to inform, clarify and enlighten the minds of the court (hopefully in favour of the advocate's client). It is not right to seek to decide cases upon the tenacity of the advocate or 'concessions' forced out of the advocate in the course of oral argument. (This is not a case where a point has been conceded, in the proper sense of that word, either by a pleading or a statement in court and has thereafter governed what issues do and do not arise.) Still less is it right to decide appeals upon the basis of upholding wrong decisions arrived at using legally mistaken 'concessions' by counsel. To have conceded that the excessive amount of the jury's second verdict invalidated, or demonstrated perversity in, their first verdict would have been both legally and logically wrong (as well as being based upon wrong factual assumptions).

  57. A further criticism to be made of the Court of Appeal's decision in the present case is that they chose to make a questionable inference in preference to adopting the ordinary and obvious explanation of the jury's second verdict. The ordinary explanation is that the jury went wrong in some way in deciding upon the amount of their award. It is a commonplace that juries, even after an impeccable direction from the judge, may make such a mistake. Why should one not infer that that is what occurred in the present case? I will come to the factors which may have led the jury to over-assess the damages. But, first, there are factors which militate against their having delivered a perverse verdict on liability. The jury were properly directed. It should not lightly be assumed that, in failing to be satisfied that a burden of proof had been discharged, a jury had acted perversely. There is no evidence that the jury were behaving irrationally during the trial. The verdicts were unanimous. Their third verdict was that the plaintiff should not recover exemplary (penal) damages. At criminal trials in 1997, the plaintiff was tried on two counts, the first of conspiring corruptly with Lim and others and accepting money to fix or for having fixed matches, the second for corruptly accepting a bribe of £2,000 from Vincent to fix or for having fixed matches. At the first criminal trial, the jury was unable to agree on either count. The jury was discharged and a re-trial was ordered. At the re-trial, the plaintiff was unanimously acquitted on the first count and the jury was again unable to agree on the second count. It has not been suggested on this appeal that the criminal juries were acting perversely. At the civil trial, the defendants did not call Mr. Vincent even though some of what they had published had only come from him. Mr. Carman told the jury:

    We would regard him as a wholly unreliable witness, therefore we do not propose to call him to give evidence because I do not want to present to you on behalf of the Sun newspaper someone whose evidence we believe may be highly suspect and whose whole character may be deeply flawed.

    Nor was Mr. Lim called. It may be that the correct evaluation of what they had seen and heard on the tapes did not seem to the civil jury (nor to the criminal juries) to be as clear cut as it did to the Court of Appeal. The question why should one infer that the civil jury was perverse remains unanswered.

  58. But the other aspect affecting the inference is the probable explanation for an inflated award of damages against the defendants. The primary focus of the present appeal has been the conduct of the plaintiff and what he is recorded as having said on the tapes. This is quite right. What he had said, if true, was gravely incriminating. His only answer was that what he had said was not true. Some of what he had said was proved to be untrue: where did that leave the remainder? As juries are reminded every day of the week in relation to confessions, the fact that a person has admitted something means that what he has said may be used against him as powerful evidence of the truth of what he has said; but the jury must still consider whether, in the circumstances, the admission is reliable and does in fact represent the truth. To prove that the plaintiff was a liar does not of itself prove the truth of anything that he said. What occurred in the present case involved sordid and wholly despicable conversations, apparently incriminating of both the plaintiff and Vincent, which took place in a bugged hotel bedroom and a bugged flat, secretly taped, between the plaintiff and a person who may have cheated the plaintiff in the past and whom the defendants did not call for the reasons (quoted above) which Mr. Carman explained to the jury. How much credence to give to what the plaintiff had said, first, in the hotel bedroom and the flat and, then, on oath in the witness box at the trial was a matter for the jury and was relevant, under the Pamplin principle, to the assessment of damages. The Court of Appeal considered that the jury must have given more credit to what the plaintiff had said in the witness box and less to what he had said on tape than they, the Court of Appeal, considered appropriate. On this view, the damages awarded were excessive (as counsel accepted). As the Court of Appeal held, there was an ample basis for the view that the jury had over-estimated the damages.

  59. But the jury were also entitled to, and no doubt did, take into account the conduct of the defendants in connection with the publication, the character of the publication and the effect of their conduct in aggravating the injury to the plaintiff. These aspects of the case were discussed by the Court of Appeal in the context of qualified privilege. They were remarkable. The publication was not a single publication but was a sustained campaign extending over eight issues of the newspaper with no less than six pages devoted to the story in the first of these issues. The publications included, at the least, a mixture of allegations which the newspaper could and could not substantiate. They depended in part upon a disreputable witness, Vincent, whom their counsel was later to describe as "wholly unreliable" and as having, in their belief, a maybe "deeply flawed" character. The entrapment which they had engineered had had a number of very questionable features. They gratuitously involved in the publications the plaintiff's wife and children with successive series of pictures of them and statements such as-

    Shameful secret has Deb close to tears. Grobbelaar's wife Debbie was close to tears yesterday when we broke news of how her husband fixed matches for money.

    10 questions he didn't answer .... How much of what's been happening have you told the children about? Have they been getting a hard time at school as a result of the allegations against you? ....

    They staged a deliberately intimidating ambush of the plaintiff at Gatwick by a team of six photographers and reporters. When the plaintiff had issued a writ against them, they informed their readers that they had retained Mr. Carman and, referring to the plaintiff, said: "What will happen to the case? We're confident he will drop it like he drops everything else." They quoted Vincent as saying: "I'll see you in court."

  60. Many juries would in these circumstances make a substantial award of damages. An award of £85,000 is within the range of awards which a jury might erroneously think appropriate. It is wrong to treat it as evidence of perversity. The conclusion that a jury has acted perversely, that is to say in breach of their oath, is a serious matter and not lightly to be inferred. If there is another more plausible explanation of their verdict, it should certainly be preferred. To assume perversity unworthily discredits an integral and honourable part of the justice system.

  61. I therefore consider that the appeal should be allowed and the first verdict of the jury upheld. I agree that the award of damages in the sum of £85,000 was excessive and must be reduced. If it had been much more modest, say a four figure sum, it would in my judgment have been unappealable. But it was not and, in respect for the opinion of my noble and learned friend, Lord Bingham, that the award should be reduced to a nominal sum, I will, applying Pamplin, concur in a reduction of the award to £1. The plaintiff has been shown by the first verdict to be entitled to a verdict and judgment in his favour and to some award of damages to demonstrate that he has been tortiously defamed by the defendants. There remains the formulation of a limited injunction or undertaking to restrain any repetition of the tortious statements as is the normal practice. Indeed, counsel suggested that they should agree a suitable wording should the appeal be allowed, as it has been. However, in deference again to the view of my noble and learned friend and notwithstanding that it may merely serve to increase the costs, I am prepared to accept his proposal that, in the absence of an agreed undertaking, the question of the grant of an injunction should be left to be dealt with on an application to a judge of the High Court, Queen's Bench Division, if the plaintiff chooses to make one, and I am accordingly content that the plaintiff should be given the proposed liberty to apply.

  62. Two points remain. Both sides' counsel suggested to your Lordships that this House had no power to set aside an excessive award and substitute a lesser award of damages in a defamation case tried with a jury. They said that that power was confined to the Court of Appeal. This was not a correct view since, on an appeal from the Court of Appeal, this House has the power to make any order which the Court of Appeal could have made. Secondly, the defendants were given leave to cross-appeal on the ground that the trial judge had misdirected the jury on the justification issues relevant to their first verdict. I agree with the Court of Appeal and with your Lordships that the judge's directions were correct and that the cross-appeal should accordingly be dismissed.

  63. Human Rights have also been referred to. Article 10 of the Convention is always important. But Article 10(1) is subject to 10(2) and the English law of defamation gives effect to this and recognises that other human rights may be engaged as well, as for example under 8(1). The relevant decisions of the E.C.H.R. have been referred to in other cases which have raised points under Article 10, including Reynolds [2001] 2 AC 127 at 203-4 and Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29 [2002] 1 WLR 2033, and this is not the occasion to go over the ground again. Article 10 is not a licence knowingly to publish untrue statements of fact about another on unprivileged occasions and the proper protection of the person defamed may require that repetitions of the untrue statements be restrained. As my noble and learned friend Lord Bingham has said: "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."

    Lord Millett

    My Lords,

  64. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill, with which I am in full agreement.

  65. At the conclusion of the trial the jury were asked three questions. They answered them as follows:

    1. Do you find for the Claimant (Mr. Grobbelaar) or the Defendants? For the Claimant.

    2. What amount of damages do you award him? £85,000.

    3. Does your award contain any sum by way of exemplary damages? No.

  66. It was common ground in the Court of Appeal that the award of £85,000 was consistent only with a finding that neither of the alleged conspiracies was established. It would not be wholly accurate to say that this was agreed between the parties or that it was a concession made by either of them. Rather each party argued from the same premise because it suited its case to do so. Once the premise was accepted the Court of Appeal was fully justified in holding that the jury's finding was perverse. On the evidence before them no reasonable jury properly directed could make such a finding. But the premise was false. The only inference which could properly be drawn from the jury's answer to Question 1 was that the Defendants had failed to establish what they found to be the gist of the publication of which complaint was made.

  67. In my view an appellate Court ought not to find the verdict of a jury on liability to be perverse unless there is no rational explanation for it. There is not the same constraint against finding an award of damages to be excessive. In the light of the evidence which was before the jury, a much more plausible explanation of the jury's verdict is that it found that the sting of the libel lay in the allegation that Mr. Grobbelaar had thrown matches in which he was playing by deliberately letting in goals, and that it was only this allegation which the Defendants had failed to establish. On the evidence such a finding was clearly open to the jury and would not have been perverse. It would not have justified an award of £85,000, or indeed any substantial award, but that is another matter.

  68. The Court of Appeal were not bound by the premise on which the case was argued before them merely because it suited both parties to adopt it, and your Lordships are certainly not bound to accept it. If the jury found that the sting of the libel lay in the allegations of match-fixing rather than the allegations of the corrupt agreements, they were entitled to find that this had not been established. This is sufficient to uphold their verdict for Mr. Grobbelaar on liability. They should not be taken to have reached a perverse finding, in the teeth of overwhelming evidence to the contrary, that the Defendants had also failed to establish the existence of the corrupt agreements. But a finding that Mr. Grobbelaar had been a party to either or both corrupt agreements would be enough to deprive him of any right to substantial damages. It would be an affront to justice if a man who accepts bribes to throw matches should obtain damages for the loss of his reputation as a professional sportsman merely because he cannot be shown to have carried out his part of the bargain.

  69. Accordingly, I would allow the appeal, enter judgment for the plaintiff, and substitute an award of £1 by way of derisory damages. I would also give Mr. Grobbelaar liberty to apply to the High Court for a suitably worded injunction to restrain any repetition of the allegation that he actually fixed matches. By his own conduct Mr. Grobbelaar has destroyed the value of his own reputation, and this is sufficient to disentitle him to any but nominal damages. But it would not justify the Defendants in republishing an allegation the truth of which a jury have found that they have been unable to substantiate. Such conduct would still constitute an actionable wrong. Mr. Grobbelaar may have no reputation to lose; but that does not make him an object of ridicule, fair game for every slander that an imaginative journalist can concoct. It is precisely because his reputation is worthless that damages would be an inadequate remedy.

  70. The maxim that "he who comes into equity must come with clean hands" must not be taken too far. It has no application in the present case. As Brandeis J explained in Loughran v Loughran 292 US 216 at p 229 (1934) "Equity does not demand that its suitors shall have led blameless lives". There must be "an immediate and necessary relation to the equity sued for": see Dering v Earl of Winchelsea (1787) 1 Cox Eq 318, 319 per Eyre CB. Any such relation between Mr. Grobbelaar's wrongdoing (which must be taken to have lain in taking bribes, not in throwing football matches) and the way in which the Defendants reported it came to an end when the jury returned their verdict and exonerated him of the charge which is the subject of the proposed injunction.

    Lord Scott of Foscote

    My Lords,

  71. In what circumstances is it permissible for an appellate court to reverse on an issue of fact a verdict given by a jury in a civil case? That is the central question in this case. In our system of justice juries occupy a position of near veneration, at least as far as many lawyers and most of the media are concerned. The veneration is mainly attributable, I think, to the historic role of juries in criminal cases in standing between the accused citizen and the power and authority of the executive. Judges have not always in the history of our justice system been seen to be independent of the executive. The independence from the executive of prosecuting authorities has not always been apparent and still today is regarded with some cynicism by some people. So it is not surprising that the role of juries in the criminal justice system is widely regarded as constituting a key and necessary protection for the citizens of this country from unfair and oppressive prosecution.

  72. Juries, like judges, do not always come to the correct conclusion. The question as to what can be done by an appellate court if the verdict of a jury in a criminal case appears in the light of the evidence to be plainly wrong must receive a variable answer depending on whether the verdict is to acquit or to convict. If the verdict is to acquit, it cannot be reversed on appeal. The accused walks free no matter how plainly wrong the verdict may appear to be. The jury's verdict is sacrosanct. But that is so only if the verdict is in favour of the accused. If the jury should convict the accused their verdict is by no means sacrosanct. An appellate court can be invited to examine the evidence, review the trial judge's summing-up and either substitute an acquittal for the conviction or direct a re-trial. The criteria for taking these steps is a good deal less stringent than that the jury's verdict was plainly wrong. It will suffice if the court thinks that the jury's verdict simply was not safe. The imbalance between the sacrosanct character of a jury verdict of acquittal and the relatively less than conclusive character of a jury verdict to convict is a consequence of the nature of criminal proceedings and the revulsion about convicting a person who is possibly innocent that rightly permeates the criminal justice system. There is no comparable revulsion about acquitting a person who is possibly guilty.

  73. I have made these rather trite remarks about the status of a jury verdict in the criminal justice system not because they have any direct relevance to the present case but in order to emphasise the inappropriateness of treating a jury verdict in favour of a defendant in a defamation case as though it deserved a status comparable to that of a verdict of acquittal in a criminal case. If a person, believing himself to have been defamed, brings a defamation action and there is no dispute but that the defendant was responsible for uttering the words complained of and no dispute but that the words were defamatory of the claimant, the defendant, in order to rely on the defence of justification, must prove that the words were true. If the allegation was of criminal conduct on the part of the claimant, that he was a thief, or a fraudster, or a child molester, or whatever, the defendant must satisfy the jury that that was so. In effect, the defendant must satisfy the jury that the claimant had indeed committed the crime that the defamatory words had alleged. There is, therefore, a clear analogy between the role of the prosecutor in a criminal case, endeavouring to satisfy the jury that the accused committed the crime with which he is charged, and the role of a defendant who has pleaded justification in a defamation case, endeavouring to satisfy the jury that the claimant had committed the crime alleged against him. But the analogy becomes a misleading one if carried too far. Although in the defamation case, the jury's verdict in favour of the claimant must necessarily have rejected the justification defence and indicated that the jury had not been satisfied that the claimant had committed the crime alleged, the verdict does not have the sacrosanct character of a verdict of "not guilty" in a criminal case. In a civil case, the parties litigate on an even playing field. It is as much of an affront to justice if a "guilty" claimant succeeds in obtaining damages as it is if an "innocent" claimant fails in his claim for damages. A verdict in favour of the defendant, the jury apparently being satisfied that the claimant had committed the crime alleged, cannot be set aside simply because the court thinks that the verdict was not "safe". Something more would be required. The appellate court would need to be satisfied that, in the light of the evidence, a jury could not reasonably have concluded that the claimant had committed the crime. The verdict would have to be shown to be plainly wrong and one that no reasonable jury could have reached. A lower threshold would not suffice.

  74. The case is no different where a jury, apparently not satisfied that a justification defence has been made out, finds in favour of the claimant. If an appellate court can be satisfied that no reasonable jury could, on the evidence in the case, have reached that decision, i.e. that the rejection of the justification defence was plainly wrong, then the appellate court must set aside the jury's verdict. Justice to the defendant, no more and no less important in a civil case than justice to the claimant, so demands.

  75. In reviewing a jury's verdict against the background of the evidence given in the case in question, an appellate court is always faced with the difficulty that the jury will have given no reasons for their decision. Underlying the verdict there is often likely to have been a series of decisions. There may have been alternative possible routes leading to the verdict, some of questionable legitimacy, others less susceptible to impeachment. The appellate court will not know which route the jury has taken. In criminal cases the difficulty is surmounted by treating the verdict of acquittal as sacrosanct and the verdict of conviction as amenable to being set aside by anything rendering it not "safe". The certainty of the former and the comfort of the latter are not available on appeals from jury verdicts in civil cases. Each side is equally entitled to justice. The appellate court must, of course, pay proper respect to the jury verdict. The jury are the fact finders. In a civil case, the jury, as fact finders, are entitled to the same respect, no more and no less, than that which is due to a trial judge sitting without a jury. The difference is that the trial judge's reasoning will be, or should be, on the face of the judgment whereas the jury's reasons, being undisclosed, will need to be re-constructed by the appellate court. Subject to that important difference, however, the factual conclusions of juries in civil cases should, in my opinion, be treated by an appellate court no differently, with no greater and no less respect, than the factual conclusions of judges.

  76. In the present case there were four critical issues which had to be resolved before a verdict could be reached. They were the following:

    (1)

    What was the "sting" of the defamatory articles that the Sun had to justify in order to succeed in its justification defence? The parties were in agreement about the defamatory meaning of the articles, namely, that Mr. Grobbelaar

    (a)

    having dishonestly taken bribes had fixed or attempted to fix the results of games of football in which he had played, and

    (b)

    had dishonestly taken bribes with a view to fixing the result of games in which he would be playing

    It is well established law that in order to make good a defence plea of justification, the defendant does not have to prove the truth of every injurious allegation that he has made. It suffices if the defendant makes good the "sting" of the allegations. And it is for the jury, as part of the process of deciding whether a justification defence plea has been made good, to decide what is the "sting" of the defamatory remarks in question. So it was for the Grobbelaar jury to decide what was the "sting" of the Sun articles. Was it the allegation that Mr. Grobbelaar had taken bribes with a view to fixing or attempting to fix football matches? Or was it that he had taken bribes and had fixed, or attempted to fix, football matches? Or was it both?

    (2)

    The jury had to decide whether Mr. Grobbelaar had taken bribes from Mr. Lim with a view to fixing football matches. The Sun alleged that he had.

    (3)

    The jury had to decide whether, pursuant to his corrupt agreement with Mr. Lim, Mr. Grobbelaar had deliberately let in, or attempted to let in, goals. The Sun alleged that he had done so.

    (4)

    The jury had to decide whether Mr. Grobbelaar had taken bribes from Mr. Vincent with a view to fixing football matches. The Sun alleged that he had.

  77. The jury returned a verdict in favour of Mr. Grobbelaar and awarded him damages of £85,000. On appeal to the Court of Appeal the Sun contended that the verdict was plainly wrong. It contended that the jury could not reasonably have rejected its justification defence. Mr. Hartley QC, counsel for Mr. Grobbelaar, submitted that the Sun was contending, in effect, that the trial judge, Mr. Justice Gray, should have directed the jury that it was not open to them to find in favour of Mr. Grobbelaar that the justification defence was not made out and should have withdrawn that issue from them. In my opinion, this submission cannot be accepted. Before the fate of the justification defence could be settled the "sting" of the articles had to be identified. This was a matter for the jury. The defence could not, therefore, have been withdrawn from them. The judge had no alternative but to sum-up to the jury and leave the issue to them. There has been no significant criticism of his summing-up.

  78. The Court of Appeal, for their part, had no alternative but to examine the evidence relevant to the justification issue and ask themselves whether the jury's verdict rejecting the justification defence could be sustained. As my noble and learned friend Lord Steyn has said (para [32]) it was common ground in the Court of Appeal that the jury's award of £85,000 was consistent only with the jury having rejected the allegations that Mr. Grobbelaar had entered into corrupt agreements with Mr. Lim and Mr. Vincent. A goalkeeper who is exposed as someone who has agreed to take money to let in goals, but, in a double-cross of his co-conspirators does not in fact let in goals, is not, if accused of deliberately letting in goals, deprived of a reputation worth £85,000, if anything at all. I, therefore, respectfully agree with the Court of Appeal that the jury must have rejected the charge in the Sun's articles that Mr. Grobbelaar had agreed to take bribes for throwing matches. The jury must also have rejected the charge that Mr. Grobbelaar had deliberately let in goals or attempted to do so. As to this, the jury's rejection of the charge could not possibly be described as plainly wrong. The Sun's case was wholly based on the admissions that Mr. Grobbelaar himself had made in the video-taped conversations that he had had with Mr. Vincent. But the evidence of Mr. Bob Wilson and Mr. Alan Ball that none of the relevant goals that had been scored against Mr. Grobbelaar were associated with any sign of bad goalkeeping and, indeed, that on occasions in the matches in question Mr. Grobbelaar had achieved saves that no ordinary goalkeeper would have managed, was very strong. The jury was entitled, on this evidence, to conclude that Mr. Grobbelaar had not in fact deliberately let in any of the goals.

  79. But what about the corrupt agreements? As to the agreement with Mr. Lim, the Sun's case was based on Mr. Grobbelaar's admissions made in the course of the video-taped conversations he had had with Mr. Vincent. As to the agreement with Mr. Vincent, too, the Sun's case was based on the evidence of the video-tapes but here the visual and aural evidence was incontrovertible. The tapes showed the two men entering into the corrupt agreement. Mr. Grobbelaar's admissions about his previous corrupt agreement with Mr. Lim and about the goals pursuant to the agreement that he had deliberately let in or attempted to let in were the background to the agreement being negotiated between Mr. Grobbelaar and Mr. Vincent and recorded on the video tapes.

  80. Mr. Grobbelaar endeavoured to explain away what the video tapes revealed. His explanation was not credible for the reasons very fully set out in the Court of Appeal judgments and that I need not repeat. I concur with my noble and learned friend Lord Bingham of Cornhill in concluding that no reasonable juror could have concluded that Mr. Grobbelaar's apparent making of a corrupt bargain with Mr. Vincent and his acceptance of money from him were merely a pretence on his part (paras [17] and [20] of Lord Bingham's opinion). In my opinion, the same conclusion is justified so far as Mr. Grobbelaar's admissions about his dealings with Mr. Lim are concerned. Here, of course, there is no comparable visual and aural evidence of the making of the corrupt bargain. But there is a wealth of material corroborating the admissions about his dealings with Mr. Lim made by Mr. Grobbelaar in the course of the video-taped conversations. The material was conveniently brought together for your Lordships in a note handed up by Mr. Spearman QC, counsel for the Sun, but all the details are to be found in the Court of Appeal judgments.

  81. Mr. Hartley put at the forefront of his submissions to your Lordships that the Court of Appeal had erred in putting themselves in the position of fact finders and substituting their opinion about the credibility of Mr. Grobbelaar's explanations for that of the jury. This criticism was, in my opinion, misplaced. The Sun's appeal against the jury's verdict was that, on all the evidence, the verdict was perverse, plainly wrong. This is a ground of appeal that is open to a disappointed litigant whether the fact finder be a judge or a jury. In dealing with the Sun's appeal the Court of Appeal was bound to review all the relevant evidence and ask itself whether the assumed findings of the jury, necessary to sustain the verdict, were findings to which a reasonable jury could come. If they were not, the Court of Appeal had no option but to overturn the verdict. The approach would have been no different if the fact finder had been a judge. But in that case the critical findings would, or should, have been expressed and would not have had to be assumed.

  82. In my opinion the Court of Appeal was well-entitled, having reviewed all the evidence, to overturn the rejection by the jury of the Sun's case that Mr. Grobbelaar had entered into a corrupt agreement with Mr. Lim and had received bribes from him pursuant to that agreement. The jury's assumed finding to the contrary was, in the face of this material, plainly wrong.

  83. The position, therefore, is that the jury's assumed finding that Mr. Grobbelaar did not actually fix or attempt to fix matches must stand, but the assumed finding that he did not enter into a corrupt agreement to do so cannot stand. In these circumstances, can the jury's rejection of the Sun's justification defence be sustained? The answer depends on identifying what was the "sting" of the Sun's articles. If the "sting" was, or included, that he had thrown matches, the justification defence was not made out.

  84. Identification of the "sting" is for the jury, and it would have been open to the jury, in my opinion, to have concluded that the "sting", or at least an important part of the "sting", lay in the allegation that Mr. Grobbelaar had deliberately let in or attempted to let in goals. The verdict in favour of Mr. Grobbelaar is consistent with the jury having come to that conclusion and, in my opinion, the Court of Appeal ought not to have disturbed that verdict. The Sun's articles had charged Mr. Grobbelaar not only with entering into corrupt agreements to throw matches for money but also with having actually done so. On the footing that they had failed to prove that he had actually done so, although they had proved everything else, Mr. Grobbelaar was, in my opinion, entitled to uphold the jury verdict in his favour.

  85. In these circumstances Mr. Grobbelaar is no doubt entitled at least to nominal damage to mark the success, but is he entitled to any greater sum? In my opinion, he is not. There are two considerations which, to my mind, overwhelm all others.

  86. First, the Sun based its articles on what Mr. Grobbelaar had himself said. He was seen on the video tapes entering into the corrupt agreement with Mr. Vincent; he was heard on the tapes admitting that he had entered into a corrupt agreement with Mr. Lim; and he was heard admitting that he had, pursuant to his arrangements with Mr. Lim, either thrown or attempted to throw matches. His explanations for these things were not credible. A reasonable jury would have had no alternative but to reject them. In the context in which Mr. Grobbelaar's admissions were made the admissions lacked nothing in credibility. The Sun believed them and based the articles upon them. Why should it not have done so? In my opinion, Mr. Grobbelaar brought on his own head the publication of that which he had admitted to doing. If an individual makes damaging admissions about himself which come to the attention of a third party who has no reason to doubt their credibility and who repeats them in public, the notion that the individual can then, by successfully denying the truth of his admissions, succeed in extracting defamation damages from the third party seems to me inconsistent with justice as well as with common sense. It has not been suggested to your Lordships that the Law Reform (Contributory Negligence) Act 1945 might have a part to play in such a scenario but it seems to me that it might, and, in any event, that, quantum of damages being at large, justice would be done by confining the individual to whatever satisfaction a jury's, or a judge's, public recognition of the falsity of his admissions might bring. In the present case, I would adopt that approach. The admissions by Mr. Grobbelaar having become known to the Sun and Mr. Grobbelaar having failed to provide any credible explanation for them, the Sun was bound, in my opinion, to make them public. The admissions were matters of legitimate public interest and concern and that is what newspapers are for. To hold the Sun liable to pay substantial, as opposed to nominal, damages for publishing articles based on Mr. Grobbelaar's own admissions and for their failure to prove that these admissions were true, would, in my view, be quite wrong.

  87. Second, a professional footballer who has agreed to accept, and has accepted, bribes with a view to throwing matches has so diminished his reputation in the eyes of right thinking people that his success in establishing that, in breach of his corrupt agreement, he did not in fact throw matches cannot, in my opinion, justify anything more than nominal damages. The harm to professional sporting contests if those who play them enter into corrupt bargains of the sort entered into by Mr. Grobbelaar cannot be overstated. Proof that a professional sportsman has deliberately underperformed in a match is likely in most cases to be very difficult. All sportsmen make mistakes in the course of play. An international-class striker in a football match may miss the goal from point blank range. A wicket keeper in a cricket match may fumble a catch. A rugby player may miss a tackle or drop a high kick. These things are part of the inherent uncertainty of sport that gives sport much of its fascination. Deliberate errors may be virtually impossible to prove and evidence that a professional sportsman had agreed for bribes to make deliberate errors should be enough to justify exposure and censure and enough to disentitle the sportsman in question to substantial defamation damages when a charge that he has carried out his dishonest bargain is not proved.

  88. For these reasons I would allow the appeal but reduce Mr. Grobbelaar's damages to £1.

  89. The question has been raised whether an injunction should issue against the Sun restraining it from repeating the allegation that Mr. Grobbelaar had deliberately let in goals or attempted to do so. It is normal for success in a defamation action to be accompanied by an injunction restraining the defendant tortfeasor from repeating the defamatory remarks. In the present case, however, there are, in my opinion, serious problems about the grant of an injunction. First, the injunction would have to be so expressed as to permit the Sun to repeat that Mr. Grobbelaar had entered into corrupt agreements to throw matches. That allegation has, in my opinion, been well proved. Second, the injunction would have to be expressed so as to permit the Sun to repeat that Mr. Grobbelaar had admitted throwing matches. It is common ground that Mr. Grobbelaar did so admit. In many contexts a comment that Mr. Grobbelaar was a man who had admitted throwing matches might be taken to carry the inference that he had actually done so. An injunction the breach of which might depend on what untrue inferences could be drawn by a reader from a true allegation is an injunction that would need very careful drafting.

  90. A third problem, and one that has caused me considerable hesitation, is that the grant of an injunction is the grant of an equitable remedy and it is long-established practice that an equitable remedy should not be granted to an applicant who does not come before the Court with "clean hands". The grime on the hands must, of course, be sufficiently closely connected with the equitable remedy that is sought in order for an applicant to be denied a remedy to which he ordinarily would be entitled. And whether there is or is not a sufficiently close connection must depend on the facts of each case. In the present case it has seemed to me well arguable that it would be an affront to the "clean hands" principle if an injunction were granted to Mr. Grobbelaar. He entered into two successive corrupt agreements to throw matches in return for bribes and, as part of the inducement to his co-conspirator to enter into the second such agreement he represented that he had thrown or attempted to throw matches pursuant to the first such agreement. He has brought a defamation action based first on his false denial that he entered into these agreements and, secondly, on his denial of the truth of his admission that he had thrown matches pursuant to the first agreement. The question is whether the dishonesty that attended his entry into the corrupt agreements, and his denial in court that he had done so, so taints his success in persuading the jury to accept his denial of the truth of his match fixing admissions as to disqualify him from the grant of an injunction. I can well understand that your Lordships may be concerned that, in the absence of an injunction, the Sun may repeat the allegation that Mr. Grobbelaar did actually throw matches. If the Sun does so, it will be repeating that which Mr. Grobbelaar has succeeded in establishing is not true. I am, somewhat reluctantly, persuaded, on balance, that the grime on Mr. Grobbelaar's hands is not such that he should be exposed to a repetition of that allegation. I therefore agree that he should be given liberty to apply in this action to the High Court for the grant of a suitably worded injunction. This will not, of course, be necessary if the Sun offers a suitable undertaking.

  91. For these reasons, I would allow the appeal, reduce the award of damages to £1 and grant Mr. Grobbelaar the liberty to apply that I have mentioned.


Cases

News Group Newspaper Ltd v Grobbelaar [2001] 2 All ER 437; Reynolds v Times Newspapers Ltd [2001] 2 AC 127; A-G v Blake

R v Carr; R v Mills; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116; Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29 [2002] 1 WLR 2033; Loughran v Loughran 292 US 216 (1934); Dering v Earl of Winchelsea (1787) 1 Cox Eq 318

Legislations

European Convention for the Protection of Human Rights and Fundamental Freedoms: Art.10.1

Human Rights Act: s.12

Authors and other references

Jacob: "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems 23

Halsbury's Laws of England, Vol 37

I. H. Jacob, The Inherent Jurisdiction of the Court, (1970) 23 CLP 23

Gatley on Libel and Slander, 1998, 9th ed

Clayton & Tomlinson, The Law of Human Rights, 2000

Bowstead and Reynolds on Agency


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