GROBBELAAR v NEWS GROUP NEWSPAPERS LTD & ANR [2001] EWCA Civ 33

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE GRAY

[2001] EWCA Civ 33

Case No Case No: A2/1999/1117

Venue Royal Courts of Justice, Strand, London,, WC2A 2LL, Thursday 18 January 2001

Between

GROBBELAARRespondent

NEWS GROUP NEWSPAPERS LTD & ANRAppellants

Before

Lord Justice Simon Brown

Lord Justice Thorpe

Lord Justice Jonathan Parker

Mr R Spearman QC (instructed by Daniel Taylor, Company Solicitor, for News Group Newspapers Limited, the Appellants)

Mr R Hartley QC & Miss S Palin (instructed by Cuff Roberts of Liverpool L3 9TD for the Respondent)

Date 18 January 2001

LORD JUSTICE SIMON BROWN:

On

[1]28 July 1999, at the end of a 16 day trial before Gray J and a jury, the respondent, Bruce Grobbelaar, was awarded £85,000 compensatory damages for defamation. The jury's verdict was unanimous. The award was in respect of a series of publications in the Sun newspaper on 9, 10, 11, 14, 15, 16 and 18 November 1994 stating that he had fixed football matches for money. The first such publication was on the front page under the banner headline "WORLD EXCLUSIVE - GROBBELAAR TOOK BRIBES TO FIX GAMES." The libels could hardly have been graver nor more sensationally, widely and repeatedly proclaimed.

[2]The award is now challenged on appeal by the publishers and the then editor, Mr Stuart Higgins. The appellants advance two central arguments. First they contend that the jury's verdict, notably their rejection of the defence of justification, was perverse. Secondly they submit that Gray J was wrong to have ruled in the course of the trial, on 23 July, that the defence of qualified privilege was not available in respect of the publications complained of.

[3]It is convenient at this early stage of the judgment to give a brief chronological account of the central facts and events underlying these proceedings.

[4]Mr Grobbelaar was a celebrated goalkeeper who joined Liverpool in 1981. In July 1992 he was invited by a fellow Zimbabwean, Mr Christopher Vincent, to invest in a safari holiday business called Mondoro and over the months that followed he paid over to Mr Vincent some £50,000.

[5]In about November 1992 Mr Grobbelaar was introduced by Mr John Fashanu (another well-known footballer, then a striker for Wimbledon) to a Mr Lim (a young Asian, sometimes known as "the short man"). Mr Grobbelaar acknowledged that between then and about the spring of 1994 he received from Mr Lim cash payments totalling some £8,000. One such payment (of £1,500) was made on 30 September 1993 at a short meeting at the Hilton Hotel near Manchester Airport, Mr Grobbelaar and Mr Vincent having driven there together from Chester. These payments, Mr Grobbelaar asserted, were initially for forecasting match results (not involving Liverpool), at the rate of £250 per successful forecast, and later, because he proved an inept forecaster, for information about footballers and clubs. The appellants' contrary case was that the payments - and at least one further and larger payment of £40,000 - were for match fixing rather than match forecasting and that the £40,000 payment was made in cash on 25 November 1993 at a house in Byron Drive, North London, John Fashanu's address at the time, following Liverpool's 3-0 defeat by Newcastle on 21 November. Mr Grobbelaar denied receiving any monies on that visit. Rather, he said, the £20,000 in cash which he admitted handing over to Mr Vincent at about this date for the Mondoro project, as well as £5,000 paid on 26 November into his testimonial fund, came from his sock drawer at home, cash accumulated over the years from a number of legitimate sources.

[6]On 4 January 1994 Liverpool drew 3 all with Manchester United (a match in which Mr Grobbelaar later said he had accidentally made two blinding saves and thereby lost some £120,000). This was the second of 5 matches to which evidence was directed.

[7]On 5 February 1994 Liverpool drew 2 all away to Norwich. The night before the match Mr Vincent had driven Mr Grobbelaar from the Norwich hotel where the Liverpool team were staying to the London Hilton where again a short meeting took place between Mr Grobbelaar and Mr Lim at which £1,500 was paid over. That trip began shortly after 9 pm once the players' rooms had been checked to ensure that they had all retired for the night, and ended when Mr Vincent and Mr Grobbelaar arrived back in Norwich at about 3.30 am.

[8]On 12 August 1994, during the off-season period, Mr Grobbelaar left Liverpool and joined Southampton. At about the same time he and Mr Vincent fell out: Mondoro had collapsed and Mr Vincent was wholly unable to account for the monies Mr Grobbelaar had invested: quite possibly he had misappropriated the larger part.

[9]On 6 September 1994 Mr Vincent went to the Sun to sell his story. The price agreed was £33,000 although he had asked for £40,000 and later asked for more. The tale he told was noted in shorthand by a Sun journalist, Mr Troup, and subsequently transcribed. It included the allegations that Mr Grobbelaar had received £40,000 after Liverpool lost the Newcastle match and that he would have been paid £80,000 had they lost the Norwich game but that they drew it because he accidentally saved a shot with his foot whilst diving the wrong way.

[10]There then followed a succession of covertly video and sound-recorded meetings between Mr Grobbelaar and Mr Vincent at which the Sun sought to obtain corroboration of Mr Vincent's story. I shall have to revisit these later. In essence, however, Mr Vincent was put up to making a corrupt proposal for future match-fixing and to obtaining such admissions as he could of Mr Grobbelaar's past misconduct.

[11]It is not disputed that in the course of these meetings Mr Grobbelaar confessed to having taken money from Mr Lim for losing matches in the past (including £40,000 for Liverpool's 3-0 defeat by Newcastle), and to having missed out on further such payments for failing to do so, and also that he took £2,000 in cash from Mr Vincent pursuant to a proposal that he should fix matches in the future. The critical issue at trial, however, was whether these confessions were true or false. Was Mr Grobbelaar genuinely admitting to corrupt behaviour in the past and agreeing to a fresh corrupt proposal for the future? Or was he, as he claimed, intent rather upon bringing Mr Vincent to justice and fabricating for the purpose a false account of past corruption and a mere pretence that he could be bribed to throw matches in future?

[12]The meetings took place respectively on 12 September 1994 (when Mr Vincent first made his corrupt proposal but the recording proved ineffective), 6 October 1994 (in Mr Vincent's hotel bedroom after 2 hours of unrecorded conversation in the hotel snooker-room), 25 October 1994 (also in Mr Vincent's hotel bedroom) and 3 November 1994 (in the sitting room of a property rented for Mr Vincent by the Sun). It was at the last of these meetings that Mr Grobbelaar was graphically recorded taking £2,000 in cash, the agreement being that he would receive that sum every fortnight until he selected a particular match to be lost for which he would be paid £100,000.

[13]Meantime, on 24 September 1994, Southampton had beaten Coventry 3-1 (despite, according to Mr Grobbelaar's taped admission on 25 October, "2 minutes into the game push[ing] the ball into the back of the net"). On 5 November 1994, after the last of the meetings, Southampton drew 3 all with Manchester City. This was the one game which the Sun's reporters attended before publication. They watched highlights of the other four on video. They could see nothing untoward. That did not, however, surprise them: they thought it would be impossible to detect attempted match-fixing by a skilled goalkeeper.

[14]On 8 November 1994 Mr Grobbelaar was due to fly to Zimbabwe to represent his country in an international match. At Gatwick Airport he was confronted by a number of Sun reporters and photographers and challenged with "a series of grave allegations which the paper intends publishing tomorrow". It will be necessary later to examine these exchanges in some detail but for the moment they can be summarised by saying that Mr Grobbelaar in general denied any wrongdoing. At the reporters' suggestion he then telephoned Mr Higgins and repeated his denials to him. Although Mr Grobbelaar had hinted to the journalists that he was gathering evidence against Mr Vincent, his response to Mr Higgins was rather that he had never attempted to throw a game in his life and that the £40,000 was from his testimonial fund. He certainly never made it plain to Mr Higgins that, so far from this being a sting upon him, he himself was perpetrating a sting on Mr Vincent. Indeed, he later said in cross-examination that "because these are the people that helped Mr Vincent" and "had not been truthful to me", he was not "going to give [Mr Higgins] that satisfaction".

[15]Nothing in these exchanges persuaded the appellants to regard the taped admissions as other than genuinely corroborative of Mr Vincent's story of corruption. On the contrary, they were more than ever convinced of Mr Grobbelaar's guilt and duly went into print the following morning with the first of the publications complained of. They did so notwithstanding a faxed letter before action from Mr Grobbelaar's solicitors at 2.15 a.m. that morning asserting his innocence and claiming damages.

[16]It was common ground at the trial that the articles, together with the many photographs and cartoons which accompanied them, meant that Mr Grobbelaar: "(i) Having dishonestly taken bribes had fixed or attempted to fix the result of games of football in which he had played, and (ii) Had dishonestly taken bribes with a view to fixing the result of games in which he would be playing".

[17]The Statement of Claim was served on 21 December 1994, the Defence on 4 January 1995. More important, however, was the initial Reply, served on 6 July 1995, a pleading subsequently admitted to contain three basic untruths: first, Mr Grobbelaar asserted that Mr Lim ("the short man") was "purely a figment of [his] imagination"; second, he denied the trip to John Fashanu's house in North London on 25 November 1993; third, he denied the night-time trip from Norwich to London on 5 February 1994.

[18]Meantime, on 14 March 1995, Mr Grobbelaar had been arrested and cautioned, exercising his right to remain silent. Later, on 24 July 1995, he was charged with two offences: 1. That he and Mr Lim and Mr Fashanu "on diverse days between 1 November 1992 and 9 November 1994 conspired together with others known and unknown corruptly to give and corruptly to accept gifts of money as inducements improperly to influence or attempt to influence the outcome of football matches or as rewards for having done so". 2. That he "on 3 November 1994 being an agent of Southampton Football Club corruptly accepted from Christopher Vincent the sum of £2,000 as an inducement or reward for doing an act in relation to the affairs or business of his principal namely improperly influencing or attempting to influence the outcome of a football match or football matches".

[19]He twice stood trial on those counts, respectively in January-March 1997 and in June-August 1997. At the first trial the jury disagreed on both counts. At the second trial Mr Grobbelaar was acquitted by unanimous verdict on the first count but again the jury disagreed on the second count. In the ordinary way the jury were then discharged, the prosecution offered no evidence on the second count, and the judge thereupon ordered a not guilty verdict upon it.

[20]On 17 September 1997 the Football Association withdrew their disciplinary charge of match fixing which they had brought against Mr Grobbelaar on 14 November 1994 and substituted for it a charge of assisting in betting on football matches other than on authorised and registered football pools. To that revised charge Mr Grobbelaar pleaded guilty on 12 December 1997 and certain suspended penalties were imposed.

[21]Just to complete the chronology, the defence of qualified privilege was first raised by the appellants in late 1998 (after the decision of the Court of Appeal in Reynolds v Times Newspapers Limited

[1998] 3 WLR 862

). At about the same time Mr Grobbelaar amended his Reply to admit knowing Mr Lim and to having made the two trips which he had earlier falsely denied, admissions first made at the first of the criminal trials.

[22]As stated at the outset, the jury awarded Mr Grobbelaar £85,000. The judge in his summing up had suggested to them that, depending on what conclusion they reached as to whether any significant part of the defence of justification had been made out (assuming always, of course, that they did not find the charge "substantially justified", a matter on which he had earlier directed them), the bracket for damages would be between around £150,000 "at the top end" and "a very small award indeed."

[23]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. The fact that the award was not greater than £85,000, submitted Mr Hartley QC, reflected the jury's evident disapproval of Mr Grobbelaar's initial lies. "The jury must have accepted Mr Grobbelaar's evidence but thought he acted disgracefully in what he put in his Reply", I noted Mr Hartley as saying.

[24]I have thus far given only an overview of the case. It is time now to address the two central grounds of appeal, beginning, as I think most convenient, with the defence of qualified privilege. Qualified Privilege

[25]The essence of the defendant's case on qualified privilege is that professional football is both a major sport and a major industry in this country, that corruption in the Far East has had a devastating effect on the game there (dramatically reducing attendances), and that the evidence obtained by the Sun revealed a serious risk of the same corruption (financed by Far Eastern betting syndicates) spreading to this country and damaging the sport here too. They were accordingly under a duty to inform and warn the general public of this insidious development which they had just uncovered.

[26]The judge below had to decide the issue by reference to the Court of Appeal decision in Reynolds, the House of Lords having by then heard but not given judgment in the case. The judge accepted the newspaper's submission "that Reynolds has introduced a more flexible and generous approach to qualified privilege", but noted also that " Reynolds does confirm that the threshold questions remain whether it can be said in the particular circumstances of the case that the publishers were under a legal, social or moral duty to publish that which they did publish and whether the readers of the publication had a legitimate interest in receiving the published information."

[27]In the event, having concluded that "neither the duty criteria nor the interest criteria as laid down in Reynolds is satisfied in the present case", the judge found it "unnecessary ... to express a view in relation to the circumstantial test."

[28]The determinative passage in the judgment below, and that to which the appellants take particular exception, is this:

"I do not suggest that in the post- Reynolds era privilege is restricted to information relating to those who are answerable to the public or who have public duties and responsibilities. But I am not satisfied that allegations of corruption against a footballer fall within the category of information which a newspaper can be said to be under a duty to communicate to the world at large with the assurance that, subject to malice, they will not be liable to damages even if the allegations are proved to be false. In my judgment the appropriate mode of discharging the duty which lay on the newspaper when it came into possession of the material relating to the alleged match-fixing by Mr Grobbelaar was to communicate the information to the police and the regulatory body for football for them to take whatever action was in their view merited by the information. To hold that a publication such as the publication in the Sun is protected by privilege would, in my judgment, be to stretch the ambit of privilege beyond that which the public interest requires. As Fox LJ observed in Blackshaw v Lord [1984] QB 1, 42, there is a balance to be struck. Sight must not be lost of the public interest in the preservation of the right of an individual to redress for the unjustified libel on his good name. Privilege would, subject only to malice, protect the newspaper against the publication of untrue defamatory statements."

[29]He later added:

"The position might have been different if the defendants had gone to the police and the FA with the information about Mr Grobbelaar but no action against him had followed."

[30]It is, of course, necessary now to consider that ruling in the light of the House of Lords decision in Reynolds

[1999] 3 WLR 1010

including their Lordship's disapproval of the Court of Appeal's formulation of the circumstantial test as a separate test rather than an integral part of a single inquiry into whether the overall circumstances of a particular publication are such as to attract the protection of qualified privilege. Much of what was said in each of the five speeches is valuable and not least this from the leading speech of Lord Nicholls of Birkenhead at p.1027:

"The elasticity of the common law principle enables interference with freedom of speech to be confined to what is neceeary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern. Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing. This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up. In general, a newspaper's unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication."

[31]The approach of the judge below, submits Mr Spearman QC for the appellants, can now be seen to have been altogether too restrictive and to give too little weight to the importance of freedom of expression. Merely to have provided the police and FA with this material would have substantially delayed its communication to the public. That would have been inappropriate: the issues were of immediate concern and deserved immediate publicity.

[32]Secondly, submits Mr Spearman, the judge's ruling, if upheld, would have a chilling effect upon freedom of speech and be inimical to the press's vital functions as both watchdog and bloodhound. Investigative journalism is not conducted with a view to bringing miscreants to justice but rather so as to sell newspapers. Instead of the press being deterred from publishing these exposés by the need to prove justification, they should be protected by the defence of qualified privilege. Thus would the courts give life-blood to the bloodhounds and serve the wider public interest. I hope I have accurately summarised the appellants' arguments. The media, Mr Spearman told us, is very concerned about this issue. Clearly, as he submits, it is one of some general importance.

[33]As to the 10 specific considerations listed by Lord Nicholls, there is much to be said (and indeed much was said) on both sides. Many of the submissions involved deep forays into the evidence. I think it unnecessary, however, to deal in detail with any save considerations 9 and 10 and for the rest content myself merely with the following brief comments: Consideration 1 - Seriousness The seriousness of the allegation cannot be doubted. It was very grave and, if untrue, hugely damaging to Mr Grobbelaar's reputation. Consideration 2 - Public Concern Equally clearly, however, the subject matter was of very substantial public concern. It is imperative that football is not tainted by corruption and that matches are competitively played rather than their outcome determined or influenced by corrupt payments in the interests of foreign gambling syndicates. Considerations 3 and 4 - Source and Verification These I take together in order to sidestep the arid debate as to whether the source was Mr Vincent and the taped admissions its verification, or whether the taped admissions themselves were realistically the source for this story. As for Mr Vincent himself, there was every reason to doubt his reliability. Plainly he had an axe to grind: he was, he told Mr Troup, destitute and shortly to be bankrupted because Mr Grobbelaar had reneged on an agreement to fund the Mondoro project. In addition, of course, he was being paid for his story. Explaining why he was not to be called at the trial, Mr Carman QC for the defendants described him as "a wholly unreliable witness ... someone whose evidence we believe may be highly suspect and whose whole character may be deeply flawed". That, suggested Mr Hartley, was something they should have recognised from the outset. As against that, however, there were undoubtedly aspects of Mr Vincent's story which strikingly coincided with some of Mr Grobbelaar's subsequently recorded admissions. I have already mentioned Mr Vincent's allegation that Mr Grobbelaar was paid £40,000 in cash after Liverpool lost 3-0 to Newcastle. In addition, he told Mr Troup of the trips from Chester to Manchester and from Norwich to London to see "the short man". There was also reference to Mr Grobbelaar having accidentally saved a goal and thereby lost out on a substantial reward - an allegation later echoed in the taped admissions albeit not, it is right to say, with regard to the same match. What Mr Hartley criticises above all else with regard to the verification of this story is the Sun's failure to investigate the particular matches which were mentioned on the tapes to see whether Mr Grobbelaar's confessions were indeed to be regarded as true and reliable rather than simply made up. As will later appear, Mr Grobbelaar was able at the trial to call powerful and substantially unchallenged expert evidence that these five games showed, as Mr Bob Wilson (the well-known ex-goalkeeper, coach and television presenter) said, "absolutely no evidence whatsoever of anything other than good goalkeeping ... and in some cases exceptional goalkeeping". Consideration 5 - Status of Information There was of course no question here of the story having already been the subject of some independent investigation which commanded respect. In truth, it had no status whatever save as an apparently genuine admission against interest. Consideration 6 - Urgency As to the urgency of the matter, given that the story was a scoop for the Sun and, as Lord Nicholls observed, "news is often a perishable commodity", immediate publication was more or less inevitable. Equally obviously, however, there was no urgency with regard to the public's need to know. Consideration 7 - Comment sought? Comment was, of course, sought from Mr Grobbelaar in the sense that he was given the opportunity to refute these allegations at Gatwick Airport, first when confronted by the Sun's journalists and secondly in his telephone call to Mr Higgins. Mr Hartley criticises the confrontation as no more than an ambush - it was, indeed, admitted by the defendants to be a "showdown" in which "surprise was a key element" - and undoubtedly Mr Grobbelaar was put under very great pressure at the time. If, however, qualified privilege is ever to extend to scoops and exposés of this nature, it is difficult to see what fuller opportunity for comment could be given. As Lord Nicholls observed, moreover, "an approach to the plaintiff will not always be necessary." Consideration 8 - Gist of Response Did the articles contain the gist of Mr Grobbelaar's side of the story? Given that they were substantially based on Mr Grobbelaar's taped admissions and that his "side of the story", as it emerged during the Gatwick confrontation and phone call, consisted largely of a bald denial of wrongdoing coupled with assertions that he had never thrown a game in his life and that the £40,000 was part of his testimonial fund, it seems to me that the gist of this was conveyed. That said, these assertions attracted scant mention in the massive overall coverage of the story and in any event were reported in such a way as to indicate the Sun's profound disbelief in their veracity. A headline reading "The Grobbeliar tapes" gives the flavour of these publications. Mr Grobbelaar's ultimate response, of course, i.e. his explanation that throughout the taped meetings he had been endeavouring to entrap Mr Vincent rather than succumbing to the tempting trap set by Mr Vincent, had not at that stage been vouchsafed. Considerations 9 and 10 I come finally to what seem to me the critical considerations. Let me repeat them as formulated by Lord Nicholls:

"9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication including the timing."

[34]Here, of course, we are concerned not with a single article but with massive and relentless coverage of the story over seven separate daily issues of the Sun, generally spread across several pages and under prominent headlines. Moreover, so far from these publications "rais[ing] questions or call[ing] for an investigation", they asserted Mr Grobbelaar's guilt in the most unequivocal of terms: he was, the Sun proclaimed, a self-confessed cheat, who "must never be allowed to play again".

[35]Certain aspects of the coverage demonstrably went beyond what Mr Grobbelaar had in fact admitted on tape; for example, by its headline reading "I let in three goals and picked up £40,000", the Sun was plainly implying that those goals had been deliberately let in whereas Mr Grobbelaar's actual admission was that he had selected the Newcastle match to be lost "because I knew ... there's fuck all chance of winning Newcastle. I chose the Newcastle game cos I knew I could do business there". It was also said that he was "bitching" about his salary.

[36]Other features of the coverage calculated to add credence to the central allegation of corrupt match-fixing were unsupported even by Mr Vincent's evidence. These included a banner headline "Grob the liar does a flyer" implying that Mr Grobbelaar was at Gatwick with a view to evading justice rather than to play in an international, and the claim that Mr Vincent was a "close friend" who "was appalled at [Mr Grobbelaar's] corruption", and had "decided to speak out for the sake of the keeper's loyal fans", rather than a paid informant in vengeful mood against Mr Grobbelaar for having brought him to penury.

[37]These considerations apart, there was much to criticise about the publications in question and those responsible for them. The language used was in the highest degree emotive:

"The ultimate betrayal"; "

He fouled the field of dreams"; "Secret code of Mr Fix-it"; "Shame will haunt Grob for the rest of his life". These are just a sample of the many headlines used in this sustained and mocking campaign of vilification. Having paraded Mr Grobbelaar's guilt, the Sun revelled in his downfall. There was in addition a lamentable involvement of his family. Whilst he was being confronted at Gatwick, other Sun reporters repeatedly knocked on the door of the family home where his wife and children were, asking for her comments and taking photographs. Another headline read:

"Shameful secret has Deb in tears."

Furthermore, in one of the editions complained of, the Sun's published questions to Mr Grobbelaar included:

"How much of what's been happening have you told the children about? Have they been getting a hard time at school?"

The articles, in short, were calculated to embarrass not only Mr Grobbelaar but also his wife and children.

[38]There can be no doubt that considered as a whole this newspaper campaign carried prejudgment of guilt to its uttermost limits. It is difficult to dispute the validity of Mr Hartley's criticism that the Sun "took upon themselves the roles of the police, prosecuting authority, judge and jury".

[39]Can a succession of defamatory publications of this nature attract the defence of qualified privilege? How is the balance to be struck? The ultimate question, of course, is whether the general public was entitled to receive the information contained in these publications irrespective of whether in the end it proved to be true or false. Who, in other words, is to bear the risk that allegations of this sort, convincing though no doubt they appear to the newspaper when published, may finally turn out to be false? Should the risk be borne by the publishers lest the defamed claimant goes uncompensated for his lost reputation - and, indeed, powerless to regain it unless (which is unlikely) he can prove malice? Or should it be borne by the claimant himself lest the fear of an adverse damages award discourages publishers from pursuing their investigatory role or, having pursued it, from informing the public of whatever misconduct they believe they have uncovered?

[40]To my mind there can be only one answer to these questions. If newspapers choose to publish exposés of this character, unambiguously asserting the criminal guilt of those they investigate, they must do so at their own financial risk. Given the obvious commercial benefits attending this style of journalism - the editor here ordered an increase in the Sun's print run in advance of its Grobbelaar exclusive - and the substantially reduced level of damages awards now recoverable under modern libel law, it seems to me absurd to suggest that the Sun will be discouraged from pursuing its investigatory role unless protected by qualified privilege. On the contrary, the protection of publications of this nature would in my judgment give rise to the altogether greater risk that newspaper investigations would become less thorough, and their exposés more sensational, (even) than at present. As their Lordships' speeches in Reynolds - not least that of Lord Hobhouse - made plain, there is no human right to disseminate information which is untrue, no public interest in being misinformed.

[41]There is this additional consideration too. Where, as here, the published allegations are of serious criminality and likely, therefore, to be followed by the person's arrest and trial, it is surely preferable not totally to prejudge, and thereby risk prejudicing, the criminal process in advance. Attitudes have, of course, changed radically since Salmon LJ's oft-quoted castigation of David Frost's interview of Dr Savundra shortly before the latter's arrest in 1967: "Trial by television is not to be tolerated in a civilised society" - R v Savundranayagan and Walker [1968] 3 AllER 439, 441. Nowadays, indeed, the strict liability rule under the Contempt of Court Act 1981 applies only after arrest and even then not necessarily so as to outlaw every publication as fact of the guilt of a named person - see, for a recent illustration, Attorney General v Unger and Others [1998] 1 CrAR 308, albeit the court's judgment there ended with clear words of warning to those in the business of crime reporting.

[42]It is, however, one thing to recognise that an exposé such as the Sun's of Mr Grobbelaar is almost certainly immune from contempt proceedings, quite another to suggest that the law of libel should be developed so as to relieve the publishers even of the risk of civil liability. I for my part would not go this far.

[43]There is one further authority I should mention before leaving this part of the case - GKR Karate (U.K.) Limited v Yorkshire Post (No. 1) [2000] EMLR 396 (Court of Appeal) and (No. 2) [2000] EMLR 410 (Popplewell J). The central question there was whether qualified privilege attached to the publication by the first and third defendants (respectively the publishers and journalist of the Leeds Weekly News) of an article alleging that the claimants (unnamed in the article), who promoted and taught karate in the Leeds' area, "rip people off by taking money for karate club membership and then just disappearing; carry out no checks on the standard or background of their instructors; overcharge for karate lessons; teach karate through instructors who are not properly qualified; falsely claim that they have full insurance cover; and in consequence give karate teaching a bad name and should be shut down". The article was based on what the second defendant, the general administrator of the English Karate Governing Body, had told the third defendant. The Court of Appeal upheld the trial judge's interlocutory order that the issues of qualified privilege and malice should be determined as preliminary issues and ruled: "It is not necessary or relevant to determine whether the publication was true or not. ... The question is rather whether in all the circumstances the public was entitled to know the particular information without the publisher making further such inquiries. The reliability of the source of the information is a relevant consideration, but that, in my view, is to be judged by how objectively it should have appeared to the defendant at the time." (Per May LJ at 406-407)

[44]Popplewell J then heard the preliminary issues and despite deciding that a number of considerations, judged according to Lord Nicholls' 10 factors, had to be put in the balance in the claimant's favour, he concluded "that the criticisms to which I have referred, neither individually nor cumulatively, outweigh the interest in the free flow of information in this case." He accordingly ruled that qualified privilege was made out.

[45]Mr Spearman invites us to make a similar ruling here. To my mind, however, there are several important distinctions to be made between that case and this. Prominent amongst them are first, that the claimants there, unlike here, were unnamed; second, that that publication was directed towards a substantially smaller readership and, no less importantly, a readership which included people who, assuming the truth of the allegations made, needed to be warned quickly for their own protection; third, that the newspaper there published but a single article and that in altogether more restrained and moderate terms than characterised the Sun's campaign in the present case; fourth that there was in that case a substantially smaller prospect of the claimants later facing criminal trial; and fifth that that publication was based upon information from an apparently reliable official body.

[46]Recognising though I do that we "should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, [and that] any lingering doubts should be resolved in favour of publication" (as Lord Nicholls said in the passage already cited), I reach the clear conclusion that these publications judged in the round should not be held protected by qualified privilege. I have, indeed, no "lingering doubts" whatever.

[47]Obviously the defence would have applied had the Sun merely passed on their information to the police and the FA; Mr Hartley, indeed, accepts as much. For my part I would regard it as applying too had the Sun chosen instead to publish a restrained piece couched in the language of suspicion and allegation rather than, as here, an unqualified assertion of guilt. With regard to these publications, however, I would unhesitatingly rule that the defence is unavailable and that the newspaper can be held to account for such defamatory statements as cannot be proved true. Justification

[48]I turn, therefore, to the other limb of the appeal, the Sun's contention that the jury's rejection of the defence of justification was perverse and should be set aside. This is, as will readily be apparent, a bold argument. The leading text book, Gatley on Libel and Slander, 9th edition, at paragraph 36.19 puts the position thus:

"Only on very strong grounds will the court in an action for defamation interfere or set aside a verdict or grant a new trial on the ground that the verdict is unreasonable or perverse. The jury are the constitutional tribunal for the decision of libel or no libel, and only in an extreme case will their verdict be set aside as unreasonable. If the words complained of are capable of a defamatory meaning and the jury have found in fact that the words do bear that meaning, the court will not set aside the verdict. And where, though the words are capable of a defamatory meaning, the jury have found in fact that the words do not bear that meaning, the verdict will not be set aside unless it is unreasonable. In the absence of any misdirection the appellate court will only interfere with a finding of the jury if it was one which a jury, viewing the whole of the evidence reasonably, could not properly find."

[49]Just two of the authorities footnoted to that paragraph were shown to us - O'Brien v Marquis of Salisbury

(1889) 6 TLR 137

and Australian Newspaper Company v Bennett

[1894] AC 284

. Both, let me make it plain, were concerned with the jury's verdict as to the meaning of the words complained of, not (as here) the question whether a particular defamatory allegation was true or false. In O'Brien , Field J in the Divisional Court said this:

"If, therefore, as I think, the jury had only relevant evidence submitted to them and were properly directed as to the use they were to make of it, the only remaining question is whether the verdict ought to be set aside as being unreasonable. The limits within which this jurisdiction of the court ought to be exercised in an action like this are thus laid down by Chief Justice Tindal in Broome v Gosden (1 C.B., 731): - 'unless the jury are manifestly wrong in not finding the alleged libel to bear the meaning that the plaintiff has thought fit to put upon it by the innuendo (or now any defamatory meaning), and unless the court can say with certainty that there has been a miscarriage of justice, no new trial will be granted.' In other words the jury are the appointed tribunal for the decision of the question of libel or no libel, and the court ought not to invade their province unless it can be plainly seen that the verdict is perverse or so unreasonable as to lead to the conclusion that the jury have not honestly taken the facts into their consideration."

[50]The judgment of the Privy Council in the Australian case included these passages:

"It is not disputed that, whilst it is for the court to determine whether the words used are capable of the meaning alleged in the innuendo, it is for the jury to determine whether that meaning was properly attached to them. It was therefore the province of the jury in the present case to determine whether the words used were written of the plaintiff, and whether they bore the defamatory sense alleged." (page 287) "

The question therefore is whether in all these circumstances it can be said that a jury of reasonable men could not possibly find that the article, although it contains that which had much better not have been published, did not reflect upon the plaintiff's character, or even upon his conduct in relation to the newspaper. The jury have so found, and their Lordships are of opinion that it would be exceeding the legitimate function of the court if the verdict was set aside and a new trial ordered, that the court would then in reality be taking upon itself the function which the law has committed to the jury, of looking at the alleged libelous matter as a whole, and determining whether it is published of and concerning the plaintiff, and whether it bears the innuendo which the plaintiff seeks to attach to it." (pages 289-290)

[51]I have set out those passages at some length to illustrate both(a) the narrowness of the jury issue there in question: whether words, already ruled (by the judge) capable of bearing the defamatory meaning complained of, in fact did so; and

(b) the court's great anxiety not to usurp the jury's proper function. In neither case, I should point out, was the jury's verdict overturned.

[52]All that said, this Court has, as Mr Hartley expressly acknowledged, the jurisdiction, and therefore the duty, to consider this ground of appeal and to decide whether on all the evidence the jury's verdict was indeed one properly and reasonably open to them. Of course, as I need hardly emphasise, the Court will be most reluctant to find perversity in a case like this. So far as both counsel's experience goes, it would be wholly without precedent. We must remind ourselves, too, as Gray J put it to the jury, that Mr Grobbelaar's "credibility ... is at the heart of this action", and that we, unlike the jury, did not have the advantage of seeing him in the witness box. We must also remind ourselves that the burden of proving justification lay squarely on the defendants and, as Gray J observed, these "are serious charges and of course the more serious the charge the more you will want to consider carefully before you arrive at your conclusion".

[53]What, therefore, this Court would have to conclude before allowing the appeal on this ground is that no reasonable jury could have failed to be satisfied on the balance of probabilities (to a relatively high degree of probability) that Mr Grobbelaar had indeed been party to corrupt conspiracies. This is not, moreover, a case in which any relevant misdirection can be identified. Although various criticisms were directed at the summing up, in my judgment these were wholly unfounded save (as I shall come to explain) with regard to the judge's direction on substantial justification and this, it appears to me, can have had no impact on the jury's verdict as interpreted by all in this Court.

[54]I would mention just two final authorities before embarking on the exercise of examining for ourselves whether Mr Grobbelaar's account of events might as a matter of reasonable possibility be true. The first is the very recent decision of the House of Lords in Designers Guild Limited v Russell Williams (Textiles) Limited

[2000] 1 WLR 2416

, a decision in a very different field of law (copyright infringement) but in which the speeches strongly caution this Court against exceeding its proper appellate functions. Mr Hartley would, I think, submit that it is even less appropriate for the Court of Appeal to make original findings of fact in a jury action than in an action tried by judge alone.

[55]The second authority, referred to us by Mr Spearman, was The "Ikarian Reefer" [1995] 1 Ll.LR 455, a scuttling case, in which this Court re-examined all the evidence and overturned the central factual conclusions reached below. The Court of Appeal held that the judge's principal finding that the master was an honest witness could not be accepted so that it had to make its own findings and conclusions. In doing so, the Court rejected as wholly implausible one particular theory which had required eight sequential steps, each of which was either improbable or highly improbable. Mr Spearman in effect invites us to adopt the same approach here. If on analysis the plausibility of Mr Grobbelaar's account really does depend upon accepting a whole succession of improbabilities, then this Court should not shrink from its duty to say so and to substitute a rational decision for the jury's irrational one. After all, Mr Spearman might have added, there is surely a greater likelihood of a jury coming to a perverse decision than a commercial judge doing so.

[56]With these thoughts in mind, I return at last to the evidence, and first, as promised, to describe in rather greater detail (albeit still only recounting a small fraction of the 70 pages of transcript), the taped admissions and the Gatwick exchanges. The tapes of the three meetings between Mr Grobbelaar and Mr Vincent

[57]The meeting recorded on 6 October 1994 begins with a long passage in which Mr Grobbelaar talks of various sexual indiscretions. Its relevance - and it alone of several such passages was for this limited purpose admitted in evidence by an interlocutory ruling of the Court of Appeal on 9 July 1999 - was to indicate the apparent degree of intimacy between the two men and the atmosphere in which the various admissions subsequently came to be made. There follows this passage (V designating Mr Vincent, G Mr Grobbelaar):

"V: He [Mr Vincent's brother] just came to me and says why wasn't Bruce ready [with money for the Mondoro development] G: Because I am waiting for the cash. If the ball doesn't play, then it doesn't play. Do you know in the Man United game alone ... how much money I lost. V: Haven't a clue. G: One hundred and twenty five fucking thousand pounds in cash. ... Do you know the other one? ... V: What made you choose the Newcastle game? G: Because I knew, you know, there's fuck all chance of winning Newcastle. I chose the Newcastle game because I knew I could do business there. V: Was that when Newcastle came into the Premier league last year or what? G: Yep, and they had big bucks. So I got that cash. [The conversation then returned to the Liverpool-Manchester United 3 all draw] G: ... in the second half I made a fucking blind - 2 blinding saves, but I was diving the wrong fucking way - and that's true, as fucking living God, I dived the wrong way and I fucking went Phwoooo - and I fucking just, just went and it fucking hit my hand. V: Fucking hell. What like the ... one hit your feet [a reference, the defendants suggest, to the Norwich match] G: Exactly. ... I know that I'm my worst enemy on that, because I know I don't like to lose. ... So, I don't like to lose, so it's instinct this fucking ... [There is an echo of this at the next meeting on 25 October: 'I like to fucking win. I don't like to fucking lose.'] V: They [these backers] are prepared to give me about two grand every two weeks or so, on the basis that you pick one game in the season. G: Fucking two grand, what's two grand? V: Two grand every two weeks. Until you've picked a game and then if you dipped in on that game - one hundred g's. ... G: How many guys are in? V: There's only two I know and they are bloody clandestine. ... I met them after the races at Chester ... The guy said to me we only back sure-fire bloody winners. ... I just said, listen, I might have someone who might be interested in talking to you involved with football ... and they said, listen, go back, just say it's two grand they will through me give you two grand every two weeks. ... G: I'll meet. Then again, I don't want to meet them. Cos they'll all know who it is. ... You'd better find out who these people are, though ... Better find out how many people know ... because I'm telling you this, because it could be the fucking end of me. ... There's fucking investigators all round. I don't know that these aren't investigators. [Mr Grobbelaar then referred to Lou Macari of Swindon being banned from managing for a year] ... V: Do you think they might be connected to the short man or not? G: ... I don't know how, because the short man is from the Far East, Singapore, Kuala Lumpur. ... ... G: I could go right through to the end of the season and pick the last fucking game. V: My thinking on it was that - I didn't know until tonight that the short man was back in business with you - was that if you wanted you could pick the same game for both. G: I would. V: About two hundred g's you know. G: Yeah, I could fucking retire. ... G: The short man has only got one other person, and that's JF [John Fashanu] ... [There is then a reference to the trip from Norwich to see "the short man" in London] G: He had a fucking Rolex on his arm, a Rolex. Cos I said, well give me because I want to wear it. It was the fucking business. Three grands' worth of watch. This is yours, next time you do the business. ..."

[58]At the meeting on 25 October, Mr Grobbelaar told Mr Vincent that "the short man's back" and that "he's telling me now you're going to lose the game. So two minutes into the game I pushed the ball into the back of the net. That was the Coventry game. And then we come and steamroller ... Then we won 3-1"

[59]There then followed discussion in which Mr Grobbelaar said that he would keep the £2,000 per week in notes in a locker "not in a bank, because they'll fucking find it", and then take it out of the country to Zimbabwe or South Africa. At that point Mr Vincent asked:

"V: Well what's the biggest cut you've had from the short man so far? G: For losing that one, forty [i.e. £40,000]. V: But for Manchester United you would have got? G: One hundred and twenty"

[60]Returning to Mr Vincent's proposal, Mr Grobbelaar said "I just go all the way with this guy, until the end of the season, I know which game I shall pick, Liverpool, at Liverpool." Later he said:

"Right, I've heard enough. I've had enough now. We'll make this easy. Tell him that it's on, and I'm going to pick one game. I'll pick one game, after I've picked the game nothing must be said. ... It's gotta be fucking right. And the greenbacks have got to be put in the fucking locker ... because I don't want this fucking cash to go missing. ... V: I know. I'll try and organise a safety deposit box at fucking Selfridges or something like that. G: No, it's too fucking dangerous, they're being looked at all the fucking time ... the camera is on you all the fucking time."

[61]I come to the third and final meeting on 3 November 1994. Having discussed the Mondoro project at considerable length, Mr Vincent said: "V: Before I forget now ... what do you want me to do about the other fucking two grand I'm due to pick up next Tuesday or Wednesday. ... Do you want me to drop it off at the airport for you?" [i.e. at Gatwick on 8 November, a proposal to which Mr Grobbelaar assented].

[62]A little later Mr Grobbelaar said "I'm doing the short man tomorrow, on Saturday ... it's going to be double what he was going to give ... V: What, eighty? G: ... No, nearer fifty. But hopefully fifty will be ready for when I go ... I think I'll just put the fifty into my fucking trunk [and take it with me to Zimbabwe]. V: OK, well I'll speak to these guys tomorrow ... G: Don't tell them I'm doing anything else ... ."

[63]It was at the end of that meeting that the video showed Mr Vincent handing the £2,000 package to Mr Grobbelaar who then put it in his jacket pocket.

[64]So much for the tapes themselves. Indeed, so far as admissions of past match-fixing (or attempted match-fixing) go, that is perhaps more than enough. I repeat,the critical issue was not whether these admissions were made, but why . Were they genuine or were they fabricated as part of some 'sting' on Mr Vincent?

[65]I come next to what Mr Grobbelaar said at Gatwick Airport on 8 November, first at the confrontation and then on the telephone to Mr Higgins.

[66]When initially the suggestion was put to him that "You received £40,000 ... from a syndicate through a middle man called the short man for basically throwing football matches ... you've also attempted on several occasions with Liverpool and Southampton to do it ... ", Mr Grobbelaar replied:

"Unless you come to me and say, we've got evidence ... you are going to have to actually prove it first."

[67]When told that the Sun had evidence of his receiving money, Mr Grobbelaar said "I haven't taken it". Asked by the reporter "You have not taken £2,000 from him?", Mr Grobbelaar replied "Not at all".

[68]When it was suggested that he had agreed to receive fortnightly payments of £2,000 with a view to forfeiting one match in the season for £100,000, that being Liverpool at Liverpool, Mr Grobbelaar replied:

"I met him, yes. And I actually said to him that would never be, never able to be done, because if I ever get caught, I would be in deep trouble."

Asked "Why did you take the £2,000 off him then?", Mr Grobbelaar replied "I didn't". When it was then put to him that the video showed him putting the money in his pocket, Mr Grobbelaar replied:

"Alright, I'll put it another way ... that £2,000 has been put in a safe place in case of any subsequent ... because I've got evidence against that person"

. A little later he said:

"O.K., I've taken that money, right. But that money has not been, is not anywhere - it's right here. To be given back, and as I said in my previous meetings with him, to be given back to the people if everything blows up. Because I don't want to get caught in any way, shape or form in this sort of situation."

[69]Later in the confrontation, when asked why he had said at the last meeting with Mr Vincent "I'm going to do a short man on Saturday", Mr Grobbelaar replied:

"... You can run this story if that's what you want to do. What you'll do is you'll probably destroy myself, destroy my marriage ... I'm totally denying it."

Later he explained the reference to Mr John Fashanu by saying that the two of them were seeking to introduce players to the English game from Nigeria. Then comes this:

"Sun: If what you say is true, do you think it's a sensible thing for a man in your position and idolised as you are to talk about throwing games, if you haven't done it? G: I know I talk about it ... because they are putting allegations to me, can you ever throw a game and it couldn't be possible. ... Sun: ... You took £2,000 knowing what that £2,000 was for. ... G: ... that money will be put into a box, at the end of the day that money will go back to the people ... because it can be given back. The thing is that I am looking at the evidence against him ... to actually get evidence ... "

[70]The reporter having then pointed out that with regard to the Manchester United match he had said "I made two blinding saves by diving the wrong fucking way", Mr Grobbelaar suggested that that was "evidence I need against Vincent ... you think I would deliberately dive the wrong way?" The confrontation ended with the reporter saying that it was up to the editor whether to run the story as planned and Mr Grobbelaar responding "Does he want the £2,000 back because I've got it there?"

[71]On the telephone to Mr Higgins Mr Grobbelaar said: "I've never attempted to throw a game in my life. The money ... which a certain person has actually said that I've ... received was actually my own testimonial money [a reference to the £40,000]".

[72]Asked "Did you accept cash to lose matches?", Mr Grobbelaar replied "No, I've never ... a certain person said to me you would get £2,000 per two weeks where you can actually pick a game at the end of the season ... He said it was going to be a sure-fire thing. I said it had to be put in a box because at the end of the day I did not want to throw matches. And if it didn't come down that money would go back to the certain person that was actually giving it to me."

[73]When it was put to him that he had said on tape that he had accidentally made two blinding saves and lost the opportunity of receiving something like £135,000 (a mistake - the figures in fact mentioned were £120,000 and £125,000), Mr Grobbelaar replied "Well, if you've got that on tape, then you've got it on tape, but I never threw that game. If you look at the evidence I made two blinding saves." When asked "How do you explain conversations like that?", he replied "Because of Mr Vincent's persistence in business dealings we had in Africa."

[74]Never during the course of that telephone call did he make it plain to Mr Higgins that the Sun had got the wrong end of the stick; it was he who was investigating Mr Vincent with a view to reporting him and that was why he had made up these stories. This omission, as already stated, he ultimately explained by saying that he was not going to give Mr Higgins that satisfaction.

[75]Let me come next to the expert evidence called on Mr Grobbelaar's behalf which formed the very cornerstone of his case. This evidence, as already indicated, was essentially to the effect that in the five matches in question Mr Grobbelaar was manifestly not trying to lose but rather was displaying great goalkeeping skills. That being so, submitted Mr Hartley, it necessarily follows that Mr Grobbelaar's taped admissions to the contrary must be fabrications and this in turn confirms the veracity of his basic story of trying to trap Mr Vincent rather than vice versa.

[76]It is certainly true that Mr Bob Wilson and Mr Alan Ball (another well-known ex-footballer and Mr Grobbelaar's manager at Southampton) gave powerful evidence in support of Mr Grobbelaar's case that he had always kept goal to the best of his very considerable abilities and never attempted to throw a match. Mr Wilson saw "absolutely nothing suspicious whatever" about the three goals scored by Newcastle, and described the "two blinding saves" which on tape Mr Grobbelaar had claimed to have made accidentally in the Manchester United match as "truly exceptional ... those two saves are of the highest quality saves that you will see". He dismissed the notion that Mr Grobbelaar was doing it by accident and said that he used the first save "in goalkeeping schools and clinics as a classic example of how to be perfectly set". Of one of the two Norwich goals in their 2 all draw with Liverpool, a goal which again Mr Grobbelaar had claimed to have saved accidentally, in answer to a question "Did you see anything there that would indicate that it was a save he didn't intend to make?", Mr Wilson replied "No, that's a great save in anybody's book". As for the goal which Coventry scored against Southampton when Mr Grobbelaar claimed on tape to have "pushed the ball into the back of the net", Mr Wilson said that "a less agile goalkeeper than Bruce Grobbelaar would not possibly have touched this ball ... the angle of the body, the position of the feet off the ground, the thrust off the ground, I just, I couldn't say to you anything other than in my honest opinion, he is making every attempt, every attempt, to save that ball".

[77]Mr Wilson and Mr Ball also gave evidence to the effect that you would be able to detect a goalkeeper who was trying to let in goals and that if you wanted a corrupt player it would be far easier to go for an outfield player than a goalkeeper.

[78]The Sun's final case with regard to actual match-throwing, I should observe, went no further than an assertion that there were four occasions when Mr Grobbelaar tried to let in goals; the three when he made accidental saves (two against Manchester United, one against Norwich), and the one when he tipped the ball into the net against Coventry. In other words, they relied exclusively on the taped admissions. Their case with regard to Liverpool's 3-0 defeat by Newcastle was simply that Mr Grobbelaar had not needed to influence this result: he had specifically selected the match because he was confident of losing it anyway. The misleading headline "I let in three goals and picked up £40,000" was, of course, on the Sun's case literally true: the fact that he did not (as was implied) intend to let them in made the taped admission more, not less, credible: Mr Wilson's evidence simply did not touch on it.

[79]It is convenient at this stage to notice one particular argument before us as to the situation which would arise were the jury to accept that Mr Grobbelaar had entered into these two corrupt conspiracies but conclude that he had nonetheless neither intended nor sought to let in goals. Mr Hartley submitted that in these circumstances Mr Grobbelaar would still be entitled to an award of damages on the footing that the sting of the articles was not merely that he had dishonestly accepted bribes but also that he had thrown or tried to throw matches. It was Mr Hartley's submission that the jury could properly take the view that it is altogether less serious to accept bribes without allowing it to influence one's conduct - that is simply to cheat the cheats - than it is deliberately to concede goals and thereby let down one's fellow players, one's club and one's supporters.

[80]The first point to be made about this argument is that it was very much a subsidiary one: as stated, Mr Grobbelaar's main case from first to last has been that he was wholly innocent of corruption and that the evidence of his play goes to show that he was fabricating admissions in order to entrap Mr Vincent. But the second and more important point is that, as already mentioned, 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. Certainly an award of £85,000 would be wholly unsustainable had the jury found corruption even assuming Mr Grobbelaar nevertheless kept goal to the best of his ability. It was for this reason that I earlier suggested (in paragraph 53) that the criticised direction as to substantial justification is in any event irrelevant. That was to the effect that the jury could find corruption proved and yet decide there was no substantial justification for these libels if they found Mr Grobbelaar not guilty of match-fixing. Lest however I am wrong in regarding that direction as irrelevant, I should add that it troubles me greatly. It seems to me quite unreal to suppose that, if a player takes the field knowing that he will be paid a large sum if his team lose, he will play with quite the same commitment as someone to whom victory is everything. It is simplistic to believe that bribes have no effect. And, indeed, that approach is enshrined in our substantive law, both civil and criminal. As Bowstead & Reynolds on Agency (16th edition) states at paragraph 6 - 084:

"If the relevant elements [of a bribe] are proved, it is irrelevant to show that the agent has not in fact been influenced or departed from his duty to his principal, for the acceptance of or agreement to receive a bribe is of itself a breach of his general fiduciary duty as giving him an interest contrary to his duty to his principal."

[81]This principle was recently applied (albeit in very different circumstances) by the House of Lords in Attorney General v Blake

[2000] 3 WLR 625

where at page 634 Lord Nicholls said this:

"Equity reinforces the duty of fidelity owed by a trustee or fiduciary by requiring him to account for any profits he derives from his office or position. This ensures that trustees or fiduciaries are financially disinterested in carrying out their duties. They may not put themselves in a position where their duty and interest conflict. To this end they must not make any unauthorised profit. If they do, they are accountable. Whether the beneficiaries or persons to whom the fiduciary duty is owed suffered any loss by the impugned transaction is altogether irrelevant."

[82]The situation is similar under the criminal law. An agent who accepts or agrees to accept a bribe is at common law guilty of conspiracy and it is an offence contrary to s.1 of the Prevention of Corruption Act 1906 for an agent corruptly to accept or agree to accept any gift or consideration as an inducement or reward for doing or forbearing to do any act in relation to his principal's affairs. These, indeed, were the very criminal offences charged against Mr Grobbelaar. For the purpose of these offences the prosecution have merely to prove that the defendant received a gift as an inducement to show favour; they are not required to prove that he actually did show favour in consequence of having received the gift. As Lord Goddard LCJ said in R v Carr 40 Cr.AR 188, 189:

"It does not matter if he did not show favour. If the person did what is called 'double-crossing,' and did not do what he was bribed for, that is no reason why he should be acquitted of taking a bribe."

[83]Applying that dictum in R v Mills 68 CrAR 154, Geoffrey Lane LJ at page 158-159 said this:

"Realising what we say is obiter nevertheless we feel it right to say that in our judgment it is enough that the recipient takes the gift knowing that it is intended as a bribe. By accepting it as a bribe and intending to keep it he enters into a bargain, despite the fact that he may make to himself a mental reservation to the effect that he is not going to carry out his side of the bargain. The bargain remains a corrupt bargain, even though he may not be intending to carry out his intended corrupt act."

[84]There is just one further aspect of the summing up I would mention. The judge illustrated his Pamplin direction on the quantum of damages - see Pamplin v Express Newspapers

[1988] 1 WLR 116

- by suggesting that if the jury "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 ... but you are not satisfied on the evidence that there was any corrupt agreement with the short man," that might be a reason "for reducing perhaps ... very, very significantly any amount of damages." That, I have to say, seems to me a most unhelpful suggestion. If, indeed, Mr Grobbelaar was guilty of the second conspiracy with Mr Vincent, the entire logic of his having invented the first conspiracy (as part of his scheme to entrap Mr Vincent) is destroyed. Similarly, of course, if Mr Grobbelaar was guilty of conspiracy with Mr Lim, it is inconceivable that he would have thought of reporting Mr Vincent to the authorities for seeking to entice him into a second conspiracy. This really was an all or nothing case.

[85]I come at last to consider the probabilities of the case and it is at this point that to my mind Mr Grobbelaar's story falls apart. He had, as it seems to me, just too much to explain away: his entire dealings with Mr Lim, his remarkable visits to Manchester and to London, his large cash transactions at around the time of the Liverpool-Newcastle match, his confessions on tape, his acceptance of Mr Vincent's first £2,000 payment (his receipt of the second thwarted only by the Gatwick confrontation), his failure during that confrontation or the subsequent telephone conversation with Mr Higgins to offer any sensible explanation for all this, and finally his calculated and sustained deceit even of his own legal team as reflected in his initial Reply.

[86]I remind myself that for the purpose of justification we must ignore the coincidences between what Mr Vincent told the Sun (as recorded in Mr Troup's note) and what thereafter Mr Grobbelaar confessed on tape: these coincidences, although relevant to qualified privilege (which falls to be judged by the circumstances, including the Sun's grounds for belief, at the time of publication), are inadmissible on the issue of justification since Mr Vincent was not called and the Civil Evidence Act 1995 was not in force.

[87]For my part, however, even putting the Troup note entirely aside, there are simply too many improbabilities piled one upon another inherent in Mr Grobbelaar's case for it to begin to be credible. His whole account of his relationship and dealings with Mr Lim beggars belief at every turn. His refusal even to acknowledge Mr Lim's existence he explains by saying he suspected even match forecasting to be (as, of course, it is) contrary to FA rules. The reason he gave for denying travelling down to London before the Norwich match was that he knew it was forbidden to leave his hotel without permission and feared that his club would have strongly disapproved. All that no doubt is true but, of course, it does nothing to explain why Mr Grobbelaar should go to such extraordinary lengths to hold a clandestine meeting and receive cash from Mr Lim in person. Nor is it credible to suggest that he was anxious to discuss with Mr Lim his prospects for playing out in the Far East, the evidence being that Mr Lim was merely a football enthusiast with no connections whatever in the professional game. And what of the taped reference to Mr Lim that night having "a fucking Rolex on his arm" and saying "you do the business and that's yours"?

[88]Mr Grobbelaar's account of his visit to London on 25 November 1993 to see John Fashanu in Byron Drive (also initially denied) and his explanation for having very large sums of cash at around that time seem to me equally implausible. True, his account of keeping cash in his sock drawer was corroborated by his wife. That, however, can hardly be regarded as decisive.

[89]And what of the tapes themselves? It is in this connection that Mr Spearman makes some of his most telling points. He refers first to the considerable detail and fluency of what Mr Grobbelaar said at these meetings. The relationship the tapes reveal between Mr Grobbelaar and Mr Vincent appears clearly to have been friendly and uninhibited; the discussion between them was invariably frank and free-flowing. There is secondly the fact that Mr Grobbelaar had no need to fabricate previous corruption on his part in order to elicit information from Mr Vincent. It is, indeed, difficult to imagine just what object could be served by such fabrication. It is difficult too to suppose Mr Grobbelaar capable of such spontaneous and sustained invention. Third, even if it made sense to fabricate previous corruption, it would be absurd to invent a role in it for John Fashanu. That could cause nothing but problems for both of them. And what of "the short man"? Fourth, one finds little if anything on the tapes consistent with Mr Grobbelaar trying to discover who was behind Mr Vincent's proposal, so that they too might be brought to justice, still less any attempt to record Mr Vincent making these corrupt proposals so as to substantiate the report which Mr Grobbelaar claims he intended to make. On the contrary all the emphasis was on Mr Grobbelaar's concerns at the risks he was running and on how he proposed storing and disposing of the "greenbacks." Fifth, although these meetings extended over several weeks, Mr Grobbelaar never told anyone else (not even his wife) about them, least of all of a plan to trap Mr Vincent in some way with a view to reporting his corrupt proposal to the authorities. Not even when he received the £2,000 cash payment on 3 November did he go to the authorities; rather he was awaiting another such payment at Gatwick on 8 November.

[90]Perhaps more striking than any of these points, however, is the absurdity of supposing that Mr Grobbelaar would ever have gone to the authorities when such a step would inevitably have brought to light all his murky past dealings with Mr Lim which, even on his own account of the matter, must irreparably have damaged his reputation in the game.

[91]And then one comes to the exchanges at Gatwick. Is it really credible that when confronted with the threat of immediate and damning tabloid exposure as a corrupt match-fixer, someone truly innocent and intent only on bringing a briber to

justice would say:

"Unless you come to me and say, we've got evidence ... you are going to have to actually prove it first"? In my judgment it is not and the fact that, as one of the Sun's journalists accepted in cross-examination, at some point during the confrontation Mr Grobbelaar "made a stab at trying to imply that it was in fact him trying to gather evidence against Mr Vincent and not the other way round" provides no sufficient argument to the contrary. Nor is it realistic to suppose that an innocent man would decide not to tell Mr Higgins of his fundamental mistake about the tapes - a decision which would almost inevitably lead to the story's immediate publication and his own ruination - merely because "he was not going to give him that satisfaction."

[92]In a hotly fought case of this kind, the evidence inevitably went into the greatest detail. It is not, of course, possible within a judgment of manageable length to discuss all of it nor indeed deal with many of the innumerable points canvassed by both sides. I have instead sought to focus on those relatively few factual issues that seem to me ultimately determinative of the case. On this approach 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.

[93]It is, of course, understandable how a jury, skillfully deflected from the path of logic, could have accepted Mr Grobbelaar's story or at least been left undecided about it - a result fatal to the defendants upon whom the burden lay. Not surprisingly, all Mr Hartley's emphasis was on the expert evidence to the effect that Mr Grobbelaar never deliberately let goals in. As, however, I have endeavoured to explain, that could never excuse his acceptance of money for matches lost nor, of course, does it disprove the genuineness of his admissions of wrongdoing. It may be that Mr Grobbelaar was careful only to select games which he thought his team would lose anyway; it may be he was intending to return the bribes if the matches selected were not in the event lost; it may be that his instinct for saving goals and his will to win in the end prevailed over his interest in losing. There are, indeed, hints of all these possibilities in what at various times he was recorded as saying. A decision on that, however, was never necessary: this paradoxically was a case where keeping one's eye on the ball, metaphorically speaking, required one actually to take it off the ball (or at any rate not to over-emphasise what happened to the ball), literally speaking. All that had to be decided was whether Mr Grobbelaar took corrupt payments and as to that in my judgment only one rational view was possible, namely that the defendants' allegations were proved true at least up to the standard of the balance of probabilities.

[94]In the result I would allow the Sun's appeal on this ground. I confess to doing so with some misgiving. That, however, is not because I entertain the least doubt about Mr Grobbelaar's guilt but rather because, as I earlier observed, the Court must inevitably be reluctant to find a jury's verdict perverse and anxious not to usurp their function. As I also observed, however, given that we have the jurisdiction to entertain an appeal on the ground of perversity, so too we have the duty to determine it according to the best of our ability.

[95]Nothing would have been easier than to reject this challenge on the footing that the issue was purely one for the jury who, of course, heard all the evidence for themselves. Some, no doubt, will say that that is the decision we should have reached. I cannot agree. It is, I think, the experience of all of us that juries from time to time do arrive at perverse verdicts. If, of course, this occurs in a criminal trial and the verdict is one of acquittal, that simply is that. If, however, the jury perversely convict, the Court can and does examine the evidence, and if persuaded to that view (or even if left merely with a lurking doubt) it will overturn the verdict. The present case raises the different consideration: should the claimant be permitted to retain an unmerited award of libel damages?

[96]In this very case, it will be remembered, successive juries at criminal trials could not agree upon a verdict (at least with regard to the second count). It follows logically that at the very least a total of four jurors must have been satisfied beyond all reasonable doubt of Mr Grobbelaar's guilt on the second count. Is it not surprising that against that background the jury in this libel trial should unanimously have found the case unproved against Mr Grobbelaar even to the lesser standard required in a civil action? I think it not merely surprising but unacceptable. The result clearly represented a forensic triumph for Mr Hartley. In my judgment, however, it represented also an affront to justice. I would allow the appeal, set aside the jury's verdict and enter judgment for the defendants.

LORD JUSTICE THORPE:

[97]I express my opinion briefly on the two issues raised by this appeal, namely qualified privilege and justification. It seems to me that the resolution of those issues depends upon the realistic analysis of the surrounding facts and circumstances. For the Newspaper Mr Spearman submits that the work done by the Sun's staff immediately prior to publication on 9 November 1994 constituted the profoundest piece of investigative journalism that the Sun had ever undertaken. Mr Hartley poured scorn on that description, in my opinion with justification. In reality the Sun had been approached by Mr Vincent offering to provide evidence of Mr Grobbelaar's corruption. There was no doubt that he was an associate of Mr Grobbelaar but it would not have been difficult for the Sun to have ascertained that he was an informant of doubtful repute. After an amateur attempt at recording Mr Vincent's conversation with Mr Grobbelaar the Sun invested in more professional equipment to produce audio and video record of future conversation. After three separate recordings, during the course of the last of which Mr Grobbelaar accepted £2,000 in cash from Mr Vincent, the investigation was complete. The only other preparatory step taken prior to publication was the airport challenge on the eve.

[98]At the date of publication the Sun must have appreciated that its only defence to an action in defamation was justification. That defence rested upon Mr Grobbelaar's admissions recorded during the three meetings and the evidence of Mr Vincent. In consequence of Mr Vincent's destruction in cross examination during the criminal trials the defence of justification at this trial rested solely on the claimant's recorded admissions. Between the date of writ and the date of trial the claimant's case had evolved to the point where he challenged nothing on the record but explained that all his apparent admissions were spontaneous inventions designed to trap Mr Vincent and establish his dishonesty. The litigation strategy adopted by each party seems reasonably transparent. The claimant made the most of the videos of the matches put in question by the claimant's admissions. He relied upon the evidence of Mr Wilson called as an expert in the art of the goalkeeper. Throughout his evidence he praised the claimant's skill in almost extravagant terms. Although the defendants only asserted that the claimant had deliberately conceded one specific goal in one specific game, Mr Hartley sought Mr Wilson's opinion on all the claimant's play through all five games in which the defendants had alleged foul play in the articles. Furthermore the terms of his instructions were extremely narrow. In answer to Mr Carman he said:

".... but you must remember that I have been looking purely at five games in which I was asked to look at beyond reasonable doubt anything that was untoward in those games involving Bruce Grobbelaar and his goalkeeping and that is what I've concentrated on totally."

[99]When cross examined by Mr Carman on contemporaneous comment which he was said to have given to the Sun, there was the following exchange:

"A.I didn't know that Bruce Grobbelaar had admitted cheating in any games, Mr Carman. Q.You know now of course on the tapes that he has admitted it. A.I have never seen any tapes. Q.It is not an issue in this court that he has made those admissions, but he said he made them up. A. With great respect, that's not what I'm here for. I was here to look at five games and .... Q. I do understand that but I was simply asking you if you knew about that, and you did not know from the Sun articles that he had admitted cheating. A. I have heard obviously and read in other newspapers about the accusations, and so on, but I have never seen the tapes and I have never really in any detail whatsoever followed what was said in those particular tapes."

[100]Within the confines of those instructions Mr Wilson said of the one goal that was the subject of specific allegation, the goal in the Southampton v Coventry game:

"I just say to you again the angle of the body, the position of the feet off the ground, the thrust off the ground, I just, I couldn't say to you anything other than in my honest opinion, he is making every attempt, every attempt, to save that ball."

[101]During the course of his cross examination by Mr Carman, Mr Wilson accepted that it would be feasible for a corrupted goalkeeper to make deliberate mistakes, although he maintained that misconduct would be swiftly detected by the expert eye of manager, coach and regular fans. When Mr Carman suggested that in the case of a corrupted goalkeeper the instinct to save might prevail over the intention to concede, Mr Wilson responded that it was an interesting theory. Finally in relation to the crucial goal in the Southampton v Coventry game Mr Wilson's response to Mr Carman's suggestion that the claimant had guided the ball into the goal was:

"I think it would be a truly extraordinary feat to be able to disguise it in that way."

[102]In summary it seems to me that whilst Mr Wilson was fulsome in his praise of the claimant's skill and steadfast in his support for his cause, the acceptance of his evidence would not absolutely exclude the possibility that the claimant had engineered an own goal in the Coventry game. In assessing the overall value of Mr Wilson's contribution it is important to bear in mind, in my opinion, the limited nature of his instructions.

[103]On that foundation it was argued for the claimant that his case of invention was effectively corroborated. Obviously, whatever the jury might think of the claimant, they were likely to be impressed by the evidence of Mr Wilson, a renowned expert and familiar to many from his television work. In contrast the defendant's strategy was inevitably to emphasise the transparency and detail of the claimant's admissions. After all they had no other evidence.

[104]This strategy persisted throughout the hearing of the appeal. Mr Spearman consistently demonstrated that the plaintiff's eventual explanation for his admissions went well beyond the boundary of the implausible deep into the territory of the incredible. Mr Hartley repeatedly submitted that Mr Spearman's submissions constituted a distortion of the issues. He said that the right starting point must be the evaluation of the claimant's performance on the pitch. From that beginning the jury's verdict was not only possible but fully justified.

[105]Of these two strategies the defendants' was in my opinion closer to reality. In the end the crucial decision for the jury was the acceptance or rejection of the claimant's explanation for his admissions. Of course at the date of publication the Sun proceeded without much caution or moderation. Anything that could possibly be extracted either from the claimant's admissions or from the evidence of Mr Vincent was elevated and published as incontrovertible fact. By the date of trial they had abandoned the evidence of Mr Vincent. However a significant proportion of the material published could not be justified by the admissions alone without the supporting evidence of Mr Vincent. That presented Mr Hartley with the opportunity to emphasise the allegations that the claimant had fixed or attempted to fix five specific games. That was the sting and if the jury concluded on the evidence of the claimant, his expert and the videos of the games that not a single goal had been let in deliberately that was the end of the defendant's case. The defendants said, as they were bound to say, that the sting lay in the accusations of corruption and if those allegations were proved justification was established whatever might have happened in the five specific matches.

[106]Certainly these rival submissions emphasise the clear boundary between dishonesty on the pitch and dishonesty off the pitch. But dishonesty on the pitch is of a different character to dishonesty off the pitch. 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. It seems to me particularly important that that distinction is maintained in deciding issues involving the corruption of professional games players. Any employer is entitled to complete commitment and fierce determination to win from any player put onto the field of play or held in training for play. Any player who sells his commitment and determination only appears to play for his employer. Beneath the appearance he has become, if not a player for the other team, a traitor to his uniform. The resulting feelings of guilt at the betrayal and anxiety over detection must be intense. The conscious is at war with the unconscious or instinctive reaction instilled by years of training and professional play. There must be equal conflict between the desire to maintain the flow of corrupt money and the contrary desire to maintain the esteem of team mates, manager, sports journalists and the public. The greater the individuality and egoism of the player the greater must be his need for public adulation. These complex emotional forces would be heightened by the emotional reaction to developments during the game beyond the control of the corrupt player. Inspiration and achievement in attack that would ordinarily unite the whole team would leave the greedy and corrupt defender in turmoil. The practical resolution of these conflicts would probably lead the traitor to acts far from transparent. Transparent acts would swiftly lead to deselection which would be neither in his interests nor in the interests of the corrupter. These differences lead inevitably to the distinction that one act, the corrupt agreement, is capable of clear proof whereas the other, betrayal on the pitch, is not.

[107]Against that analysis of what for me are the relevant realities I turn to the issues. Qualified Privilege

[108]Mr Spearman's principal reliance is upon the importance of investigative journalism fully recognised by Lord Nicholls of Birkenhead in his speech in Reynolds . But is this a case truly an instance of investigative journalism? Here the newspaper had simply paid a substantial sum of money to an informant in the belief that the publication of his information would earn them a considerably greater sum from the profits of enhanced circulation. Whilst I accept that the exposure would never result unless there were newspapers prepared to pay substantial sums for sensational information (for Mr Vincent would have seen no personal advantage in taking his story to either the Football Association or the police) it does seem to me important that newspapers should not, when buying sensational material with a view to increasing profit, be encouraged to think that they can be careless with the truth since they enjoy a wider defence than justification. This does not seem to me to be a case of the investigative bloodhound fulfilling some high duty to inform. The Sun's self-interest seems to have been well to the fore. That impression is certainly strengthened by the tone of the articles. As Mr Hartley submits the involvement of the claimant's wife and children seems superfluous to the performance of any duty to inform. The cartoons, the attempt to secure his immediate suspension and the marketing of the tapes all suggest either an endeavour to break down the threatened libel action or to pursue commercial interests. The application of the ten factors identified by Lord Nicholls to the present case in my opinion justified Mr Hartley's submission that the alternative defence of qualified privilege was for the defendant something of an afterthought rightly rejected by Gray J. Justification

[109]For reasons which I have already given the crucial categorisation of fact was into events on and off the field of play. On the pleadings it was agreed between the parties that the articles published meant that the claimant: i. having dishonestly taken bribes had fixed or attempted to fix the result of games of football in which he played, and ii. had dishonestly taken bribes with a view to fixing the result of games in which he would be playing.

[110]Mr Hartley who was responsible for this formulation said that paragraph (i) was intended to comprehend all allegations relating to business done with Mr Lim while paragraph (ii) related to the claimant's dealings with Mr Vincent. With the advantage of hindsight that formulation seems to me to be unfortunate. For neither party invited a half-way-house. The claimant said that all his admissions in relation to past conduct were invented and all his agreement to future misconduct was pretended. He did not accept the possibility that he could explain away one conspiracy but not the other. Equally the defendants did not seek to draw any distinction between the conspiracy with Lim and the conspiracy with Vincent. Either they succeeded in relation to each or they failed on each. Again with the advantage of hindsight I do not think that this was perhaps made sufficiently clear to the jury. The judge's principal direction in relation to what the defendants had to prove in order to justify appears on pages 60 and 61 of our core bundle. There he clearly drew out the distinction between Mr Hartley's submission that he succeeded, since no misconduct on the pitch had been proved, as against Mr Carman's submission that he succeeded once corrupt agreements had been proved. The parallel direction in relation to damages comes at pages 123 and 124 of our core bundle. In this passage the judge sought to guide the jury in the event that they concluded that the plea of justification failed but that the defendants had nevertheless proved a significant part of their case . By way of example he took the hypothesis that the defendants proved corrupt agreement with Mr Vincent but not the corrupt agreement with Mr Lim. The judge then said that in that event damages might be reduced 'perhaps - it is a matter for you - very, very significantly' to reflect the finding that the publication was partially true.

[111]At the conclusion of the summing up Mr Carman sought a further direction that if the jury were satisfied that the corrupt agreements had been proved the defendants were entitled to the verdict. The judge tentatively rejected the submission but left the question open pending the arrival of the daily transcript.

[112]On the following day with the advantage of the transcript Mr Carman renewed his submission saying:

"If the jury form the view on the facts that no match fixing was made out but that the claimant was party to two conspiracies and accepted money with a view to fixing matches, the second defamatory meaning of entering into dishonest agreements with a view to fixing matches is made out. We would submit that as a matter of law your lordship should bring to their attention that that would plant the badge of dishonesty as a footballer fairly and squarely ...."

[113]The judges response was that that was not a matter of law but a question for the jury. Mr Carman continued to press his point and in the course of his submissions pointed out that the judge's hypothetical instance that the jury accepted only one of the two corrupt agreements was logically impossible. Nevertheless in the end the judge rejected the invitation to further direction.

[114]Viewing these developments in the round I conclude that the judge's directions were sufficient and that Mr Spearman's attack on the summing up does not succeed. It is easy to be wise with hindsight and in a perfect world the direction would have drawn out the essential distinction between what the claimant did on the pitch and what he did off the pitch. Ideally the hypotheses upon which the judge should have concentrated were not the acceptance of one conspiracy and the rejection of the other but the true choice namely between(a) neither conspiracy,

(b) both conspiracies and

[115]Against that background I would accept Mr Hartley's submission that in order to succeed Mr Spearman has to demonstrate that the jury's verdict for the claimant together with its award of £85,000 damages was a result to which no reasonable jury could come. Mr Hartley with all his experience submits that it is unprecedented for this court to interfere with a jury's findings on disputed facts. Cases on perverse findings are all concerned with findings as to the meaning of words. However in my opinion the key to outcome lies in Mr Hartley's submission that it was open to the jury to find both conspiracies proved and still to enter a verdict for the claimant with an award of £85,000. I couple with that submission his concession that in the light of the judge's direction as to the reduction of damages which I have cited, the award of £85.000 demonstrates that the jury absolved the claimant of any conspiracy to corrupt. Mr Hartley submits that, since it had of course been open to the jury to bring in an award of damages up to £150,000, their decision to award £85,000 reflected the claimant's concession that he had lied about his relationship with Mr Lim and had sustained that lie over a period of about three years.

[116]As to the submission, in my opinion it only illustrates the distortions that flow from Mr Hartley's elevation of the issue of the claimant's conduct on the pitch to an unsustainable and quite unrealistic height. The proper recognition of corruption rather than fixing as the primary issue renders Mr Hartley's submission almost repugnant. In reality words admittedly spoken proved corruption to the hilt unless the claimant's explanation for having uttered them was arguably credible. For all the reasons given by my lords the explanation was quite simply incredible. It was not an explanation which any reasonable jury could have accepted. I can only speculate that the jury's conceded acceptance was probably the product of a failure to properly prioritise the significance of the claimant's actions off the pitch from the elections made on the pitch. Unless that distinction was clearly and consistently in their minds it is easy to understand how they might have placed undue reliance on the evidence of Mr Wilson. Although I recognise and respect the unique function of a jury that heard all the evidence over the course of some sixteen days of trial, nevertheless it would in my opinion be an injustice to the defendants to allow the outcome to stand. I therefore agree with my lords that this appeal should be allowed. Lord Justice Jonathan Parker

[117]The Sun appeals firstly against a ruling by the trial judge, made in the course of the trial, that the publications complained of in the action were not protected by qualified privilege; and secondly against the verdict of the jury awarding damages of £85,000 to the claimant in the action, the well-known footballer Mr Bruce Grobbelaar, and the costs orders made by the judge consequent upon that award.

[118]In the action, Mr Grobbelaar claims damages for libels contained in the editions of The Sun published on 9, 10, 11, 14, 15, 16 and 18 November 1994 respectively (seven editions). In those editions, The Sun accused Mr Grobbelaar of taking bribes to fix football matches and of having fixed or attempted to fix matches in which he had played. The material complained of (which included articles, editorials, jokes and cartoons) was derived substantially from admissions made by Mr Grobbelaar in the course of meetings with a former friend and business associate, a Mr Christopher Vincent – meetings which The Sun had, with the connivance and co-operation of Mr Vincent but without the knowledge of Mr Grobbelaar, covertly recorded on video and audio tape.

[119]The action was commenced promptly after the initial publication, but was in effect left on hold pending the outcome of the trial and retrial of Mr Grobbelaar and others on criminal charges arising out of The Sun's accusations. In the criminal trials, Mr Grobbelaar faced two counts. The first count alleged a conspiracy with a Mr Richard Lim (a co-defendant, whose name features prominently in the instant case) and others to accept bribes to fix football matches; the second count alleged that on 3 November 1994 Mr Grobbelaar corruptly accepted a bribe of £2,000 from Mr Vincent to fix football matches. The second count was based on what had occurred in the course of one of the meetings between Mr Grobbelaar and Mr Vincent which The Sun had recorded. At the first criminal trial (which began on 13 January 1997 and ended on 4 March 1997) the jury were unable to agree on any verdicts and a retrial was directed. At the retrial (which began on 10 June 1997 and ended on 7 August 1997) the jury unanimously acquitted Mr Grobbelaar on the first count but were unable to reach a majority agreement in relation to the second count. Following the retrial, the libel action was effectively revived.

[120]The Sun has throughout accepted, not surprisingly, that the material complained of was defamatory. Nor was there any issue between the parties on the pleadings as to the defamatory meaning or meanings of that material (although this is an aspect to which I shall have to return). Mr Grobbelaar sought both aggravated and exemplary damages. The Sun pleaded justification and qualified privilege (the plea of qualified privilege having been added at a relatively late stage in the proceedings). As already indicated, however, the judge ruled in the course of the trial that a defence of qualified privilege was not open to The Sun (the ruling was made on 23 July 1999, reasons being delivered on 29 July 1999). That left The Sun with the defence of justification.

[121]The trial of the action began on 5 July 1999 and ended on 28 July 1999. The first three days of the trial were mainly taken up with an appeal by Mr Grobbelaar to this court against a ruling by the judge concerning the admissibility of certain evidence. That appeal (which was partially successful) is not material for present purposes. It is, however, material to note that the hearing of the oral evidence took the best part of nine court days; that Mr Grobbelaar was himself in the witness box for more than three court days; and that Mr Carman's cross-examination of Mr Grobbelaar took some two court days.

[122]The questions put before the jury at the conclusion of the trial were(1) whether they found for Mr Grobbelaar;

(2) if so, how much they awarded him by way of damages; and

(3) whether any part of their award was in respect of exemplary damages. The answers which the jury gave to those questions were (1) Yes; (2) £85,000; and (3) No. In the light of the jury's award of substantial damages, the judge ordered The Sun to pay Mr Grobbelaar's costs of the action, plus 75 per cent of his costs of his appeal (such costs having been reserved by this court to the trial judge). THE MATERIAL COMPLAINED OF

[123]The charges made against Mr Grobbelaar by The Sun in the material complained of were, in summary,(a) that he had been party to a conspiracy with Mr Lim (known as "the short man"), acting on behalf of a Far Eastern betting syndicate, and pursuant to that conspiracy had accepted bribes to fix football matches,

(b) that he had corruptly accepted a sum of £2,000 from Mr Vincent to fix football matches, and

[124]On 9 November 1994 The Sun gave what may be described as saturation coverage to what it plainly regarded as a substantial scoop by publishing a number of articles about Mr Grobbelaar and his alleged corrupt activities. These articles took up most of the first six pages of that edition of the newspaper. On the front page there appeared the banner headline:

"WORLD EXCLUSIVE GROBBELAAR TOOK BRIBES TO FIX GAMES"

[125]The article which followed that headline stated as a fact that Mr Grobbelaar had taken bribes and that he had fixed or attempted to fix football matches. The following extract will, I think, give a flavour of the content and tone of the articles:

"Soccer Star Bruce Grobbelaar is exposed by The Sun today for taking massive bribes to throw key matches. The flamboyant goalkeeper pocketed £40,000 to lose a game while playing for Liverpool. Greedy Grobbelaar was offered £175,000 to let in goals in another two Premiership fixtures."

On page 2 of that edition appears the headline:

"GROB: I let in 3 goals and picked up £40,000"

. Across pages 4 and 5 of that edition runs the headline:

"IF I GET CAUGHT I'M FINISHED"

. Page 6 of that edition, under the headline "THE GROBBELIAR TAPES – Soccer bribe sensation" contained extracts from the tapes of the recorded meetings between Mr Grobbelaar and Mr Vincent.

[126]The other editions of The Sun in respect of which complaint is made were in more or less the same vein. The headline on the front page of the 10 November 1994 edition read:

"I SAVED GOAL BY MISTAKE AND LOST £125,OOO"

Across pages 2 and 3 of that edition runs the headline:

"THE ULTIMATE BETRAYAL" referring to Mr Grobbelaar's alleged confessions as recorded on the tapes. Under that headline appears a sub-heading which reads: "

Grob: I'll throw first match back at Anfield and pick up £134,000" The article itself begins:

"Shameless Bruce Grobbelaar planned to rake in £134,000 by throwing a game against his old club Liverpool."

[127]The 10 November 1994 edition also carries an article under the headline: "SECRET CODE OF MR FIXIT" in which further extracts from the tapes are quoted. On page 6 of that edition is a cartoon depicting Mr Grobbelaar as a goalkeeper diving to catch not a football but a bag of cash.

[128]Headlines in the editions of the paper on the other days in question adopted the same tone: e.g. "I'LL TAKE MONEY AND RUN"; "GROB'S MASK-ERADE" (a reference to the fact that Mr Grobbelaar was at that time wearing a mask to protect a broken cheekbone); "SMASH N'GROB"; "SMACK IN THE GROB"; "FANS PUT GROB ON TRIAL"; "GROB IN THE NICK"; and so on.

[129]In the 22 November 1994 edition of the paper, under the headline "Grobbelgate: Judge for yourself", The Sun invited its readers to telephone a given number (at premium rates) in order to hear the tapes for themselves. It is not, I think, necessary for present purposes to make any further detailed references to the material of which complaint is made. THE DEFAMATORY MEANING OF THE MATERIAL COMPLAINED OF

[130]I return at this point to the (admitted) defamatory meaning or meanings of the material complained of. In paragraph 11 of his Consolidated Amended Statement of Claim, Mr Grobbelaar pleads as follows:

"The said [material] meant and [was] understood to mean that 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."

That allegation was admitted by The Sun in paragraph 2 of its Consolidated-Re-Re-Amended Defence.

[131]In the course of his submissions, Mr Hartley QC (for Mr Grobbelaar) informed us that his intention in drafting paragraph 11 of the Statement of Claim was to refer in subparagraph (a) to the alleged conspiracy with Mr Lim (which formed the subject-matter of the first of the two counts against Mr Grobbelaar in the criminal trials), and in subparagraph (b) to the allegedly corrupt acceptance of £2,000 from Mr Vincent (which formed the basis of the second of the two charges against Mr Grobbelaar in the criminal trials). However, as I read those subparagraphs, subparagraph (a) is directed to actual match fixing or attempted match fixing, following the acceptance of bribes – i.e. to alleged improper and corrupt conduct on the pitch – whereas subparagraph (b) is directed to Mr Grobbelaar's alleged acceptance of bribes to fix matches (that is to say, acceptance of bribes both from Mr Lim and from Mr Vincent).

[132]At all events, the dual pleaded meanings of the defamatory material appear to have contributed to what was undoubtedly a stark difference in approach between Mr Hartley and Mr Carman QC (for the Sun) in the presentation of their respective cases to the jury.

[133]Mr Hartley, for his part, presented Mr Grobbelaar's case to the jury on the basis that the "sting" of the libels lay in the assertion that Mr Grobbelaar had deliberately let in goals (the first of the two pleaded meanings). On that basis, he asserted that in order for The Sun's defence of justification to succeed, The Sun had to establish that Mr Grobbelaar had been guilty of actual match fixing . Thus, in his closing speech to the jury Mr Hartley said this (Day 16, page 21 line 15): "Those articles in The Sun accuse Mr Grobbelaar of fixing or trying to fix those five games. There cannot be any doubt about that, and indeed they have accepted it. We say it is fatal to the defendants' case that they cannot prove those accusations to be true. They have not, they cannot. .... You see, Mr Carman for The Sun may duck and dive, but he cannot escape the fact that the defendants have failed to prove in any shape or form that Mr Grobbelaar acted improperly, or tried to act improperly, in any game. That must be a fatal flaw in their case ...." (My emphasis.)

[134]By contrast, Mr Carman presented The Sun's case on the footing that the sting of the libels lay in the charge that Mr Grobbelaar had corruptly accepted bribes to fix matches (the second of the two pleaded meanings). Thus, in his closing speech to the jury Mr Carman QC said this (at Day 15, page 3 line 46): "We say that this claimant, Bruce Grobbelaar, is disqualified from obtaining a single penny of damages if we establish on the balance of probability that he corruptly agreed to accept money. It would not be necessary to establish that he did actually fix any single match . In all justice, do you, members of the jury, want to award damages of any kind in a case where you find that the claimant has corruptly agreed to accept money and, indeed, in the case of the £2,000 has accepted money for match fixing? So we stand by that defence, that the vice and shame of Bruce Grobbelaar is entering into a corrupt agreement with the short man and a corrupt agreement with Mr Vincent, amply demonstrated on the tapes. We shall of course await with great interest in this court to see whether my learned friend Mr Hartley is so bold on behalf of Mr Grobbelaar to ask you to award a single penny of damages on the basis that, although he may have entered into a corrupt agreement, he did not fix any matches; we say that would be an affront to justice." (My emphasis.) This approach by Mr Carman was reflected in his cross-examination of Mr Grobbelaar. Mr Carman began his cross-examination of Mr Grobbelaar by asking him (Day 5, page 69 line 31): Q. Would you …. agree that even if a player agreed to take money corruptly but did not, in fact, throw a goal, nevertheless that would still be a very grave matter, to accept money corruptly for that purpose ? When Mr Grobbelaar said he did not understand the question, Mr Carman repeated it in the following terms: Q. Can you agree that if any professional player agreed to accept money to behave corruptly, even if he did not actually throw a goal , nevertheless the corrupt agreement would be a very grave matter indeed? Mr Grobbelaar then agreed with that proposition.

[135]So the jury was faced on the one hand by Mr Hartley saying that unless The Sun could prove actual match fixing its defence of justification must fail, and on the other hand by Mr Carman saying that it was not necessary for The Sun to prove actual match fixing provided it could prove that Mr Grobbelaar had accepted bribes to fix matches, since if corruption be proved then Mr Grobbelaar was not entitled to damages. Nor is it in the least surprising that there should have been this difference in approach, since each side was seeking to fight the battle on its own chosen ground. Mr Grobbelaar's case relied strongly on expert evidence from Mr Bob Wilson, the well-known broadcaster and former goalkeeper, to the effect that Mr Grobbelaar had not been guilty of actual match fixing as alleged; whereas The Sun's case on justification was based almost entirely (since Mr Vincent was not, in the event, called to give evidence) on Mr Grobbelaar's taped admissions of corrupt conduct.

[136]The judge adopted, in effect, a third approach to the meaning of the material complained of. When he came to sum the case up to the jury, he treated the two pleaded meanings as amounting to a single composite meaning. Having stated the two pleaded meanings, the judge continued (Day 16 page 29 line 14): "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 [of justification] 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." (My emphasis.)

[137]To my mind, the judge's conflation of the two pleaded meanings into the single composite meaning which I have quoted is somewhat confusing and cannot have been helpful to the jury, not least because (literally interpreted) the single composite meaning is limited to "the dishonest taking of bribes", although the concluding words "or at least was prepared to do or try to do" suggest that the judge intended that it should also cover actual match fixing.

[138]I shall have to return to this aspect later in this judgment, when considering The Sun's case that the jury's verdict was perverse and should be set aside. For present purposes, however, I merely draw attention to the different ways in which the case was presented to the jury, since it represents a fundamental feature of the case. Section 5 of the Defamation Act 1952

[139]In its Defence, The Sun pleaded section 5 of the Defamation Act 1952. That section provides as follows:

"In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges."

[140]In the course of the trial, however, Mr Carman abandoned reliance on the section. That being so, it is not open to Mr Spearman QC (who appears for The Sun on this appeal) to rely on the section in this court. FACTUAL AND PROCEDURAL BACKGROUND

[141]I must now set out so much of the factual and procedural background as is material to the issues which arise on this appeal.

[142]Mr Grobbelaar was born on 6 October 1957, in South Africa. A few months after he was born, his parents moved to Zimbabwe (then Southern Rhodesia). In 1978 Mr Grobbelaar came to the United Kingdom with a view to playing professional football. However, he was unable to obtain a work permit, so he went to Canada for two years, returning to the United Kingdom in 1980. On 16 March 1981 he joined Liverpool F.C. as a goalkeeper. He remained with Liverpool until 1994, when he was transferred to Southampton.

[143]In or about July 1992 Mr Grobbelaar met Mr Vincent, whom he may have known in his younger days in Zimbabwe. Mr Vincent interested him in various ideas for property development in Zimbabwe, and Mr Grobbelaar agreed to put up £20,000 as an investment in a project for the development of a safari park to be undertaken by a company called Mondoro Wildlife Corporation. Mr Grobbelaar duly paid Mr Vincent £20,000 as an investment in this project.

[144]In about November 1992 Mr Grobbelaar was introduced to Mr Lim by a mutual friend, Mr John Fashanu (another well-known footballer). Mr Lim became known to both Mr Grobbelaar and Mr Vincent as "the short man", and they habitually referred to him by that sobriquet. According to Mr Grobbelaar, he agreed with Mr Lim to provide Mr Lim with forecasts of the result of football matches (excluding any matches in which his own club was playing) on terms that Mr Lim would pay him £250 for every correct forecast. This arrangement continued, according to Mr Grobbelaar, until about February 1993, when it was changed. According to Mr Grobbelaar, his ability to give accurate forecasts proved to be so limited that it was agreed that, rather than providing forecasts, Mr Grobbelaar would thereafter provide Mr Lim with information about football teams, payment for which was to be at Mr Lim's discretion. Mr Grobbelaar accepts that he received from Mr Lim, as consideration for his services, a total of around £8,000.

[145]In his original Reply in the action, which was served on 6 July 1995, prior to the criminal trials, Mr Grobbelaar asserted that Mr Lim was a figment of his imagination: that is to say, that Mr Lim had never existed. That was a lie, as Mr Grobbelaar subsequently accepted. Mr Grobbelaar's explanation for that lie was that he was concerned that his arrangement with Mr Lim (that is to say, initially for the provision of forecasts and from early 1993 onwards for the provision of information) was or might be contrary to the rules of the Football Association.

[146]It is The Sun's case that Mr Lim was, to Mr Grobbelaar's knowledge, the representative of a Far Eastern betting syndicate, and that the sums paid by Mr Lim to Mr Grobbelaar were bribes to fix or attempt to fix football matches. As indicated earlier in this judgment, The Sun's defence of justification is based almost entirely on the contents of the tapes. I shall have to refer to the tapes in more detail later in this judgment, but I point out at this stage that Mr Grobbelaar does not dispute that the tapes contain admissions of corrupt behaviour on his part, both on and off the pitch, and in particular contain admissions that his arrangement with Mr Lim was a corrupt arrangement, pursuant to which he received payments for fixing, or attempting to fix, football matches. His explanation of these admissions is that they were false, and that he invented them on the spur of the moment in an attempt to entrap Mr Vincent (whom he suspected of having behaved dishonestly in relation to the Mondoro venture) into revealing information about corruption on Mr Vincent's part and on the part of those on whose behalf Mr Vincent purported to act, which he could pass on to the appropriate authorities, viz. the Football Association and the police. This is Mr Grobbelaar's only explanation for the admissions which are recorded on the tapes. As I have said, he does not deny that the admissions were made; nor does he deny that they are admissions of corrupt behaviour on his part, not only in relation to his arrangement with Mr Lim but also in relation to the corrupt proposal which Mr Vincent (at The Sun's instigation) made to him at the recorded meetings. Indeed, it is fundamental to Mr Grobbelaar's explanation of the admissions that they were intended to convince Mr Vincent that he (Mr Grobbelaar) had acted corruptly in the past. It is Mr Grobbelaar's case that he made the admissions of past corrupt conduct so as gain Mr Vincent's confidence. This is an aspect of the case to which I shall have to return later in this judgment.

[147]In early 1993 Mr Grobbelaar paid Mr Vincent two further sums of £10,000 each as an additional investment in the Mondoro venture.

[148]On 30 September 1993 Mr Grobbelaar and Mr Vincent drove together from Chester to the Hilton Hotel, at Manchester International Airport, where Mr Grobbelaar met Mr Lim and received from him £1,000 or £1,500 (the evidence is not clear which) in cash. Mr Vincent took no part in this meeting. It is Mr Grobbelaar's case that the payment was in respect of information which he had provided. According to Mr Grobbelaar, his reason for excluding Mr Vincent from the meeting was that Mr Lim had earlier expressed interest in investing in the Mondoro venture and was awaiting a business plan which Mr Vincent had as yet failed to provide, and that in the circumstances Mr Grobbelaar considered it more appropriate that he should apologise in Mr Vincent's absence for Mr Vincent's failure to provide the business plan. The Sun, on the other hand, asserts that the purpose of the meeting was to discuss match fixing, and that the cash was a bribe.

[149]On 21 November 1993 Liverpool lost to Newcastle 3 – 0. The Sun's case, based on admissions by Mr Grobbelaar on the tapes, is that Mr Lim had asked Mr Grobbelaar to fix this game and that Mr Grobbelaar was paid £40,000 by Mr Lim for his services. The Sun no longer contends, however, that Mr Grobbelaar deliberately let in any of the three goals scored by Newcastle. This is in stark contrast to the headline in the 9 November 1994 edition of the paper, which read (it will be recalled):

"GROB: I let in 3 goals and picked up £40,000"

. Mr Grobbelaar denies these allegations. His denial that he deliberately let in goals is supported by the evidence of Mr Bob Wilson, who told the jury that he could see "absolutely nothing suspicious whatsoever" about the three goals, and in relation to the second of the three he was "able to say .... there is no goalkeeper anywhere that would have been able to save that particular goal".

[150]On 25 November 1993 Mr Grobbelaar, together with Mr Vincent, visited Mr Fashanu at his house in Byron Drive, in Finchley, North London. The Sun contends that on this visit Mr Grobbelaar picked up £40,000, and that this was his reward for the result of the Newcastle match. Mr Grobbelaar accepts that in November 1993 he gave Mr Vincent £20,000 in cash, £3,000 of which was to pay a bill which Mr Grobbelaar owed and the balance of which was to be used in paying a deposit on a development site in Zimbabwe called Princes Grant. Mr Grobbelaar's evidence is that this payment occurred some five days before the visit to Mr Fashanu, that is to say on or about 20 November 1993. Mr Grobbelaar further agrees that on 26 November 1993 he paid a sum of £5,000 into his testimonial fund. His case is that the source of these moneys was cash which he had accumulated over a period from a number of legitimate sources and which he kept in his sock drawer in his bedroom at home. He denies that he received £40,000, or any sum, in respect of the Newcastle match, or that he was guilty of any corrupt conduct in relation to that match.

[151]In his original Reply in the action Mr Grobbelaar denied that he had made this visit to Mr Fashanu's house. In evidence in this action, he was unable to explain why he had told this lie.

[152]On 4 January 1994 Liverpool played Manchester United, and drew 3 – 3. The Sun alleges, based on the tapes, that had Liverpool lost that match Mr Grobbelaar would have been paid £125,000. Mr Grobbelaar denies that allegation. It is not alleged by The Sun that Mr Grobbelaar deliberately let in any goals in this match, but it is alleged (based once again on the tapes) that Mr Grobbelaar saved two goals accidentally, having dived "the wrong way". However, Mr Bob Wilson gave evidence that the two saves in question were "truly exceptional ..... Those two saves are the highest quality saves that you will see"; and he was dismissive of the notion that Mr Grobbelaar was "doing it by accident". Mr Wilson said he used the first save "in goalkeeping schools and goalkeeping clinics as a classic example of how to be perfectly set".

[153]On 4 February 1994, the night before Liverpool were due to play Norwich City away, Mr Grobbelaar (who was staying in a hotel on the outskirts of Norwich with the rest of the Liverpool team) and Mr Vincent (who had also booked himself into the same hotel) drove to London. They left Norwich after the team had had dinner, and arrived back at the hotel in the small hours of the morning of 5 February. Mr Grobbelaar did not tell his team-mates or the Liverpool management about this journey (no doubt because it constituted a serious breach of team discipline), and he lied to his room-mate in order to provide cover for his absence. The purpose of this clandestine journey was to enable Mr Grobbelaar to meet Mr Lim. The meeting took place at the Hilton Hotel, Park Lane. Mr Vincent stayed in the car throughout. It is common ground that in the course of the meeting Mr Lim paid Mr Grobbelaar £1500 or thereabouts in cash.

[154]It is Mr Grobbelaar's case that at that time he was concerned that his contract with Liverpool was coming to an end later in 1994 and that it might not be renewed, and that the purpose of the journey to London was to discuss with Mr Lim (who had recently returned from a trip to the Far East) the prospects of Mr Grobbelaar playing football in the Far East, and that the money which Mr Lim paid him was for information which he had provided.

[155]The Sun's case, on the other hand, is that both the meeting and the payment related to Mr Grobbelaar's corrupt agreement to fix or attempt to fix the results of football matches. The Sun bases its case on the extraordinary and clandestine nature of journey; on the fact that Mr Grobbelaar could just as easily have discussed his prospects of playing in the Far East with Mr Lim over the telephone; on the fact that (as Mr Grobbelaar acknowledged in evidence) he knew nothing about Mr Lim's occupation, and in particular whether he had any football expertise or connections, either in the Far East or elsewhere; and on admissions made by Mr Grobbelaar on the tapes.

[156]On 5 February 1994 Liverpool played Norwich and drew 2 – 2. The Sun no longer alleges that Mr Grobbelaar deliberately let in either of the two Norwich goals, despite a photograph caption in its 10 November 1994 edition which read:

"Fallen cheat .... Grobbelaar lets in one of the two Norwich goals"

. The Sun does allege, however, that Mr Grobbelaar saved a goal accidentally when he dived "the wrong way" and the ball hit his foot. This allegation is based on an admission in the tapes. However, when asked in examination in chief:

"Did you see anything there that would indicate a save he did not intend to make?", Mr Wilson replied: "

No, that's a great save in anybody's book".

[157]In July 1994 Mr Grobbelaar made a trip to Selangor, in Malaysia. On the tapes, Mr Grobbelaar says:

"It wasn't by chance that I went over there. It was set up because they wanted to see how I was .... I was getting sussed out by the fucking short man's people"

. The Sun relies on those statements as admissions of the corrupt nature of his arrangement with Mr Lim. I have already referred to Mr Grobbelaar's explanation of the statements which he made on the tapes.

[158]On 12 August 1994 Mr Grobbelaar was transferred from Liverpool to Southampton.

[159]On 6 September 1994 Mr Vincent contacted The Sun. This led to a meeting between Mr Vincent and Mr John Troup, a staff reporter for the Sun. The meeting took place at Mr Vincent's flat in Chirk, near Wrexham. Mr Troup made a contemporary note of what transpired. Since Mr Vincent was not called to give evidence, and since no application was made to admit his statements as hearsay, the statements of fact which he made to Mr Troup are not evidence of those facts. However, since it is Mr Grobbelaar's case that the admissions which he made on the tapes were invented on the spur of the moment, it is in my judgment both legitimate and material to compare those admissions with Mr Troup's evidence of what Mr Vincent told him on 6 September 1994 (that is to say, prior to the taped meetings) concerning Mr Grobbelaar's past conduct, with particular reference to Mr Grobbelaar's arrangements with Mr Lim.

[160]In evidence, Mr Troup told the jury that at the meeting on 6 September 1994 Mr Vincent told him that Mr Grobbelaar had been receiving cash sums from a Malaysian betting syndicate, and that he (Mr Vincent) had been present on a number of occasions when Mr Grobbelaar had met individuals connected to the syndicate. Mr Troup went on to tell the jury that Mr Vincent had told him that Mr Grobbelaar had been paid £40,000 in cash as a result of Newcastle beating Liverpool 3 – 0, and that he (Mr Vincent) had attended with Mr Grobbelaar at an address in North London when Mr Grobbelaar had picked up the £40,000. Mr Troup went on (Day 9, page 34 line 38):

"He told me that Mr Grobbelaar had emerged from the house with the sum of £40,000 in cash, and that he had been given himself, Mr Vincent, half of this cash to look after for Mr Grobbelaar."

[161]Mr Troup also made a contemporary note of his meeting with Mr Vincent on 6 September 1994. Under the heading "Bribery", the note includes the following passages:

"Sept/Oct 93 He came to me he said he had been approached by some guys who had a bet, a scam thing. They were working in the far east and they would pay him to give them tips on games. I drove with him to hotel in Manchester. He met this guy for about 20 minutes. We disappeared back to Chester. ....... Late November: Game against Newcastle. He tells me he's in to make big money if Liverpool lose at Newcastle. While I'm with him he has numerous calls to this bloke ... Short Man ... Liverpool got beat 3 – 1 [in fact, it was 3 – 0]. Two weeks after It must have been the next week or the week after he said to me come we have got to go and pick this money up now. He flew down to London picked up hire car. We then went to where this guy's offices are near Lords. They said we had a meet with another guy. We had to go to this guy's house. We then followed him to house in North London posh suburb. In garage was Ferrari and Mercedes 500..... tight security. Cameras, the whole shooting match, protection guys. He is now greeted by another well known footballer. This guy was obviously betting on little teams to beat big teams. He appears from there with £40,000 in cash in £50 notes and the packs of £2,000 are drawn on Midland Bank, Marble Arch. He wants to give me some of the money to put into the company. He works out what he needs. He left me with £20,000..... ...... Liverpool played Norwich City at Carrow Road. He said we have to come to NCFC [Norwich City Football Club]..... have to go down to London. I checked in on Friday night, he waited until 11pm. He said we have to see the Short Man. Guy I had seen was not the main man, he was just the runner. BG said we meet the big guys tonight. I said we drive down to London at 11pm the night before the game. We drove down to the London Hilton. He told me he had hired a chauffeur and driver. He made me put on a hat. He met these guys for five minutes..... If Liverpool lose against NCFC he would get paid £80,000. We drove back and got to hotel at 3.30am. The net result from that game was that they drew because the one shot was on target and he dived to the right side of the ball, the thing hit his foot. He said I was trying to give it away. He didn't get his money. ....."

[162]On 12 September 1994 a meeting took place between Mr Grobbelaar and Mr Vincent at the Swallow Hotel, Waltham Abbey, prior to a match the following day against Tottenham Hotspur. The Sun attempted to record this meeting on audio tape, but the attempt failed. Apparently the recording device was concealed in the pocket of Mr Vincent's coat, but the material of the coat muffled the sound to the point where speech was inaudible.

[163]On 24 September 1994 Mr Grobbelaar played for Southampton against Coventry. Southampton won 3 – 1. The Sun alleges that Coventry's goal was deliberately let in by Mr Grobbelaar. This allegation is based on a statement by Mr Grobbelaar on the tapes that Mr Lim "is telling me now you're going to lose the game. So two minutes into the game I push the ball into the back of the net. That was the Coventry game." Mr Grobbelaar denies that he deliberately let in this goal. His denial is supported once again by the evidence of Mr Wilson that "a less agile goalkeeper than Bruce Grobbelaar would not possibly have touched this ball". Mr Wilson went on to say: "The angle of the body, the position of the feet off the ground, the thrust off the ground, I just, I couldn't say to you anything other than in my honest opinion, he's making every attempt, every attempt, to save that ball".

[164]Moreover, Mr Alan Ball, the manager of Southampton at that time, who was present at the match, said in evidence that in his opinion there was nothing odd whatsoever in Mr Grobbelaar's play.

[165]On 6 October 1994 the first of the recorded meetings took place, in Mr Vincent's bedroom at the De Vere Hotel, in Southampton. Immediately prior to this meeting Mr Vincent and Mr Grobbelaar had been together in the snooker room at the hotel: their conversation in the snooker room was not recorded.

[166]It is clear from the general tone and content of their recorded conversation on this occasion (as on the other occasions when their conversations were recorded) that Mr Vincent and Mr Grobbelaar were on extremely close and friendly terms, and their conversation was relaxed and uninhibited. After some talk about other matters, Mr Vincent turned to the subject of the corrupt proposal which The Sun had arranged for him to make to Mr Grobbelaar. As appears later in the tape, the proposal (which was said to have emanated from two individuals whom Mr Vincent had met at Chester races, known as "Richard" and "Guy") was that Mr Grobbelaar would be paid £2,000 a fortnight, in return for which Mr Grobbelaar would "pick one game in a season", for which he would be paid £100,000.

[167]It is plain from the way in which Mr Vincent introduced this proposal into the conversation that he had already mentioned it to Mr Grobbelaar on an earlier occasion ("You know those guys I talked to ..."). Moreover it is significant, in my judgment, that Mr Grobbelaar's immediate reaction is not to inquire further about the proposal (as one would have expected him to do had his purpose been obtain information to give to the authorities), but to express concern that whoever was behind the proposal might learn his identity.

[168]The conversation then turned to the Mondoro venture, and Mr Grobbelaar explained that he had not been in a position to put more cash into the venture because "I'm waiting for the cash. If the ball doesn't play, then it doesn't play". Mr Grobbelaar then went on to say that he had lost £125,000 when Liverpool drew 3 – 3 with Manchester United. In response to Mr Vincent's question:

"Why did you choose the Newcastle game?", Mr Grobbelaar replied: "

Because I knew, you know, there's fuck all chance of winning Newcastle. I chose the Newcastle game because I knew I could do business there.... they had big bucks. So I got that cash." The conversation then reverted to the Manchester United match. Mr Grobbelaar commented that Manchester United were 3 – 1 up at half time, but that eventually the match was drawn 3 – 3. Mr Grobbelaar is heard to say, in relation to that match, "I could have done something." When Mr Vincent asked him what he could have done, Mr Grobbelaar replied:

"Because in the second half I made two fucking blind – two blinding saves, but I was diving the wrong fucking way – and that's true .... I dived the wrong fucking way and I fucking went Phwoooo – and I fucking just, just went and it hit my hand."

Mr Grobbelaar goes on to say: "I am my worst enemy on that, because I know I don't like to lose .... its instinct".

[169]At that point in the conversation Mr Vincent returned to his corrupt proposal, and explained in more detail what it involved. Mr Grobbelaar's initial reaction, once again, was that his own identity might be revealed to those behind the proposal. Thus, when Mr Vincent said that Mr Grobbelaar would meet the individuals concerned, Mr Grobbelaar replied:

"I'll meet. Then again, I don't want to meet them. Because they will know who it is."

[170]Mr Grobbelaar went on to stress the risks that he would be running if he agreed to the proposal, saying:

"Find out how many people fucking know, because I'm telling you this; because it could be the fucking end of me. And unless – you see the two grand every week is okay, I mean, you take a gamble, you can score long, there's fucking investigators all round. I don't know that these aren't investigators."

[171]The conversation then turned to "the short man" (i.e. Mr Lim). Mr Vincent asked:

"Do you think they might be connected to the short man or not?", to which Mr Grobbelaar replied: "

I don't know. There must be a syndicate opposite, opposing. I don't know how, because the short man is form the Far East... ". Later, Mr Grobbelaar said:

"But the short man's boss is, if it is the same person, he's fucking big in Malaysia. We all say, that man [gestures with his hand as if cutting his throat] that's it, finish."

They then returned to the subject of Mr Vincent's proposal. Referring to the proposal, Mr Vincent said:

"My thinking on it was, that if .... I mean, I didn't know until tonight that the short man was back in business with you, was that you could pick the same game for both."

Mr Grobbelaar replied:

"Yeah. I could fucking retire."

A little later in the conversation Mr Grobbelaar said that he would like to know who were the individuals behind Mr Vincent's proposal. Mr Vincent replied that he only knew them as "Richard" and "Guy". Mr Grobbelaar is then heard to say:

"How many other fucking partners are there? And how many other people know? The short man has only got one other person, and that's JF [John Fashanu]. Right now the rest are out of the country. That's all. Because he sits on his other phone and talks to me and talks to overseas and talks to me and to overseas, that's all he does ..... These are in the country. So I would say, go back to him and say "

Listen, the person wants to know how many people are going to know about it. Tell him, I don't want any bullshit. I want to know how many people are in, and how many people are going to know about it.... And what they do for a living as well. Because that's another thing."

[172]The conversation then turned to the trip which Mr Grobbelaar and Mr Vincent made from Norwich to London on 4 February 1994, when Mr Grobbelaar met Mr Lim. Mr Grobbelaar is heard to say:

"He had a fucking Rolex on his arm, a Rolex. Because I said: "

Well, give me because I want to wear it." It was the fucking business. Three grand's worth of watch. "This is yours next time you do the business. Plus, what you do. Now we don't talk shit", he says. "That's yours. You do the business, and that's yours."

[173]It is The Sun's case, based on the contents of this and the other tapes, that Mr Grobbelaar's explanation that he was inventing admissions of past corruption on the spur of the moment in order to gain Mr Vincent's confidence, and that his overall purpose was to gain information about the individuals behind Mr Vincent's corrupt proposal with a view to passing such information on to the Football Association and the police is simply incredible, and that no jury could reasonably believe it.

[174]A further taped meeting took place between Mr Vincent and Mr Grobbelaar at the De Vere Hotel in Southampton on 25 October 1994. At that meeting, Mr Vincent reverted once again to his corrupt proposal involving "Richard" and "Guy". Once again, Mr Grobbelaar's first reaction was that his own identity might be revealed. Thus, when Mr Vincent suggested that Mr Grobbelaar might pick a match in which Southampton were playing, Mr Grobbelaar's response was:

".... as soon as you tell them that team will lose they're going to pick up who it is..... They'll pick up who it is."

Mr Grobbelaar then said:

"The short man's back."

Mr Vincent then asked him:

"Have you done any more?"

Mr Grobbelaar replied:

"No, not this weekend. He said, when he told me, eh, I've been trying to get hold of you. So I rang him back, and he said, what about this one, is it a, is it a Wimbledon, or is it going to be a Leeds. Now he's using W and L he doesn't know ... he could have said whisky or Lima. I said, it's a Wimbledon, a Wimbledon for us. He said: No, I've already done it...... You lose, and he's telling me now you're going to lose the game. So two minutes into the game I push the ball into the back of the net. That was the Coventry game..."

[175]Later in the conversation, Mr Grobbelaar referred once again to "the short man", saying this:

"You see, I'll tell you how they bet in the short man's. They put a bet on, and the team has to lose by a certain number of goals..... So he said, the ... Coventry one, he said, just by one, and we clean up. If it's er, what'll we say, if it's er what did he use for a draw? He didn't use Dublin. If it's a Dundee, right? .... If it's a Dundee ... we don't know if we'll lose our money. But sometimes with a draw .... they'll retain their American money that they have actually put on it, do you see what I mean?"

Mr Vincent then reverted once again to the corrupt proposal. Mr Grobbelaar said he was "fucking wary" of the proposal, later commenting:

"It's too dangerous, but I'll look at it."

They then discussed methods by which the cash payments could be made, Mr Vincent suggesting that transfers could be made through Thomas Cook. Mr Grobbelaar said he preferred to receive the payments in cash ("greenbacks"), which he would then take to Zimbabwe. Mr Vincent then asked him:

"What is the biggest cut you have had from the short man so far?", to which Mr Grobbelaar replied: "

For losing that one, 40."

[176]Mr Grobbelaar goes on to say that he would have received £120,000 had Liverpool lost to Manchester United (previously, Mr Grobbelaar had said he lost £125,000 on that match).

[177]Reverting to Mr Vincent's proposal, Mr Grobbelaar referred once again to the risks which he would have to run, saying this:

"There is a fucking big risk, and this is what I'm fucking worried about, you know..... That's why the money is just going to be put in a fucking box. Because, if at any time I feel that it is not on, the money will go straight back to him."

[178]Later in the conversation, Mr Grobbelaar volunteered that the purpose of his visit to Malaysia earlier in the year was not only to play football. He said (in a passage to which I referred earlier):

"I was getting sussed out by the fucking short man's people.... Just, you know, see what fucking person I am and if I'm fucking genuine."

He added:

"I like to fucking win. I don't like to fucking lose."

Later, referring once again to Mr Vincent's proposal, Mr Grobbelaar said this:

"So what happens if I say, right, fine, fucking Man United are playing fucking next day at Man United and I say, right, Man United are going to fucking win..... If it comes off, then you'll be looking at upwards of a million, all of a sudden you say, right, we've got another one, this time its Southampton. Then he's going to come to you and say, well, how many fucking men have you got? ..... Because then you're fucking him around, and he won't like it, and he'll tell his short man .... and then you get the chop and then you better watch it. You better get a bullet proof fucking vest, then.... That's how fucking big it is.... This is how fucking dangerous it is.... When you're playing with fucking dangerous men, its fucking dangerous."

[179]After further discussion about Mr Vincent's proposal, Mr Grobbelaar said:

"Right, I've heard enough. I've had [heard?] enough now. We'll make this easy. Tell him that it's on, and I'm going to pick one game. I'll pick one game. After I've picked one game, nothing must be said..... Nothing must be said anywhere... If they're happy, they must tell you that they're happy. .... Nothing must be said. Because then they will pick out whose team it is."

[180]The conversation then reverted to the problem of where to put the "greenbacks". Mr Vincent suggested arranging for them to be placed in a safe deposit box "at Selfridges or somewhere like that". Mr Grobbelaar rejected that idea, saying:

"No. It's too fucking dangerous. They're being looked at all the fucking time ..... The camera is on you the whole fucking time."

[181]The third and final taped meeting took place at Mr Vincent's flat on 3 November 1994. In the course of the conversation, Mr Grobbelaar volunteered that he is "doing the short man tomorrow". Asked by Mr Vincent how much he would receive, Mr Grobbelaar at first said that it would be about £80,0000, but then corrected himself, saying that it would be nearer £50,000. He continued:

"But hopefully 50 will be ready for when I go... You see, the thing is, I'm not too sure what to do. I think I'll just put the fifty into my fucking trunk, lock the trunk and keep the fifty in greenbacks. That side."

Mr Vincent asked whether he was referring to Zimbabwe, and suggested that he take the cash to Zimbabwe. Mr Grobbelaar replied:

"Yeah. That's what I'm going to do."

[182]At the conclusion of the meeting, Mr Vincent produced a package containing £2,000 in cash, which he represented to Mr Grobbelaar as being the first of the fortnightly payments payable under the corrupt arrangement which they had earlier discussed, and to which Mr Grobbelaar had agreed. Mr Grobbelaar took the proffered package and placed it in his overcoat pocket.

[183]Following the meeting Mr Grobbelaar, according to his evidence, placed the package containing the £2,000 in cash in the glove box of his car.

[184]On 8 November 1994 Mr Grobbelaar was ambushed by journalists from The Sun when he arrived at Gatwick Airport to catch a plane to Zimbabwe. What followed was recorded. The journalists bombarded him with questions and accusations. They began by accusing him of having received £40,000 from a syndicate via a middleman known as "the short man", and of having deliberately let in goals. They told him that they had "video and sound evidence of you talking about that". Mr Grobbelaar's immediate response was as follows:

"Unless you come to me and say, we have got evidence, you know, which you are going to be proving, you are going to have to actually prove it first."

[185]The Sun relies on this answer as being wholly incompatible with Mr Grobbelaar's (later) explanation that he was seeking to entrap Mr Vincent with a view to turning him over to the authorities. If that explanation were genuine, says The Sun, it is inconceivable that Mr Grobbelaar would not have given it at the earliest possible moment, so as to make it clear that the admissions on the tapes were untrue. Mr Grobbelaar's evidence, however, was that he did not immediately reveal his plan to entrap Mr Vincent to The Sun as he did not want to give The Sun the satisfaction of having discovered it.

[186]Mr Grobbelaar denied the journalists' allegations that he had deliberately let in any goals. He also denied that he had agreed with Mr Vincent to throw a match. When accused of having met Mr Vincent and agreed this with him, Mr Grobbelaar replied:

"I met him, yes. And I actually said to him that would never be .... able to be done, because if I ever got caught, I'd be in deep trouble."

When asked why he had taken £2,000 of Mr Vincent, Mr Grobbelaar at first he denied having done so. However, he then said:

"All right, I'll put it another way. That £2,000 has been put in a safe place in case of any subsequent .... because I've got evidence against that person."

A few moments later, Mr Grobbelaar said this:

"I will say there has never been anything done with any short man. There has definitely been something done with Chris Vincent, because he came to me and said it is a sure fired thing and the way to get your money back from the Mondoro thing, he feels obligated in getting that money back. And that is why he had me come to see him to tell me about the whole situation."

Asked "Did you agree to that?", Mr Grobbelaar replied:

"No, I didn't agree to it.... The deals on .... not for me to actually take the money and take it all the time. ..... The money has not been taken."

[187]At that point, one of The Sun journalists put it to Mr Grobbelaar that Mr Vincent had telephoned him and arranged to meet him at the Air Zimbabwe desk with the second payment of £2,000. He also described how Mr Grobbelaar had taken the package containing £2,000 in cash at the meeting on 3 November 1994. Mr Grobbelaar then said:

"OK. I've taken the money, right. But that money has not been, is not anywhere – it's right here. To be given back, and as I said in my previous meetings with him, to be given back to the people if everything blows up. Because I don't want to get caught in any way, shape or form, in this sort of situation."

[188]It is to be noted that in the passages quoted above Mr Grobbelaar falsely denies the existence of "any" short man (a denial which, as I explained earlier, also appeared in the original version of his Reply in this action). He also denies that he agreed to Mr Vincent's corrupt proposal (a denial which is wholly inconsistent with his subsequent explanation that he was seeking to entrap Mr Vincent by agreeing to the corrupt proposal). As to the £2,000, Mr Grobbelaar initially denies having taken it. He subsequently corrects this, but in so doing he makes no reference to handing the £2,000 over to the authorities; rather, what he says is that the money is "to be given back to the people if everything blows up". Later on, in the course of the interchanges, Mr Grobbelaar effectively repeats this, saying:

".... that money will be put into a box. At the end of the day that money will go back to the people that, will go back to the people."

[189]Mr Grobbelaar then gives his explanation that he is seeking evidence against Mr Vincent (whom he distrusted), and that his admissions of having thrown or attempted to throw matches were made in order to entrap Mr Vincent into revealing more information about his corrupt proposal.

[190]It is also to be noted that in answer to questions from the journalists Mr Grobbelaar said that the £20,000 which he paid Mr Vincent in November 1993 came out of his testimonial fund. It is common ground that this was not the case. At the trial, Mr Grobbelaar's evidence was that it came from his sock drawer.

[191]The journalists concluded the ambush at Gatwick by asking Mr Grobbelaar to telephone Mr Higgins, the editor of The Sun. Mr Grobbelaar did so. The conversation was recorded. In the course of the conversation, Mr Grobbelaar asserted once again (falsely) that the £20,000 came from his testimonial fund. Mr Higgins asked him:

"Did you accept cash to lose matches?"

. Mr Grobbelaar replied:

"No.... It came down that a certain person said to me you would get £2,000 per two weeks where you can actually pick a game at the end of the season blah blah blah, and I said, well. He said it was going to be a push, a sure fired thing. I said, it had to be put in a box because at the end of the day, I did not want to throw matches. And if it didn't come down that money would go back to the certain person what was actually giving it to me."

[192]Later in the conversation, Mr Grobbelaar told Mr Higgins:

".... I've got to get my own evidence against that person [meaning Mr Vincent]. And I know where that person comes from now."

[193]When Mr Higgins asked Mr Grobbelaar about the £40,000 which Mr Grobbelaar had, on the tape, admitted receiving, Mr Grobbelaar replied:

"That is the money I told you about me receiving from my testimonial fund."

As already noted, that was not true (as Mr Grobbelaar later accepted).

[194]In contrast to the inconsistencies and untruths to which I have referred, however, Mr Grobbelaar was consistent throughout his encounter with the journalists and his telephone conversation with Mr Higgins in denying that he had ever attempted to throw a match or let in goals. QUALIFIED PRIVILEGE

[195]I turn next to the issue of qualified privilege.

[196]In ruling that a defence of qualified privilege was not open to The Sun, the judge applied the law as stated in the decision of this court in Reynolds v. Times Newspapers Ltd

[1998] 3 WLR 862

. At the date of his ruling, an appeal to the House of Lords in Reynolds had been heard, but the decision of the House of Lords had not been published. That decision is now reported at

[1999] 3 WLR 1010

. Although the House of Lords rejected the Court of Appeal's formulation of the relevant factors in determining whether a defence of qualified privilege was available, it confirmed the underlying principles expressed by the Court of Appeal. Hence it is not open to The Sun to challenge the judge's ruling on the basis the decision of the House of Lords in Reynolds effectively undermines his ruling; nor did Mr Spearman seek to do so.

[197]In his ruling, the judge began by correctly posing the overall question whether it was in the public interest that the publication of the material complained of be protected by qualified privilege. After a detailed examination of the relevant authorities, and particularly the decision of the Court of Appeal in Reynolds , the judge turned to the application of the relevant principles to the facts of the instant case. He concluded that to the extent that The Sun was under any duty to publish the information in question, its duty was to alert the proper authorities, as opposed to publishing the information to the public at large. In this connection, he said this:

"In my judgment the appropriate mode of discharging the duty which lay on the newspaper when it came into possession of the material relating to the alleged match fixing by Mr Grobbelaar was to communicate the information to the police or the regulatory body for football for them to take whatever action was in their view merited by the information. To hold that a publication such as the publication in The Sun is protected by privelege would, in my judgment, be to stretch the ambit of privilege beyond that which the public interest requires."

Later in his ruling,

the judge said this:

"I make no criticism of the defendants for wanting to publish their sensational and exclusive story, but in my judgment they were not under a duty, in the proper sense of that term, to publish information about the allegedly criminal conduct of a goalkeeper. The position might have been different if the defendants had gone to the police and the FA with the information about Mr Grobbelaar but no action against him followed."

[198]Having reached that conclusion, the judge did not consider it necessary to investigate the circumstances of publication any further, and he accordingly ruled against The Sun.

[199]In his judgment, which I have had the benefit of reading in draft, Simon Brown LJ has quoted extensively from the speech of Lord Nicholls in Reynolds . I can therefore turn straight away to the various matters which Lord Nicholls identified (on page 1027 of the report) as being matters to be taken into account in considering whether a defence of qualified privilege is available. The seriousness of the allegations

[200]Mr Spearman accepts, as he is bound to do, that the allegations against Mr Grobbelaar, both on and off the pitch, are extremely serious. This aspect needs no elaboration. The nature of the information, and the extent to which the subject matter is a matter of public concern

[201]In my view, allegations of corruption against a well-known professional footballer are plainly a matter of public concern. I do not share the judge's view that The Sun's duty in relation to such allegations was limited to making them known to the appropriate authorities. Investigative journalism can be of considerable public benefit, but without the incentive of being in a position to publish an exclusive story on a sensational subject a newspaper will inevitably be less enthusiastic about committing its time and resources to investigating the story. The prospect of the resulting "scoop" seems to me to be part and parcel of the process of investigative journalism. The source of the information

[202]Mr Spearman submits that the "source" of the information was Mr Grobbelaar himself, through his taped admissions. It is Mr Grobbelaar's case, on the other hand, that the source of the information was Mr Vincent. On that basis, it is contended on behalf of Mr Grobbelaar that the source of the information was thoroughly disreputable.

[203]I accept Mr Spearman's submission. Had The Sun done no more than print what Mr Vincent told Mr Troup, then plainly the source of that information could only have been Mr Vincent. But in the event The Sun took the view that it was desirable that corroboration of what Mr Vincent had told Mr Troup be obtained out of the mouth of Mr Grobbelaar himself. Hence the taped meetings. In my judgment, the effective source of the material complained of was Mr Grobbelaar himself. The steps taken to verify the information

[204]The Sun took steps to verify the information provided to it by Mr Vincent by arranging for Mr Vincent to put a corrupt proposal to Mr Grobbelaar and by covertly recording the occasions when this was done. An agent provocateur is never an attractive figure, but on the other hand the task of obtaining firm evidence of corruption is never likely to be an easy one and the use of an agent provocateur may provide an effective means to that end. At the same time, the manner in which The Sun carried out its investigation appears to have been amateurish, to say the least. As I recounted earlier, its attempt to record what transpired at the meeting which took place on 12 September 1994 failed because Mr Vincent's coat was too thick; and in relation to the remaining meetings, much of the conversation was, as the transcripts show, indecipherable.

[205]Nor, it appears, did The Sun take any steps to verify the charges of actual match fixing by examining recordings of the matches in question, if necessary with the assistance of an expert. Most surprisingly, it appears that assistance was not even sought in this connection from The Sun's own football journalists who had been present at the matches in question. The status of the information

[206]The information in question had no authoritative "status" in the sense in which Lord Nicholls used that word (after listing the status of the information as a matter to be taken into account, Lord Nicholls went on to say: "The allegation may have already been the subject of an investigation which commands respect"). The urgency of the matter

[207]The matter was urgent only in the sense that if the information was true it was in the public interest that the guilty parties be exposed sooner rather than later. On the other hand, the date of initial publication was fixed to suit The Sun. So far as The Sun was concerned, any urgency lay in the need for it to publish a world exclusive on a sensational subject. Whether comment was sought from the claimant

[208]In my judgment, the ambush of Mr Grobbelaar at Gatwick by journalists from The Sun was a thoroughly deplorable way of confronting Mr Grobbelaar with the extremely serious allegations made against him. Not only were the journalists falling over themselves to bombard Mr Grobbelaar with accusations, but the whole occasion was orchestrated by The Sun to achieve maximum publicity and to cause Mr Grobbelaar maximum surprise, embarrassment and stress. An editorial decision had already been taken to run the story, and most of the articles had been written many days before. Moreover, two journalists from The Sun were booked on the flight to Zimbabwe to follow up the story when Mr Grobbelaar arrived there. The purpose of the ambush was not to enable Mr Grobbelaar to put his side of the story, but to put him in a position of maximum discomfort and at the greatest possible disadvantage, for the delectation of The Sun's readers.

[209]It is true that by the time he came to speak to Mr Higgins on the telephone Mr Grobbelaar had had a few moments to compose himself, but by then the damage was done. I agree with Mr Hartley that Mr Carman's assertion to the jury that the ambush at Heathrow and the telephone call to Mr Higgins afforded Mr Grobbelaar an opportunity to give a "coherent, logical and rational" explanation for the admissions on the tapes is unreal. On the other hand, as I have already commented, one would have expected Mr Grobbelaar to take the earliest opportunity to make clear (if indeed it was the case) that his taped admissions were false, and that he had made them in order to entrap Mr Vincent and those for whom Mr Vincent purported to act. I shall return to this. Whether the articles contained the gist of Mr Grobbelaar's side of the story

[210]The Sun did not print the reasons which Mr Grobbelaar gave for wanting to obtain evidence that Mr Vincent was dishonest (viz. Mr Vincent's conduct in relation to the Mondoro project). It printed some of the exchanges which occurred in the course of the ambush at Gatwick and in the subsequent telephone conversation between Mr Grobbelaar and Mr Higgins, but for reasons I have already given that is not a factor of any significant weight so far as qualified privilege is concerned. The tone of the material complained of

[211]The general tone of the printed matter can be gained from the quotations made earlier in this judgment. Not only were allegations paraded as facts, but the accused was repeatedly held up to public ridicule. It was as if The Sun had placed Mr Grobbelaar in the stocks, to be publicly mocked, abused and derided for the amusement of the populace. Nor is that all. Particularly distasteful is the fact that one of the articles also involved Mr.Grobbelaar's wife and children. The circumstances of the publication, including the timing

[212]I described the circumstances of publication earlier in this judgment. As to timing, the publication of the material complained of was timed to suit The Sun.

[213]Taking the above factors into account, and looking at all the circumstances in the round, I have no hesitation in concluding that it is not in the public interest that the publication of the material complained of should be protected by qualified privilege, and that the judge was right in so ruling. THE JUDGE'S SUMMING UP

[214]I referred earlier in this judgment to the contrasting approaches of Mr Hartley and Mr Carman in presenting their respective cases to the jury, with Mr Hartley concentrating on actual match fixing, and Mr Carman on the alleged corrupt agreements by Mr Grobbelaar (first with Mr Lim and subsequently with Mr Vincent). This difference of approach was, inevitably, reflected in the way the judge summed up the case to the jury.

[215]After directing the jury generally about its function, the judge turned to the defamatory meaning of the material complained of. I quoted the relevant passage from his summing up earlier in this judgment. The judge then directed the jury that what The Sun had to do in order to succeed with its defence of justification was to establish the substantial truth of the defamatory meaning (or meanings) of the material complained of, on the balance of probabilities. In relation to substantial justification, the judge said this:

"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 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 might say, and indeed has said, that if there was not 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; 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."

[216]Later in the summing up, following his review of the evidence, the judge directed the jury in relation to damages, setting out the relevant factors to be taken into account in arriving at a proper figure for compensatory damages. The judge then continued:

"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 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 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."

[217]The judge then went on to refer to general levels of damages in personal injury actions, in case the jury should find the comparison helpful in deciding what level of damages to award in the instant case. The judge gave as the highest figure an award of £100,000 upwards for paraplegia; the lowest figure he gave was £30,000 or thereabouts for the loss of an eye. The judge then suggested a bracket within which any award of damages might fall, saying this:

"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."

[218]The judge then turned to the evidence relevant to the level of damages. Having reviewed that evidence, the judge concluded his summing up by directing the jury as to the nature of exemplary damages. THE JURY'S VERDICT

[219]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.

[220]Mr Spearman contends, as I indicated earlier, that the jury's verdict cannot stand. He submits that on the evidence (essentially, on the evidence of the tapes) the jury, acting reasonably, were bound to find that Mr Grobbelaar was party to both of the corrupt conspiracies alleged; and that on the basis of that finding the jury must have found that The Sun's defence of justification was made out, in that The Sun had substantially justified the charges which it had made against Mr Grobbelaar. Mr Spearman accordingly invites us to set aside the jury's verdict on the basis that it was unreasonable and/or perverse.

[221]It is clear on authority that this court will only set aside the verdict of a jury in a defamation case on very strong grounds. As it is put in Gatley on Libel and Slander, 9th edition, at paragraph 36.19:

"The jury are the constitutional tribunal for the decision of libel or no libel, and only in an extreme case will their verdict be set aside as unreasonable. If the words complained of are capable of a defamatory meaning and the jury have found in fact that the words do bear that meaning, the court will not set aside the verdict. And where, though the words are capable of a defamatory meaning, the jury have found in fact that the words do not bear that meaning, the verdict will not be set aside unless it is unreasonable. In the absence of a misdirection the appellate court will only interfere with a finding of the jury if it was one which a jury, viewing the whole of the evidence reasonably, could not properly find."

[222]On the other hand: "[t]he fact that the subject matter of the jury's deliberations in such a case is a matter involving the law of defamation and of fact finding in that area does not involve some special magic. In this as in any other area of fact a jury are capable of arriving at a conclusion which is incontrovertibly wrong and which can be set aside on appeal" (see Evans v. Davies [1991] 2 Qd. R. 498 at 511 per Macrossan CJ).

[223]In Australian Newspapers v. Bennett

[1894] AC 284

, where the issue was as to the meaning of the words complained of, the Privy Council said this (at p.287):

"It is not disputed that, whilst it is for the Court to determine whether the words used are capable of the meaning alleged in the innuendo, it is for the jury to determine whether that meaning was properly attached to them. It was therefore the province of the jury in the present case to determine whether the words used .... bore the defamatory sense alleged. [The judge below] observed in the course of his judgment that he admitted that the Court would only be justified in reversing the finding of the jury "if their decision upon that point is such as no jury could give as reasonable men"

. This is a correct statement of the law. Their Lordships have not, any more than the Court below had, to determine in the present case what is the conclusion at which they would have arrived, or what is the verdict they would have found. The only point to be determined is, whether the verdict found by the jury, for whose consideration it essentially was, was such as no jury could have found as reasonable men."

[224]As that passage makes clear, it is not for an appellate court to second-guess the jury; it is for the jury to find the facts. On the other hand, as Macrossan CJ said in Evans v. Davies in the passage quoted above, a verdict in a defamation case involves no "special magic". Where it is plain from the jury's verdict that in reaching it the jury has fundamentally misdirected itself – in other words, where the verdict is so plainly wrong that no jury, acting reasonably, could have reached it – then the appellate court has not only the power but the duty to intervene.

[225]Nor, as the authorities show, is it necessary for The Sun to establish that the judge misdirected the jury in the course of his summing up. Where such a misdirection occurs, the task of the unsuccessful party in challenging the resulting verdict will no doubt be very much easier, but the existence of a misdirection by the judge is not be a prerequisite for such a challenge.

[226]In the instant case, I can find no misdirection in the judge's summing up. Earlier in this judgment I criticised his conflation of the two pleaded meanings of the material complained of into a single composite meaning. Further, it would in my judgment have been preferable for the judge, when dealing with substantial justification, to have explained more fully to the jury the distinction between the charges of actual match fixing and those of corruption by accepting bribes to fix matches, and to have emphasised the seriousness of each category of charge. But in my judgment these criticisms of the summing up do not warrant the conclusion that there was a misdirection.

[227]I accordingly address the question whether the jury's verdict (based, as Mr Hartley concedes it was, on its finding that Mr Grobbelaar was innocent of both the alleged corrupt conspiracies) was one which a jury, acting reasonably, could have reached; and I address that question on the basis that there was no misdirection by the judge.

[228]In the first place, it was plainly open to the jury to accept the evidence of Mr Bob Wilson (supported as to the Coventry match by the evidence of Mr Alan Ball) and to conclude on the basis of that evidence that, whatever their assessment of Mr Grobbelaar's credibility, Mr Grobbelaar had not deliberately let in goals in any of the matches in question.

[229]Secondly, and on the other hand, had the jury concluded that Mr Grobbelaar was guilty of the charge of corruptly accepting bribes to fix matches, it must in my judgment, acting reasonably, have concluded that Mr Grobbelaar's claim for damages must fail. In other words, it must in my judgment, acting reasonably, have accepted Mr Carman's proposition that it would be an "affront to justice" for Mr Grobbelaar's claim for damages to succeed notwithstanding that The Sun's charges that he had corruptly accepted bribes to fix matches had been made out . As Mr Spearman demonstrated, corrupt acceptance of bribes is, in itself, a criminal offence. By contrast, Mr Hartley's contrary proposition, namely that if The Sun failed to prove that Mr Grobbelaar had deliberately let in goals in the matches in question then Mr Grobbelaar's claim for damages should succeed notwithstanding that the jury might have concluded that he was guilty of the charge of having corruptly accepted bribes to fix matches, does not seem to me to bear examination. In my judgment a finding by the jury that Mr Grobbelaar had corruptly accepted bribes to fix matches must, on any rational basis, be fatal to Mr Grobbelaar's claim for damages.

[230]In the event, the jury must have concluded(a) that Mr Grobbelaar had not been guilty of deliberately letting in goals in the matches in question, and

(b) (as is accepted by Mr Hartley) that he had not participated in either of the two alleged conspiracies and accordingly had not corruptly accepted bribes to fix matches. Conclusion (a) is in my judgment unimpeachable, in the light of the evidence of Mr Wilson and Mr Ball. The question, therefore, is whether conclusion (b) is one which a jury could have reached, as reasonable individuals.

[231]To answer this question, it is necessary to examine the plausibility of Mr Grobbelaar's explanation for his taped admissions of corruption in the past, and of his willingness to participate in corruption in the future: viz. that he was inventing them on the spur of the moment, with a view to eliciting information from Mr Vincent (whom he suspected of having behaved dishonestly in relation to the Mondoro venture) about his corrupt proposal which he could place before the authorities. As explained earlier, this is Mr. Grobbelaar's only explanation for those admissions

[232]The jury had the benefit of seeing and hearing Mr Grobbelaar give evidence. He began his evidence in the course of the afternoon of the fourth day of the trial, and completed it during the afternoon of the seventh day: so his evidence took about three court days. Moreover, he was subjected to a lengthy and penetrating cross-examination by Mr Carman QC, one of the most celebrated exponents of the art of cross-examination. Mr Carman's cross-examination of Mr Grobbelaar lasted some two court days. In the circumstances, the burden on The Sun of showing that the jury were, in effect, bound to reject Mr Grobbelaar's explanation of his taped admissions is inevitably a heavy one to discharge.

[233]At the same time, any jury acting reasonably must, in my judgment, have recognised the glaring implausibility of Mr Grobbelaar's explanation, given(a) the tone and content of the taped conversations (some examples of which I have quoted in the course of this judgment, but there are many more),

(b) the lies which Mr Grobbelaar told in the original version of his Reply,

(c) Mr Grobbelaar's initial reaction to the accusations levelled at him by the journalists when they ambushed him at Gatwick, and

(d) the telephone conversation between Mr Grobbelaar and Mr Higgins.

[234]In relation to Mr Grobbelaar's excuse for not having immediately revealed his (alleged) plan to entrap Mr Vincent when faced by the journalists at Gatwick, I earlier made the point that, accepting the very unsatisfactory nature of that confrontation, one would nevertheless have expected Mr Grobbelaar, if his explanation for the taped admissions was true, to have reacted by immediately disclosing that the admissions were made in order to entrap Mr Vincent. His failure to do so seems to me to be a most telling factor in considering whether his explanation is credible.

[235]A number of further factors serve to confirm to the implausibility of Mr Grobbelaar's explanation for his taped admissions. These include:

[117]I must, however, refer to two particular factors on which Mr Hartley relies, which might be said to support Mr Grobbelaar's explanation of the taped admissions.

[118]Firstly, Mr Hartley suggests that it is inherently improbable that a well-known footballer earning as much as Mr Grobbelaar was earning at the time would have put not only his career and his family but also his personal liberty in jeopardy for the sake of sums of money as relatively paltry as those which featured in the evidence in this case.

[119]Secondly, Mr Hartley relies on the evidence of Mr Bob Wilson. He submits that the significance of Mr Wilson's evidence for present purposes is that it is relevant not only to the charges of actual match fixing but also to the admissions which Mr Grobbelaar made on the tapes as to his one successful attempt to let in a goal (in the Coventry match) and his three unsuccessful attempts to do so. If no actual match fixing took place, submits Mr Hartley, then it must follow that Mr Grobbelaar's "admissions" that it did take place must have been false; a conclusion which is (to put it at its lowest) consistent with Mr Grobbelaar's case that all the admissions on the tapes were false.

[120]Further, Mr Hartley reminds us that, so far as the standard of proof is concerned, the more serious the allegation the more cogent must be the evidence which is required to prove it on the balance of probabilities. Hence, the standard of proof applicable to The Sun's defence of justification is commensurately stricter, by reference to the seriousness of the allegations which it has made against Mr Grobbelaar.

[121]Notwithstanding these factors, I would have no hesitation in rejecting Mr Grobbelaar's explanation of his taped admissions relating to his corrupt arrangements with Mr Lim and Mr Vincent. That, however, is not the relevant question. The relevant question is whether the jury could, acting reasonably, have concluded on the balance of probabilities (and allowing for the fact that, given the seriousness of the allegations against Mr Grobbelaar, The Sun has to prove its case to a higher standard) that Mr Grobbelaar's explanation of those admissions was true.

[122]I conclude that the answer to that question is No. Assuming that the jury concluded, based on Mr Wilson's evidence, that Mr Grobbelaar's apparent admissions on the tapes to the effect that he had deliberately let in (or attempted to let in) goals were not true, that conclusion cannot outweigh all the other factors which point inescapably to Mr Grobbelaar's explanation of his taped admissions of corrupt arrangements with Mr Lim and Mr Vincent being untrue. In my judgment, Mr Grobbelaar's explanation of those admissions is so utterly implausible that no jury, acting reasonably, could have accepted it as true. It follows, for reasons explained earlier, that the jury's verdict cannot stand, and must be set aside. RESULT

[123]In my judgment, the jury's verdict in this case represents a miscarriage of justice which this court can and must correct. In agreement with my Lords, I would allow this appeal and set aside the jury's verdict.

Order

Appeal Allowed. The appellants to have the whole of their costs below and half of their costs of the appeal. Permission to appeal to the House of Lords refused. Permission to retain publication until the result of the petition to the House of Lords refused. (Order does not form part of the approved judgment)