McPHILEMY v (1) TIMES NEWSPAPERS LTD (2) LIAM CLARKE and (3) ANDREW NEIL [2001] EWCA Civ 871

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(MR JUSTICE EADY)

[2001] EWCA Civ 871

Case No Case No: A2/2000/2395

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 12th June 2001

Between

McPHILEMYRespondent

(1) TIMES NEWSPAPERS LTD (2) LIAM CLARKE and (3) ANDREW NEILAppellants

Before

Lord Justice Simon Brown

Lord Justice Chadwick

Lord Justice Longmore

Mr Andrew Caldecott QC & Ms Caroline Addy (instructed by H2O Henry Hepworths of London WC1N 2HH) for the Appellants

Mr James Price QC & Mr Matthew Nicklin (instructed by Bindman & Partners of London WC1X 8QF) for the Respondent

Date 12 June 2001

LORD JUSTICE SIMON BROWN:

Introduction

[1]The respondent is a journalist and managing director of Box Productions Limited, a television production company. On 2 October 1991 he was responsible for a Dispatches programme called The Committee produced by Box for Channel Four Television. The general thesis of the programme was that there was, in Northern Ireland between 1989 and 1991, a committee known as "The Central Co-ordinating Committee" (The Committee) consisting of prominent and apparently respectable members of the Loyalist community. It was said that there was also an organisation of disaffected Royal Ulster Constabulary (RUC) officers known as the "Inner Circle", which controlled a larger organisation within the RUC known as the "Inner Force". It was said that The Committee obtained from the RUC the names of suspected Republicans, which were then passed to Loyalist paramilitary organisations to carry out their assassinations. The members of The Committee were thus co-conspirators in the resulting murders.

[2]On 9 May 1993 the appellants published a long article in the Sunday Times, headed "Film on Ulster death squads a hoax, says missing witness", claiming that the programme was a hoax, the general theme of the article being that the quality of the sources for the programme, in particular a Mr Sands, was so poor and unreliable that no respectable broadcaster would have considered putting it out.

[3]On 3 May 1996 the claimant issued a writ alleging that the article was defamatory, its clear meaning being that he was a hoaxer and deceiver. There was an issue in the action as to the meaning of the article. In addition the appellants pleaded justification.

[4]On 30 March 2000, following a trial of 38 days before Eady J and a jury and 5 days of jury deliberations, judgment was given for the claimant on the jury's unanimous verdict for general damages of £145,000, leaving special damages (claimed at some £250,000 plus interest) to be assessed by the judge alone. The six questions put to the jury and their answers to them were as follows:

"(1) Do you find that the Sunday Times article of 9 May 1993 was defamatory of Mr McPhilemy? Answer: Yes. (2) Have the Sunday Times proved on the balance of probabilities that there was no Ulster Central Co-ordinating Committee, as described in the programme of 2 October 1991? Answer: No. (3) In any event, have the Sunday Times proved that Mr McPhilemy was deliberately setting out to mislead the viewers as to the case put forward in the programme for the existence or activities of the Committee? Answer: No. (4) If the answer to question (3) is "

No", have the Sunday Times proved on the balance of probabilities that he was reckless as to the truth of the programme's allegations as to the existence or activities of the Committee? Answer: No. (5) In the light of your conclusions (both as to the meaning of the Sunday Times article and the questions (1) to (4)), have the Sunday Times succeeded in proving (again on the balance of probabilities) that the article of 9 May 1993 was substantially accurate? Answer: No. (6) If you find that the article was defamatory of Mr McPhilemy personally and that the Sunday Times have not proved the article to be substantially accurate, how much do you award him by way of general damages? Answer: £145,000."

[5]The award is now challenged on appeal by permission of the judge below, the appellants' central contention being that the jury's negative answer to question (2) was perverse. No reasonable jury, they seek to argue, could have failed to conclude that the appellants had proved on the balance of probabilities that The Committee did not in fact exist. In particular, the only evidence called on the issue was the unchallenged and uncontradicted evidence of the great majority of those alleged to have been the members of The Committee, all of whom were of good character and all of whom denied any involvement with such a body. In the result, the appellants wish to contend, the jury's verdicts on all questions should be set aside and a fresh trial ordered, preferably by judge alone (preferably, indeed, by Eady J alone), alternatively at the very least that the damages award should be set aside.

[6]At the outset of the appeal, before embarking on full argument as to whether or not the jury's answer to question (2) should indeed be regarded as perverse, we indicated that in the light of the history of this litigation, and not least the particular circumstances in which question (2) came to be put to the jury, we needed to be persuaded that an appeal on the basis proposed was properly open to the appellants. Having listened to Mr Caldecott QC for something over a day, we were not so persuaded; on the contrary, we concluded that an appeal on this basis would involve an abuse of process and bring the administration of justice into disrepute. This judgment is devoted to that issue, not (save very tangentially) to the alleged perversity of the verdict.. The early history of this litigation

[7]The early history of this litigation is to be found in some detail in this Court's judgments (Lord Woolf MR, Judge and May LJJ) on 21 May 1999 in McPhilemy v Times Newspapers Limited

[1999] 3 All ER 775

. The issue before the Court of Appeal on that occasion was whether the appellants should be allowed to re-amend their Particulars of Justification in order to challenge the existence of the murder conspiracy (in other words, to dispute the entire Committee thesis propounded in the programme). The respondent argued that the central issue in the case was whether he was a party to hoaxing or deceiving the public, not the truth or falsity of the alleged conspiracy, and that the time and expense of litigating the issue properly would be wholly disproportionate, not least having regard to his own lack of means. The Court of Appeal nevertheless upheld Eady J's order allowing the re-amendment. May LJ, giving the leading judgment, said that:

" in this instance it adds to the defamatory sting to say, not only that main content of the programme was based on obviously worthless evidence, but that it was, or that it probably was, untrue."

(p.789h)

[8]He later added:

"I accept that the truth or falsity of the existence of The Committee which Sands alleged existed is a wide subject. It will be for the trial judge to direct the jury (if there is one) what the issues at the end of the evidence are and what questions of fact they have to decide. It may also be appropriate to direct the jury that, although it would be open to them to decide on the evidence whether it is true that The Committee to which Sands referred did or did not exist, they may feel that it is unnecessary to reach a conclusion on that question in order to decide whether the sting of the libel is justified. There is in my view considerable force in Mr Caldecott's twin submissions that the defendants should not in this case be deprived of an important element of their case of justification, and that there is a real risk that vindication of the plaintiff in a case from which this element had been excluded would nevertheless be seen as vindication of his thesis."

(p.79 d-j)

[9]In his original Reply served in January 1997, the respondent had pleaded affirmatively that the Committee thesis was true (indeed, in February 1998 he published a book in the United States unequivocally reasserting it). In the face of the appellants' proposed re-amendment, however, and before Eady J's order allowing it, he had re-amended his Reply to resile from this assertion.

[10]Application for trial by judge alone I come next to Eady J's order on 8 July 1999 dismissing the appellants' application for trial of the action by judge alone. The respondent had opposed that application on the following basis:

"For reasons not of my own making, and indeed against my expressed wishes, the trial of this action may become the forum in which the British State and its agencies stand accused of complicity, or worse, in sectarian murder and terrorism in both Northern Ireland and the Republic of Ireland. It is inevitable that the integrity of the security forces and judicial system will be called into question. It is hard to imagine a more profoundly serious issue for a libel trial to address. It is undesirable that the reputation of the security and intelligence services and of the UK as a civilized country should rest on the trial of this libel action when it cannot hope to deal comprehensively with such weighty and constitutionally important matters (which in my submission are at best tangential to the central issues relating to the vindication of my reputation). Since the Court of Appeal has determined that the issues of truth or falsity are not to be excluded, the entire burden of deciding these matters would fall to the judge if this case were to be tried by judge alone. It is my firm conviction that the undoubted integrity upon which a High Court judge would draw in trying the case without the benefit of a jury would be ineffective, were I to lose this action, to counter the perception, both at home and abroad, that I had been denied a jury to secure that result. A trial by judge alone would I believe have the effect of undermining public confidence that I have been treated fairly in the trial of this highly sensitive case."

[11]In a full judgment extending to 34 pages of transcript, Eady J said that he had "come to the conclusion, without difficulty, that this is a case requiring detailed and prolonged examination of documents which cannot be conveniently tried with a jury", but that nevertheless his discretion should be exercised against trial by judge alone because the case involved "very grave issues of public interest. Both the gravity of the allegations and their nature are in my judgment factors pointing in the direction of jury trial". He concluded that this was an exceptional case and that jury trial should be ordered provided "it would be possible to take account of the genuine concerns of the defendants which I certainly share, that the outcome may leave question marks over important aspects of the case." He decided that this could be achieved by giving the jury a list of questions and that this list should include a question along the lines of what ultimately became question (2).

[12]The respondent's Part 14 Notice At the pre-trial review on 21 December 1999 the respondent produced a document signed by counsel in the following form:

" NOTICE UNDER PART 14 OF THE CPR For the purposes of these proceedings the claimant does not challenge the matters pleaded in paragraph (10A) of the Particulars of Justification [namely that 'none of those identified has ever conspired to commit any murders and are not members of any organisation such as The Committee as described in the programme ] and does not put the defendants to proof of the same. For the avoidance of doubt, this Notice is served without prejudice to the claimant's case as to his belief in the truth of the said matters at any material time, or his alleged or any recklessness with respect thereto."

[13]By that Notice the respondent sought to litigate the case "on the footing that the thesis of The Committee is false. That is the position we choose to adopt". Mr Price QC had, he explained to the judge, advised the respondent that he could not embark on the procedure of proving The Committee thesis to be true and would not be able to challenge the alleged members' evidence on the issue. "Consequently we admit it". The appellants, he submitted, ought accordingly to be precluded from calling the alleged members. Mr Price made it plain, however, that could not force the respondent to abandon his conviction.

[14]There was some discussion as to why the Part 14 Notice was framed as a non-challenge rather than an admission but it was not this which proved the sticking point. After argument extending to 33 pages of transcript

the judge ruled:

"The wording in itself is not satisfactory in that it purports to come under Part 14 but is not so framed, that is to say not framed as an admission. But, even if you were to come back with the word 'admission' in it, that would not get rid of the fundamental difficulty which is the divergence between the stance which you are taking on Mr McPhilemy's behalf as a lawyer and Mr McPhilemy's own personal stance to which he is fully entitled. The difficulty in this case, it seems to me, is that if he is admitting something which actually he still believes to be true and his beliefs are going to come into play in the course of the trial in front of the jury, the fundamental injustice of the case is still going to come about, namely that the jury will be left with the impression that they should address the possibility that these were murderers or conspirators to murder without those people having had the opportunity to address the matter in the witness box. Whether Mr McPhilemy wishes, through you, to cross-examine them or not is a separate question."

[15]In the light of that ruling the Part 14 Notice was subsequently withdrawn.

[16]Day 24 discussion of jury questions The trial began on 25 January 2000, the judge having on 10 January refused a second application by the appellants for trial by judge alone for the same reasons as before. On 28 February 2000 (day 24 of the trial), after the claimant's evidence had been called, there was discussion as to the form of the questions to be put to the jury. The respondent's written submissions with regard to what became question (2) included the following:

"On our case, question (2) does not arise, but we apprehend that the Court considers it fair that the question should nevertheless be asked (whether it strictly arises or not). The Claimant does not raise a positive case about it, though that would perhaps not prevent us from arguing for a 'no' answer to the question as drafted. We are concerned, however, that if the alleged Committee members deny their membership, and the Claimant raises no positive case to the contrary, there can be only one answer to the question. If that were so, the Court would have to withdraw the issue from the jury, which might defeat the object the Court has in mind in posing the question. Our position is the jury cannot and should not find that the Committee exists. So for us to argue for a 'no' answer would put us in a somewhat false position. Our position is that the matter should be the subject of an independent inquiry by a tribunal with the investigative resources necessary to get at the truth, in particular full access to the large amounts of relevant material that exist (in the hands of the security forces, inaccessible to this trial). If, therefore, the Court considers it fair that the question should be asked, we would wish to be able to argue for an answer that reflects our true position. So, we have respectfully proposed a multiple choice answer to the question."

The "multiple choice answer" proposed was either "(a) Yes", "(b) No", or "(c) We do not find that there was such a Committee but we consider that the matter should be resolved by an independent inquiry."

[17]Day 31 discussion of question (2) before counsel's speeches On 13 March 2000 (day 31 of the trial), after the evidence had been completed, question (2) was considered afresh, in particular as to what Mr Price should be permitted to say about it to the jury. Mr Price put before the judge a one-page document contending that, having regard to certain aspects of the evidence (which for present purposes it is unnecessary to specify) "a reasonable person could and/or should suspend judgment about the existence and composition of The Committee alleged by Sands pending an outside investigation (such as the Stalker or Stevens or Bloody Sunday inquiries)." He wished, therefore, to invite from the jury the answer 'no' to question (2), not on the basis that the evidence proved The Committee to exist, but rather because the appellants had not proved the contrary. The submissions on this issue extend to over 60 pages of transcript. They include the following. Having cited from Phipson on Evidence 15 th Edn "that a failure to cross-examine does not bind the Tribunal of fact to accept the unchallenged evidence", Mr Caldecott continued:

"That I accept. One cannot tell the jury they have to accept it, but what my learned friend cannot do is to invite them to disbelieve it"

. A little later he said:

"He [Mr Price] does not have to accept that we have proved that The Committee is [un]true. He does not have to do that He does not have to say, 'of course I accept that they are all telling the truth' Mr McPhilemy is not driven to accept it and the jury are not driven to accept it."

[18]Mr Price then submitted "if Mr Caldecott's position now is correct [i.e. that because the appellant's evidence was unchallenged, the respondent should not be permitted to argue for a 'no' answer], your Lordship should withdraw the question from the jury, it is your Lordship's duty to do so", to which Mr Caldecott responded: "My Lord, that plainly would not be right because the very rule that they are not bound to accept a witness's evidence means that it would not be right to withdraw the issue from the jury".

[19]Mr Caldecott added:

" the evidence has been called, he [Mr Price] has not challenged it The jury may not accept the evidence Your Lordship, with respect, is trying to be led down a path which would be unwise, which is to withdraw it from the jury, which I most certainly am not urging, that would be, with respect, a wrong approach."

[20]Strictly speaking, it was inaccurate to talk about "withdrawing" the question from the jury: the questions were not put before the jury until counsel's speeches began.

[21]Later Mr Caldecott said that the appellants' non-admission on the pleadings that there was no Committee:

" just puts me to having to put them [the witnesses] in the witness box and satisfy the jury, that is the effect of it. I still have to satisfy them [the jury]. They are not bound to accept it."

[22]Mr Price contended:

"Mr Caldecott's argument is there is nothing on the other side, so his submission has to be that there is no evidence on which a jury properly instructed could answer No to that question. Well, what is the question doing being left to the jury? In those circumstances it is the judge's duty to withdraw it."

The judge responded:

"I am not sure that is right, because I cannot tell the jury that they have to accept a particular witness as credible."

[24]The following day (day 32 of the trial), in the course of a 21 page ruling that although question (2) would be put to the jury Mr Price would not be permitted to invite a negative answer, Eady J said this:

"The jury are not bound, of course, to accept any witness's evidence. A jury could take the view that, whatever counsel may say on either side, they did not like the cut of the jib of a particular witness, or they found a particular aspect of a witness's evidence incredible. That is the jury's privilege, just as a judge sitting alone can come to such a conclusion. The question, however, is rather a different one, namely whether Mr Price can invite the jury to reject that evidence in the sense of concluding that the defendants have not discharged their burden. He is in effect wishing to say that, despite their unchallenged evidence on oath, that evidence should on the balance of probabilities be rejected; at least that is the conclusion which he wishes the jury to draw. It is certainly a conclusion the jury can draw. My problem is with the lengths to which Mr Price can go in inviting that conclusion by reasoned argument What I still (I am sorry to say after all this argument) have difficulty in understanding is how it can now be put on Mr McPhilemy's behalf to the jury that they should conclude the answer to question (2) is "

No" on the basis that the evidence cannot be accepted."

[25]The summing up The summing up took just over two days. With regard to question (2) it included the following directions:

" you have heard evidence from some of the people alleged by Sands and by Mr McPhilemy to have been members of The Committee. Their evidence, because they have come to court and taken an oath before you, is evidence in the case that you are entitled to take into account in deciding in whether or not the defendants have proved that The Committee did not exist. Of course, you do not necessarily have to accept it as true, but it is relevant and admissible evidence in this case. He [Mr McPhilemy] brought these proceedings to vindicate his name over allegations he had made publicly about a conspiracy to murder. He has never withdrawn them, but when the people named as conspirators [not in the programme but in subsequent documents] came over to England to confront him in these proceedings he did not put those allegations. Mr McPhilemy has had to recognise, for these reasons, that it is not possible to ask you to conclude in relation to these people or any of these individuals who have given evidence that they were guilty of what he accused them of. Thus, on the one hand, you have sworn evidence from the individuals concerned, unchallenged, that they had nothing to do with any such conspiracy. On the other hand you have literally no evidence at all that any of them was guilty. Litigation is not a game and these issues are manifestly very serious. In those circumstances it is a very difficult mater to understand how it can be said that the defendants have failed to prove the proposition they have set out to prove. It is a matter for you to decide; it is a matter for you to assess the evidence at the end of the day; but the defendants are entitled at least to ask what else could they have done but bring the witnesses to court to be cross-examined and to be dealt with face to face in respect of these charges."

[26]The appellants' argument on appeal It is against that background that the appellants now seek to contend that, so far from question (2) having to be left to the jury because it was a matter for them to assess the appellants' witnesses evidence which they were not bound to accept as true, question (2) in fact was capable of only one rational answer and that answer was 'yes'.

[27]In submitting that he should be entitled to advance this critical ground of appeal Mr Caldecott acknowledges that he was wrong to have urged upon the judge (or at the very least assented to the judge's own view) that question (2) had to be left to the jury because of their supposed right to reject the witnesses' evidence, but argues that this should not now debar him from contending that in the result the jury's verdict was demonstrably perverse.

[28]Even had the judge not wrongly felt obliged to leave question (2) to the jury, submits Mr Caldecott, he nevertheless had a discretion to do so. This was, he submits, a case where it was crucially important to obtain a verdict from the jury; both the judge and the defendants were sensitive to any suggestions of cover up. Had question (2) been withdrawn from the jury there was a risk they might have become disaffected. The judge might well, therefore, have decided to leave the question to the jury in any event.

[29]Whatever be the position as to that, however, the fact is that question (2) was left to the jury and, submits Mr Caldecott, the appellants should now be entitled on appeal to challenge the rationality of their answer. CPR 52.11(3) provides that "the Appeal Court will allow an appeal where the decision of the lower court was (a) wrong " As a matter of principle, he submits, if it is arguable that the jury's verdict is perverse and a party has permission to appeal (as the appellants have here from the trial judge), he should not be prevented from arguing it whatever the circumstances in which the question came to be left to the jury. Here, he submits, there were overwhelming reasons why the jury could not properly reject the unchallenged and uncontroverted evidence of the appellants' witnesses. It matters not whether one characterises these as reasons of fact, law or a mixture of both. The decision of the House of Lords in Browne v Dunn [1894] 6 R67 is the first in a line of powerful authority to that effect whatever may be the position in criminal cases. Nor does it matter that the question was left to the jury in circumstances where, as Mr Caldecott now recognises, it clearly need not have been: see Banbury v Bank of Montreal

[1918] AC 626

where the House of Lords held by a majority of 3:2 that the omission of the defendant in a jury action to ask the trial judge to nonsuit the plaintiff or to direct a verdict for the defendant on the ground that there was no evidence upon which the jury could reasonably find for the plaintiff does not preclude the Court of Appeal from entering judgment for the defendant on that ground notwithstanding such omission. As Lord Atkinson (one of the majority) observed at p.675:

"It seems hardly just or right that a verdict which never should have been found should have been allowed to stand simply because the judge was not asked to prevent its being found."

[30]Conclusions Having regard to the particular history of question (2) in this case, I would reject all these arguments.

[31]True it is that, as decided in Banbury v Bank of Montreal , a party's failure to invite the judge to withdraw an issue from the jury does not preclude the Court of Appeal from subsequently holding that the issue could only properly have been decided one way and the jury's verdict upon it was perverse. This Court's decision in Grobbelaar v News Group Newspapers

[2001] 2 All ER 437

holding the jury's verdict there rejecting the defence of justification perverse notwithstanding there having been no invitation to the judge below to withdraw the issue from the jury and enter judgment for the defendant is a recent illustration of that. Indeed, the principle clearly goes rather further. Let me read just two paragraphs from May LJ's leading judgment in this Court in Alexander v Arts Council of Wales

[2001] EWCA CIV 514

, a case in which as the trial judge had withdrawn from the jury the issue of malice on the basis that the primary facts were incapable of supporting the plea:

"38. Mr Milmo also drew our attention to the judgment of Bingham LJ in Kingshott v Kent Newspapers Limited [1991] 1 QB 88 at 99D. In that case a question arose under s.7 of the Defamation Act 1952 whether a newspaper article was a fair and accurate report of proceedings at a local public enquiry. The judge ruled that no reasonable jury properly directed could conclude that the words complained of were other than a fair and accurate report of the proceedings. Bingham LJ accepted that this was the correct test, but was not persuaded that the jury could not attach decisive weight to any of the plaintiff's points or to those points cumulatively. Relevantly for present purposes, he asked himself whether, if the issue were left to the jury and the jury found for the plaintiffs, that verdict would be set aside as perverse. His answer in that appeal was that he did not think it would. His judgment, however, shows that, if in a libel action the party's case depends on a finding of fact by the jury which, if it was so found, is bound to be set aside on appeal as perverse, the judge should withdraw that issue from the jury in the first place. In my view, this is not, as was suggested in Safeway v Tate [ Safeway Stores plc v Tate [2001] EMLR 350], speculating that the jury might reach a perverse decision: rather that the only jury decision capable of supporting the case in question would be bound to be set aside on appeal. 45. For these reasons [that if the judge had left the issue of malice to the jury and they had found in the claimant's favour the Court of Appeal would have set the decision aside as perverse], in my judgment the judge reached an entirely supportable conclusion which I would not disturb on appeal. I would, however, wish to add a note of caution. The judge made his ruling after about 8 days of evidence in what must have been a very expensive trial. As has appeared, there was a risk of his decision being overturned on appeal, in which event this court would probably have had to order a new trial. On the face of it that would have been disproportionately expensive but may have been unavoidable. The word of caution is simply to draw attention to the possibility in cases such as this of leaving questions to the jury, notwithstanding the judge's view on matters of law, to obviate or mitigate the risk of an expensive new trial."

[32]Perversity for these purposes is helpfully discussed in Lord Wright's speech in Mechanical and General Inventions v Austin Motor Co.

[1935] AC 346

(albeit, like Banbury v Bank of Montreal , not a defamation case). At pp.372-375, having set out some of the expressions used in the earlier authorities "miscarriage of the jury", "whether the evidence so preponderates against the verdict as to show that it was unreasonable and unjust", whether the jury's finding is "absolutely unreasonable" - Lord Wright said:

"Thus the question in truth is not whether the verdict appears to the appellate court to be right, but whether it is such as to show that the jury have failed to perform their duty."

[33]In short, it will often be unwise for trial judges to withdraw issues from the jury and by the same token unwise for counsel to invite them to do so. Only when it is plain that one verdict alone would be rational and any other perverse should the issue be withdrawn. The risk of a successful appeal and the disproportionate expense of a re-trial is otherwise too great.

[34]It is, however, one thing to excuse an omission to invite the withdrawal of an issue, as Banbury v Bank of Montreal does, (and, indeed, more generally to caution against withdrawing issues from the jury except in clear cases, as Kingshott and Alexander do); it is quite another thing to excuse and overlook an express invitation to the judge by the party who would benefit from the only rational verdict open to the jury nevertheless to leave the question to the jury, in the face of the other side's submission that the jury should instead be directed to treat it as resolved in the first party's favour. That is what happened here. True it is that Mr Price's first submission on day 31 was that he should be allowed to contend for the answer 'no' to question (2). When that argument was rejected, however, Mr Price asked the judge to withdraw the question. Mr Caldecott having urged the judge to decline that invitation, notwithstanding his contention that there was no evidence upon which the jury could properly answer question (2) in the negative, to my mind it is not now open to him to complain of the verdict. The appellants insisted that the matter be left to the jury; they must accept the result. They cannot blow hot and cold.

[35]This view, moreover, seems to me particularly necessary in the present case. The whole reason for having a jury in the first place was the judge's concern that the main issues, and above all question (2), should be decided by a jury rather than there be any hint of a cover up. That thinking was expressed afresh at the very outset of his summing up:

"This is perhaps a case that is especially suitable for a jury to hear and determine."

[36]The appellants, although having twice sought trial by judge alone, claim to have shared the judge's concern, particularly with regard to question (2), the quid pro quo for jury trial. And yet now, having been at such pains to ensure that question (2) was answered by a jury despite the respondent's ultimate readiness to concede it, the appellants submit that the jury's verdict should be condemned as perverse and this court's contrary conclusion substituted for it. The respondent's statement quoted above spoke of "the perception, both at home and abroad" were he to lose the action following trial by judge alone. How much stronger would be the public perception of unfairness were the respondent, having in the event secured a jury's verdict in his favour, now to be deprived of it by the Court of Appeal. That really would suggest a cover-up. Whether it would do anything for the reputation of the alleged Committee members may be doubted; it would assuredly damage the reputation of the administration of justice.

[37]Mr Caldecott's reliance on CPR 52.11(3) (let alone on the grant of permission by the judge below) is in my judgment misplaced. It overlooks the preliminary point which arises (in the same way as "a preliminary point" arose in Banbury v Bank of Montreal see Lord Atkinson's speech at p.669g), namely whether in all the circumstances the appellants should be entitled to argue that the jury's verdict was wrong, a point which, for the reasons already given, I would resolve against them. It also overlooks many of the overriding objectives set out in CPR 1.1.

[38]Nothing would seem to me more productive of unfairness not to mention disproportionate expense to a party on a most unequal financial footing to his opponents were a fresh trial now to be required, or indeed were a substantive appeal now to be properly open to the appellants on the basis proposed. The respondent has obviously been at great pains throughout this litigation to keep down costs where possible and to reduce the risks of any appeal let alone a re-trial. He sought, as explained, to keep the whole issue as to the correctness or otherwise of The Committee thesis out of the case. When this failed, as it did with the Court of Appeal judgment in May 1998, he sought to admit for the purposes of the action that The Committee did not exist. When this too failed, as it did when the judge ruled that the alleged members could nevertheless be called, he nevertheless raised no affirmative case that The Committee existed but merely sought to be allowed to ask the jury to find the case for its non-existence not proved. When this too failed, the respondent urged the judge to withdraw the question and to direct the jury to treat it as resolved in the appellant's favour.

[39]At a late stage in his submissions to us, Mr Caldecott suggested that for the judge to have withdrawn question (2) from the jury, although a course invited by Mr Price, would itself have given rise to a risk of appeal: the respondent might have appealed on the footing that he only sought withdrawal because the judge had wrongly prevented him from inviting a negative answer to the question. I am unimpressed by that suggestion. No such risk apparently crossed anyone's mind at the time and, indeed, it strikes me as wholly fanciful.

[40]I should perhaps say a word or two more about Mr Caldecott's vigorous contention that if the jury's verdict here was indeed perverse as he says he can clearly establish and as perhaps the strength of the judge's direction on question (2) itself suggests then this court should not leave it uncorrected; that would be "an affront to justice". In the first place, of course, that begs the critical preliminary question here whether the appellants should be permitted to argue perversity, the matter already discussed. Secondly, however, the submission that the verdict is demonstrably perverse sits most uneasily with Mr Caldecott's, and the judge's, repeated suggestions below that it was for the jury to assess the appellants' witnesses and they were certainly not bound to accept their evidence. Finally, there is this to be said: The stronger the appellants' argument on perversity, the plainer is it that, when eventually Mr Price invited it, question (2) should have been withdrawn from the jury instead of the appellants insisting on obtaining the jury's answer to it.

[41]At one point in his written skeleton argument, Mr Caldecott says that "had question (2) [which did not, of course, represent 'a self-contained defence or claim'] been withdrawn, [this] central error in the jury's reasoning would never have been known", and this both justifies the question having been left and requires the Court of Appeal now to reverse the jury's verdict upon it. "Unfortunately", runs the skeleton argument, "its inevitable contamination of the jury's approach to justification and general damages can only sensibly be cured by a re-trial [which] should clearly be by judge alone." If the suggestion here is that this sort of discrete sub-issue should properly be left to the jury so as to provide some kind of touchstone of perversity by which their verdicts on the true issues can later be judged, I would reject it utterly. On the contrary, the judge here would have been well-advised to refuse Mr Caldecott's plea that the jury should be required to answer the question (rather than be directed that The Committee thesis was to be regarded as disproved), or at the very least to adopt instead May LJ's suggestion that:

"It may also be appropriate to direct the jury that, although it would be open to them to decide on the evidence whether it is true that The Committee to which Sands referred did or did not exist, they may feel that it is unnecessary to reach a conclusion on that question in order to decide whether the sting of the libel is justified."

[42]With hindsight, indeed, it may be doubted whether it was ever a good idea to introduce this sub-issue into the action. There were sufficient reputations at stake notably the journalistic reputations of both parties without attempting in the same proceedings to vindicate the reputations of the alleged Committee Members, (whom the programme itself had never even named and who themselves chose not to sue). As became ever clearer during the progress of the litigation, the trial itself was a most unsuitable process for achieving a definitive resolution of this sub-issue, nor am I persuaded that it was ever strictly necessary to resolve it, whether with regard to general damages, special damages, or for any other reason. All that, of course, is now water under the bridge, although hopefully it may provide lessons for the future.

[43]The one other aspect of the judge's rulings I want to touch on is his direction forbidding Mr Price in his closing speech from canvassing the jury for a negative answer to question (2). Whatever may be the position in the criminal jurisdiction and it is of course well established that juries cannot be directed to convict and from time to time return perverse verdicts of acquittal which are then irreversible I cannot accept that in a civil jury trial it is permissible at one and the same time to leave an issue for decision by the jury and yet prevent counsel inviting an answer in his favour.

[44]Take this very case. If it was indeed open to the jury to disbelieve sufficient of the appellants' witnesses to remain unpersuaded on the balance of probabilities of the non-existence of The Committee, then it must surely have been open to Mr Price so to contend in his speech, notwithstanding that counsel cannot ask the jury to disbelieve any witness whose truthfulness he has not specifically challenged in cross-examination see Browne v Dunn . To my mind the only proper basis upon which Mr Price could have been prevented from seeking a negative answer would have been if such a verdict must inevitably have been perverse. And if that, indeed, was the position, then it is plainer still that the question should have been withdrawn and the jury directed appropriately upon the issue.

[45]In the result I would dismiss this appeal, holding that the appellants cannot now properly dispute the jury's answer to question (2). I did not understand Mr Caldecott ultimately to mount any independent challenge to the jury's general damage award, the damages appeal being essentially parasitic upon the question (2) perversity argument. Be that as it may, however, after this judgment was written the court was helpfully notified that the appellants are not in any event proceeding with their appeal on damages.

[46]By way of postscript I add just this. As any reader of this judgment will realise, the one thing we have not decided is the perversity or otherwise of the jury's answer to question (2). As Mr Price's skeleton argument makes plain, it remains his primary submission that there was indeed a sufficient evidential basis for a jury reasonably to be left unpersuaded of The Committee's non-existence. That submission may be right or it may be wrong. Having declined to entertain Mr Caldecott's argument for perversity, we have simply not considered it. In short, this court's decision is neutral on whether or not a murder Committee ever existed. We have concluded only that the appellants cannot now be heard to contend that the jury's verdict on the issue was perverse.

LORD JUSTICE CHADWICK:

[47]Lord Justice Simon Brown has set out a detailed account of the events which led to the position in which on 13 March 2000 that is to say, on Day 31 of the trial after the evidence had been completed Mr Justice Eady was asked to rule upon the question what counsel for the claimant, Mr McPhilemy, could or could not say to the jury in relation to the second of the issues which, at that stage, it was proposed would be left to them, viz :

"(2) Have the defendants proved on the balance of probabilities that there was no Ulster Central Co-ordinating Committee as described in the programme of 2nd October 1991?"

It is unnecessary for me to rehearse those matters again in this judgement.

[48]The judge gave his ruling on that question on the following morning (Day 32). In the course of that ruling he said this, in a passage at pages 6 and 7 of the transcript to which Lord Justice Simon Brown has already referred:

"Since Mr McPhilemy chose not to adduce a positive case on the underlying thesis of the committee at any stage, or to call any evidence in support of it, it is difficult to see what evidence it is proposed the jury should set in the scales against the oaths of the alleged committee members and associates. The jury are not bound, of course, to accept any witness's evidence. A jury could take the view that, whatever counsel say on either side, they did not like the cut of the jib of a particular witness, or they found a particular aspect of a witness's evidence incredible. That is the jury's privilege , just as a judge alone can come to such a conclusion. He [counsel for Mr McPhilemy] is in effect wishing to say that, despite their unchallenged evidence on oath, that evidence should on the balance of probabilities be rejected; at least that is the conclusion which he wishes the jury to draw. It is certainly a conclusion which the jury can draw."

[emphasis added]

[49]Those observations were reflected in the directions which the judge gave to the jury in relation to question (2). Lord Justice Simon Brown has set out the relevant passages, which appear at pages 42-48 in the transcript of Day 36 (20 March 2000); but their importance justifies repetition:

"[The] evidence [of some of the alleged committee members], because they have come to court and taken an oath before you, is evidence in the case that you are entitled to take into account when deciding whether or not the defendants have proved that the committee did not exist. Of course, you do not necessarily have to accept it as true, but it is relevant and admissible evidence in this case . . . Mr McPhilemy has had to recognise . . . that it is not possible to ask you to conclude in relation to these people or any of the individuals who have given evidence that they were guilty of what he accused them of. Thus, on the one hand, you have sworn evidence from the individuals concerned, unchallenged, that they had nothing to do with any such conspiracy. On the other hand, you have literally no evidence at all that any of them was guilty. Litigation is not a game and these issues are manifestly very serious. In these circumstances it is a very difficult matter to understand how it can be said that the defendants have failed to prove the proposition they have set out to prove. It is a matter for you to decide; it is a matter for you to assess the evidence at the end of the day; . . ."

[emphasis added]

[50]For my part, I think it important to keep in mind that the Court is not asked on this appeal to decide(i) whether the ruling given by Mr Justice Eady on Day 32 of the trial which was clearly understood as restricting what, if anything, counsel for Mr McPhilemy could say to the jury in relation to question (2) was correct, nor

(ii) whether, in the light of that ruling, the judge was right to leave question (2) to the jury. I confess that I find it very difficult to accept that, if the ruling on Day 32 was correct for the reasons which the judge gave, it could have been right to invite the jury to answer question (2); but it is not necessary to decide the point. The appellants do not challenge the judge's decision to invite the jury to answer question (2). Indeed, it is difficult to see how the appellants could challenge that decision on an appeal, in the circumstances there that was the course that they were urging the judge to take.

[51]It is essential, also, to keep in mind that the appellants make no criticism of the directions which the judge gave in relation to question (2). The appellants accept that the judge was right to tell the jury that they did not have to accept as true the evidence which they had heard from the alleged committee members. They accept that the judge was right to tell the jury that it was for them to assess that evidence and decide whether they (the appellants) had proved, on the balance of probabilities, that there was no Ulster Co-ordinating Committee as described in the programme of 2 October 1991. Again, in the circumstances that that was the basis upon which the appellants had urged the judge that notwithstanding the course which the trial had taken question (2) was still an appropriate question to be left to the jury, it is difficult to see how the appellants could have any criticism of those directions.

[52]So it was that the jury - with the benefit of the judge's observation that litigation was not a game and that the issues posed by question (2) were "manifestly very serious" retired to perform the task which the judge had set them. They returned a negative answer to question (2). The appellants now seek to challenge that answer on the grounds that it was perverse. It is said, in effect, that a negative answer to question (2) is so unreasonable that the jury must have failed to understand, or to perform, the task which they had been set. But, if the jury were told, with the encouragement of the appellants, that they did not have to accept as true the evidence of the alleged committee members, that it was for them to assess that evidence, and that it was for them to decide, on the balance of probabilities, whether the appellants had established the proposition for which they were contending, how can it now be said by the appellants that there was only one answer an affirmative answer which they could be permitted to give to question (2)? To invite the jury to address the question on the basis that it was open to them to give the answer 'yes' or 'no' without telling them that if they gave the answer 'no' they would have failed to perform the task which they had been set is, indeed, to provoke the response 'this is just a game'.

[53]It is in those circumstances that this Court has thought it right to consider whether this is an appeal which it can properly entertain without bringing the administration of justice into disrepute. It seems to me pertinent to have in mind the words of Lord Diplock in Hunter v Chief Constable of the West Midlands Police

[1982] AC 529

, 536, when he spoke of:

". . . the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people."

For my part, I find it difficult to conceive how it could fail to bring the administration of justice into disrepute among right thinking people if this Court were to permit the appellants to argue on appeal that notwithstanding their own determination to have the decision of the jury on a question which was put to them (with their encouragement) on the basis that it was for the jury to answer 'yes' or 'no' the only permissible answer was 'yes'; with the consequence that the jury's answer 'no' must be overturned by this Court and the matter sent back to be tried by a judge alone. That would, I think, invite the criticism that the jury's supposed role in relation to question (2) was a charade; that the question was only put to the jury in order to obtain a legitimacy for the only permissible answer that is to say, the answer 'yes' which the decision of a judge alone would not command. I do not think this Court should allow itself to be used in pursuit of a goal which would have that result.

[54]It follows that I, too, would dismiss this appeal.

LORD JUSTICE LONGMORE:

[55]The second question which the jury were required to answer was:

"Has the Sunday Times proved on the balance of probabilities that there was no Ulster Central Co-ordinating Committee, as described in the programme of 2nd October 1991?"

Mr McPhilemy had alleged that there were 21 members of the Committee. Of those still alive at the time of trial, all but one were called to give evidence. Mr Price, on Mr McPhilemy's behalf did not suggest to any of those witnesses that they were members of such a Committee or that they had conspired to murder any of the persons named as victims in the Channel 4 programme. In that surprising situation, an acute question arose at the trial after the conclusion of the evidence viz. was the judge to permit Mr Price in his speech to invite the jury to return a negative answer to question (2)?

[56]Mr Price submitted first that he was entitled to invite a negative answer but, secondly that, if he was not so entitled, the logical conclusion was that the question should be withdrawn from the jury and given a positive answer by the judge. Mr Caldecott, on behalf of the Sunday Times, submitted first that Mr Price was not in law entitled to invite a negative answer to question (2) or to make any submissions implying that a negative answer would be appropriate but, secondly, that the judge should, in any event, leave the question to the jury. Eady J. accepted both Mr Caldecott's submissions and left the matter to the jury in the following way:- "Mr McPhilemy has had to recognise . . . that it is not possible to ask you to conclude in relation to these people or any of these individuals who have given evidence that they were guilty of what he accused them of. Thus, on the one hand, you have sworn evidence from the individuals concerned, unchallenged, that they had nothing to do with any such conspiracy. On the other hand, you have literally no evidence at all that any of them was guilty. Litigation is not a game and these issues are manifestly very serious. In these circumstances it is a very difficult matter to understand how it can be said that the defendants have failed to prove the proposition they have set out to prove. It is a matter for you to decide; it is a matter for you to assess the evidence at the end of the day; but the defendants are entitled at least to ask what else could they have done but bring the witnesses to court to be cross-examined and to be dealt with face to face in respect of these charges." In spite of this strong direction, the jury answered question (2) in the negative.

[57]The Sunday Times now wishes to argue that, although they opposed both parts of Mr McPhilemy's submissions to the Judge before speeches and requested that the matter be left to the jury, the jury has perversely given the wrong answer. The question immediately arises whether the Sunday Times, having conducted their case at trial on the basis that it was essential to have the jury's answer to question (2), can be permitted in this Court to argue that the answer to the question is perverse, that their verdict should be set aside and that this Court should then give what, on this argument, would be the correct answer.

[58]In support of the Sunday Times' submission Mr Caldecott argued:(1) it was not open to Mr McPhilemy's counsel to invite a negative answer to question (2), since none of the witnesses, who came and said that they were not members of any Committee and had not conspired to murder any persons, had been challenged. He relied for that proposition on Browne v Dunn [1894] 6 R. 67, R v Hart

[1932] 23 Cr.App.R. 202

, R v Fenlon

[1980] 71 Cr.App.R. 307

, Cross and Tapper, Evidence 9th ed. (1999) p. 292 and Phipson, Evidence, 15th ed. (2000) para 11-26.

(2) the fact that counsel could not invite a negative answer to question (2), meant that the judge had a power to withdraw the question and answer it for himself but had no duty to do so; the judge's exercise of his discretion to leave the matter to the jury could not be challenged;

(3) as a matter of law, a party could always argue that there was no evidence to support a verdict or that the verdict was perversely against the weight of the evidence, even though he had not asked the judge to withdraw the issue from the jury at the trial, see Banbury v Bank of Montreal

[1918] AC 626

;

(4) the position could be no different if the challenging party had expressly invited the judge to leave the matter to the jury because a failure to ask the judge to withdraw the question would be a tacit invitation to leave the matter to the jury and there could be no difference between a tacit and express invitation.

[59]For my part, I would accept Mr Caldecott's first submission and decide that Eady J was, with respect, entirely correct to prevent Mr Price inviting the jury to return a negative answer to question (2). In a case which seeks to determine whether a committee exists which is dedicated to the cause of murder, but counsel does not put to the alleged members of the committee either that they are members of such a committee or that they conspired to commit murder, it would be grotesque that counsel could submit to a jury that there was such a committee or, indeed, that the defendants had not proved that there was not such a committee.

[60]Mr Caldecott's second and third submissions, however, require some elaboration. The concept that counsel may not invite the jury to reach a conclusion which the jury are nevertheless entitled to reach is, to say the least, curious. In any normal case, once the judge concludes that counsel may not invite a negative answer to the question it would follow that the judge should either direct the jury to answer the question in the appropriate way or that he should withdraw the question and answer it himself. There was, however, a particular reason in this case why the Sunday Times wanted the jury to resolve the question viz. that a judicial decision ran the risk of being represented as a judicial prevention of a jury response. It is only in this limited sense that it is correct to say that the judge had a power rather than a duty to withdraw the question from the jury. It would normally be absurd, in a civil context, to ask a jury a question which, in law, only permitted of one answer. In the context of this exceptional case, it was not only not absurd but thought by the Sunday Times to be positively desirable. They submitted that, even though Mr McPhilemy's counsel could not be allowed to invite a negative answer, the matter should be left to the jury and the judge accepted that submission. Included in that submission was the acceptance that the jury had, in the judge's words, "to assess the evidence" and come to their own conclusion. In my judgment a party cannot be allowed to invoke the special circumstances of the case, ask that the jury be required to give an answer to a question which would, under normal circumstances, be susceptible of only one answer and then be permitted to argue that an answer adverse to their interest is perverse. That would be to make a mockery of the jury's function in a libel trial.

[61]Even now Mr Caldecott does not challenge the way in which the judge exercised his discretion nor does he argue that the judge ought to have withdrawn the question from the jury. He seeks to support the exercise of discretion and, at the same time, to argue that the resulting answer is perverse. But once it is accepted that the judge does have a discretion to leave the question with the jury, it must, in my judgment, follow that it is also accepted that the jury have a real (and not an illusory) function to perform in assessing the evidence and that they may answer the question either way. If a party for his own tactical reasons wants the jury to answer the question at all, he has to live with the result.

[62]I therefore accept Mr Caldecott's second submission but would add the rider that a party who has resisted a submission that a question should be withdrawn from the jury and himself submitted that the jury should resolve the question cannot complain that the answer given is perverse.

[63]Mr Caldecott's third submission is acceptable as far as it goes, based as it is on Banbury v Bank of Montreal . But in that case neither side had made any submission at all on the question whether the case should have been withdrawn from the jury. It was held that the omission of any such submission to the trial judge was not a bar to that submission being made to and accepted by an appellate court. The submission that could have been (but was not) made in that case was that there was no evidence to support the claimant's case that the manager of the relevant British Columbia branch of the bank had authority to advise the claimant in relation to investments. The House of Lords held that there was indeed no such evidence and that it made no difference that the judge had not been invited to withdraw the case from the jury and enter judgment for the defendants. No doubt the House of Lords would also have held that an appellate court could also set aside a perverse verdict even if no submission was made to the court below that only one possible verdict could be given.

[64]But it does not to my mind follow that if a party makes a positive submission that the matter should be left to the jury, he can argue at a later stage that an answer against his interest is perverse. His opposition to a submission that the issue should be withdrawn, his own submission that the issue should be left to the jury and the judge's acceptance of that submission all proceed on the basis that the jury does have something to decide. For such a party to turn round afterwards and argue that the jury is perverse in deciding the case against him amounts to what in law has to be described as an abuse of process, because that party is accepting that there is something which the jury has to decide - in the present case what the Sunday Times must have intended the jury to decide was what they thought of the credibility of the witnesses, called to discharge the burden which was on the Sunday Times to prove that there was no Ulster Central Co-ordinating Committee. It is an abuse of the appellate process for them now to seek to argue that only one possible answer to that question can be given.

[65]I mention the burden of proof because it played some part in the leading speech of Lord Atkinson in Banbury v Bank of Montreal (see [1918] A.C. at 671 and 674 where he echoes dicta of Willes J. and Lord Blackburn respectively) and because it seems to me particularly abusive for the party with the burden of proof positively to invite a jury verdict and then say that the only possible verdict in law is that the burden of proof has been discharged. It is one thing to invite an appellate court to hold that a verdict deciding that the burden of proof is discharged is perverse with the result that the court holds that the burden of proof has not been discharged and judgment is therefore entered against the party having the burden of proof. It is an altogether stronger thing to invite a appellate court to hold that a verdict, deciding that the burden of proof has not been discharged, is perverse with the result that the court holds that burden of proof has been discharged and judgment is therefore entered in favour of the party having the burden of proof. Of course that can happen in an appropriately strong case where a claimant has obtained a perverse verdict, see Allcock v Hall

[1891] 1 QB 444

(expressly approved in Banbury v Bank of Montreal at pages 628-9) and Grobbelaar v Newsgroup Newspapers

[2001] 2 All ER 437

. But it is in my view particularly abusive for a party who has such a burden of proof to submit positively, against opposition, that the relevant question should be left to the jury and then to argue that the answer given is a perverse answer.

[66]It follows that, on the facts of this most exceptional case, I would not accept Mr Caldecott's fourth submission and would hold that this court should not entertain any argument as to perversity. It follows that this appeal should be dismissed.

ORDER

Appeal dismissed. Judgment on costs reserved. (Order does not form part of approved Judgment)