Bond v British Broadcasting Corporation [2009] EWHC 539 (QB)

[2009] EWHC 539 (QB)Case No HQ07X01594
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 March 2009
Before
THE HONOURABLE MR JUSTICE EADY
Between
KEVIN BONDClaimantBRITISH BROADCASTING CORPORATIONDefendant
David Price (Solicitor Advocate of David Price Solicitors & Advocates) for ClaimantAndrew Caldecott QC and Catrin Evans (instructed by BBC Litigation Department) for DefendantHearing Hearing date: 11 March 2009
Judgment
[1]I have now to rule on the natural and ordinary meanings to be attributed to the words complained of in this libel action, which comprise a number of publications. These need to be addressed separately, although they clearly overlap in many respects. The principles to be applied in resolving such an issue are well known and not in dispute between the parties: see e.g. Skuse v Granada Television Ltd [1996] EMLR 278, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and Gatley on Libel and Slander (11th edn) at paras. 32.1–32.12. There is no need for me to rehearse them in this judgment.[2]First, and primarily, I need to focus on the defamatory imputations relating to the Claimant contained in the Panorama programme broadcast on 19 September 2006 and called “Football’s Dirty Secrets”.[3]It is true that the Claimant is only mentioned directly in the last few minutes of an hour long programme, but it is recognised by the parties that the whole of it needs to be taken into account in addressing the issue of meaning. Not only is the programme itself complained of in the particulars of claim, but it would be necessary to have it in mind in any event as the context of the section which actually refers to the Claimant. It is part of the Defendant’s case that the various allegations should be compartmentalised and seen as relating to separate individuals. Even so, it is accepted that the general context is a relevant matter for consideration.[4]There is no significant issue between the parties over one of the meanings alleged; that is to say, it is accepted broadly that the programme conveyed the impression that the Claimant was, on camera while being covertly recorded, expressing interest in prospectively receiving an impermissible payment (or “bung”) through an arrangement whereby a particular agency (albeit, as it happens, fictitious) would be approached by him and his then superior when player transfers were in the offing. He is heard to say:
“I totally understand where you’re coming from. I understand what you’re looking for, and certainly myself and Harry would be open to listening to, you know, in order to come to some arrangement, if you like, where whatever we need, we’ll make sure that we call you, and what you really want is that we call you and only you.”
[5]This is in the context of a programme the overall message of which is to demonstrate that “bungs” to managers and other club officials are prevalent or “rife”. The principal dispute is as to whether there is an additional meaning to the effect that the Claimant had also been guilty of accepting such payments in the past and/or that there were grounds to suspect him of so doing. To put it another way, would the reasonable viewer, while inevitably noting his interest in prospective “bungs”, conclude that this was a new departure or momentary lapse? Alternatively, would he or she decide that the programme implied that this was part of a pattern, providing evidence that he was one of those on whom the programme focused as being “at it” already?[6]Mr Price, appearing for the Claimant, argues that there is an inconsistency on the Defendant’s part in denying, on the one hand, that the programme conveys reasonable grounds for suspecting the taking of “bungs” in the past while, on the other, pleading the Claimant’s interest in prospective “payments” as a ground for justifying the Chase Level Two meaning (see Chase v News Group Newspapers Ltd [2003] EMLR 11). I must be careful, however, not to confuse two quite different considerations. How the Defendant chooses to plead its case ex post facto cannot possibly be a relevant factor in assessing how reasonable viewers, as at 19 September 2006, would have construed the relevant parts of the programme. In any event, this is only an alternative to the Defendant’s primary case; namely, that the programme only imputes an interest in prospective payments.[7]The context and overall message of the programme are in my judgment critical in determining the question of defamatory meaning(s). It is expressly said that the payment of “bungs” was rife and the reasonable viewer would certainly conclude that the managers and other club officials thereafter mentioned in the programme, and especially in the context of undercover filming, are being produced as examples to demonstrate the validity of that primary theme. One asks, why else is the Claimant in the programme? Otherwise, I would expect to see some distinction drawn between the Claimant’s appearance on the programme, and the reasons for it, and that of other participants. If he is not there to support the basic proposition that “bungs” are now endemic in the game, what is his role? Obviously, he is not accused expressly of receiving “bungs” in the past, but since he would appear to the viewer to be expressing interest in future corrupt payments, the inference could readily be drawn that this is part of a pattern of conduct – rather than his being tempted or succumbing for the first time in his career. It has long been accepted that a reasonable reader or viewer is capable of “reading between the lines”.[8]My own judgment is that the words do not go quite as far as a Chase Level One meaning (i.e. a positive conclusion of guilt). I do, however, consider that the natural inference is that the Claimant is “in the frame” as one of the prime suspects to whom the Defendant was drawing attention. Most reasonable viewers would think it stretching credulity too far to interpret what they have seen as an innocent being tempted by corruption for the first time.[9]It is important to acknowledge that assessing the meaning(s) of an hour long television programme is to a large extent a matter of impression. Yet it is also necessary to remember that the test is objective, so that one must always have in mind how the reasonable viewer would interpret it. Nonetheless, it is recognised in the authorities that the judge can take into account his or her own subjective reaction as part of the process. Beyond that, one must not be over-analytical, in the sense of subjecting the text to a leisurely or legalistic breakdown: ordinary viewers will not have had that opportunity. The overall flavour of a programme may contribute to an interpretation which would not necessarily be found when subjecting the text to piecemeal analysis. There is a risk that such an exercise will focus on the trees and miss the wood.[10]Nevertheless, if the fact-finding tribunal happens to be a judge, there is no reason to abandon the traditional obligation to justify a decision by reference to the reasons which led to it. In this context, however, all a judge can do is to list some or all of the factors which have contributed to his overall impression. It needs to be recognised that different judges can sometimes form different impressions, even by taking into account exactly the same factors.[11]Because the programme makes clear how difficult it is to provide evidence of the “bungs” culture, even though it is widely acknowledged by insiders to exist, the viewer is led to appreciate that in most cases the programme-makers are not making an unequivocal assertion of guilt – still less giving the particularity of an indictment. The snapshots given in the programme, for the most part, present only a circumstantial case as to past receipts. It is only in the case of Mr Allardyce that the charge is expressly made. There is not enough evidence before the viewers to justify a jury convicting of the receipt of any particular corrupt payment, or even to enable one to conclude that such a payment was received on a balance of probabilities.[12]Specifically, I took the view that I would be making a leap too far if I were to conclude that the Claimant had actually received “bungs” in the past. (Others might well disagree. Some people, perhaps especially those without a legal background, might be prepared to infer guilt – but that would not in my view be reasonable.) His words and demeanour, as portrayed towards the end of the programme, even without the overall thrust of the “Dirty Secrets” message, would give rise in my mind to a strong suspicion that he had been ready to do so. That seems to me to coincide with the reaction of the hypothetical reasonable viewer. Of course, he did not leap at the offer or make a frank confession, but one would not expect a man in his position to do so. If he was interested in the proposal, he would still be expected to proceed with caution in the company of strangers whose trustworthiness was yet to be established. He certainly did not rebuff the approach or make clear that he would not have anything to do with such a scheme.[13]A major factor giving rise to the suspicion is that the programme-makers are devoting air time to him, against the background of months of research and preparation. The message is surely that he has been carefully selected because he provides an example, described expressly as “significant”, which supports the thesis of the programme (i.e. “bungs are rife”). If he were presented as, and to be perceived as, merely an untainted newcomer who showed signs of temptation for the first time, I would expect some qualifying commentary to make that clear.[14]The Defendant submits (in paragraph 23 of its skeleton argument):
“As to Meaning 3 (reasonable grounds to suspect), … this requires a degree of analysis of the kind set out in the particulars under paragraph 14 of the Defence … (the plea of justification to this meaning), which the reasonable reader would be most unlikely to undertake (hence the caution against over elaborate analysis in determining meaning). The charge of reasonable grounds to suspect also does not appear as an allegation in the denial section of the programme … ”
[15]Paragraph 14 of the Defence sets out (in nine sub-paragraphs) the grounds said to give rise to the suspicion. There is no need to rehearse these in this judgment, but they seem to focus primarily on the portrayal in the programme of the Claimant’s long term relationship with Mr Redknapp. In particular, it is said that his willingness in the recorded material to express interest not only for himself but also on behalf of Mr Redknapp suggests a knowledge of dishonesty on his part and of joint activity in the past.[16]I did not find this persuasive, as undermining the impression I received from viewing the programme. If I may say so, the argument is subject to the vice of over-analysis on the one hand and of failing to take account, on the other, of the overwhelming “tang” of the programme. While I understand the emphasis put by the Defendant on the link with Mr Redknapp, I believe it is by no means the only aspect of the programme giving rise to grounds of suspicion. Even without reference to Mr Redknapp, the Claimant’s reaction on his own behalf is quite telling.[17]Since the Defendant’s argument relies in part on the “denial section of the programme”, it is worth remembering that it comes across to most viewers (including, of course, reasonable viewers) as something of a formality; indeed, as being a perfunctory gesture towards balanced coverage. If the denial were to be taken as in fact exculpatory, which it plainly is not, the viewer would naturally ask why the small section relating to the Claimant remains in the programme at all. After all, if “he was not interested in receiving bungs”, and “no one he has ever worked with has taken a bung”, there would be no story worthy of an exposé on prime time television. Therefore, it seems clear that the viewer is meant to take the denial with a large pinch of salt and to conclude that the Claimant remains under a cloud of suspicion, at least until his role has been thoroughly investigated.[18]Mr Price went into considerable detail in his skeleton argument to identify the various parts of the programme which, in his submission, supported a particular interpretation. There is no need for me to set these out and to make individual comments upon them in the judgment. While I accept that each may represent an element of spice which contributes to the overall flavour, it is the impression of the programme as a whole which is fundamentally important. It is probably not desirable for me to attempt a quasi-scientific analysis relating to the contribution made by any individual element.[19]I have been asked formally to set out the “single meaning” I have found; namely, that there are strong grounds to suspect the Claimant of having accepted “bungs” or other corrupt payments from football agents.[20]I now turn to the transcript of the programme which was uplifted on to the website on the same day as the broadcast. In this respect, Mr Caldecott QC, appearing for the Defendant, confined himself effectively to repeating the submissions which he had made in relation to the broadcast programme itself. He argues that readers of the transcript would have treated the section towards the end, which refers to the Claimant, as “in substance self contained”.[21]I naturally accept that some of those who read the transcript would have watched the programme as well and that others would not. I cannot see, however, how the transcript would have significantly differed in the impact it made upon readers who had not seen the programme from that which would be made upon reasonable viewers.[22]Accordingly, my overall conclusion in relation to the transcript is substantially the same as that which I have already described, in greater detail, in relation to the programme.[23]My next task is to address the press release issued by the Defendant. The Claimant is mentioned in a list of persons involved in the programme. It is expressly stated that there are allegations “ranging from corruption and rule-breaking to dishonesty”.[24]The press release summarises the allegations made in the programme and identifies individuals or clubs which are accused of misconduct – and in what respect. Towards the end of the press release there is reference to the passage dealing with the Claimant, in these terms:
“Kevin Bond – Redknapp’s assistant at Portsmouth at the time – is secretly recorded admitting he would consider discussing receiving payments from a proposed new agency involving Peter Harrison.”
[25]Mr Caldecott draws attention to the careful wording, to the effect that the Claimant would “consider discussing receiving” such payments. It is thus, he submits, clear that it is very tentative in nature.[26]Nevertheless, the press release adopts and repeats the words from the programme which I have already cited at [4] above. Therefore, the reader sees him saying, of the apparently corrupt proposal:
“I do understand what you are looking for and certainly myself and Harry would be open to listening, in order to come to some sort of arrangement, if you like … Whatever (players) we need, we’ll make sure we’ll call you … And what you really want is that we call you – and only you.”
It is in my judgment entirely natural that the reader will conclude that he appears to receive the proposal without surprise, and is prepared to discuss it, and quite possibly as part and parcel of his established way of doing business. One cannot come to a final conclusion, but a strong suspicion is aroused.[27]There was a follow up programme broadcast on 10 December 2006, which was by no means confined to the theme of football “bungs”. It was a review of a number of Panorama programmes in the course of the previous year, but it included a small section reprising “Football’s Dirty Secrets”.[28]In relation to this, Mr Caldecott submits that it simply cannot convey a Chase Level Two meaning – not least because it contains no reference to the principal matters relied upon by the Defendant in paragraph 14 of the Defence to which I have already referred; that is to say, the passages establishing “reasonable grounds to suspect” the Claimant of taking corrupt payments. In particular, there is nothing about the relationship with Mr Redknapp.[29]It is thus the Defendant’s submission that the follow up programme could only bear, in relation to the Claimant, the meaning that he expressed interest in prospectively receiving payments under the arrangement proposed.[30]It is interesting that there is a congratulatory element to the follow up programme so far as the reaction to the original broadcast is concerned. There is included a clip of the Claimant being sacked from Newcastle United, as a result of the September programme. Viewers are told that “Bond had shown an interest in Knut’s shady business proposition and Newcastle said it was terminating his contract”. It may be said that this goes only to the defamatory meaning which is common ground between the parties (i.e. interest in prospective payments).[31]On the other hand, the extract shown is clearly about the general culture of “bungs”. It would in my view be artificial to conclude that a reasonable viewer of this rather brief section of the follow up programme would, in his or her mind, isolate the Claimant from that primary allegation and construe the references to him as being confined to an interest in prospective payments only. It is much more likely that this interest would be regarded as the evidence which ties him in to the “bungs” culture. Again, it arouses a suspicion of involvement without going so far as to justify a conclusion on the viewer’s part that he was actually guilty in relation to any particular transaction.[32]I would therefore find that the follow up programme also gives rise to a Chase Level Two meaning (i.e. strong grounds to suspect).[33]That only leaves the transcript of the follow up programme, which was itself uploaded to the website. Again, not surprisingly, Mr Caldecott makes no separate submissions in relation to that. My conclusion is therefore the same as in relation to the broadcast itself.[34]I shall need to address further submissions from counsel as to the consequences of these findings for the statements of case and trial preparation. It may prove possible to reach agreement about this.

Cited in 8 later judgments