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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> GKR Karate (UK) Limited v. Brian Porch, Yorkshire Post Newspaper, Sheila Holmes [2000] EWHC QB 180 (17th January, 2000) URL: http://www.bailii.org/ew/cases/EWHC/QB/2000/180.html Cite as: [2000] EWHC QB 180

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GKR Karate (UK) Limited v. Brian Porch, Yorkshire Post Newspaper, Sheila Holmes [2000] EWHC QB 180 (17th January, 2000)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
The Strand
London
Monday, 17^th January 2000

Before: SIR OLIVER POPPLEWELL

1997 G No 935

Between:

1997 G No 963

Between:

____________________

MR G CARMAN QC and MR M WARBY (instructed by Messrs Farrer & Co) appeared on behalf of the Plaintiff.
MR T SHIELDS QC and MR R ELLIOTT (instructed by Messrs Berrymans Lace Mawer) appeared on behalf of Brian Porch.
MR P MOLONEY QC and MS O CHILDS (instructed by Messrs Dibb Lupton Alsop) appeared on behalf of Yorkshire Post Newspaper and Sheila Holmes.

____________________

1. Transcript of the Palantype notes of SELLERS LEGAL SERVICES High Holborn House, 52-54 High Holborn, London WC1V 6RL

____________________

J U D G M E N T
(As Approved)
Monday, 17th January, 2000

SIR OLIVER POPPLEWELL:

THE PARTIES

1. The claimants are GKR Karate Limited who promote and teach go kan ryu karate. They started operations in 1996 in the United Kingdom. They operate in, among other places, the Leeds area. The first defendants are a well-known newspaper who publish the Leeds Weekly News, which is a weekly publication, distributed free to some 158,000 houses and offices in the Leeds area. The second defendant, Mr Porch, is the General Administrator of the English Karate Governing Body, but is not directly involved in the issue with which I am now dealing. The third defendant, Mrs Holmes, is the author of an article which appeared in the issue of LWN on the 14th of August 1997.

THE CLAIM

2. The claimants claim damages for libel against the three defendants in the current action arising out of the article. The first and third defendants plead justification, fair comment and qualified privilege. The second defendant pleads justification, fair comment and qualified privilege. The second defendant is also a defendant in a conjoint action where the claimants claim damages for libel arising out of substantially the same sort of allegations. In those proceedings, Mr Porch pleads justification, fair comment and qualified privilege. The claimant alleges malice against Mr Porch in both proceedings. The hearing as to justification is likely, of itself, to occupy some five or six weeks. At a pre-trial review, it was submitted that the question of qualified privilege, in so far as it affected the first and third defendants in the instant case, should be dealt with as a preliminary and discrete issue. That was on the basis that if they were successful in their plea, and as to malice, that would be a complete defence to the action. They would not then be required to spend a considerable amount of time and costs on the issue which, on that hypothesis, would not arise. I acceded to that application and so ruled. On January 11th the Court of Appeal per Lord Justice May and Lord Justice Tuckey dismissed an appeal by the claimants against that decision. Accordingly a jury has been sworn and the issue of qualified privilege has proceeded, with evidence being called and submissions of law being made. There being disputed questions of fact, in accordance with the principles of law the jury were invited to give answers to two questions, which they did. I shall refer to those questions and answers in due course.

3. The article which gives rise to this claim reads as follows. It is on the front page. The headline reads, "GIVE 'EM THE CHOP", and a sub-headline reads, "Doorstep salesmen flog dodgy karate lessons." They were the work of a subeditor. There's then a caption, "LWN exclusive by Sheila Holmes". It reads as follows:

4. Another problem was that they claim to have full insurance cover, but this was, "Very dubious," said Mr Porch. Mrs Pauline Green of Longroyd Terrace, Beeston, paid out £20 to cover registration and insurance for her 11-year old daughter Jessica Croft to join classes at St Francis's School. She said "Jessica has wanted to do karate for a long time but I've been too busy to sort anything out. Because they came knocking on the door, it was so much easier. I became suspicious when I couldn't get through to the telephone number they gave me. It was only when I spoke to a local karate instructor that I found they are not registered. If anything happened to my daughter, I probably would not have any comeback. I want to warn others not to get involved. There are too many people in this area who can't afford to waste this kind of money." Added Mr Porch, "These people are giving the sport a bad name. The UK are world karate champions and have a good reputation to maintain, but they are just ripping people off."

SHORT SUMMARY OF THE FACTS

5. Mrs Holmes and one other are the journalist on the Leeds Weekly News. Copies of the edition of the 14th August and another edition were before the Court. In broad terms, it is fair to describe it as a community paper. Mrs Holmes works from a telephone. She is not an investigative journalist in the sense that is commonly used but receives information about a whole lot of events and activities in the Leeds area which she simply reports. It is rare for her to go and interview people or take statements from them and in the instant case she simply conducted her inquiries by telephone.

6. Somewhere in the week of 4th or 5th August, a Mrs Green rang the LWN and was put through to Mrs Holmes. Mrs Holmes made a shorthand record of the conversation which has been transcribed for the benefit of the Court. Mrs Green made reference to the Chief Instructor at South Leeds Sports Centre, a Mr Burnand, and gave Mrs Holmes his number. Mrs Holmes rang Mr Burnand and also has a shorthand note of that conversation. Mr Burnand told Mrs Holmes, among other things, that the governing body of karate was the English Karate Governing Body, EKGB, referred to in the article as The English Karate Association; that it was the only body recognised by the Sports Council and the only one in which "You can officially represent your country within Europe and the world". He gave Mrs Holmes the name of the General Administrator, Mr Brian Porch, and the number of the governing body office.

7. Mrs Holmes rang Mr Porch. She took down what he said in shorthand. Those notes have unfortunately disappeared but she gave evidence that what appears in quotations ascribed to Mr Porch were his ipsissima verba.

8. She thinks she may have rung Mrs Green again. She rang GKR, who had a paging service. She left a message with them to ring her, giving her number and who she was and where she came from. She had no reply from GKR. The jury found as a fact that she did make that call. She also thought it was possible that she made a second call to GKR. The jury rejected that possibility. The only other enquiry she made was to the Trading Standards Office in Leeds to ask them if they had any complaints. She was told no.

THE RULE OF QUALIFIED PRIVILEGE

9. The principles have been most recently set out in the decision of the Court of Appeal Reynolds v. Times Newspapers Ltd and others (1998), 3 W.L.R 862 and H.L. (1999) 3 WLR 1010. While the House of Lords disapproved of the Court of Appeal view that the circumstantial test was a separate test, they effectively endorsed the decision of the Court of Appeal. Mr Carman QC drew my attention to cases which pre-dated Reynolds, which were not criticised in that decision and accordingly I turn to them now. He submits that in the present case this is a claim to protection of privilege in a mass publication, which has always been a difficult privilege to establish as there is no general media privilege. The 9th Edition of Gatley on Libel at paragraph 14.81 reads as follows:

10. The author contrasts that position with that which obtains when there is a privileged report or where the matter is governed by statute namely, the Defamation Act 1952 and the Defamation Act 1996, which restrict privilege in respect of reports of sporting body statements. Mr Carman submitted that there were no decided cases which granted privilege to such publication. He drew my attention to the decision of Blackshaw v. Lord 1984 QB 1, where Lord Justice Stephenson said: at page 25:

11. At page 26, Lord Justice Stephenson said this:

12. At page 27 Lord Justice Stephenson said:

13. Mr Carman QC accepts that although Blackshaw and other case law were cited with approval in Reynolds - see Lord Nicholls at 1019, Lord Cook at 1047C, and Lord Hobhouse at 1060D - they no longer have the force that they did. They have to be looked at in the light of the conclusion of the House of Lords, that the common law test - whether there had been a duty to publish the material for the intended recipients and whether they had an interest in receiving it - requires the Court to take into account all the circumstances of publication including the nature, status, and source of the material.

14. In that case, what might appear from previous authorities to be a conclusion that in this case there could be no privilege, has, in my judgment, been overtaken by the decision in Reynolds. In relation to that Lord Nicholls, in dealing with the defendants' claim for generic protection said at 1019D:

15. Mr Carman has submitted what is essentially a floodgate argument, that if I allowed this application of qualified privilege, that would be akin simply to granting privilege for information on the subject of public interest provided it came only from a source which a journalist believed to be reliable. I reject that argument. It seems to me in the light of the decision in Reynolds, that the Court should proceed on a case by case basis, seeking to apply the principles laid down in that case to the particulars facts of each case. As the particular facts of each case vary immensely a decision in one case may not have any bearing on a decision of another case. It is important to remember that in the Reynolds case there had been a failure by the newspaper to mention Mr Reynolds's own explanation to the Dáil. There was no good reason for omitting from a hard hitting article all mention of Mr Reynolds's explanation. Therefore the article could not be a fair and accurate report of proceedings. It would be misleading as a report and an article which fails to give the gist of an explanation already given in this case to the Dáil, faces an uphill task in claiming privilege if the allegation proved to be false and the unreported explanation proved to be true.

16. Lord Nicholls at 1028 said:

17. It is to be observed that there was a plea of justification which failed. There was then a ruling upon qualified privilege by the judge, who rejected the claim.

18. In the instant case, although justification is in issue in the case, it has no bearing on my decision because it has been left open for subsequent evidence on the subject, I have already ruled that no evidence as to justification should be led on the issue of qualified privilege.

19. The House of Lords in Reynolds had to balance the rights and duties of the free press against the protection of an individual's or body's reputation. Lord Nicholls said at 1016E:

20. He went on at page 1017 at letter C:

21. Lord Nicholls went on:

22. At page 1020 Lord Nicholls said this, "In its valuable and forward looking analysis of the common law the Court of Appeal in the present case highlighted that in deciding whether an occasion is privileged, the court considers, among other matters, the nature, status and source of the material published and the circumstances of the publication". He then went on in that passage to say that what is described as a circumstantial test is not a separate test.

23. At 1024 letter F he said, "As highlighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends on its quality as well as its subject matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.

24. Finally, and most particularly, Lord Nicholls says, at page 1027, letter B:

25. 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...." "Further, it should always be remembered 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 the 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 the publication."

26. It is clear, as Lord Steyn said in his dissenting judgment, there is a new landscape. I take the general principles established by Reynolds, as helpfully summarised by Mr Moloney QC.

27. A privileged occasion exists if the public is entitled to know the particular information. That is, if it was the journalist's social or moral duty to communicate it and the interest of the particular public to receive it. This is determined in the light of all the circumstances of the publication and, in particular, whether the sources were, or appeared to be reliable to a reasonable and responsible journalist. While Lord Nicholls' ten examples are not to be taken as written in stone, they form the basic framework upon which a judge can do the balancing exercise.

28. In particular, I am adjured, to avoid hindsight, attach importance to the freedom of expression, be slow to conclude that publication was not in the public interest, to resolve any lingering doubts in favour of publication, and to be flexible in my approach.

APPLICATION OF THE GENERAL PRINCIPLES TO THE FACTS IN THE INSTANT CASE

29. The burden of proof on the balance of probabilities lies on the defendant. General principles are quite often easy to state while their application to a particular case is often very much more difficult. Mr Carman submits rightly that the allegations are grave, including allegations of criminal behaviour, such as "They are just taking people's money and then they disappear", and "They are just ripping people off". In the light of that, says Mr Carman, the information published was not of an appropriate nature, value, or quality, the sources were not and did not appear reliable, and the inquiries made by Mrs Holmes were wholly inadequate if she were going to make serious allegations.

30. I accept Mr Carman's submission that the standard to be applied is what a reasonable and responsible journalist would do. The first question which it seems to me necessary to decide was whether it was the paper's social or moral duty to communicate concerns about the karate selling and whether it was in the reciprocal interest of the public to receive it. In this case, this was not the public at large. The Leeds Weekly News was distributed free to about 158,000 households and some offices, which means that the readership was somewhere in the region of 400,000. The Leeds Weekly News is essentially a community paper in that it sets out details of various activities in the Leeds area, some news about the Leeds area, and a very great number of advertisements, again limited to the Leeds area. This was not a publication to the world at large, but limited, albeit to quite a substantial number to those who lived in the area and to whom the issue of karate selling in the area would be of immediate concern. Thus, in answer to the question, "Did the public at Leeds have a legitimate interest in receiving the information, and were the defendants under a social and moral duty to communicate to the public in Leeds the particular information contained in this article, on this particular occasion?" the answer must be yes.

31. That is, however, not an end to the issue. The fundamental question is one of public interest. The court has to assess whether it is in the public interest for a newspaper to publish information as it did and whether the interest in protecting reputation from false defamatory attacks is outweighed by the interests of the free flow of information, even if that information is defamatory and false. In carrying out the balancing exercise the court has to look at every circumstance associated with the origin and publication of the defamatory matter.

32. I turn, therefore, to the criticisms which Mr Carman makes. Given the serious allegations contained in the article, which included allegations of dishonesty, Mr Carman submits that Mrs Holmes fell far short of the standards of responsible journalism. He makes not only a general criticism of her competence but specific criticism as follows:

33. In support of his submission that Mrs Holmes was less than competent he pointed to the fact that although she made a note of her conversation with Mrs Green and Mr Burnand, the note she made of her conversation with Mr Porch have gone missing. She has no note of a second call to Mrs Green, if it occurred, or her call to GKR. Nor subsequent to the publication of the article of two telephone calls from Mrs Furlong and Mrs Radcliffe, who gave evidence before me that they had telephoned Mrs Holmes; a conversation of which she had no recollection. Nor did she record her conversation with a Trading Standards Officer in Leeds. The specific criticisms:

34. Mrs Holmes expressed the view that she had no reason to doubt what she was told by Mrs Green, which was confirmed by what Mr Burnand had told her. He was an expert on karate and he was telling her as far as she was concerned the truth.

35. She then rang Mr Porch and had a conversation with him. As I have indicated, the notes of that conversation are no longer in existence. The best that Mrs Holmes can do is repeat what is in the article as her recollection of what she was told by Mr Porch. She said that Mr Porch had confirmed what Mr Burnand had told her and what Mrs Green had told her, and she said she also believed she spoke to Mrs Green again to fill in one or two gaps. She now has no particular recollection of that second conversation with Mrs Green. It matters not.

36. As far as Mr Porch is concerned, she said Mr Porch was the head man of the board and that she had no reason to doubt the truth of what he was saying or his expertise. It was not her practice to go and take statements face to face from witnesses and she normally conducted the interviews by telephone. It did not occur to her that the information she received was other than reliable or honest, and that she had checked it as far as it was reasonable possible.

37. Mr Carman pointed out that whereas normally Mrs Holmes was engaged in recording details of flower shows and so on, this was an allegation of a criminal offence. Mrs Holmes said it was not normally the practice of LWN to report criminal cases. The reports of criminal cases that fill our newspapers were usually to be found in the Yorkshire Evening Post; that there had been a decision made that LWN should not deal with those cases and, said Mrs Holmes, in the instant case this was not essentially a crime story but a warning to the community about these salesmen. She accepted that she knew no more about Mrs Green than that she had rung up to complain. She knew no more about Mr Burnand than that he was a chief instructor who had been involved in Karate for 33 years and she knew no more about Mr Porch other than he was a general administrator for the English Board, which was responsible for the sport in the country. It did not occur to her to ask whether Mr Porch had ever seen the insurance documents or whether he had ever reported the allegation that the GKR were taking people's money and disappearing, to the police, nor did she see any reason why she should interview Mr Porch or Mr Burnand face to face. It was suggested to her that if she were unable to get into contact with GKR she could have contacted the GKR instructor at her nearby school. She had been told by Mrs Green that there was a class to be held at St Francis' School, where there would no doubt have been an instructor. He could have given her information about GKR and told her from whom she could get information on GKR's behalf. St Francis's School was no very great distance from the newspaper office. She said she saw no purpose in going to St Francis's School because she knew nothing about karate and she had been given the number of GKR already and therefore it was unnecessary to get that number again from somebody at St Francis's School. Mr Carman pointed out she was uncritically and solely relying, in making these very grave allegations, on somebody else's job title, namely Mr Porch's as a general administrator. She knew nothing about his background, how long he had been a general administrator, whether he knew anything about karate or the source of the information. I wholly reject this submission. It seems to me that Mrs Holmes was perfectly entitled, without seeing or coming face to face with Mrs Green, Mr Burnand or Mr Porch, to rely on the positions they held and on the material which they provided. Quite clearly, it would not have been enough to rely simply on Mrs Green, nor probably on Mr Burnand, but it seems to me that the general administrator of the governing body of a particular sport is particularly well positioned to give information on behalf of the sport without being exposed to a detailed examination of the source of the information. While the administrator of the EKGB may not equate in importance to the Secretary of the RFU or the English Cricket Board or the MCC it seems to me to be perfectly reasonable for a journalist to rely on the information by the recognised spokesman for the governing body of the sport recognised by the Sports Council. In my judgment, no further inquiries were required.

38. The other aspect of this particular submission is that it was incumbent on the Yorkshire Post properly to supervise Mrs Holmes. Mrs Holmes is a journalist of very many years experience, having started with the Brighouse Echo, then with the Halifax Daily Courier for a total of five or six years, and some 30 years ago she started work for the Yorkshire Daily Post as a general reporter. She took time off to have her children and worked then for the Leeds Weekly News continuously for 18 years. In the years and months before the publication of this particular article, her contributions were supervised by somebody on the news desk and subsequent to the article she said the Evening Post newsdesk took more of a hand than they had previously. Based on this evidence, Mr Carman submitted that the Yorkshire Post were at fault in failing properly to supervise Mrs Holmes, in allowing this story to go out without further checks being made. This submission, in my view, adds nothing to the argument. If I take the view that Mrs Holmes carried out the necessary investigation, the involvement of the news desk is irrelevant. If she didn't, then the defence of qualified privilege can go.

39. It is quite clear from the various documents in the case, and from Mr Martin's own evidence, that the operation of a BT paging service of this kind left a good deal to be desired. Mr Martin spoke of his conducting a general survey and finding out that something like four per cent of the messages were going astray.

40. It is impossible to determine whether the call from Mrs Holmes was among those that simply went astray or whether the claimants simply ignored it. The claimants knew certainly from November 1997 that Mrs Holmes had allegedly made the call, but had been unable to trace what happened. It is Mr Carman's submission that simply to make one call was wholly insufficient, and drew attention to the following extract of Mrs Holmes' evidence. "Question: However damaging it is to a company, do you think you can discharge your duty of contacting them and asking them their side of the story if you make one phone call, leave a message, and if you don't get an answer - is that it? Answer: No. Well, help my Lord and the jury please, what your position is on this? Answer: I would think I would probably, I would have probably rung twice anyway. Certainly twice. Question: Are you saying you did? Answer - I don't know, I don't know, I can't honestly say."

41. In the light of the jury's finding that she did not possibly make a second phone call, Mr Carman submits with some force on Mrs Holmes' own evidence she failed to give GKR a reasonable opportunity to respond. He further points out there is nothing in the article to suggest that GKR had been contacted and that they had not responded. The latter point seems to me to be without substance, indeed it might be thought to say that GKR had been invited to respond and failed to do so might be more damaging than the absence of any reference to it.

42. It is quite clear from Lord Nicholls' speech, see factor 7, that this is a factor that the judge should take into account in the balancing exercise, though the approach will not always be necessary in the balancing exercise. In Reynolds, an explanation had been given which the newspaper chose not to report. However, in the instant case, it seems to me that criticism of Mrs Holmes on this aspect of the case, in the light of her evidence, is a matter to be put in the balance on the claimant's behalf.

43. As I've indicated, at the forefront of Mr Carman's submission was the failure of Mrs Holmes properly to pursue investigations and in particular to fail to enquire from Mr Burnand or Mr Porch the source of their information, whether they checked with GKR, whether they had seen any documents relating to insurance, whether they had tested the complaints that had been made, and additionally to find out from Mr Porch precisely what his position, experience, and expertise were. Mr Carman said there was no particular urgency about the publication of this article.

44. Insofar as it's necessary for me to make a finding, I found Mrs Holmes to be an honest, sensible and responsible person on whose evidence I could rely and who was naturally concerned by the dangers, particularly to children, resulting from this organisation. I reject the view that she was either indifferent to accuracy or truth. She based her article on what she believed, honestly believed, was reliable evidence. I've read and reread all the speeches in Reynolds. I've reread the transcript again. I've listened with care to the submissions made orally and read the written submissions of counsel. I now have to do the balancing exercise, looking at all the circumstances, and most especially at the specific criticisms to which I have referred. In conclusion, I'm clearly of the view that the criticisms to which I've referred, neither individually or cumulatively, outweigh the interest in the free flow of information in this case. Accordingly, I rule that qualified privilege is made out.