IN THE COURT OF APPEAL (CIVIL DIVISION) Appeal Court Ref: A2/2011/2445ON APPEAL FROM THE HIGH COURT OF JUSTICE Claim No. HQ09X02550QUEEN’S BENCH DIVISION B E T W E E N:

SARAH THORNTON

Claimant/Respondent

- and -

TELEGRAPH MEDIA GROUP LIMITED

Defendant/Appellant

______________________ _

APPELLANT’S SKELETON ARGUMENT FOR PERMISSION TO APPEAL

_______________________

There is a set of bundles before the Court which consists of:

1. Bundle for Permission to Appeal (B1)2. Document Bundle (B2)3. Daily transcripts of the trial (B3)4. The book - Seven Days in the Art World by C (B4)5. Authorities Bundle (B5)

References in this skeleton are to bundle numbers and tab numbers and page numbers where relevant. References to paragraphs in the judgment are prefaced by J. A chronology and a list of the persons involved are attached.

Summary 1. This appeal relates to findings of fact by a trial judge. However, the Court of Appeal can

and should review and overturn the findings for a number of reasons including:-

1.1. They involve errors of legal principle, some of which have wider significance in

relation to the proper protection of freedom of expression.

1.2. They are the product of erroneous reasoning.

1.3. The context is the offer of amends regime, the efficacy of which the court should be

astute to protect. The approach of the Judge tends to undermine its efficacy.

1.4. A well-known journalist of 44 years standing has been found guilty of dishonesty.

Her unchallenged evidence was that over the course of her lengthy career she had

never previously been accused of dishonesty and her invariable practice was to flag

up any libel concerns to her employers. There are many dicta to the effect that

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where a party has been acquitted of dishonesty at first instance the decision should

not be displaced except on the clearest of grounds.1 The corollary is that the Court

will be more willing to review a finding of dishonesty, particularly where, as in the

present case, it is in such harsh terms and against a person who has successfully

pursued her career for so many years without any similar finding.

1.5. The relevant primary facts are limited and are not in issue. The Court is in as good

a position as the Judge to draw inferences and make judgments on probability on

the basis of them. Where the issue is which of two or more alternative scenarios is

the most probable on the basis of uncontested primary facts, the Court of Appeal will

be willing to overturn the findings of the trial judge where he failed to take into

account relevant factors that impact on probability and/or overestimated the factors

which made the appellant’s case less likely and/or underestimated the factors that

made it more likely.2

2. The facts are set out in the judgment3 and the attached chronology. This skeleton

argument will proceed on the basis that the reader is aware of them. This is a lengthy

document because it needs to address all the findings and statements of principle

contained in the judgment. However, at its heart, it is a simple case that has become

over-complicated following C’s decision to reject the offer of amends. The overwhelming

probability is that Ms Barber believed what she wrote at the time.

Dishonesty, malice and offer of amends – the relevant legal principles

3. One of the principal ways in which English law balances freedom of expression with the

protection of reputation is by the extent to which it requires a defendant to be at fault in

order to impose liability. The general rule is that once the claimant establishes that the

words are defamatory of him and have been published by the defendant he is not

required to establish any culpability on the part of the defendant. In cases of public

interest journalism, liability turns on the objective test of responsible journalism through

the Reynolds defence. The conduct of the defendant comes under scrutiny by reference

to objective standards determined by the courts. It is akin to a negligence standard. At

the other end of the spectrum are the circumstances in which a claimant must prove that

1 See Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 at [12] in B5/12 See for example Datec Electronic Holdings Ltd & Anor v United Parcels Service & Anor [2007] 1 WLR 1325 at [42] - [49] in B5/53 B1/4/56

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the defendant was dishonest,4 notwithstanding that the words are false, defamatory and

damaging. This is a high hurdle to surmount.

4. Where the law requires a claimant to prove dishonesty it gives the greatest protection to

freedom of expression. The requirement is always underpinned by public policy.  The

main occasions on which it applies are comments with some factual basis, statements

made on occasions of qualified privilege and where the claimant has rejected an offer of

amends. The consequence of setting a dishonesty test is that grossly unreasonable,

careless, prejudiced, impulsive and exaggerated speech and conduct is protected,

notwithstanding the harm that it may be perceived to have caused. 

The probability principle

5. The courts have recognised that the protection given to freedom of expression by a

dishonesty test and the public policy that it serves can easily become illusory, where the

tribunal of fact too readily infers dishonesty from its displeasure at the defendant’s

conduct.5 The following principles can be derived from cases in which appellate courts

have overturned first instance dishonesty findings or upheld decisions to withdraw cases

of dishonesty:-

5.1. Every primary fact (or omission) relied on by the claimant as evidence of dishonesty

must be “carefully analysed” from the perspective of whether it is at least equally

consistent with an honest belief, even if that belief is unreasonable or the product of

unreasonable conduct.6 If the fact is equally consistent with an honest belief and/or

“the result is to leave the matter in doubt”, it cannot as a “matter of law” provide

evidence on which the tribunal of fact could find malice.7 This will be described as

the probability principle. Characterising it as a “matter of law” emphasises the duty

on the court not to allow the evidence to be taken into account and its amenability to

review on appeal. In the same way that there is only one “right” answer to questions

such as the meaning of allegedly defamatory words and the construction of a

contract, there is only one right answer to the application of the probability principle

to the relevant facts.

4 An allegation of malice is an allegation of dishonesty. Section 4(3) does not refer specifically to malice, but see the Court of Appeal judgment in Milne v Express Newspapers [2005] 1 WLR 772 in B5/95 See for example Horrocks v Lowe [1975] AC 135 at 150H -151A in B5/66 See Turner v MGM Ltd [1950 1 ALL ER 449 at 455B in B5/157 See Telnikoff v Matusevich [1991] 1 QB 102 at 120E in B5/13

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5.2. If there are a number of facts “that leave the matter in doubt” the tribunal of fact is

not entitled to find dishonesty by adding them together and concluding that the total

sum is greater than the individual parts.8

5.3. If the primary facts are uncontested and none satisfies the probability principle, it is

impermissible for the defendant to be subjected to cross-examination in order to

scrutinise his explanation or to obtain other material on which to base a finding of

dishonesty.9

5.4. The freedom of speech protected by a dishonesty test “may be availed of by all sorts

and conditions of men.”10 The careful analysis of the facts and probabilities arising

from them must be made by reference to the character and values of the person

accused of dishonesty, even if these are not shared by the tribunal of fact.

5.5. Closely linked to this principle is the extreme caution in inferring dishonesty from

(what the tribunal of fact finds to be) departures from objective standards of good

conduct.11 This can easily lead to the erosion of the difference between a

negligence test and a dishonesty test. The more likely explanation for what is

deemed to be unreasonable conduct is that the defendant has a different view to

others as to what is reasonable and/or has simply behaved unreasonably. The most

commonly pleaded conduct is a failure properly to verify. But as is frequently stated,

this is at least as equally consistent with an honest belief and rarely satisfies the

probability principle.12 It is difficult to find cases where a failure to check has been

held to be evidence of malice. John v MGN Ltd [1997] QB 58613 is addressed in [51]

below. There is also a recent decision of the Judge in Cambridge v Makin [2011]

EWHC 12 (QB),14 which is due to be heard by the Court of Appeal on 2 November.

It involves similar errors of principle to the present case.

5.6. A similar caution arises in relation to post-publication conduct. It is the product of

after-acquired information and is an inherently unreliable indicator of what was going

through a defendant’s mind at the date of publication.15 The most commonly

pleaded conduct is the failure to apologise when a mistake is highlighted. But this

“though unwise, may be evidence of stubbornness rather than malice at the date of

8 See Telnikoff at 120E9 See for example Telnikoff 10 See Horrocks at 150C11 See Horrocks at 150C-E and the Court of Appeal in Milne.12 See [49] below.13 B5/814 B5/415 See for example the caution expressed in Duncan & Neill at [18.27]

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publication.”16 Alternatively, the defendant may have a different view to the tribunal

of fact as to the materiality and seriousness of any mistake and the extent to which

an apology is warranted. It is hard to find a case where the failure to apologise has

been held to be evidence of malice. A good example of such reluctance is the

Australian High Court decision in Howe & McColough v Lees [1910] 11 CLR 36117

cited in Roberts v Bass [2002] 212 CLR 1, (referred to in [49] below). The parties

were members of an association of livestock agents. The defendants informed the

secretary that the plaintiff had defaulted on a payment for livestock. The information

was circulated to a number of interested parties. In fact, the plaintiff had paid the first

defendant, who claimed to have forgotten. Once the defendants discovered the

error they did not correct it allowing the plaintiff “to go on suffering from its

consequences long after a frank admission of their error might have immediately set

things right”. This was held to be “highly reprehensible” and “showed a somewhat

mean spirit and an apparently callous disregard of the plaintiff's position, in

endeavouring to escape from its natural consequences”, but did not throw any light

on the first defendant’s state of mind when he made the original mistake.

5.7. Any court case is an exercise in hindsight. The primary facts relied on by a claimant

are scrutinised in intense detail without any equivalent consideration of other things

happening in the defendant’s life at the same time. They can thereby acquire

significance far beyond that given to them by the defendant at the time. The courts

have repeatedly warned against hindsight bias in determining a negligence test.18

Such caution should be even greater where dishonesty is alleged.

5.8. There are numerous statements from distinguished judges over many years to the

effect that findings of malice are “exceptional” and/or that malice is extremely difficult

to prove.19 These are not statements of legal principle, as such. But they reflect the

legal principles referred to above. These principles keep malice in check, thereby

protecting the public interest underpinning the requirement to prove dishonesty and

protecting an individual from a court finding of dishonesty unless clearly justified.

The offer of amends regime

6. The context of the present case is the offer of amends regime introduced by the

Defamation Act 1996. It has revolutionised defamation practice by encouraging early

16 See Duncan & Neill at [18.27] and for example Eady J in Blackwell v NGN Ltd [2007] EWHC 3098 (QB) at [19] in B5/217 B5/718 See for example Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205E19 See for example, Eady J in Milne at [7] above.

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settlement of claims. What has made it work so well is that it has effective “carrots” and

“sticks”. The carrot for the claimant is that by accepting the offer he can walk through an

“open door” to all the remedies available at trial without the cost and hassle of contested

litigation.20 The stick is the huge risk involved in rejecting an offer. This arises by virtue

of the dishonesty test set in section 4(3) to disqualify a defendant from relying on the

offer as a defence. The carrot for the defendant is the opportunity to resolve a case

quickly and with limited cost through a formal process with damages assessed by a

judge. The stick is the cost and risk of defending a case if an offer is not made.

7. The equivalent regime in the 1952 Act was never used because it was too cumbersome

and required the defendant to prove that he had not been negligent. Bearing in mind the

inherently aggressive nature of libel litigation, an amends regime of this kind will only

work if there is a sufficient incentive for defendants to make the offer and a sufficient

deterrent for claimants (and/or their legal representatives) not to reject it. This, in turn,

will only work if the bar for disqualifying a defendant from relying on the offer as a

defence is set and maintained sufficiently high. As Eady J stated in Milne v Express

Newspapers [2005] 1 WLR 772 (as approved by the Court of Appeal at [34]):-

"Parliament intended that a defendant whose offer of amends is turned down should have a statutory defence for that very reason – save in exceptional circumstances. I use the word "exceptional" advisedly. Of course, it is not to be found in the statute. On the other hand the formulation of the Committee and of the legislature was obviously reflecting Lord Diplock's analysis of "malice". It could hardly be denied that findings of malice are exceptional. Those exceptional circumstances could not arise simply in cases where a journalist or editor could be criticised for not taking further steps to research or check an article prior to publication. It is not a defence based on the absence of negligence (as it could have been)."

8. In practical terms, there is no difference between a defence based on absence of

negligence and a defence based on an absence of dishonesty, where the existence of

negligent conduct is the basis for inferring dishonesty.

9. In the present case, C has incurred costs of almost £1.3milion to obtain the same

remedy in relation to the sole defamatory allegation of which she complained had she

walked through the open door presented by the offer of amends before proceedings had

been issued. The costs include 100% success fees of around £460,000 and an ATE

premium of £365,500 arising from a self-created and unnecessary risk. The costs

estimate in the Allocation Questionnaire was £150,000. The reason originally given for

not accepting the offer was that it was invalid and/or did not cover the copy approval

20 See Tesco Stores Ltd v Guardian News & Media Ltd [2009] EMLR 5 at [29] in B5/14

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allegation.21 The first point was not pursued and the second was misplaced because the

copy approval allegation was not defamatory and accepting the offer of amends would

not have prevented C from pursuing the copy approval allegation. When questioned by

the Court of Appeal in a hearing shortly before the trial, C’s counsel did not provide any

explanation of why the offer was rejected. At the trial, the Judge refused to allow D’s

advocate to ask.22

10. D readily accepts that Parliament has permitted a claimant to reject an offer of amends

and seek to make good a section 4(3) case. The tribunal of fact must therefore decide

whether the requisite dishonesty has been proved by reference to the principles referred

to in paragraph 5 above. However, the court should have no qualms about holding fast

to them. This is not “a charter for irresponsibility by newspapers.”23 By making the offer,

the defendant does not “get out cheaply” in relation to damages.24 If the offer is

accepted, the defendant must pay up, on a conventional basis, for having libelled the

claimant. Moreover, the proper purpose of a defamation claim is compensation, not

punishment or exposure of wrongdoing.25 “The whole point of the offer of amends

procedure …..was to provide assistance to journalists who found themselves "over a

barrel" because they had got their facts wrong. The regime enables them to climb off the

barrel by putting their hands up and making an offer of amends.”26 Parliament permitted

the offer to be made at any time up to service of the defence, thereby permitting a

defendant to make a mistake in publishing a libel, make a second mistake in initially

rejecting the claim and still be entitled to rely on the offer.

11. This strikes a proper balance between the competing rights. Freedom of expression is

not merely about the absence of prior restraint. It is well-established that the huge costs

of media litigation chill freedom of expression and engage Article 10. The offer of

amends regime is a means of keeping them at bay. As Eady J observed in Tesco Stores

Ltd v Guardian News & Media Ltd [2009] EMLR 5:-

“23.One of the main purposes underlying the enactment was to afford an additional defence to journalists; specifically of course those who had got their facts wrong but were willing to make amends. An interpretation of the Act which undermined that purpose would tend, therefore, to undermine indirectly the right of free expression protected by Article 10.

21 See TH’s letter to DPSA dated 30 April 2009 in B1/37/2122 See transcript Day 1/134-13523 See the Court of Appeal in Milne at [44] - [46]24 See Milne at [45]. 25 See Tesco at [25] 26 See Tesco at [44] -[45]

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24. To compel or encourage a claimant to take advantage of the statutory regime, once an offer has been made, does not undermine either its Article 8 rights or its Article 6 rights. On the contrary, they are advanced because restoration of reputation can be achieved via the court's processes more quickly and less expensively (it is hoped). The objective in a libel action is to achieve the restoration of reputation and that must not be obscured by seeking to obtain some collateral or tactical advantage. That would be to use the court's processes for an inappropriate purpose.”

12. Finally, it is important to note that section 4(3)(b) refers to “false and defamatory”. This is

to be contrasted with malice in the context of comment and qualified privilege, which

merely requires an awareness of falsity. It is to be compared with the exemplary

damages regime which requires the conscious commission of an unlawful act. “False

and defamatory” means libellous. The defendant must know or suspect at the time that

he chooses to publish the words that they will give rise to tortious liability.

13. Any careful assessment of the inherent probabilities must involve asking why a

defendant would consciously wish to expose himself to such a risk. The exemplary

damages cases generally involve a sensational front page article designed to increase

sales. In an offer of amends case, a claimant is not required to establish a profit motive.

But the absence of such a motive must be relevant as to whether it is probable that the

defendant made a conscious decision to publish an indefensible libel.

14. In this regard, there is little practical difference between knowledge and recklessness.

Both require a conscious awareness that an indefensible libel is about to be published.

“The publisher must have suspected that the words were untrue and have deliberately

refrained from taking obvious steps which, if taken, would have turned suspicion into

certainty.”27

Application of the principles to the facts15. The Judge concluded, albeit with some hesitation, that Ms Barber knew all along that

she had been interviewed by C.28 In other words, that when she saw her name in the

Acknowledgements section of the book, she hit upon the idea of inventing an allegation

that C had never interviewed her, knowing that it was libellous and could easily be

proved to be false. This is a bizarre finding that is the product of faulty reasoning and

errors of principle. They are set out in the grounds of appeal29 and developed further

below.

The curiously unmotivated lie

27 See John at 618H28 See J82 - 10929 B1/1/9

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16. The Judge gave a number of reasons that led him to the conclusion that Ms Barber had

invented the interview allegation. But at no point did he did take into account the

inherent unlikelihood of such a scenario. What possible motive would Ms Barber have

for consciously publishing what she knew to be an indefensible libel and withholding it

from The Telegraph? The motivation relating to the Turner Prize is addressed in [38] –

[43] below. But even if Ms Barber wished to cause harm to C as a result of the Turner

Prize chapter, she had ample opportunity to satisfy it by giving the book an extremely

poor review without resorting to an allegation that she knew to be libellous. The entire

review is not set out in the judgment.30 Ms Barber’s consistent evidence that she

believed the book to be poor, pretentious and sneer-worthy was never challenged.

Given that the review was sufficiently scathing to put off readers, why, then, include a

couple of sentences known to be libellous? This was not a sensational front page article

designed to increase sales as in John, where without the defamatory allegation there

would have been no story. Moreover, even if Ms Barber had remembered the

December 2006 conversation and wanted to make a dig about being included as an

interviewee, she could have done so in terms that would not have exposed D to a libel

claim.

17. As one commentator stated after the judgment, it is a “curiously unmotivated lie.”31 Its

inherent unlikelihood is manifest. Both Leveson LJ and Carnwath LJ made disparaging

remarks about C’s section 4(3) case in the context of the discussion about why C had

rejected the offer of amends.32

Paragraph 15 of Ms Barber’s witness statement33 and the email of 20 October 200834

18. The Judge’s conclusion becomes even more unlikely when regard is paid to the

unchallenged (and therefore deemed true) evidence of Ms Barber as to her journalistic

career and habitual practice of drawing perceived libel risks to her employer’s attention.

Despite being cross-examined for a day, the crucial part of her witness statement and

the email of 20 October to which it referred were, tellingly, not the subject of any

questioning. They are set out below. The Judge referred, in part, to the 20 October

email in his judgment,35 but did not include Mr Leith’s reference to “writs”, thereby making

it explicit that both Ms Barber and Mr Leith were contemplating and seeking to avoid the

possibility of a libel claim.

30 The review is at B1/6/9531 Hugh Tomlinson QC on the Inforrm Blog www.inforrm.wordpress.com/ 32 This was in the course of an appeal in relation to mode of trial on 22 June, shortly before the trial.33 B1/31/22734 B2/18/6135 At J31

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“15.The review that I sent to Sam Leith included a sentence about Nick Serota asking Andrew Renton if he had a commercial interest in one of the nominated artists. But I warned Sam in my accompanying email that Renton might complain and that, although it would make an exciting buzz in the art world, it would probably cause more trouble for the Telegraph than it was worth. I left the decision of whether to include it entirely to him and, when the article came out, I saw that the sentence had been deleted. I was a little disappointed, but not surprised. But my exchange of emails with Sam Leith shows that I did not want to cause any problems for the Telegraph. For all the talk of ‘Demon Barber’, in 44 years of journalism I can only recollect one previous claim against me (from the boxing promoter Frank Warren, which was resolved quickly). But, rather than self-censor, my practice has always been to flag up any libel concerns and leave it to my employers to decide. The irony is that my only concern in this case was about a complaint from Andrew Renton: it never occurred to me that Thornton would complain. (My diary entries for 20 October and 1 November 2008 support this.) Of course I knew she was bound to dislike such a negative review but the job of a reviewer is to serve the readers not the author.”

Lynn Barber to Sam Leith on 20 October 2008 at 11:16:“Dear Sam,The last sentence of the second para will come as juicy news to a few people in the art world but will produce hysterical screams and complaints from its subject, Andrew Renton. If you can’t be bothered with the fuss he is bound to make, just delete it. It is true though!Best wishes, Lynn”

At 11.42 Sam Leith wrote:“Thanks Lynn. Totally gripping piece. And I’d love to put the Renton stuff in. I don’t mind hysterical screams and complaints one bit. What’s your finger-to-the-wind judgement as to whether he’d get anywhere with writs, mind?Presumably the acquisitions, if at auction, are a matter of public record – or discoverable. If the interrogation by Nick Serota was in your presence, or Serota would confirm it, I can only think we’re good to go…sx”

At 17:04 Lynn Barber wrote:“Yes, the interrogation was certainly in my presence – it was at the final judging session of the Turner Prize, so all four judges were there, plus Serota and about half a dozen Tate staff so if it actually came to court there would be plenty of witnesses. I didn’t say he bought the Mark Titchners, but that Serota questioned him hard about why the collector Renton is consultant to had suddenly bought loads of Titchners. It certainly shut Renton up and possibly damaged Titchners chances because he then didn’t dare speak in his support. But I warn you Renton is a bit cracked so it could be v tedious. love, Lynn”

Ms Barber repeated her modus operandi in cross-examination, again without challenge.

“A. I would always say that my primary relationship as an employee or a contractee of The Telegraph was that I always had to go back to my editor. I mean, that's standard practice -- it's certainly been my practice all my career, that anything -- anything sort of doubtful or contentious, I would always refer back to the editor.”

19. It is implicit in the Judge’s findings that, during the above email correspondence, Ms

Barber was withholding her knowledge or suspicion that The Telegraph was about to

publish a serious and demonstrably untrue libel of C and acting contrary to her long-

established practice in relation to libel.

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20. The Judge accepted the importance of contemporaneous documents in determining

where the truth lies.36 The point is usually made where there is a conflict of evidence

between two witnesses. Where the issue is the mental state of a single witness,

documents created by him will generally provide the best insight. Where the issue is the

state of mind of a journalist at the date of publication any comments made while filing the

copy are likely to be highly material.

21. The 20 October email in the context of the unchallenged evidence is destructive of C’s

case, which requires a conscious awareness on the part of Ms Barber of libelling C and,

by implication, a conscious decision to withhold this from Mr Leith. In response to D’s

closing submissions, C’s advocate submitted that the omission of any reference to C

could be explained because Ms Barber believed the allegation against Andrew Renton to

be true, but knew the allegation against C to be false. This explanation was accepted by

the Judge, thereby rejecting Ms Barber’s unchallenged evidence.37 A party is required to

challenge in cross-examination the evidence of any witness of the opposing party if he

wishes to submit to the court that the evidence should not be accepted on that point,

especially where it is central.38 It was wrong in principle for the Judge to accept the

explanation. Moreover, it was illogical. Ms Barber was more likely to flag up a concern

about an allegation that she knew or suspected to be untrue, than one that she believed

to be true. If Ms Barber was aware that the interview allegation was libellous, there was

no reason for her to believe that Mr Renton might complain but C would not. A person is

more likely to sue on a demonstrably false allegation than a true one.

22. Ms Barber’s diary entries are also highly probative of her state of mind at the relevant

time. She was not cross-examined on them or the parts of her witness statement to

which they referred. The entries of 20 October and 1 November corroborate Ms Barber’s

concern not to cause any legal problems for The Telegraph. The entry of 11 December

2008 reveals a process of discovery prompted by C having given the date of 11

December 2006. It demonstrates that this was the first time that Ms Barber realised that

she had had a conversation with C (or any contact beyond the “brush-off”). If so, she

could not have had it in mind when she wrote the review:-

“20 October 2008: “Finished Telg art book review - put in a mischievous sentence about Andrew Renton but told Sam he could drop it - probably too much trouble.”39

36 See J7237 See J8038 See Phipson on Evidence at [12-12]39 B2/20/66 - 67

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1 November 2008: “Got Telg w my art book review - they have toned down my expose of Andrew Renton - just as well probably.”40

11 December 2008: “Didn’t get home till 4.30 and found msg to ring Brian MacArthur re legal complaint from Sarah Thornton - he told me to deal with lawyer direct so I did - she had kept all my emails but they confirmed my refusal to talk - however she said she did talk to me on Dec 11 2006 so I looked up my diary wh records tiresome NY journo.”41

23. There was no suggestion that the entry was written with a view to being cross-examined

2 ½ years later, nor could there be. J79 merely states: “She wrote nothing in her diary to

support the allegation that she knew the interview allegation to be false.” The diary

entries are not merely neutral. They are wholly inconsistent with a pre-existing

recollection of the December 2006 conversation. At J126 the Judge questions why the

diary entries do not express any concern about C: “They invite an explanation of why

she did not record in her diary her concerns about Dr Thornton, unless the explanation

be that she had no concerns about Dr Thornton”. The Judge relies on this as evidence

of an indifference to truth, when, in fact, the absence of any expression of concern is far

more probative of a belief in the truth and the absence of any suspicion that she is about

to libel C. Moreover, that is the explanation given by Ms Barber in [15] of her statement.

Reversal of the burden of proof

24. The inherently probable conclusion from the wording of the review is that Ms Barber

misremembered what happened. That was the natural assumption made by C before

she instructed lawyers.42 It is borne out by the fact that Matthew Collings, the respected

art critic, writer and broadcaster, made the same mistake as Ms Barber, without seeking

any verification from C before publication, and notwithstanding that he had a 90 minute

face-to-face interview; a point that did not feature in the judgment.43 At worst from D’s

perspective, the mind would be left in doubt as to whether Ms Barber forgot.

25. Instead, the Judge started from the perspective that because the conversation took place

Ms Barber was malicious unless she could persuade him that she had forgotten about it.

He proceeded to analyse critically Ms Barber’s assertion that she had forgotten from the

standpoint that if she did not persuade him as to its truth she must be malicious without

factoring in the inherent unlikelihood of her embarking on such a curiously unmotivated

lie. This approach is evident from the entire judgment and in particular the first two lines

40 B2/21/68 - 6941 B2/22/70 – 7142 See C’s email to Ms Barber of 7 November 2008 in B2/9/37 and C’s email of 11 December 2008 to the Editor of the Daily Telegraph in B1/37/1-543 See Mr Collings’ blog on Saatchi online of 21 November 2008: “Put downs and suck ups: Matthew Collings’ weekly venting on the art world. No. 1: The Frieze art fair – one day in the art world” in B2/11/39-42

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of J82 and the exchange during D’s summary judgment application at the outset of the

trial:-

“MR PRICE: Yes. One starts off with identification of the primary facts. The way that the probability principle works is you identify the primary facts, and then you judge the inference by reference to the primary facts. As your Lordship has observed, the primary facts are extremely simple and are not in issue. In essence, the core primary fact is that the conversation took place in December 2006.

MR JUSTICE TUGENDHAT: Yes. MR PRICE: What does the tribunal of fact infer from that primary fact?

MR JUSTICE TUGENDHAT: Well, absent an explanation, since the conversation was one to which Ms Barber was a party, absent an explanation, she was saying something which she knew was false. She put forward an explanation, which may be a true one, but absent an explanation, she was saying something she knew was false.”44

26. This amounted, in practice, to a reversal of the burden of proof. The starting point under

section 4(3) and the general principles relating to malice should have been that Ms

Barber believed what she wrote.45 This necessarily meant that she had forgotten the

conversation. The critical analysis should have been directed to whether the primary

facts relied on by C as evidence of malice were, at least, equally consistent with the

presumed honest belief of Ms Barber (even if this was, on the Judge’s view,

unreasonable and prejudiced). Such analysis does not feature in the judgment.

27. This error was compounded by the Judge’s approach to the inherent probabilities. He

recited the general observations in Re H (Minors) (Sexual Abuse: Standard of proof)

[1996] AC 56346 about it being more probable that a person would make a mistake than

lie and referred in general terms to the presumed improbability of a reputable writer not

lying. (As previously stated, he did not focus on the probability of the specific lie of which

Ms Barber was accused). He held that any general improbability in Ms Barber having lied

was, at least, matched by the specific improbability of C, also a reputable writer, having

lied by including Ms Barber within her list of interviewees when there had been no

interview.47 This was wrong in principle, as the Judge had previously accepted in closing

submissions.48 It was Ms Barber’s honesty, not C’s honesty that was subject to the

scrutiny of the court. Ms Barber was entitled to reach conclusions about C’s honesty

based on faulty or absent reasoning and unfairness, without being dishonest herself.

44 See transcript Day 1/4 - 545 Section 4(3): “..it shall be presumed until the contrary is shown that he did not know and had no reason to believe that was the case”.46 Cited in Re B (Children) [2009] 1 AC 11 at [11] in B5/1047 See J8348 See transcript Day 4/11 - 15

13

The court was not entitled to do the same when judging Ms Barber. The probability

principle required the court to give Ms Barber the benefit of any doubt at every stage.

The comparison also breaks down if (as was accepted) Ms Barber had formed a poor

opinion of C before she came to the Acknowledgments section, as a result of what she

had read in the book.

28. Moreover, if Ms Barber firmly believed that she had not been interviewed, she would

naturally have reached the conclusion that C should not have included her in the list of

250 interviewees. There was nothing in the body of the book to suggest that she had

been interviewed or fell within the description that C gave of her interviewees.49 The

Turner Prize chapter cited Ms Barber’s published articles, which was consistent with her

recollection. It was not for Ms Barber to come up with a reason why C would have

included her if she had not been interviewed. As Ms Barber stated: “there were there's

lots of things about the book where I thought I don't know why she's done that”.50 The

analysis in J83 is an example of the Judge drawing inferences of dishonesty based on

his judgment as to what he believed a reasonable person ought to have concluded on

the basis of his impression of C without weighing up the possibility of alternative

inferences. To someone who regarded C to be a “pseudo-intellectual”51 manifesting an

“essential triviality”, it would not seem out of character for C to claim a high profile

journalist as an interviewee, when the journalist had merely given her permission to

quote from her published works.

29. The Judge’s reasoning, in essence, is that because it was inherently unlikely that C

would have falsely claimed to have interviewed Ms Barber, no reputable journalist would

have made the allegation (at least not without checking) and that since Ms Barber held

herself out as a reputable journalist she must have been dishonest. The reasoning is

flawed for the reasons previously stated. Moreover, having relied so heavily on

theoretical unlikelihood, it was wrong for the Judge to omit any reference to Mr Collings’

similar lapse in memory and failure to check.

“Spiteful” language

30. The Judge was wrong to find that where a publication is “spiteful in its terms” the court

will more readily conclude that any misstatements of fact are dishonest.52 This is

contrary to established domestic and Strasbourg jurisprudence relating to strength and

49 See chapter 4: The Prize at page 109 and page 257 of the book 50 See transcript Day 2/17151 The precise words were C’s counsel’s description with which Ms Barber agreed. See transcript Day 2/10152 See J76

14

tone of language.53 A reviewer is “entitled to dip his pen in gall”.54 If he gets facts wrong,

the defence of honest comment may not be available, but this is not because he has

been dishonest. As a matter of logic and established legal principle, the use of strong,

inflammatory, exaggerated and offensive language, be it described as sneering or

spiteful, is at least equally consistent with strength of feeling and sincerity of belief.

Indeed, it might be thought that a person who honestly holds and expresses such firm

adverse views about a person might be more prone to believing the truth of defamatory

allegation, without verification or proper analysis. This ties in with what Lord Diplock said

in Horrocks v Lowe [1975] AC 135 about people being swayed by prejudice to arrive at

erroneous conclusions and finding it hard to “hate the sin but love the sinner.”55

31. If a reviewer uses what the tribunal of fact regards (rightly or wrongly) to be offensive

language there is no reason why there should be any adjustment of the inherent

probabilities where her honesty is in issue. The principle expressed by the Judge would

discriminate against authors who express themselves in a manner that the tribunal of

fact finds to be distasteful. It is inconsistent with our diverse literary tradition

encompassing hard-hitting satire.

32. The reasoning of the final sentence of J76 is flawed and conflates “spiteful language”

with “spite” in the sense of a dominant intention to injure, which, in turn, could be

regarded as a motive for dishonesty. The correct issue in terms of legal principle is what

inferences as to the honesty of an author can be drawn from the language that he uses.

The clear answer given by the authorities is that language of the type used in the review

in such a context is equally consistent with a strong honest belief and is not therefore

evidence of malice.56 Notably, the Judge does not take account of this possibility in his

statement of principle.

33. There was no suggestion that Ms Barber did not honestly form a strongly adverse

opinion of the book and C’s conduct in relation to it. She was entitled to express herself

in the terms that she did, whether it is described as spiteful, personal or disparaging. The

parts of the review that were not complained of cannot, as a matter of legal principle or

53 There is a series of ECHR cases on the issue commencing with Lingens v Austria (1986) 8 EHRR 407. The position is summarised in Blackwell v News Group Newspapers Ltd [2007] EWHC 3098 (QB) referred to below. 54 See Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 cited by Lord Phillips in Joseph v Spiller [2011] 1 AC 852 at [3]55 At 150H – 151A56 See for example Blackwell v News Group Newspapers Ltd [2007] EWHC 3098 (QB) at [17]-[18]

15

logic, amount to evidence of dishonesty in relation to the parts that were. Moreover, if

Ms Barber honestly believed that there had been no interview, she was fully entitled to

express herself in the manner that she did.

34. The Judge’s observation that the review was “as personal as it could be” over-states the

position. In any event, a reviewer is entitled to make personal criticisms of an author

without it being evidence of dishonesty. The Judge did not find that any “personal”

criticisms within the review were unrelated to the contents of the book (and there would

be no basis for such a finding).

Analysis of the probability of Ms Barber having forgotten

35. The Judge’s approach to the probability of Ms Barber having forgotten the December

2006 conversation was flawed, over-elaborate, tainted by hindsight bias, relied on

matters that had not been put to Ms Barber in cross-examination, ignored her evidence

that she had refreshed her memory of events for the trial and failed to take into account

matters which weighed heavily in favour of Ms Barber having forgotten.

36. If a person forgets an event or misremembers a series of events a number of years in

the past, it is possible that when all the information relating to the events is set out and

closely and sceptically analysed in isolation from the thousands of other life experiences

in the same period, one can find reasons why judged objectively he ought to have

remembered it correctly. This is not, however, a reliable basis for finding that the person

is lying when he says that he did not. Speculation as to the probability of another

person’s memory failing in a particular manner is inherently subjective and unreliable, in

itself, let alone as a basis for inferring dishonesty by that person.

37. Further, the Judge’s analysis was flawed:-

37.1. The observation at J82 is equally consistent with Ms Barber firmly believing

that she had not been interviewed.

37.2. J83 has been addressed above.57

37.3. In relation to J84 (none of which was put to Ms Barber), there is no basis to

find that Ms Barber had a clear memory of the 17.10 email. There are not many

ways of expressing: “I don’t want to talk to you, but you can quote from my published

account”. Moreover, people often express themselves in similar ways to convey the

57 See [28]

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same information. It is fanciful to suggest that the language of the review

demonstrates that Ms Barber had precise recall of a short and insignificant email

sent 2 years earlier.

37.4. The reasoning in relation to the short 21.50 “relenting” email is based on the

“clear memory” of the 17.10 email and use of the word “talk” in the email and the

review. “Talk” is probably the most commonly used word to express oral

communication. Moreover, the proximity between the 17.10 and 21.50 emails is

irrelevant when analysing Ms Barber’s memory 2 years later.

37.5. The final sentence of J84 makes the same point in relation to the December

conversation and is misplaced.

37.6. Ms Barber was not cross-examined on the point made in J85, which makes

much of one word in Ms Barber’s statement in the context of the Judge’s finding that

she had a “clear” or “precise” recollection” of the 17.10 email. The material point is

not the strength of her recollection of the brush-off, but the fact that it existed and

more significantly, the absence of any memory of the December conversation. This

gave rise to the surprise to find herself named as an interviewee, to which she

referred in the previous sentence of the witness statement.

37.7. The observations about the quality of Ms Barber’s memory in J86 and J91 fail

to take into account that she had refreshed her memory of events for the trial and

has a good short term memory.58

37.8. Notably absent from the factors taken into account was that the December

conversation was “unremarkable”, “easy to forget” and substantially involved Ms

Barber repeating what she had said in her published account. Moreover, the

process of analysing the probability of Ms Barber remembering the conversation is

unreal if stripped from the probability of Ms Barber choosing to pretend that the

conversation had not taken place while remembering all along that it had and

thereby consciously landing The Telegraph with an indefensible libel claim.

The chapter on the Turner Prize

38. The Judge was wrong to rely on the account of the Turner Prize in the book as a

revenge motive for Ms Barber to publish the interview allegation knowing or suspecting it

58 See transcript Day 2/23 – 25, 58 & 107

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to be libellous.59 This was not C’s pleaded case. The pleaded case was set out in

Response 2(b) of her Part 18 Response dated 25 March 2011:-

“(b) Ms Barber’s motive for misleading her readers is not relevant to a case under s.4(3) of the Defamation Act 1996, and the Claimant is not required to make any particular case in this regard. If necessary, however, she will invite the Court to infer that she was content to mislead her readers in this way, just as she was in respect of the other two falsehoods that she knowingly included in the article, because she was trying to do a ‘hatchet-job’ on Seven Days, and in so doing to expose both the book and its author to ridicule for the benefit of her readers.”60

39. The argument is circular and flawed. Ms Barber always accepted that she had chosen to

publish a strongly negative review. Her unchallenged evidence was that she believed it

to be warranted.61

40. There was a passing reference in Reply [4.6] to the Turner Prize chapter having

“rankled” Ms Barber.62 But this was in the context of it allegedly prompting her to

remember the December 2006 conversation, not as a motive for libel.

41. The Turner Prize chapter assumed a far greater importance at the trial following the

Judge’s unprompted observation at the commencement that it was a misfortune that the

book came before Ms Barber containing pages about herself.63 No doubt encouraged by

this, C’s counsel devoted a significant part of the cross-examination to whether there

was a conflict of interest such as ought to have led Ms Barber not to continue her review.

Not only was this unpleaded, but it was not probative of whether Ms Barber knew the

interview allegation to be false.

42. Any careful analysis of the revenge motivation would have to start by considering the

effect on Ms Barber, if any, of what was said about her in the Turner Prize chapter. If

she was unconcerned by it, it could not impact on her motivation. C’s counsel, for his

own forensic reasons, was content to portray Ms Barber as a person with a “very thick

journalistic skin”64 who “did not do shame”.65 Her evidence that she was unconcerned by

what was written about her in the chapter was essentially unchallenged.66 It was also

unchallenged that Ms Barber had formed a strongly adverse view of the book and C, as

a writer, before coming to the chapter.67

59 See J10560 B1/17/14861 See Second Witness Statement of Ms Barber at [11] in B1/31/226 and transcript Day 2/78, 94 and 15362 B1/14/13463 See transcript Day 1/464 See transcript Day 2/7065 See transcript Day 2/14666 See transcript Day 2/67, 71, 75 and 7667 See Second Witness Statement of Ms Barber at [11] and [5] and transcript Day 2/69

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43. Cases where malice is alleged often involve pre-existing antagonism between the parties

or some tangible benefit to the defendant from defaming the claimant. None of this was

to be found in the present case.

An Education68

44. The clincher in resolving the Judge’s hesitation in finding that Ms Barber had

remembered the 2006 conversation when writing the review (and by necessary

implication had repeatedly perjured herself) was a passage from page 76 of An

Education. This was Ms Barber’s memoir relating to her experiences as a 16 year old

girl in an abusive relationship with a married conman. She said of her 16 year old self

that she had become a proficient liar who found it hard to break the habit. She added

that she had the good luck to marry a very good, honest man and improved herself as a

result. To rely on this passage as evidence of a propensity to lie as a journalist and

witness 51 years later, is so obviously flawed and unfair that it casts doubt on the

Judge’s entire reasoning process.

45. This is compounded by the fact that the Judge ignored the specific and unchallenged

evidence of Ms Barber’s practice and record in relation to libel over a successful 44 year

career as a journalist which was concrete evidence of a propensity not to lie.69

46. The Judge justified his use of the extract because of Ms Barber’s references to the book

in her witness statement, thereby introducing the book into the case.70 This was

irrelevant. It was also factually incorrect. The book was introduced by C in her

Disclosure List among a number of other writings by Ms Barber which appeared to have

nothing to do with the matters in issue.71 When questioned by D’s solicitors, C’s

solicitors stated that they were only relying on the preface (pages 1 - 7), in which Ms

Barber wrote about her memory.72 It was therefore natural for Ms Barber to refer to that

part of the book in her witness statement.

Recklessness and the failure to check

47. In the alternative to his finding that Ms Barber had known all along that the interview

allegation was false, the Judge found that she was recklessly indifferent to its truth. The

68 B2/14/47 – 5369 See [18] above.70 See J10971 B1/19/16172 See DPSA letter of 15 April 2011 and TH’s letter in response of 4 May 2011 in B1/37/27-28

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Judge stated that he had “no hesitation” in reaching this conclusion.73 This is in contrast

to what was said in closing submissions, three days after Ms Barber had given

evidence.74 As stated in [14] above, reckless indifference is not a very different state of

mind to knowledge of falsity. Both involve a conscious decision to publish what the

defendant knows or suspects to be an indefensible libel. Both involve rejecting as

dishonest Ms Barber’s unchallenged evidence that she had no idea that she was libelling

C. The points on absence of motive above apply equally to both.

48. The Judge relied principally on the fact that Ms Barber did not seek to verify whether she

had been interviewed. The short point is that this omission is, at least, equally consistent

with an honest belief that her contact with C ended with the brush-off (and in reality was

far more consistent with it). People often do not check when they think they are sure,

even if it would objectively be prudent to do so.

49. The Judge relied on a passage from Gatley [17.16] referring to (but not citing) the

judgment of Gleeson CJ in Roberts v Bass [2002] HCA 57, 212 CLR 1.75 In Roberts the

Australian High Court overturned a first instance malice finding, based substantially on a

failure to check. As is made clear in Roberts the possibility of a failure to check

amounting to a reckless indifference to truth only applies where the information is outside

the knowledge of the defendant and he has “no idea whether the allegation is true or

false”.76 A similar point is made in Gatley [34.35] addressing “Evidence of Malice” at trial,

using the words “not on the evidence of the defendant’s own senses.”

50. Moreover, the passage from Gatley [17.16] refers to an accusation of a serious crime as

the threshold for the need to check. In Roberts the allegation was that a politician had

used taxpayers’ money for private purposes, including holidays, which was held to be

insufficiently serious. The interview allegation was not in the category of serious crimes.

It is an exaggeration to say that “there could hardly be more serious an allegation to

make against someone in her profession.”77 There was little, if any, evidence of any

harm having been caused, which is unsurprising bearing in mind it was a couple of

sentences in a book review in the Review supplement of the newspaper.

51. It is instructive to compare the present case with the facts of John. This involved a

sensational front page splash in the Sunday Mirror concerning the plaintiff’s behaviour at

73 See J12774 See for example transcript Day 4/23/7-10.75 See J7176 At [15] in the judgment of Gleeson CJ and evident from the other judgments.77 J182

20

a party given by his manager. The Court of Appeal upheld a jury finding of recklessness.

The story arrived from a freelancer who had not attended the party, the newspaper

regarded an enquiry as requisite, had made contact with the plaintiff’s solicitor who said

that he was not present but that it was unlikely to be true and the newspaper should be

very careful, it would have been easy for the newspaper to have contacted the manager

and no evidence was adduced from any of the people responsible for the article.78

52. The Judge was wrong to rely on the hypothetical questioning by C’s counsel about the

ways in which Ms Barber could have checked. This was an example of the test of

responsible journalism being applied rather than the correct test for malice. Ms Barber’s

consistent evidence was that she did not check because she firmly believed that she had

not been interviewed.79 The means by which she could have checked, had she decided

to do so, and whether it would have been responsible to have done so were irrelevant.

53. It was also unfair to characterise Ms Barber’s answers to such questioning as “reasons

suggested by Ms Barber as to why she should not have checked.”80 Her sole suggested

reason for not checking was that she did not believe that there was anything to check.

Anything else that she said on the subject was simply a hypothetical response to the

case as it was put by C.

54. In this regard, the Judge was wrong to be influenced by Ms Barber’s evidence as to the

deletion of her emails.81 The pleaded failure to check related solely to contacting C or

her publisher.82 Had C pleaded a failure to check past emails, the matter would have

been addressed in Ms Barber’s witness statement and possibly evidence obtained in

relation to her computer, instead of the subject being sprung on her in the witness box.

Moreover, there was nothing surprising in the deletion of old and unimportant emails or

the manner in which Ms Barber explained it.

55. The Judge was also wrong to characterise one of Ms Barber’s responses as “certainly a

lie.”83 This was in the course of lengthy hypothetical questioning about how she could

have checked, when her consistent answer was that such a thought process did not go

through her mind at the time. If a witness gives one erroneous answer in such

circumstances, it is unfair to characterise it as a certain lie.

78 At 621G – 623E79 See for example transcript Day 2/134 – 137 and the Second Statement of Ms Barber at [9]80 See J12181 See J9982 See Reply [4.8] in B1/14/13583 See J96 referring to Day 2/135

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Getting round to meeting an artist

56. The Judge was wrong to rely on Ms Barber’s observation about talking to auctioneers,

collectors, art historians, academics and critics before meeting an artist as evidence of

dishonesty in relation to the interview allegation. J100 does not set out the full text of the

relevant part of the review:-

“It is typical of Thornton’s approach that she talks to auctioneers, collectors, art historians, academics and critics before she finally gets round to meeting an artist. She chooses the prolific and fashionable Takashi Murakami, and visits his various studios in New York and Japan, where she finds teams of assistants literally painting by numbers, having started the day with ten minutes of communal calisthenics. Murakami is, predictably, a fan of Andy Warhol and confides, “Warhol’s genius was his discovery of easy painting”. But, in business terms, Warhol was an amateur compared to Murakami. Having redesigned Louis Vuitton’s trademark monogram print in multi-colours, Murakami now insists on having a Louis Vuitton boutique in his shows. He calls it “my urinal” which, Marc Jacobs of Louis Vuitton hastens to explain, does not mean that he p---es on it but is referring to Marcel Duchamp’s iconic work.”

57. Nor does the judgment refer to the chapters of the book on which the observation was

based: “1 The Auction, 2 The Crit, 3 The Fair, 4 The Prize, 5 The Magazine, 6 The

Studio Visit, 7 The Biennale”.84 The first 5 chapters related respectively to auction

houses, academia, collectors at an art fair, the Turner Prize and journalism. Ms Barber

was making the point that the focus was not on the artist at work until chapter 6. In her

view this was typical of what she saw as C’s obsession with the commercial or “status

side” of art.85 The point remains valid even if there were passing encounters with artists

in other the chapters. Chapter 6 was the only one directed to an artist at work.

58. Contrary to J100 and 101, Ms Barber was not forced to accept the allegation was false.

She merely accepted that with the benefit of hindsight she should have said “focussing

on an artist at work or going to an artist’s studio.”86 She maintained that the point

remained valid, as she was entitled to do. It was, at worst, an exaggeration with a solid

factual foundation.

59. It is well-established that exaggeration is not evidence of malice.87 The principle is

usually stated in relation to exaggeration in the allegation complained of. To rely on

exaggeration in this part of the review (which was not complained of as a libel or

malicious falsehood) as evidence of dishonesty in relation to the interview allegation is

even more remote and impermissible. For example, in Telnikoff v Matusevich [1991] 1

QB 102 the plaintiff sued on a letter written by the defendant and published in The Daily

Telegraph. In support of his allegation of malice in relation to that letter he relied on two 84 See the contents page of the book85 See transcript Day 2/14886 See transcript Day 2/15287 See for example the previous references to Horrocks, Turner, Telnikoff and Blackwell.

22

other letters of the defendant which contained “much exaggerated language” and “some

wildly extravagant allegations.”88 The Court of Appeal upheld the Judge’s decision to

withdraw the malice plea from the jury on the basis that none of the facts relied on by the

plaintiff satisfied the probability principle.

60. Without proper protection to exaggerated speech, satire would become defunct and

reviews and comment pieces would be rewritten by pre-publication lawyers (and read by

nobody). If any piece of writing is given the hostile hindsight scrutiny of a libel trial, fault

can be found to a greater or lesser extent.

Post-publication conduct

The 7 November email

61. The Judge relied heavily on Ms Barber’s conduct after receipt of C’s email of 7

November as evidence of her state of mind at the date she submitted the review on 20

October. In exchanges during closing submissions he appeared to accept that had Ms

Barber immediately offered to apologise on being informed of the December 2006

conversation, there would not be an issue as to her honesty. In other words, the facts

existing at the time she wrote the review were, at least, equally consistent with her

having honestly believed what she wrote:-

“What I have suggested, Mr Price, is that in deciding whether she's honest or not honest, the next document I go to is the next document chronologically, which is the email of 7 November. And if she had responded like Mr Collings did, said, "I'm terribly sorry, of course I accept what you say," I'm sure we wouldn't be here. There wouldn't be an issue as to her honesty. But there is an issue as to her honesty because this is something which one might expect to trigger a sense of shock in an experienced, honest journalist, and it doesn't seem to trigger anything.”89

62. The same approach is evident in the judgment. The Judge asked himself, with the

benefit of hindsight, how the notional experienced and honest journalist would have

responded and concluded dishonesty on the part of Ms Barber because she did not

conform to his expectations. In particular, she did not demonstrate the requisite shock

and remorse that he would have expected on receipt of the 7 November email. At no

point in the judgment was there a careful analysis of the alternative possibilities for Ms

Barber not conducting herself according to his expectations. No reference was made to

the cases cautioning against reliance on a failure to apologise as evidence of dishonesty

at the date of publication, as opposed to post-publication stubbornness or an honest but

mistaken belief that no apology was warranted.

88 At 120F89 See transcript Day 4/22

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63. The starting point in carefully analysing the probative effect of Ms Barber’s lack of

response to the 7 November email is her evidence that it would have been wrong for her

to have entered into correspondence with an author and that any complaint ought to

have been addressed to the newspaper itself.90 The reasonableness of such a stance

was challenged in cross-examination, but it was never suggested that it was not Ms

Barber’s honest view. In the circumstances, the fact she acted in a manner consistent

with her belief as to what was appropriate cannot be evidence of her having acted

dishonestly 2 ½ weeks earlier, even if the Judge did not regard it to be appropriate.

64. Moreover, the email did not provide any information beyond stating: “I am sorry you don’t

remember giving me an interview on the phone in early December 2006, shortly after the

announcement was made that Tomma Abts had won the prize.” It did not explicitly invite

a response or ask Ms Barber to do anything. The evidence was that Ms Barber was a

busy journalist who received a large number of emails.91

65. The absence of shock or contrition post-publication is not probative of dishonesty at the

date of publication. Different people have different levels of sensitivity. The offer of

amends regime is available to “all sorts and conditions of men.” At every stage of the

enquiry it is necessary to view the matter through the defendant’s eyes, not the

expectations of the tribunal of fact.

66. Even if one takes an adverse view of Ms Barber’s absence of reaction to the 7

November email, it was, as the Judge accepted in argument, at least equally consistent

with unreasonableness as dishonesty and therefore, as a matter of law, not evidence of

dishonesty.92

The 18 December response from The Telegraph93

67. In common with the email of 7 November, the Judge relied on the wording of the 18

December response as evidence of Ms Barber having behaved dishonestly on 20

October.94 This was, once again, based on an objective judgment about how Ms Barber

ought to have responded. In essence, the Judge’s reasoning was that it was obvious

from the information in C’s 11 December email that the December 2006 conversation

was an interview, no honest person could therefore have concluded that it was not, Ms

Barber must therefore have been dishonest in opining that it was not and this was

90 See the second witness statement of Ms Barber at [9] and [16] and transcript Day 2/142 – 145, 157 – 159 & 16391 See transcript Day 2/155 - 15792 See transcript Day 4/20 - 2493 B1/37/8-994 See J105 and J154

24

probative of her being dishonest when she wrote the review. There was no careful

analysis of how Ms Barber could have honestly reached the view that she did.

68. The Judge’s reasoning is flawed because the characterisation of a conversation of this

type as an interview does involve a qualitative aspect such that different people can

honestly share different views, whether or not they are deemed to be reasonable. C

herself drew a distinction in the Acknowledgements section between a “revealing chat”

and a “formal” or “proper interview” and only included the latter in her list of

interviewees.95 A number of dictionary definitions of an interview require a meeting,

which would exclude the December 2006 conversation.96

69. Any inferences to be drawn from the 18 December response must be judged on the

basis of the information provided in C’s email of 11 December. This set out some of the

emails between C and Ms Barber in 2006. The only subject heading provided was “Talk

on the phone: Monday”. There was no reference to an interview in the body of the

emails, which again referred to a “talk” or “talk on the phone.”97 The Judge said that this

was a “false point” because the subject line of one of the earlier emails did refer to an

interview request but C did not set this out in the 11 December email and “no one for the

Telegraph or Ms Barber made any enquiries to establish the full extent of the email

exchange.”98 It was unrealistic to expect D or Ms Barber to seek to obtain the earlier

emails when C was purporting to set out the relevant ones in her email. More

fundamentally, the issue was not negligence but dishonesty. The 18 December response

was based on the information provided by the 11 December email in the context of the

wording of the Acknowledgements section. Any inferences as to honesty must be based

on what was included in the email, not what C omitted to state.

70. C described the December 2006 conversation as “not very rewarding” as Ms Barber

“mostly repeated what she had said in her two articles in The Observer.” This was the

reason that Ms Barber gave for not wishing to talk to C in the first place. The

conversation took the matter no further.

71. The fact that the conversation was pre-arranged gives it an element of formality. But it

was not face-to-face and an honest person could conclude that its pre-arrangement is

95 See p257 of the book at B2/23/7396 See the Short Oxford English dictionary definition: A meeting of persons face to face, esp. for the purpose of formal conference on some point. A meeting between a representative of the press and someone from whom he seeks to obtain statements for publication.97 See 11 December email from C to The Editor of The Daily Telegraph98 See J57

25

not relevant and certainly not determinative of its status as an interview. Neither is the

fact that C claimed that the conversation lasted 35 to 40 minutes.

72. The fact that Ms Barber made a diary entry is also insignificant. The diary was a mass of

trivial details over the course of the day crammed into an A4 page.99 Similarly, Ms

Barber’s perception of being “snotty but mildly helpful” could apply equally to a “revealing

chat.”

73. Ms Barber is an experienced interviewer used to conducting probing, lengthy, in-depth

face-to-face interviews. She has strong and particular views on a number of subjects. It

would not be surprising, let alone evidence of dishonesty, if she regarded the nature of

the exchange (not merely the quality of the answers as suggested by J94) to be relevant

to its characterisation.100

74. Much of the cross-examination of Ms Barber related to whether she still believes the

December 2006 conversation amounted to an interview.  If she forgot the December

2006 conversation when she wrote the review, her view of its nature or significance

when informed of it is irrelevant to her state of mind at the date of publication, even less

so her view at trial after 2 ½ years of litigation.  It was apparent from her cross-

examination that she is now in two minds about whether it can properly be described as

an interview. But this does not help in determining her state of mind on 20 October 2008.

75. In any offer of amends case a mistake is likely to have been made. When informed of

the mistake, different people can have different views about its significance from the

perspective of defamation or factual inaccuracy. Some of these may, with hindsight, be

regarded by some as unreasonable. The purpose of the offer of amends regime is to

avoid such arguments by providing a framework in which liability can be admitted and

compensation determined quickly.

76. It is also important to note that the complaint in the 11 December email was one of

factual accuracy. C did not suggest that the article conveyed the impression that she

had been dishonest by including Ms Barber as one of her interviewees. Ms Barber was

asked for her opinion of whether it amounted to an interview. She was not asked to

consider whether C might have honestly believed it to have been an interview.

77. Further, the finding of dishonesty in relation to Ms Barber was inconsistent with the

finding of honesty in relation to Mr Philp. If it was so obvious that the December 2006

99 See transcript Day 2/84-86100 See the Second Witness statement of Ms Barber at [19]

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conversation was an interview, such that no honest person could conclude otherwise

that would apply equally to Mr Philp as it did to Ms Barber. The unchallenged evidence

was that Mr Philp had access to the same information as Ms Barber and formed the view

that the complaint was unmeritorious before he had any contact with her.101 The fact that

Ms Barber was the party to the conversation is irrelevant because there was no dispute

as to what had occurred and the only source of information was that contained in C’s

email. Mr Philp consistently asserted that it was his decision to reject the complaint; he

independently formed the view that the December 2006 conversation did not amount to

an interview. He was particularly influenced by the content of the 2006 emails, the

unrewarding nature of the conversation and the distinction drawn by C in the book

between a talk and a formal/proper interview. He denied being pressurised by Ms

Barber.102 His evidence was accepted as truthful by the Judge.

78. The notion of a scheming Ms Barber and a compliant Mr Philp was fanciful. Mr Philp is a

barrister of 38 years call with lengthy experience of advising publishers.103 He was

charged with responding to the letter. He had no motive other than to judge the

complaint on its merits. He chose what to include and what not to include. Ms Barber

accepted that the parts of the letter attributed to her accurately reflected her opinion.104

But the omission to “address at all the substance of the complaint,” as the Judge found it,

must be the responsibility of the writer. It is certainly not a reason for inferring that Ms

Barber knew all along that she had been interviewed, as the Judge held in J104.

79. It was never put to Ms Barber that she had sought dishonestly to persuade Mr Philp to

reject the complaint. There was no motive for her act in this way. Her evidence that she

believed that any complaints should be directed to her employer, that she provided D

with her opinion because she was asked, it was for D to decide how to respond to a

complaint and that she would not have objected if D had wanted to apologise was

unchallenged as to its veracity (if not its reasonableness). Her post-publication conduct

must be seen from her perspective that once she has filed her copy, everything that

follows is the responsibility of the publisher.

Demeanour

101 See Second Witness Statement of Mr Philp at [8] – [10] in B1/33/232 and transcript Day 3/74 – 75, 80, 88, 89 and 91102 See Second Witness Statement of Mr Philp at [18] in B1/33/234 and transcript Day 3/60 103 See Second Witness Statement of Mr Philp at [2] in B1/33/231104 See transcript Day 2/180

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80. The Judge placed little weight on Ms Barber’s demeanour stating that “it was not the best

guide.”105 In Cambridge he observed that “demeanour in the witness box is notoriously

misleading.”106 All that he said in the present case was that Ms Barber “manifested no

sign of caring at all” whether the interview allegation was true or false. He did not

particularise this observation. But it would appear that it primarily relates to Ms Barber’s

post-publication conduct, which has been addressed above. Ms Barber’s demeanour

was at least equally consistent with her having a different character and world view to

that expected by the Judge.

81. It is recognised that a more reliable guide than demeanour is consistency: internal

consistency, consistency with documents and consistency with what the witness has

said on other occasions.107 Throughout the litigation and the lengthy cross-examination

Ms Barber was consistent in asserting that, at the date of publication, she firmly believed

her contact with C ended with the brush-off and that she gave no thought to the

possibility that she might have been publishing a libel. This was consistent with the

documents produced by her at the time. It was consistent with the unchallenged

evidence of her practice over 44 years in journalism including the need to avoid potential

libels by flagging up any concerns to her employers. This is a tangible demonstration

that Ms Barber does take care not to libel. It is far more probative than any sign to be

derived from the manner in which she gave evidence.

The website publication

82. D accepted that if the section 4(3) case succeeded in relation to the printed newspaper it

would necessarily succeed in relation to the website. Any discrete analysis of the

website publication must therefore proceed on the basis that the section 4(3) case in

relation to the newspaper has failed. In other words, at the time Ms Barber wrote the

review she believed the interview allegation to be true.

83. This raises the question of how to construe section 4(3) in the context of a website

publication where new information is obtained by the defendant after the initial

publication but the website publication continues until an offer of amends is subsequently

made. There is no previous decision.

84. In construing section 4(3) in this context it is necessary to bear in mind the following:-

105 See J106106 At [211]107 See the reference to Lord Bingham’s essay referred to at J73

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84.1. The claimant will be fully compensated for the entire website publication if he

accepts the offer of amends.

84.2. The regime seeks to achieve a prompt settlement at minimum cost. This is in

the interest of claimants and defendants.

84.3. A discrete argument about continuing internet publication is likely to be

disproportionate and achieve no genuine litigation benefit. So much is evident from

the present case.

84.4. It is also likely to drag in the defendant’s legal advisers. This has obvious

improper collateral benefits in the context of the CFA ransom factor referred to in

Musa King v Telegraph Media Group Ltd [2003] EWHC 1312 (QB) at [13] – [15]. It

will also inevitably raise issues of legal professional privilege.

84.5. The offer of amends regime gives the defendant until service of the defence

to make the offer, thereby permitting a defendant to rely on the offer even if he

rejected the complaint before proceedings are issued and kept the article online.

84.6. In the unlikely event that the defendant continues the website publication after

making the offer, the continuing publication will not be covered by it.

84.7. The general principles set out in Milne and Tesco, referred to in [3] and [7]

above. In particular, the requirement to establish bad faith to disqualify a defendant

from relying on the offer and the need to construe the statute in a way that makes it

work for defendants.

85. On the basis of the above, the correct approach in a case of newly acquired information,

where the publication was originally made in good faith, is to require the claimant to

prove a conscious decision by the defendant to continue the website publication

notwithstanding that he now knows, on the basis of such information, that the publication

is false and defamatory (or is recklessly indifferent to this).

86. In the present case, D did make a decision to continue the website publication. The

unchallenged evidence was that the decision was made on the afternoon of 11

December before any communication between Ms Barber and Mr Philp. It was also

unchallenged that Ms Barber was not consulted on the website publication and that none

of the communications between her and Ms Barber referred to it.108

87. It makes no practical difference whether the decision is treated as having been made by

Mr Philp or Mr Rhidian Wynn Davies. Both stated that they did not believe the interview

108 See the Second Witness Statement of Mr Philp at [8] – [11], [17] and [19], the Second Witness Statement of Ms Barber at [18] and transcript Day 3/80

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allegation to be false and defamatory. The Judge accepted Mr Philp was telling the

truth. Mr Rhidian Wynn Davies was not cross-examined.109

88. The Judge nevertheless found that D was disqualified from relying on its offer of amends

in relation to the website publication because (at the latest by 11 December) Ms Barber

knew that the interview allegation was false and that the review remained online.110 The

decision was wrong for the following reasons:-

88.1. It was wrong to find that following C’s emails of 7 November and/or 11

December Ms Barber knew that the interview allegation was false. Her conduct was

equally consistent with an honest belief that the December 2006 conversation did

not amount to an interview. See [61] – [79] above.

88.2. It was wrong to find that Ms Barber knew that the review remained online.

The Judge stated at J99: “Nor did I find convincing her claim that she did not know

that her book reviews were published on the Telegraph website.” It was not for Ms

Barber to convince the Judge that her explanation was honest. The burden of proof

was on C in all respects to prove that she was dishonest. No explanation was given

by the Judge as to why he did not find it convincing. The review was in a

supplement to the main newspaper. The Telegraph’s website was focussed on the

news cycle as opposed to “soft content.”111 There was no reference to the website

publication in any of the communications to which Ms Barber had access. Contrary

to the last sentence of J99, C’s 11 December email did not refer to the review being

online.

88.3. In any event, even if Ms Barber knew that the interview allegation was false

and defamatory and was aware in general terms that reviews were published online,

this was insufficient to disqualify D from relying on the offer of amends. She played

no part in the decision to keep it online, had no control over the website and it was

not alleged or found that she applied her mind to the fact that it remained online.

There was no reason for the court to go out of its way to find a reason to prevent D

from successfully relying on the offer of amends when the individuals responsible for

deciding whether to continue publication acted in good faith.

109 See the Witness Statement of Rhidian Wynn Davies at [10] in B1/35/241 and the Second Witness Statement of Mr Philp at [14] and transcript Day 3/89 & 103-104110 See J154111 See the unchallenged evidence of Mr Rhidian Wynn Davies at [12].

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88.4. It was wrong for the Judge to rely on Bunt v Tilley [2007] 1 WLR 1243112 in

construing section 4(3).113 Bunt is concerned with whether a defendant is prima

facie responsible for publication, subject to any defences. It was common ground

that Ms Barber and D were publishers. It is implicit in making an offer of amends

that a defendant accepts liability as a publisher. Whether a defendant should be

disqualified from reliance on the offer of amends is a different issue. Responsibility

for publication does not require the claimant to prove dishonesty or bad faith. Bunt

is not concerned with this issue.

88.5. The Judge sought to cover the possibility of D’s submissions on the law being

correct. In the last two sentence of J155 he stated: “But on the facts the result

would be the same if what had to be proved was a deliberate decision. Ms Barber

did make a deliberate decision to mislead Mr Philp.” This is erroneous:-

88.5.1. D’s submission was that the relevant decision was to continue the website

publication. The Judge’s earlier finding was that Ms Barber had misled Mr Philp

into believing that the December 2006 conversation did not amount to an

interview. He made no finding that Ms Barber attempted to mislead Mr Philp so

as to keep the review online.

88.5.2. C’s pleaded case in relation to section 4(3) was merely that Ms Barber knew

that the interview allegation was false and that the review was online. The

pleader did not allege that Ms Barber made any conscious decision in relation

to keeping it online or gave the matter any thought.114

88.5.3. The finding that Ms Barber made a deliberate decision to mislead Mr Philp

was flawed for reasons previously stated.

The copy approval allegation – malice

89. In finding that Ms Barber was malicious in relation to the copy approval allegation, the

Judge relied on his finding in relation to the interview allegation.115 For this reason alone

the finding should not stand. The same observation can be made about the absence of

any motivation on Ms Barber’s part to tell a deliberate lie, including the opportunity for

her to make a similar point in different words if she had believed that the words that she

used were untrue.

112 B5/3113 See J137114 See Reply [4.14] in B1/14/138115 See J167

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90. The Judge was wrong to find that the only source which Ms Barber had for the copy

approval allegation were the words he identified on page 257 of the book. The copy

approval allegation was based on the general statements as to C’s practice including the

specific words on page 257 in the context of Ms Barber’s longstanding experience of

how copy approval works in practice and the particular impression that she derived of C

and her relationship with her interviewees from the whole of the book.116

91. The Judge was wrong to find that Ms Barber had no reason to believe that C had given a

right of copy approval to her interviewees. This was the launching pad for his conclusion

that Ms Barber did not believe that she had done so. A reviewer is entitled to place her

interpretation on an author’s description of her practice, particularly where it is couched

in jargon. There is nothing unsurprising or unreasonable in a journalist regarding

reflexive ethnography as akin to copy approval. The Judge’s reasoning fails to take into

account the fact that other respected reviewers reached substantially the same

conclusion as Ms Barber on the basis of their reading of C’s methodology statements in

the context of the book:-

“Seven Days is billed as "critical" so you expect an exposé, but when access is granted for the purposes of publicity she simply keeps her side of the contract and provides the required ego stroking. Voodoo drivel is reported straight.”117

“Perhaps this is because, as she reveals in her acknowledgments, Thornton invited some interviewees to read draft chapters and offer feedback. This was surely a mistake. Soliciting the consent of powerful people before publication is a sure-fire way to smooth, rather than ruffle, feathers. As a result, Thornton is too much like a toothless court jester.”118

92. The Judge’s approach was legalistic, not journalistic as it should have been. The right to

be provided with advance copy combined with the opportunity to make suggestions does

not, of itself, confer a legal right to make changes. But if, in practice, the author accedes

to the changes sought by the “powerful people” she is interviewing, that is what it

amounts to. If that is what Ms Barber believed took place, as far as C was concerned,

she was entitled to describe it as a right. It is no different from describing it as a

“contract” to provide ego-stroking or “soliciting consent”.

93. It is irrelevant that in 2009 Ms Barber drew a clear distinction between the opportunity to

comment and a right to alter in relation to the film script for her book.119 What matters is

116 See Re-Amended Defence at [8.1] in B1/13/124 and the Second Witness Statement of Ms Barber at [10]117 See Matthew Collings’ blog on Saatchi online of 21 November 2008118 See Alastair Sooke’s review of Seven Days in the Art World in The Sunday Telegraph on 21 October 2011 in B2/8/36119 J165

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Ms Barber’s perception, in October 2008, of how C operated. As Ms Barber explained in

her witness statement, a distinction between a right to comment and a right to change

can easily become blurred in practice.

94. It would be a severe restriction on freedom of expression if a journalist was held to be

dishonest for placing her interpretation on another person’s words, even it turns out to be

mistaken and/or exaggerated.

95. In common with the interview allegation, much of the cross-examination of Ms Barber

related to her present state of mind. Her acceptance, having gone through 2 ½ years of

litigation, that she probably should have used the word “opportunity” is not probative of

dishonesty when she wrote the review. She consistently stated that she believed what

she wrote at the time.120

The copy approval allegation – falsity

96. The Judge was wrong to find that the copy approval allegation was false.121 C’s pleaded

case was that copy approval “entails providing an interviewee with a right of veto and/or

amendment in respect of proposed material prior to publication” and that there was “no

basis on which C’s practice of reflexive ethnography could fairly or properly be described

as the giving of “copy approval”” [emphasis added].122

97. As recorded in J168, C’s witness statement stated that she made clear to her

interviewees when requesting an interview that she would require their express

permission to attribute a quote. So much is evident from her interview request

precedent.123 The logical consequence of this, as C accepted in cross-examination, is

that she gave them the right to veto an attributed quotation for any reason (whether or

not related to the accuracy of the quotation) which amounted to a right to “alter” what she

would otherwise have said “about them”. This, of itself, is fatal to the falsity element of

C’s claim.

98. The Judge blurred the distinction between an opportunity to check the accuracy of a

quotation and a right to veto an accurate quotation. Whether the former process is

properly to be described as quote checking rather than quote approval is immaterial.

120 See the Second Witness Statement of Ms Barber at [10] and for example transcript Day 2/116-117121 See J168 - 179122 See the Amended Particulars of Claim at [7.2] and [7.3] in B1/11/105123 See C’s disclosure document “Sample request for an interview” in B2/15/54-55. Contrary to J169 C did not say that this was only with some interviewees. This insertion of “(but not with Ms Barber)” was a means of justifying the characterisation of the December 2006 conversation as an interview without C having gone through this process with Ms Barber.

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What matters is the nature of the right that has been granted. The only evidence on this

issue was from C’s witness Fiametta Rocco. In cross-examination she accepted that the

unqualified right of veto in relation to attributed quotations given by C would amount to

copy approval in a journalistic context and that she would not be permitted to grant such

a right when working for the Economist.124

“A. If you did an interview, and you had an agreement with the person you were interviewing that you would read back their quotes -- were they the way they appeared in the notes, were they the way they appeared on the tape, for example -- presented with the evidence, the interviewee would have to say, "That is what I said", even if they regret it afterwards.

Q. And the interviewee would have no right to stop the interviewer from publishing that?

A. No, they wouldn't.

Q. Well, I suggest that that is not the way that the rights that are granted by Dr Thornton operate, because she gives them the right to refuse permission for a quotation, even if it is accurate.

A. That's not the way she works for The Economist.

Q. Maybe not, but the practice that you are describing is the practice of The Economist;correct?

A. It is, yes.

Q. And it is a limitation to ensure accuracy?

A. It is.

Q. And the alternative scenario, where the interviewee has the right to remove or prevent other than accuracy, would that commonly be understood as copy approval?

A. I think so, yes.”

99. The last sentence of J178 states: “Ms Rocco made a clear distinction between quote

approval, which she characterises as a form of fact checking, and copy approval, which

she describes as surrendering editorial control.” As is apparent from the above, the

distinction made by Ms Rocco was between the opportunity to comment on the accuracy

of a quote (a form of fact checking) and the right to veto an accurate quote as granted by

C (a form of copy approval).

100. The comparison in J178 with a draft judgment is misplaced. The court is not seeking

permission from the parties. They do not have a right of veto.

101. The sole issue on falsity is whether a right has been granted. The extent to which it

is asserted is irrelevant. At J175 the Judge stated that the fact C made requested

alterations is equally consistent with the grant or absence of a right. But this misses the

124 See transcript Day 1/169 – 176. The passage cited above is at 173 -174.

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point that a right of veto had already been granted by virtue of the agreed basis on which

the interviews were conducted.125 The subsequent exchanges between C and her

interviewees, such as were disclosed, must be seen within this context. The exchanges

demonstrate that, in every case, C sought and obtained her interviewees’ approval in

relation to any revision.126 At J173 the Judge stated that the disclosed documents

demonstrated that in some cases C “declined to alter text”. It would be more accurate to

state that on a handful of occasions she successfully persuaded her interviewees to

agree with her that it would not be for the best to make the alteration. At no time did she

exercise or purport to exercise any right to include an attributed quote or any other

material about an interviewee without obtaining approval.

Outcome102. The proposed appeal satisfies the criteria for permission to appeal being granted. At

the hearing of the appeal, the Court will be invited to enter judgment for D. This is on the

basis that none of the relevant primary facts are in issue and none satisfy the probability

principle. In this regard, the Judge should have allowed D’s summary judgment

application.127

103. Alternatively, insofar as any facts are held to satisfy the probability principle the Court

should conclude that they are outweighed by the facts that are strongly probative of the

absence of dishonesty. The Court can and should conclude that it is not more probable

than not that Ms Barber included the interview allegation in the review knowing or

suspecting it to be false and defamatory and on this basis enter judgment for C. As for

the website publication, if D’s submissions on the law are correct, it is entitled to

judgment even if the Judge’s findings of fact were to stand.

104. In relation to the copy approval allegation, C needs to succeed on falsity and malice

in order to establish liability. D only needs to succeed on one for the appeal to succeed.

D submits that malice can be rejected on the same basis as the interview allegation.

Alternatively, on the uncontested facts it is plain that the copy approval allegation is not

false and judgment should be entered for D on this basis.

125 D’s advocate did not accept that this was a difficulty in D’s case.126 A sample of the documents disclosed by C of her communications with her interviewees are in bundle 2 but the further documents can be provided if necessary. B2/15 &16127 It was not D’s fault that exchange of witness statements took place shortly before the trial, thereby depriving D of the opportunity to make the application before the start of the trial. As early as 31 July 2009 (see DPSA letter in B1/37/25) D indicated that it was intending to apply for summary judgment, but acknowledged that it would be difficult to do so before exchange of witness statements. In the event, exchange did not take place until 2 years later and 2 weeks before the trial. This was principally due to C’s insistence on a jury trial until after the Court of Appeal hearing on 22 June 2011.

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David Price QCSolicitor-Advocate for the Appellant19 October 2011

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