Richard v British Broadcasting Corporation & Anor

The hearing which has just taken place is very unusual in its nature. This litigation has been described by me in earlier judgments and I therefore do not need to indulge in a long explanation of the background. It will suffice to say this, Sir Cliff Richard OBE, the well-known entertainer, sues the BBC and South Yorkshire Police in respect of events surrounding a widely publicised raid on his property by police investigating historic sexual abuse. Sir Cliff has been told very clearly that he is no longer under investigation and will not be charged. He is, therefore, an innocent man.

The raid was given considerable publicity by the BBC as a result of a prior interaction between the BBC’s reporter, Mr. Dan Johnson, and South Yorkshire Police (“SYP”). The scope and nature of that interaction is and remains firmly in dispute. Sir Cliff sues the BBC for breach of his privacy rights, misuse of confidential information and he also has a claim under the Data Protection Act. His complaint is that the BBC acquired information about the investigation from a confidential source who ought not to have disclosed it, and he then exploited that in his dealings with SYP, and induced SYP to give him advance information about the raid which enabled him, and the BBC, to publicise it. I do not need to go into all the areas in which there is a dispute of fact.

SYP was sued by Sir Cliff on the footing that it ought not to have cooperated with Mr. Johnson and ought not to have disclosed their investigation and whatever they disclosed about the investigation, and should certainly not have tipped him off about the raid, which he says they did.

Sir Cliff has now come to terms with South Yorkshire Police. I do not know what those terms are, save that I do know that one of the terms is that Sir Cliff will make an agreed statement in open court to which South Yorkshire Police would wish to respond in a familiar way. Because the statement is to be read in open court, it needs to be approved by a judge and it came before me as the managing judge for this litigation. The proposed statement was provided to the BBC. The BBC has objected to various of the terms of the statement and says it should not be read in its terms. It does not merely adopt a blanket unhelpful stance in that way. It actually proposed some amendments which would make the statement one which is acceptable to the BBC, or at least one which would not be objected to by the BBC. Accordingly, I have treated the application today as an application for permission to read the statement in open court in relation to which the BBC has locus standi to make its objections.

Mr. Rushbrooke QC, for Sir Cliff, and Mr. Wolanski for the South Yorkshire Police, have argued in favour of their being allowed to read the statement in a form which incorporates one or two changes to accommodate the BBC but which, in the main, does not reflect the BBC’s challenges to the statement. Mr. Gavin Millar QC has appeared for the BBC to make objections to the statement in its current form.

Before moving on to deal with the actual disputed wording, I should set out the parameters within which I should operate. They appear in two cases. The first chronologically is Barnet v Crozier [1987] 1 WLR 272. That case, like this, was a case in which one of two defendants settled with the claimant. That case was a libel case. Justification had originally been pleaded by both defendants but, as part of a settlement with the second defendant (which I understand to be the Spectator magazine) the Spectator accepted that the libel could not be justified and withdrew that defence. The other defendant in the case was a journalist who was maintaining his justification defence. The journalist sought to oppose the reading of a statement in open court on the footing that it was unfair to him, particularly bearing in mind that the defence of justification was still being run and that it would be unfair on him to have the justification claim effectively conceded by the other defendant.

In that case the Court of Appeal, having set out the facts underlying the settlement, first stated the basis on which statements in open court are made. At p.276 Lord Justice Ralph Gibson said this:

“Parties to an action do not need the consent of the court to make an effective settlement of their dispute; nor do they need the consent of the court to announce to the world that they have settled it on stated terms. The importance of the making of a statement in open court is, first, that it is likely to come to the attention of the press, who will give to it such attention as its public interest is seen by them to merit and, secondly, since the statement is part of a judicial proceeding, it is made on an occasion of absolute privilege. Thus, the parties to the statement are protected and, moreover, the statement can be reported without the publisher of the report incurring the risk of being sued in respect of it. …

It seems to me that the protection obtained from the fact that the approved statement is made in open court is not to be seen as an unintended and undeserved consequence of the procedure, but as a useful attribute of it which is obtained, of course, only if the court permits it to be used. The daunting burden of the risk in costs in such litigation must weigh intolerably upon most litigants. The procedure offers a means by which settlement can be reached and, when appropriate, announced in appropriate terms between two parties without risk of further litigation arising out of that announcement. It is, in my view, a grievous burden to be sued in a defamation action even if you win it in the end.”

That then is the basis on which the statement is made.

Lord Justice Ralph Gibson then goes on to set out the reasons that the court below gave when permitting the statement to be read. Lord Justice Ralph Gibson then, at p.277H, set out some of the key submissions of the non-settling defendant, amongst which were that it was said that the statement would be a damaging form of pre-judgment of the issue. At p.280 Lord Justice Ralph Gibson turned to his determination. He said this:

“The judge was right, in my view, to regard the settlement of proceedings as a public good which the court should encourage and facilitate if, having regard to the interests of all the parties, it is right and just so to do. Although a party has no right to make a statement in open court upon which he can insist if the circumstances are such that the judge cannot in his discretion approve that course, it seems to me that parties who have made a bona fide settlement of a defamation action and ask leave to make a statement in open court may expect to be allowed to do so unless some sufficient reason appears on the material before the judge why leave should be refused to them. By saying that he did not regard either party as having a burden of proof, while acknowledging that it is desirable for settlement to be facilitated, I think the judge meant, as he said, that he must have regard to the interests of all parties; but, if there is no sufficient reason to refuse it, a plaintiff who has reached a settlement with a defendant should be allowed to make an approved statement. I think the judge was right in his approach.”

He then went on to consider the extent to which there would be a prejudging if a statement in open court was read conceding a point of fact, in that case, which the remaining defendant was going to be continuing to run. He held that there was no realistic chance of any prejudging in the matter at all. I note that that was a case in which it was anticipated there would be a jury trial. Even in the face of that, the court held that a statement in open court of the quality referred to would not prejudice a fair trial. The point is a fortiori where, in a case such as this, the matter will be tried by a judge and not a jury.

The second relevant case on this point is that of Murray v Associated Newspapers Limited. That was not a two defendant case. That was a single defendant case in which a defendant was seeking to prevent a statement being made. The relevant points can, I think, be adequately summarised by reading parts of the headnote at holdings (2) and (3):

“(2)

The procedure by which a statement in open court was made as part of the settlement of a libel action was a well established and a valuable means of vindication. As a matter of general principle, parties who had made a bona fide settlement of a defamation action and asked for permission to make a statement in open court would be allowed to do so unless there was some sufficient reason to refuse permission, and as long as there was nothing in the case which made the making of a statement unfair to another party. The interests of non-parties should be borne in mind, given that any statement would be read with the benefit of absolute privilege. Statements should be fair and proportionate, and should not misrepresent a party’s case or the nature of the settlement reached.

(3)

However, the threshold of intervention would be high: the court was unlikely to intervene in the absence of any real or substantial unfairness to an objecting party, and nitpicking was to be discouraged. That was because a party making a statement in open court was exercising the right to freedom of expression (a right shared by the defendant, which was free to say what it wished about a settlement without interference by the claimant), and because the value of the procedure might be undermined if the settlement procedure were infiltrated by collateral disputes”.

That, I think, is a sufficient summary of what was decided to make it unnecessary for me to read any, or much, of the judgment of Lady Justice Sharp, who delivered the principal judgments; the other two Lord Justices agreeing with her. She espoused the unfairness point at para.26 and made her point about nit-picking in para.27. The fairness and proportionality point is made in para.29.

From those cases I extract the following points, which are relevant to the application made to me and the resistance of Mr. Millar, and I make them before turning to a consideration of Mr. Millar’s objections. These points are made in no particular order.

Translating those points to the present case in general terms, the following further points arise:

With all those points in mind, and bearing in mind the overall principles applying to statements in open court, I turn to the statement that the parties wish to give and the BBC’s objections to it. I will take the objections in the order in which the objected to material appears in the proposed statement. In due course, I apprehend a statement will be given from which the paragraphs which I do not recite will become apparent. It may be necessary to take that statement with this judgment in order to make sense of some of the points that I am about to make.

The statement starts by setting out who the claimant was and the background of the Metropolitan Police operation called Operation Yewtree, which was an investigation into historical sexual abuse. At para.5 it states, unobjectionably, that responsibility for part of the investigation was transferred to the second defendant, SYP. Paragraph 6, as Sir Cliff and the SYP wish to have it, or, in particular, as the claimant wishes to have it, would read as follows:

“Shortly after this a regional crime correspondent working for the BBC, Dan Johnson, contacted SYP and informed them that he was aware of the investigation. On 15 July 2014 he met with SYP’s Head of Communications and Senior Investigating Officer.”

On behalf of the BBC, Mr. Millar takes two points. The first is a point which recurs throughout the document. Throughout the statement, whenever there is intended to be a reference to Mr. Johnson and what he did in relation to the SYP and what he did in relation to his own journalistic functions, and what he did in relation to the reporting of the events in question, Mr. Johnson is named as such, that is to say “Mr. Johnson”. In every instance where that is the case, Mr. Millar, on behalf of the BBC, objects to his being named and says that there should be substituted for his name the expression “a BBC reporter”. He says it is unfair and oppressive to Mr. Johnson to have him constantly named and, I think he would say, unnecessary. The repetitive references are said to suggest that he was the only journalist dealing with the point when, in fact, there were more than that. He says it is odd to single him out and what is in fact going on is an attempt to put pressure on him. In those circumstances his name should be removed.

As an alternative, he proposed that if Mr. Johnson was going to be named then the names of the South Yorkshire Police’s employees, who dealt with Mr. Johnson, should themselves also be set out. I suppose that is said to be in the interests of achieving some sort of balance.

Mr. Rushbrooke, for the claimant, says that this is a nonsense and, apart from anything else, the proposed amendments simply introduce some grammatical infelicities, but, in any event, Mr. Johnson was the person involved and it is common ground that he was the journalist involved, whatever it was that he may or may not precisely have done, and it is not inappropriate to name him throughout.

I agree with Mr. Rushbrooke. I consider that there is absolutely nothing whatsoever in this objection. The reference to Mr. Johnson reflects reality. I completely fail to see how a number of references throughout (and there are probably about six) can amount to some attempt to “pressurise” Mr. Johnson. Mr. Johnson will be under such pressure as he is going to be under as a result of his acts coming under scrutiny in this litigation. The fact that he is named several times in a statement in open court agreed between the parties, and which does not necessarily affect the BBC’s case, as will be obvious to anyone understanding the procedure, is neither here nor there in terms of pressure. In my view, the participants in this statement are perfectly entitled to refer to Mr. Johnson in the manner in which they do and as often as they do. It in no way appears to me to be a contrivance. It is not at all apparent to me how it in any way operates unfairly in relation to Mr. Johnson.

The second objection which Mr. Millar has to para.6 is to the expression that Mr. Johnson “was aware of the investigation”. Mr. Millar says that that does not represent the BBC’s case. He says that what would represent the BBC’s case would be the words “understood the claimant was on their radar”. Those words are words used, although without quotation marks, in the Defence. Mr. Millar submits that the other parties should not be allowed to have an inaccurate expression of the BBC’s case in para.6 and should not be allowed to summarise the case in the way in which they do.

Again it seems to me that there is nothing in this point. The expression “on their radar” is the expression which the BBC uses and it may or may not be the actual expression used by Mr. Johnson. It does not seem to be something which is necessarily accepted by the other two parties, but, in any event, in my view, the two competing expressions in para.6 amount to the same thing. “On their radar”, if the words were used, can be taken to mean “was the subject to an investigation”. Mr. Millar suggests that the position is more refined than that; the words he wants might mean something short of an investigation. I am not sure I completely follow the submission but there may be something in the idea. But even if there is, that is no reason for not allowing the parties to use their words in what is their statement. It is not the BBC’s statement and, for reasons I have already given, the parties do not have to reflect the BBC’s case. What is described is, in my view, not an unfair summary of the BBC’s case. If the detail matters, it will matter at the trial and does not matter for these purposes. As I have indicated, the parties are entitled to provide a legitimate and fair summary. If the summary had been unfair the position would have been different but, in my view, it clearly is not. The claimant, in agreement with SYP, has chosen a different paraphrase for the situation and, in the circumstances they are allowed to do so. Mr. Millar seemed to attribute some sinister and clever motive to the claimant’s preferred form of words. I, for my part, cannot imagine what that motive is and there was no great elaboration. In the circumstances, Mr. Millar’s objection to this expression fails.

Paragraphs 7, 8 and 9 contain the objection which I have already dealt with, which is a reference to Mr. Johnson which Mr. Millar says should be to “a BBC reporter”. That objection fails for the reasons that have already been given.

Paragraph 10 contains the same complaint but it also engenders a repetition of the complaint about the “on their radar” point. The first sentence of para.10, as the settling party would wish it to be, is as follows:

“The BBC has claimed in its defence that when Mr. Johnson approached SYP all he told them was that he believed the claimant was being investigated by SYP”.

Mr. Millar objects again to the “being investigated by SYP” wording and says there should be substituted that the claimant was “on their radar”. That objection suffers the same fate as the same objection in relation to para.6. A further objection to some proposed additional wording at the end of para.10 has now been agreed between the parties and I do not need to deal with it.

An objection to para.11(3) in the original form of statement, which was a paragraph which set out matters as to which “there is no dispute”, has gone away as a result of an acceptance by the claimant – and I believe accepted by Mr. Wolanski – that the qualifying words “between the claimant and SYP”, or similar words, should be added after the words “there is no dispute”. That takes the heat out of any dispute about para.11(3) which was, in my view, the only area in which Mr. Millar had a reasonable point in this matter.

Paragraphs 12 and 13 raise the identity of Mr. Johnson point again. I need say no more about that. Paragraph 13, however, raises an additional point. In the form in which the claimant and SYP would wish to have it, it reads as follows:

“On 14 August 2014 SYP officers, accompanied by officers from Thames Valley Police, arrived at the claimant’s apartment to execute a search warrant. Thanks to the information provided to him by SYP, Mr. Johnson was already at the location of the search along with a camera crew; and a helicopter with a further camera crew on board also arrived about the same time.”

Mr. Millar’s original objections sought to substitute the words “camera operator” for “camera crew”. If that objection is still persisted in, in my view, there is nothing in it. He also takes a point about the allegation as to the timing of the arrival of the helicopter. For the words “about the same time” he says there should be substituted the words “somewhat later”. This objection reflects what is apparently a dispute of fact between the parties as to the time of arrival of the helicopter. The significance of that disputed fact is not immediately apparent to me, but I shall assume that it is a point of some significance. What Mr. Millar is therefore apparently insisting on, if this statement is to be given, is a statement in this paragraph which coincides with his case and not with the case of the claimant (and a wording which SYP is apparently prepared to agree to).

In my view that objection misunderstands the purpose of this statement. The purpose of the statement is not to contain a representation of the BBC’s case. The defined purpose of this statement is to reflect the terms which are agreed between the claimant and SYP. The BBC might not agree with the terms which have been agreed, and the facts which are agreed, but nonetheless they are facts which have been agreed. It is not for the BBC to insist on its own version going in. There is nothing misleading, unfair or abusive about the wording proposed by the two settling parties and I can see no basis whatsoever for disallowing that wording. It does not amount to any finding of fact. It does not amount to any evidential material which will affect the trial. It is merely a reflection of what the two settling parties agree. If the BBC do not agree it, and it appears they do not, then so be it, but it does not prevent the settling parties (a) agreeing and (b) deciding to reflect their agreement in a statement in open court. There is nothing unfair, improper or abusive in delivering a statement in those terms.

I confess I found the next objection extremely difficult to follow. It relies on the proximity of events pleaded across paras.14 and 15, and for these purposes I need to read both those paragraphs:

“14.

The claimant was not in his apartment at this time but was staying in Portugal. He was first notified of the search at 9.58am by the management at the development where his apartment is situated. Shortly before 1p.m. the claimant’s solicitors, who arrived on the scene were notified for the first time, of some details of the investigation.

15.

This was followed almost immediately afterwards by the 1p.m. BBC News; which featured as its headline news item a story about the search, naming him as under investigation for an alleged historic sexual abuse …”.

Mr. Millar objects to the words at the beginning of para.15, “This was followed almost immediately afterwards by the”. He suggests that the proximity of those words suggest a cause and effect between the notification to the solicitors of some details of the investigation and the subsequent publication of the story on the news. In other words, he says what is reflected is a causative relationship and not merely a chronological relationship.

I am afraid that I completely fail to understand how that is spelt out of those words. The relation of the two paragraphs suggest no more than event A happened and then event B happened and there is, in my eyes, absolutely no suggestion of a causal relationship between the two. That challenge by Mr. Millar therefore fails. It is, in my view, completely without foundation, whether in fairness or anything else.

As I understand it, a further objection to para.15 has been dealt with by the agreed inclusion of the words “as to the nature of the reporting”. I need say no more about that.

Next is para.17. Paragraph 17, as the settling parties would have it, is as follows:

“My Lord, SYP may have intended to protect the integrity of its investigation, as it claims, but it should not have made the disclosure to the BBC and cooperated with the BBC in the way that it did. SYP’s actions facilitated the BBC’s coverage, which caused such significant distress to the claimant. These events have had a devastating effect on the claimant: the BBC’s coverage of the search was shocking, humiliating and embarrassing for him and attracted immediate worldwide attention. As a result he suffered profound and long-lasting damage and distress, and his reputation has been forever tainted”.

The BBC says the statement should not be allowed in that form and that words should be removed so that it would read, in the second sentence, “SYP’s actions caused significant distress to the claimant. As a result he suffered profound and long-lasting damage and distress, and his reputation was forever tainted”. Mr. Millar’s objection to this paragraph was that this paragraph is really the case against the BBC and strays into the territory of impermissibly ventilating the case against the BBC, and it is therefore unfair and wrong for that reason. It trespasses beyond what fairness requires. It is not, he says, appropriate in a statement which settles a case as between the SYP and the claimant, which is based to a degree on different matters. In his written submissions, Mr. Millar submitted that there was a live issue as to whether the claimant’s distress had flowed from the BBC’s coverage or from the fact of the allegation, the investigation and the search. There is also a dispute about whether reputational harm is relevant to the proceedings at all, although he accepts the claimant’s distress.

It is right that there is a live issue as to the extent to which the claimant’s distress was caused by any particular, and, if so, which factor in the manner described by Mr. Millar in his written submissions. There is, indeed, also a dispute about whether reputational harm is relevant to these proceedings. However, all that has got nothing to do with whether or not this statement should be allowed in a statement in open court. I repeat, this is a statement which reflects the joint positions of the two settling parties and does not represent the defined legal position. The statement made in open court does not affect the legal position as regards the BBC as a non-settling party. It is a statement of (mainly) the claimant’s case and the statement’s being made in open court in this way is in no way, in my view, unfair to the BBC. The BBC knows what is the case and no doubt some publicity will already have been given to the nature of the case that is made. To allow the statement to be made in open court in no way prejudices the trial, in no way prejudices the BBC and, in my view, it is in no way unfair to the BBC.

The last area of dispute is para.21. Paragraph 21, as the settling parties would have it be published, is a statement on behalf of SYP in these terms:

“My Lord, SYP accepted what my learned friend has said. SYP accepts that the claimant’s private information should not have been disclosed to the BBC, and that its reason for doing so, namely to protect the integrity of its investigation, was not an adequate reason for disclosing that information. SYP acknowledges that its conduct in this regard was unlawful and offers its sincere apologies to the claimant for the distress and humiliation he has suffered.”

Mr. Millar submits that the words “and that its reason” to the words “disclosing that information” should come out. He says that is because his client does not accept that that was actually SYP’s reason, although he is prepared to accept that it is its stated reason. He would accept having the word “stated” added at an appropriate point in the paragraph. But he says that to leave that paragraph as it stands does not faithfully reflect the proceedings and it is, to that extent and for that reason, unfair. What SYP’s reason really was is something that I, as the trial judge, will ultimately have to decide. He says it is wrong to allow a statement like that to be made in open court.

Once again, and for the last time, I do not think there is anything in this complaint. It mistakes the purpose of the statement in open court. A statement in open court is to set out the agreed position of the two parties and they should be allowed to state that position unless it is clear that they should not be allowed to do so for reasons of unfairness or abuse or some other good reason. As the authorities demonstrate, the court should be slow to refuse the parties permission to read their agreed statement and the fact that they make a statement about something which is still to be an issue in the proceedings is, of itself, no reason for disallowing the wording that they use. I fail to see why it is going to be unfair on the BBC to allow the two parties to state their joint position in this particular way and, in particular, for SYP to be able to state its position in a particular way. Mr. Wolanski, who appears for SYP, would say that this is his client’s statement and this is a statement of his client’s position. His client should be allowed to make that statement and there is no reason for disallowing it. I agree. That complaint is therefore not justified and I shall allow a statement in those terms as well.

I follows, therefore, as a result of my judgment and as a result of one concession by Mr. Rushbrooke in relation to para.11(3), that a statement in the form now proposed by Mr. Rushbrooke and Mr. Wolanski, which, as I have indicated, incorporates one or two prior suggestions by the BBC, may be read, if the parties wish to do so, and I shall give permission accordingly.