Oyston & Anor v Ragozzino

The first claimant in this case is Karl Oyston. He is the chairman of Blackpool Football Club Limited (for short, “the Company”), which is the legal entity which runs Blackpool Football Club (for short “Blackpool FC”) and which is also the third claimant in this case.

The second claimant is Owen Oyston. He is the father of Karl Oyston and is also, through his shareholding in an intermediate company, the sole owner of the Company and, hence, Blackpool FC.

The defendant, Mr David Ragozzino, is a dedicated supporter of Blackpool FC. It is clear that he is passionately aggrieved about the manner in which Blackpool FC has been run by the Oystons and the Company, and has protested against them, both in person at matches and the like, and also by way of postings on internet websites.

Unfortunately, a number of postings on the Blackpool FC section of one particular website, “fansonline.net”, have gone well beyond vigorous criticism about the claimants’ management of Blackpool FC in footballing and in financial terms.

In short, the postings complained of include lurid allegations of a sexual nature against Owen Oyston and Karl Oyston, and also allegations of fraudulent and corrupt behaviour against Karl Oyston in his running of Blackpool FC.

The claimants fully accept that they are not entitled to be protected from legitimate criticism of their management of Blackpool FC in footballing or in financial terms. They accept that Blackpool FC’s supporters are entitled to express opinions about such matters, in vigorous terms if they so wish. It is the claimants’ complaint however that these postings cross the boundary between legitimate criticism, no matter how vigorously expressed, and making serious and untrue defamatory statements of the kind mentioned. In these proceedings the claimants all complain that the defendant has been guilty of defamation and the third claimant also complains that the defendant has been guilty of malicious falsehood.

Mr Ragozzino was of course fully entitled to deny that he was responsible for making these postings, or to contend that they were true or not defamatory. Indeed in a document described as a Defence and Request for Better Particulars dated 8 January 2015 he required the claimants to prove that he was responsible for these postings, and said that once they had done so he would provide a full defence alleging that the statements complained of were justified and were truthful publications of opinion.

However Mr Ragozzino is no longer entitled to raise those defences in these proceedings, for the following reasons:

On 19 June 2015 District Judge Moss gave directions for damages to be assessed by the Court at a hearing on 22 October 2015, with provision for the claimants to file and serve witness statements.

Owen Oyston and Karl Oyston produced detailed witness statements in accordance with those directions. They attended court to give evidence, and were cross-examined by Mr Ragozzino. The claimants also produced a witness statement from a Mr Dyer, the financial controller of the claimant, but he failed to attend the hearing and I refused to allow that statement to be received in evidence.

On 24 September 2015 Mr Ragozzino produced what was described as a “Supplementary Defence”, responding to the witness statement of Owen Oyston. Amongst other things he denied that he was responsible for the postings and also asserted that he had been duped into entering into the consent order at the hearing before Mr Justice Jay. He also produced and sent to the Court an application to set aside the consent order but, despite being informed that the Court would not accept that application for issue and processing without payment of the required fee or a valid application for fee remission, failed to do either of those things.

At the hearing before me Mr Ragozzino invited me to adjourn the assessment of damages on the basis that he intended to make a proper application to set aside the consent order. I refused to do so.

In the circumstances, whatever Mr Ragozzino may now say about his responsibility for the postings or the circumstances in which he entered into the consent order, unless and until he make a successful application to have the default judgment and/or the consent order set aside he is bound by those orders and I must proceed to assess damages on the footing that it has been determined against him, in part by his own agreement, that he was responsible for the statements made in those postings and that they were untrue and defamatory.

I turn now to the defamatory statements complained of. They are contained in postings made on 19 April 2014 and on 13 August 2014.

I begin with those made against Owen Oyston. In his case there are two principal areas of defamatory statement.

The first is an assertion that Owen Oyston had, whilst in Thailand, contracted a sexually transmitted disease (STD) which, back in the UK, he had passed on to a number of prostitutes who, in turn, had passed it on to a number of identified football players at the Club, those players subsequently being unable to play football whilst taking certain drugs as part of their treatment for that disease. It is, as Mr Shannon described it, a “scandalous, salacious and pernicious” assertion. The assertion did not originate with Mr Ragozzino; it had been made in explicit terms by a previous post by another person, but was expressly adopted in his first post by Mr Ragozzino, who described it as “100% true”. Furthermore, although Mr Ragozzino continued to insist in a number of subsequent posts that it was true, and could be proved to be true, and even though he expressly challenged the claimants to take him to court so that he could prove it with evidence, in fact he has never provided any evidence in these proceedings to seek to show that it was true. Moreover, by entering into the consent order, he is to be treated as having admitted that it was untrue and defamatory.

The second is an assertion that Karl Oyston was “probably the result of rape”, thereby asserting that Owen Oyston had probably committed an offence of rape against Karl Oyston’s mother. Mr Ragozzino has never even attempted to substantiate this assertion, and again is to be treated as having admitted that it was untrue and defamatory.

It is sensible at this stage to refer to the undoubted fact that in May 1996 Owen Oyston was convicted of and sentenced for an offence of rape and an offence of indecent assault. He was sentenced to a total of 6 years imprisonment. Both offences were alleged to have been committed within a short period of time on the same night on a 16 year old girl. The details of the offences are summarised in the decision of the Court of Appeal (Civil Division) in the case brought by Owen Oyston against the Parole Board to which he refers in his witness statement at [§39]: R (ex p Oyston) v the Parole Board [2000] Prison LR 45. Although he has always denied his guilt of these offences, his appeal to the Court of Appeal (Criminal Division) was unsuccessful. As he accepts, therefore, in his witness statement at [§40], in the eyes of the law he is, and must be treated as, guilty of those offences. Because of the length of that sentence, it is not one to which the provisions of the Rehabilitation of Offenders Act 1974 applies. It follows that Owen Oyston is not entitled to complain, and does not complain, about the fact that Mr Ragozzino in these postings has made extensive reference to this aspect of his personal past.

However it is a statement of the obvious that it does not follow that persons such as Mr Ragozzino, who have an obsessive dislike or even hatred of Owen Oyston are entitled to make other allegations of a deeply unpleasant sexual nature against him, such as those referred to above, in the mistaken belief that because of the fact of those previous convictions anything goes so far as he is concerned.

In Karl Oyston’s case, there are three principal areas of defamatory statement.

The first is an assertion that he had “probably raped also”. The fact that it was qualified by the word “probably”, and the fact that no details were ever given, are both irrelevant. It is, again, a scandalous and pernicious allegation, seeking to link Karl Oyston with the conviction against his father. Yet again, it has never been suggested by Mr Ragozzino that it was true and, again, by entering into the consent order, he must to taken to have admitted that it was untrue and defamatory.

The second is a series of assertions that he was involved in fraudulent and corrupt behaviour, generally and particularly in connection with the Club. No details of these assertions were ever given. It is important to note that this is not an assertion about Karl Oyston’s management of the Club in financial terms, but a very serious, although completely un-particularised, allegation of involvement in criminal behaviour. Again it has never been suggested by the defendant in these proceedings that they were true and, again, by entering into the consent order, he must be taken to have admitted that they were untrue and defamatory.

The third is a series of assertions linking the assertions against Owen Oyston with Karl Oyston’s management of Blackpool FC. Blackpool FC was described as “an absolute shambles” and “a joke”. It was said that “These are horrible people including the players and the way males and females have been treated with regard to this will astound you”. It is the claimants’ pleaded case that the “horrible people” referred to include Karl Oyston and those involved with the Company, and that the way in which people had been treated “with regard to this” plainly referred back to the allegation against Owen Oyston set out in paragraph 16 above. It was not, therefore, simply an assertion about Karl Oyston’s management of the Club in footballing or financial terms, but an assertion which indirectly implicated Karl Oyston in some, albeit unspecified, way with these scandalous, salacious and pernicious assertions. Yet again it, by entering into the consent order, Mr Ragozzino must be taken to have admitted that they were untrue and defamatory.

In the Company’s case, the assertions are, effectively, the same as the second and third assertions against Karl Oyston, because the assertions are that the Club was involved in the fraudulent and corrupt behaviour by Karl Oyston and that it was also linked or implicated with the assertions of sexual misconduct against Owen Oyston. Again, by entering into the consent order, Mr Ragozzino is taken to have admitted that they were untrue and defamatory.

I have been referred to the general principles as summarised both in Gatley on Libel and Slander (12^th edition) chapter 9 and in Duncan and Neil on Defamation (4^th edition) chapter 25, and there is no need for me to set them out in detail in this judgment. I have found particularly helpful the observations made by the Court of Appeal in Cairns v Modi [2012] EWCA Civ 1383 as regards: (i) the need for proportionality in libel awards; (ii) the scope of publication; (iii) the approach towards the need for vindication; (iv) the lack of necessity for a detailed breakdown of the award. The need for proportionality includes not awarding damages for defamation which would be out of all proportion to those awarded for damages for serious personal injuries.

Both in his skeleton argument and in his oral submissions Mr Shannon referred me to a number of reported cases as to the level of damages awarded in defamation actions, to which I have had regard, but it appears to me that since all such cases turn on their particular facts there is no need for me to refer to them individually.

It is necessary to consider not only the nature and extent of the original publication on the website but also the spread of the assertions by other means.

I accept that there is evidence that the original posts would have been read by a significant number of readers, certainly in the hundreds and, possibly, into the low thousands. It is not possible to be more precise since the website records only the number of posts as opposed to the number of views. Although Karl Oyston sought to estimate the number of views by reference to a comparison of similar websites, there was no hard evidence to back up his assertions. However, as Owen Oyston said in his witness statement [§4], the website serves a tightly focused group of hardcore fans / supporters, and has become the central platform for this group, including as it does activists or protesters against the Oystons and their control of Blackpool FC – the “Oystons out” campaigners. Whilst I am prepared to accept that those reading the posts will have included some people who do not share Mr Ragozzino’s entrenched views of the Oystons and their running of Blackpool FC, including those whose attention may have been directed to the posts by others, I have no doubt that the vast majority of readers would already have shared those adverse views.

However in his witness statement Owen Oyston claimed that he was aware that the assertions relating to him had “spread far and wide through the Blackpool and Fylde coast area” [§22], and that many people he knew had asked him about them [§32-34]. He claimed that the players had become aware of them [§23]. He said [§27] that at subsequent football matches there were jeers, chants and abuse from a small number of fans the content of which made it clear that they were aware of the assertions. He claimed that people must have believed that the assertions were true because of the confidence displayed by Mr Ragozzino in their truth. None of this was challenged in cross-examination by Mr Ragozzino. If it was simply not true that these assertions had been taken up at football matches I am sure that Mr Ragozzino would have cross-examined to that effect. I am satisfied that in the fairly small world that is the Blackpool and Fylde coast and, in particular, that section of it which is interested in Blackpool FC and in gossip generally, these assertions would have achieved a relatively wide circulation.

Karl Oyston did not suggest, in the same way that Owen Oyston did, that the allegations against him had been taken up outside the Oystons out campaigners or that they had, for example, been the subject of specific chants or abuse at football matches, or comment by friends, workmates or acquaintances. That is not surprising, because the allegations against Owen Oyston have a very specific factual focus, which will inevitably pique interest, whereas the allegations against him do not.

In his witness statement Owen Oyston explained [§34] the deeply upsetting and distressing effect all of this had upon him. Again he was not challenged about this in cross-examination and, again, I am prepared to accept what he says. It is plain that an allegation of this nature, so specific and so salacious, and to do not just with Owen Oyston’s private life but also connected to his position as owner of Blackpool FC, is bound to have had a very significant impact upon him. However, I must also bear in mind that Owen Oyston has already had had a long and bitter experience of this sort of thing by reason of his previous convictions. I am not suggesting that this makes it any easier, only that he is not someone to whom this sort of adverse publicity comes as a complete and unexpected shock.

In his witness statement Karl Oyston confirmed that he was deeply distressed and humiliated by the allegations made against him. Again he was not challenged about this in cross-examination and, again, I am prepared to accept what he says. It is plain that allegations of this nature will have this effect. However for the reasons given above, namely the lack of extensive republication and the absence of detail in the allegations, and for the reasons given below as to the inherent lack of credibility of the maker of the allegations, I do not consider that they had anything like the same impact as the allegations made against Owen Oyston did upon him. I do not seek to minimise the impact of being accused as a probable rapist, or as fraudulent and corrupt, or of being involved in some (unspecified) way with the allegations against Owen Oyston so far as they touched Blackpool FC, only to say that in my view they would have been, and were, easier for him to shrug off.

The Company has made a claim for defamation and also a claim for malicious falsehood. Both relate to the assertion that it was involved in fraudulent and corrupt behaviour and that it was linked or implicated in some way with the assertions against Owen Oyston. In the context of this case the claim for malicious falsehood simply means that the Company is contending that these assertions were untrue and that they were made maliciously, and Mr Ragozzino must be taken to have admitted that this is the case. The Company does not plead, or seek to establish, a claim for special damages against Mr Ragozzino, but it does contend that its goodwill and good reputation have been damaged by these assertions, and that it is entitled to substantial general damages as a result.

The Company’s difficulty is that it is difficult if not impossible to ascertain what if any commercial damage has been sustained as a result of these postings. That is particularly acute in circumstances where:

Whilst I note that Owen Oyston asserted in his witness statement at [§24-25] that he believed that there was a connection between the posts and players leaving Blackpool FC, and with difficulties in signing new players, as did Karl Oyston in his statement, I am not satisfied that the claimants have made out a sufficient evidential case for this assertion. No details whatsoever are given, whether by way of witness statements from the footballers concerned or their agents, or even by way of a witness reporting what he or she was told directly by such persons. Again, it is difficult to see how it could have been these allegations, as opposed to the other matters referred to above, which caused or even significantly contributed to the players’ decisions to leave or the difficulty in recruiting replacements. Still less has any attempt been made to put a financial value on the impact of this upon the Company.

Although Mr Dyer in his witness statement sought to put some figures on the loss suffered by the Company by reference to these posts and their consequences, and although Karl Oyston purported to adopt those details in his evidence, I am unable to place any weight on that evidence given that: (a) I was not prepared to allow Mr Dyer’s statement to be adduced in evidence; (b) no application was made by Mr Shannon (and if it had been I would have refused it) for Karl Oyston to expand upon his witness statement by incorporating the content of Mr Dyer’s statement into his evidence; (c) even I should treat this evidence as admissible evidence from Karl Oyston, I am not prepared to accept him as someone with any reliable knowledge of these figures, given that they emanated from Mr Dyer as the financial controller.

In my judgment the highest that it could be put is that there may have been some limited financial effect insofar as there may have been some supporters who were so appalled by hearing of the allegations, whether by seeing the original posts or by their repetition, particularly perhaps by their repetition by the Oystons out campaigners at football matches, that they stopped attending matches thus leading to some loss of revenue. I can see for example that it could be said that supporters with young children might have been sufficiently concerned about these allegations to decide not to attend further matches. However in the absence of any direct or hard evidence to this effect, I am unable to conclude that this could have been anything other than a modest financial impact at most.

Mr Shannon referred me to Gatley at [§9.17], discussing the position of corporate claimants, and in particular the reference there made to the decision of HHJ Parkes QC, sitting as a High Court Judge, in Applause Store Productions v Raphael [2008] EWHC 1721, where he held that notwithstanding the lack of any evidence of financial loss an award of substantial (as opposed to nominal) damages may be justified on the basis of the need to vindicate the claimant’s reputation. I accept that the same principle should apply here, although the damages awarded should be considered in the context that the defamatory assertions made against the Company were such as to connect it in only the most ill-defined of ways with the allegations made against Owen Oyston. It is also the case that the Company is not entitled to recover damages on the basis of any distress suffered by their players as their then employees (if that is what they were) or indeed any other employees or officers. It follows, I am satisfied, that the starting point is that such damages should be modest.

It is well-established (see Gatley at §9.18 onwards) that damages may be aggravated by the conduct of the defendant both as regards the defamatory statements themselves, in particular if he was motivated by malice in making the assertions, and by his conduct of the proceedings. A claim for aggravated damages was pleaded in this case, relying on the fact that the assertions were published maliciously and on Mr Ragozzino’s behaviour after complaint was made, including his failure to apologise.

It is however also now established – see the discussion at Gatley at [§9.20], the editors’ view being confirmed by the subsequent decision of the Court of Appeal in Eaton Mansions (Westminster) Ltd v Stinger [2013] EWCA Civ 1308, referred to in Duncan & Neil at [§25.07] – that aggravated damages may not be awarded in favour of a corporate claimant.

I am quite satisfied that Mr Ragozzino has been motivated by malice against the Oystons both as regards the initial posts and as regards his subsequent conduct of this case. If he had limited himself in his posts to genuine, even if intemperate, criticism of the Oystons for their management of Blackpool FC in footballing and in financial terms then he would not have found himself in his current invidious position. I am satisfied that he made these most serious and damaging allegations without having any reasonable basis for thinking that they were true, because he was and remains consumed by hatred for them, and that his subsequent conduct shows that he will stop at nothing to exert pressure on them to achieve what he believes is in the best interests of the football club he supports.

Mr Ragozzino has conspicuously refused to take responsibility for the posts or to apologise. In the Defence he asserted that he would plead “justification and truthful publication of opinion”. In fact in his Supplementary Defence he did not seek to do so in relation to the pleaded defamatory allegations of a sexual nature, but did include a number of other allegations, including various allegations, both general and specific, of dishonest and discreditable behaviour against all three claimants, and various allegations of generally discreditable conduct in relation to Owen Oyston.

I have also been referred to further correspondence for which he has been responsible, in particular an email which he sent to Karl Oyston’s wife on 20 July 2015, in which he made a series of further statements and insinuations along the same lines as, and in some respects even worse than, the original postings. Mr Shannon rightly described its tone as savage, abusive and obscene. This letter is not of course the subject of a separate action for defamation and, Mr Ragozzino pointed out, it had only been sent by him to one person. Nonetheless it is a matter to which I can and should have regard when assessing damages. The same is true in relation to a whole sheaf of similar correspondence from July 2015 to the present day to which I was referred. Much of it appears to emanate from Mr Steven Reed, Mr Ragozzino’s McKenzie friend, but it is clear that in many instances Mr Ragozzino expressly associated himself with it: one example is an email sent on 14 September 2015 to the claimants’ solicitor repeating the allegations against Owen Oyston.

It is clear to me from reading this documentation and from observing Mr Ragozzino and Mr Reed in court that he has not been at all well-served by the assistance of Mr Reed as his McKenzie friend, since Mr Reed has been responsible for pouring yet more fuel on the flames rather than assisting Mr Ragozzino to present his defence with suitable moderation. However, unfortunately for Mr Ragozzino, he has allowed himself to be used as a mouthpiece by Mr Reed, and cannot disclaim responsibility for what he has allowed himself to be associated with.

In my view it is quite clear that all of these matters amount to seriously aggravating features.

I should however record that at the hearing itself Mr Ragozzino conducted his cross-examination of Karl Oyston and Owen Oyston in relatively moderate and restrained terms.

I consider that the seriousness of these defamatory statements must be seen in context. It is readily apparent that these posts were being made by someone, hiding under a disguised name, with an obsessive hatred for the Oystons and their running of Blackpool FC. Their nature and their tone are not such as would inspire any confidence in the credibility of the maker or in the content of the posts. That is plainly a important reason for a lower award of damages, for the reasons given by Lord Neuberger when sitting in the Court of Final Appeal of Hong Kong in Oriental Daily Publisher v Ming Pao Holdings [2013] EMLR 7, in a passage cited and followed by Bean J in Appleyard v Wilby [2014 EWHC 2770 (QB) at [§17] and also referred to with approval in Duncan & Neil at [§25.10].

In his witness statement Karl Oyston made the point that the determined insistence in posts that they are true means that it is not quite so easy to discount them as the “ramblings of an obsessed demented person” [§8]. I accept this as true to some extent, and as limiting the reduction which would otherwise have been appropriate.

General reputation is dealt with both in Gatley and in Duncan and Neil. It is clear that a defendant is entitled to adduce general evidence as to the bad reputation of a claimant with a view to reducing the damages awarded, so long as it is relevant to the sector of the claimant’s reputation in respect of which the defamatory assertions are concerned. However it is equally clear that, subject to exceptions, evidence of specific acts of misconduct is not admissible.

One well-established exception relevant to Owen Oyston is previous criminal convictions insofar as they are relevant and not treated by the law as spent under the Rehabilitation of Offenders Act 1974.

It is plain in my judgment that Owen Oyston’s previous criminal convictions are relevant to the allegations which are the subject of his claim for defamation, since both the allegations and the convictions are to do with misconduct of a sexual nature. It is also plain in my judgment that Owen Oyston must be treated by reason of his previous convictions as having a general bad reputation so far as his sexual conduct is concerned.

However it is also true that Owen Oyston is, otherwise, a man of good character in the eyes of the law, and that the offences for which he was convicted occurred in 1992, over 20 years ago. Mr Ragozzino has not sought to adduce evidence of general bad character in relation to Owen Oyston’s sexual conduct and, as I have said, he is not entitled to adduce evidence of specific acts of misconduct, even if he had any such evidence to adduce.

It follows in my judgment that although the damages to be awarded to Owen Oyston must be reduced to a significant extent by reason of his general bad reputation in relation to his sexual conduct, it would not be right to reduce them to a nominal amount in the circumstances of this case. To do so would undermine the function of the law of defamation, and ignore his entitlement to be vindicated in relation to the specific allegations of sexual misconduct in respect of which he has been wrongly and unlawfully defamed by Mr Ragozzino.

Both in the Supplementary Defence and at the hearing Mr Ragozzino sought to refer to specific allegations of misconduct as against Karl Oyston. These were not allegations of sexual misconduct, but allegations to do with his general behaviour. In the main, they related to his conduct in relation to Blackpool FC and, specifically, his ongoing disputes with the Oystons out campaigners. One such matter was that, as Karl Oyston accepted, earlier this year he had been found guilty of misconduct and fined £40,000 by the Football Association for sending abusive texts to a fan. I should make it clear however that these abusive texts have no connection to the matters the subject of this claim.

I accept that even though a defendant in the position of Mr Ragozzino is not entitled to adduce evidence of specific acts of misconduct he is entitled to adduce evidence of directly relevant background context: see the decision of the Court of Appeal in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 as summarised in Duncan and Neil at [§25.24]. To be admissible that evidence must be directly relevant to the subject matter of the defamation or to the relevant sector of the claimant’s reputation, so as to avoid a real risk of damages being assessed on a false basis. Having heard these matters being ventilated by Mr Ragozzino in cross-examination of Karl Oyston, I am satisfied that they come nowhere near establishing either general bad character nor are they directly relevant to the subject matter of the defamation or to the relevant sectors of Karl Oyston’s reputation, namely his sexual conduct and his honesty and probity in his business dealings. Accordingly, I disregard them.

I must consider the position of each of the claimants separately.

All of the allegations of sexual misconduct are appalling and must be viewed as extremely serious. The allegations of fraud and corruption against Karl Oyston are also extremely serious to him. The allegations against Karl Oyston and the Company as regards their involvement in Owen Oyston’s sexual misconduct are serious, but less so having regard to their non-specific nature. All three of the claimants are entitled to substantial damages by way of vindication.

I consider that the allegations against Owen Oyston achieved a wider publication and interest, and caused him greater distress, than did the allegations against Karl Oyston. However I also consider that his damages must be reduced because of his general bad reputation so far as his sexual conduct his concerned.

Both Owen Oyston and Karl Oyston are entitled to aggravated damages by reference to Mr Ragozzino’s malice and conduct of the case.

The Company is entitled to substantial damages, but only modest damages.

The first claimant, Karl Oyston, is entitled to damages assessed in the sum of £20,000.

The second claimant, Owen Oyston, is entitled to damages assessed in the sum of £20,000.

The third claimant, Blackpool Football Club Limited, is entitled to damages assessed in the sum of £1,000.

All remaining matters will be addressed once this judgment has been handed down.

At the hearing I declined to accede to an order imposing some restriction on the reporting of the allegations the subject of the claim. To do so would have been contrary to principle. I am however satisfied that there is no justification for allowing the names of the two football players referred to in the Particulars of Claim from coming into the public domain, and therefore order that pursuant to CPR 39.2(4) the names of the two players stated in paragraph 9 of the Particulars of Claim are not to be disclosed and, further, that pursuant to CPR 5.4C no person shall be given access to the Particulars of Claim on the court file unless and until it has been anonymised by their being referred to as AB and CD respectively, for which purposes the claimants shall within 7 days file an amended anonymised version of the Particulars of Claim, stating on its face that it has been anonymised pursuant to this order.