Defamation


Books - journalism - libel - police - public interest - qualified privilege

Michael Charman v (1) Orion Publishing Group Ltd (2) Orion Books Ltd (3) Graeme McLagan: CA (Civ Div) (Lords Justice Ward, Sedley, Hooper): 11 October 2007

The appellant author (L) and publishers (O) appealed against a decision ([2006] EWHC 1756 (QB), [2007] 1 All ER 622) dismissing their defences of qualified privilege to a libel claim.



L was a journalist of many years' standing. He had written a book published by O entitled Bent Coppers and subtitled 'The inside story of Scotland Yard's battle against police corruption'.



C had been an officer in the Metropolitan Police until he had been required to resign following the finding of an internal disciplinary panel. He claimed that the book was defamatory. The judge held that the ordinary, reasonable reader of the hardback and paperback editions of the book, taking them as a whole, would understand them to mean that there were cogent grounds to suspect that C had abused his position as a police officer by colluding in the commission of substantial fraud by a fraudster (B), from whom C and another officer (R) received corrupt payments.



The judge rejected defences of qualified privilege on the basis that, although the problem of corruption in the police was a matter of public interest, the books were neither 'reportage' nor responsible journalism because L's approach did not achieve the necessary neutral balance. The appellants submitted that the judge was wrong to have rejected the responsible journalism defence.



Held, the reportage defence would be established where, judging the thrust of the report as a whole, the effect of the report was not to adopt the truth of what was being said, but to record the fact that the statements that were defamatory were made, Roberts v Gable [2007] EWCA Civ 721, [2007] EMLR 16 applied. The present case was a long way from the confines of reportage properly understood. A defining characteristic of reportage was missing in that L's book was not written to report the fact that allegations of corruption were made against C, and the fact that he denied them and in turn accused the investigating officers of plotting against him. The whole effect of the book was, as its sub-title made plain, to tell the inside story of Scotland Yard's battle against police corruption, and that tale included C's alleged corruption. The book was not a neutral, disinterested report, even if the excerpts reported were factually accurate.



The application of the Reynolds principles had recently been clarified by the House of Lords in Jameel v Wall Street Journal Europe SPRL (No3) [2006] UKHL 44, [2007] 1 AC 359: if the publication, including the defamatory statement, passed the public interest test, the inquiry then shifted to whether the steps taken to gather and publish the information were responsible and fair; in assessing the responsibility of the article, weight had to be given to the professional judgement of the journalist; the Reynolds principles were not intended to present an onerous obstacle to the media in the discharge of their function, Jameel applied. Proper care was the essence of responsible journalism and the test was whether L had acted with proper professional responsibility. His own assertion that he did not intend to convey the imputation the words were held to bear was a relevant fact to take into account, Bonnick v Morris [2002] UKPC 31, [2003] 1 AC 300 considered. The judge had erred in not considering the books as whole and C's story within them, and in not taking sufficient account of what L had omitted and his editorial judgment. Applying the Reynolds principles in the light of Jameel, the correct conclusion was that the books were responsible journalism. The passages in the books of which C complained were therefore protected by qualified privilege.



Appeal allowed.



Adrienne Page QC, Adam Speker, Matthew Nicklin (instructed by Wiggin) for the appellants; Hugh Tomlinson QC, Lucy Moorman (instructed by Simons Muirhead & Burton) for the respondent.



Real Property



Conversion - planning permission - varying restrictive covenants so as to permit conversion of house into two flats

Lawntown Ltd v (1) Mr Camenzuli (2) Mrs Camenzuli: CA (Civ Div) (Lords Justice Gage, Richards, Lawrence Collins):10 October 2007
The appellants (C) appealed against a decision varying restrictive covenants, so as to permit the conversion of a house into two flats.



The respondent developer L had obtained planning permission to convert a house into two flats. The house was one of a pair of semi-detached houses on an estate of similar houses built as family houses. The house was subject to restrictive covenants that prevented the conversion into flats. The benefit of the covenants extended to all the properties on the estate. Having obtained planning permission, L applied to the county court under section 610 of the Housing Act 1985 to vary the covenants. C, who lived next door, opposed the application.



The judge held that the court should normally proceed on the assumption that the planning permission had been properly granted, and should not have regard to matters that had already been considered by the planning authority. The judge considered three matters not taken into account by the planning authority - loss of the benefit of the covenant, the setting of a precedent, and negative effect on property values - and conducted a balancing exercise in which the crucial factor was the urgent demand for more housing in London. He therefore allowed the application.



C submitted that the judge should have considered all factors and had been wrong to disregard factors that had been taken into account in reaching the planning decision; alternatively, that if he had been right to vary the covenants, he should have ordered financial compensation for the loss of the protection conferred by the covenants.



Held, it was for the court to make its own assessment of the relevant factors and the weight to be accorded to them. It must not leave matters out of account, or give them no weight in the overall balancing exercise, merely because they had already been considered by the local planning authority in granting planning permission. The court's task under section 610, although triggered by the grant of planning permission, was separate from the planning process and required an independent exercise of judgement. The planning authority's factual assessment was not determinative and the court had to examine the facts for itself and to carry out its own balancing exercise, Re Martin's Application (1989) 57 P&CR 119 and South Buckinghamshire DC v Porter (No1) [2003] UKHL 26, [2003] 2 AC 558 applied. That approach removed any possible argument under article 6 or article 8 of the European Convention on Human Rights that relevant factors had been excluded. The judge had erred in confining his attention to matters not considered by the planning authority, and in the circumstances the appropriate course was for the court to exercise the discretion afresh.



In the circumstances, objections based on external appearance, increased noise from higher density of occupation, traffic noise, fumes, congestion and parking did not carry great weight. Of greater significance were the wider objections based on the wish to preserve the character of the neighbourhood and the fact that a decision to grant the variation would set an adverse precedent, Re Hunt's Application (1997) 73 P&CR 126 considered. Those were substantial matters to be taken into account. The judge had been right that there was virtually no evidence that the conversion would result in a diminution of property values. Factors in favour of the variation sought were L's wish to convert the property of which it was the freehold owner, and the grant of planning permission. It was also a relevant factor, and one to which substantial weight could properly be attached, that there was an urgent demand for more housing in London.



Taking all relevant factors into account, the balance came down decisively in favour of granting the variation sought by L. The power under section 610 to vary the terms of a covenant 'subject to such conditions and upon such terms as the court may think just' enabled the court to make provision for financial compensation in a suitable case, thereby addressing any problem that might otherwise arise under article 1 of protocol 1 to the convention. However, this was not a case where an order for financial compensation was appropriate.



Appeal dismissed.



Paul Oakley (instructed by Paul Smith & Co) for the appellants; Philip Coppel (instructed by Lane & Partners) for the respondents.



Health and Safety



Guilty pleas - health and safety offences - liabilities - penalties - culpability

R v Switchgear Engineering Services Limited: CA (Crim Div) (Lady Justice Hallett, Judge Grigson, Judge Goddard QC): 10 October 2007
The appellant company (S) appealed against a fine of £35,000 and prosecution costs of £30,000 imposed following its plea of guilty to contravening section 2(1) of the Health and Safety at Work etc. Act 1974 by failing to ensure, so far as reasonably practicable, the welfare, health and safety at work of its employees.



S had been sub-contracted by two co-accused companies (C and P) to maintain switchgear at C's factory premises. C was a major steel manufacturer and had made a contract with P to carry out the maintenance, as P supplied heavy duty machinery and provided on-site maintenance in most instances.



P considered the work to be specialised and asked S to provide engineers (M and D) to do it. The work involved the removal and replacement of a fractured bus bar that carried high currents. Contrary to P's ordinary practice, M and D were not provided with either a method statement or a supervising officer, but were left to their own devices. For the work to be done, the front section of the bus bars needed to have the current turned off, which was done by C's on-site electrical distribution engineer. However, the rear section remained live as otherwise the whole factory would have had to be shut down. No signs or warnings were given to M and D by on-site personnel. During the course of his work, M stood too close to the rear bus bars and was fatally electrocuted.



A Health and Safety Executive investigation found that, if a full method statement and supervision had been implemented, M and D would have been able to complete their work safely. S pleaded guilty to the section 2(1) contravention, while C and P pleaded guilty to contraventions of section 3(1) of the Act, both receiving fines of £100,000 and contributions towards prosecution costs of £18,000 respectively. The judge concluded that C and P were more proximate to the accident and that they each bore 40% responsibility, with 20% apportioned to S. S submitted that the judge's approach to sentencing was wrong in principle and did not reflect S's limited involvement. S argued that the main fault lay in the failure of C and P to supervise M and D correctly. S submitted that the judge, in imposing the penalties he did, failed to take sufficient account of S's limited means in comparison with those of P and C, which were multi-national companies. S argued that the judge placed too much emphasis on apportionment of liability rather than focusing on culpability.



Held, the court had been supplied with draft accounts for the most recent financial year, disclosing an operating profit that was significantly lower than for previous years, a fall that was at least partly because of the conviction related to M's death.



S was a well-run local business with a modest turnover that did not deserve to be shut down. The judge had been well placed to assess the culpability of all three companies, having heard submissions from the prosecution in relation to all three, and their own respective individual submissions. However, the judge had placed too much emphasis on apportionment of liability, while paying insufficient attention to the issue of culpability, R v Yorkshire Sheeting & Insulation Ltd [2003] EWCA Crim 458, [2003] 2 Cr App R (S) 93 considered. The judge made a clear finding that the provision of a method statement by S would, at most, have put M and D on inquiry, and it could not be said to have guaranteed their safety as supervision was also required. Furthermore, the judge had to consider not only culpability, but S's financial means. In whatever way the penalty was assessed, it was too high with regard to culpability and too high when account was taken of the financial means of all three companies. S had co-operated in interviews with the Health and Safety Executive, and had entered a guilty plea for which maximum credit should have been allowed. Therefore, a fine of £10,000 and costs of £10,000 would be substituted.



Appeal allowed.



J Cooper for the appellant.



Civil Procedure



Defendants - limitation periods - mistake - personal injury claims - product liability - substitution of parties

Declan O'Byrne v Aventis Pasteur SA: CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lady Justice Arden, Lord Justice Moore-Bick): 9 October 2007
The appellant (D2) appealed against a decision ([2006] EWHC 2562 (QB), [2007] 1 WLR 757), ordering it to be substituted for a related company (D1) as the defendant to the action of the claimant (O).



In 1992, when he was one year old, O had been vaccinated with two doses of the Hib vaccine. Thereafter, he had suffered brain damage. He claimed that the brain damage was caused by the vaccine. In 2000, he commenced an action against D1 because his solicitors believed that D1 was the manufacturer or producer of the vaccine.



It was accepted by D2 that that was a genuine mistake. O later applied to substitute D2 for D1 as defendant, on the basis that D2 was the manufacturer. That application was made in 2003 after expiry of the ten-year period for enforcing rights conferred by Directive 85/374 on liability for defective products and section 11A(3) of the Limitation Act 1980. The judge allowed the application under section 35 of the Act. D2 argued that section 35 was not applicable where the time-limit which had expired was the ten-year final cut-off date under article 11 of the directive; O, even though under a mistake at the time when the action was commenced, had not been under a mistake about the identity of the party against whom he was intending to proceed at the time when the relevant limitation period expired, and that in those circumstances the substitution of a new party after the expiry of the limitation period could not be regarded as 'necessary' for the purposes of section 35(5).



Held, section 35 was capable of applying where the ten-year period in article 11 of the directive had expired. The European Court of Justice (ECJ) had decided in the present case that it was for national procedural law to determine the conditions, in accordance with which one party might be substituted for another in the context of a product liability action brought against a person mistakenly thought to be the manufacturer. The court had left it to national courts to decide in accordance with their own procedural law whether substitution should be permitted to prevent the rights of the injured person being extinguished on the facts of such a case, provided they paid due regard to the requirement that proceedings had been instituted against the producer within the meaning of the proviso to article 11. That requirement was met in a case where the English court was satisfied that the mistake was not a mistake as to the identity of the manufacturer, but as to its name or nomenclature. The decision of the ECJ was consistent with the earlier decision of the Court of Appeal by which the court was bound, Horne-Roberts v SmithKline Beecham Plc [2001] EWCA Civ 2006, [2002] 1 WLR 1662 followed. Section 35(6) provided that the addition or substitution of a new party could not be regarded as necessary, unless (a) there was a relevant mistake or (b) an existing claim against the original party could not be maintained without the joinder or substitution of the new party. The natural meaning of that language was that, if there was either a mistake of a kind sufficient to satisfy (a) or the kind of necessity identified in (b), then the test of necessity in section 35(5) was satisfied but not otherwise. The judge was therefore correct that, where the new party was to be substituted for a party whose name had been given in a claim in the original action by mistake for the new party's name, substitution was to be regarded as necessary for the determination of the original action.



Appeal dismissed.



George Leggatt QC, Prashant Popat (instructed by Arnold & Porter (UK)) for the appellant; Nigel Godsmark QC, Hugh Preston (instructed by Freeth Cartwright) for the respondent.



Intellectual Property



Community designs - infringement - registered design right - similarity - validity

Procter & Gamble Co v Reckitt Benckiser (UK) Ltd: CA (Civ Div) (Lords Justice May, Dyson, Jacob): 10 October 2007
The appellant (R) appealed against a decision ([2006] EWHC 3154 (Ch), [2007] ECDR 4) that the registered Community design of the respondent (P) for an air freshener spray was valid and had been infringed by R's product.



P and R's businesses included selling domestic air freshener sprays. P's product, 'Febreze', was packaged in a custom-designed canister surmounted by a trigger within a housing. Pressure on the trigger released the spray. The design of the package was registered as a registered Community design. P had submitted that the package in which R sold its product, 'Air Wick Odour Stop', infringed its registered Community design.



The judge accepted R's submission that the overall impression of a design was what stuck in the mind after it had been carefully viewed, and found that R's product infringed P's design. R submitted that the judge was wrong in principle, as on a proper analysis the judge actually found that the overall impression of each product was different and he ought to have concluded that there was no infringement. R argued that, the judge having made that error, the present court should form its own impression of the designs.



Held, the court gave some general observations on the 'different overall impression' test: (a) it was sufficient to avoid infringement if the accused product was of a design which produced a different overall impression. There was no policy requirement that it be 'clearly' different; (b) the notional informed user was taken to be 'fairly familiar' with design issues; (c) protection for a striking novel product would be correspondingly greater than for a product which was incrementally different from the prior art, though different enough to have its own individual character and thus be validly registered; (d) however, the test remained 'is the overall impression different?'; (e) it was legitimate to compare the registered design and the alleged infringement with a reasonable degree of care. The possibility of imperfect recollection had a limited part to play in the exercise; (f) the court had to identify the 'overall impression' of the registered design with care; (g) the level of generality to which the court had to descend was important. The appropriate level of generality was that which would be taken by the notional informed user; (h) the court should then do the same exercise for the alleged infringement; (i) finally, the court should ask whether the overall impression of each was different.



In the present case, the judge did err in principle by failing to apply the overall impressions that he had in fact formed of P's product and R's product. The judge failed, when considering infringement, to state what the overall impression of the alleged infringement was. The judge applied by implication a requirement that the accused product should give the informed user a 'clearly' different impression. The judge also erred in applying a 'stick-in-the-mind' test instead of a 'what would impress now' test. Furthermore, the judge approached the dominant features of the design at too general a level - a level such as not to convey in words the overall impression which would be given to an informed observer. The present court did not agree with the judge's concern that a poor-quality imitation would escape infringement. If a poor-quality imitation did not convey the same impression as the original, it would fail on its own design merits. The impression that would be given to the informed user by R's product was different from that of the registered design. The similarities between the products were at too general a level to fairly say that they would produce on the informed user the same overall impression. On the contrary, the user would get a different overall impression. The appeal on infringement was allowed. The appeal on validity was dismissed.



Appeal allowed in part.



Henry Carr QC (instructed by Bird & Bird) for the appellant; Roger Wyand QC, Dominic Hughes (instructed by Howrey) for the respondent.