Grobbelaar v News Group Newspapers Ltd

Qualified privilege in defamation is determined by a single, fact-sensitive inquiry into whether the public was entitled to receive the information, balancing freedom of expression against reputation. The factors identified in Reynolds v Times Newspapers Limited [1999] 3 WLR 1010 are illustrative.

A restrained report raising suspicion or inviting investigation may be protected. A sustained campaign that unambiguously asserts serious criminal guilt, uses emotive vilification and prejudges a possible prosecution may fall outside the defence. For justification, corruptly agreeing to accept or accepting bribes is itself serious misconduct; proof of actual match-fixing is unnecessary. An appellate court may set aside a defamation jury verdict where no reasonable jury could have reached it.

Bruce Grobbelaar brought a libel claim over seven editions of The Sun accusing him of accepting bribes and fixing or attempting to fix football matches. After a 16-day trial before Mr Justice Gray and a jury, he received £85,000 damages. The judge had ruled that qualified privilege was unavailable, and the jury rejected justification.

The Sun appealed against both rulings. The appeal followed criminal trials in which Mr Grobbelaar was acquitted of conspiracy and no verdict was reached on a separate bribery count. The central issues were whether the publications were protected by qualified privilege and whether the civil jury’s verdict was perverse.

The Court of Appeal, in a unanimous decision delivered principally by Simon Brown LJ and agreed by Thorpe LJ and Jonathan Parker LJ, allowed the appeal, set aside the jury’s verdict and entered judgment for the defendants.

Qualified privilege

The court applied the single, overall inquiry required by Reynolds v Times Newspapers Limited [1999] 3 WLR 1010. The listed factors included the seriousness of the allegation, public concern, source, verification, status, urgency, opportunity for comment, the gist of the claimant’s response, tone and circumstances of publication.

Although corruption in professional football was plainly a matter of public concern, the allegations were exceptionally serious, the verification was inadequate, the source was doubtful, and there was no independent investigation commanding respect. The Sun published a sustained and sensational campaign which asserted guilt as fact, used highly emotive language, involved the claimant’s family and risked prejudicing a criminal process. Qualified privilege might have protected communication to the police or football authorities, or a restrained report framed as suspicion or a call for investigation. It did not protect these publications.

Justification and the jury verdict

The appellate court would interfere with a defamation jury verdict only on very strong grounds. Nevertheless, it had both the power and the duty to intervene where no reasonable jury, viewing the evidence properly, could have reached the result. No misdirection was required before that jurisdiction arose.

Corruptly agreeing to accept or accepting a bribe was itself a breach of duty, an actionable wrong and a criminal offence. Under the Prevention of Corruption Act 1906, actual influence on play or actual match-fixing was unnecessary. The jury could therefore reject proof that goals had deliberately been conceded yet could not rationally accept the claimant’s explanation that all his detailed admissions were inventions designed to trap Vincent. The surrounding facts made that explanation incredible. The award demonstrated that the jury had rejected both alleged corrupt arrangements. The verdict was consequently a miscarriage of justice and was set aside.

The defendants were awarded their costs below and half their appeal costs. Permission to appeal to the House of Lords was refused.

• Court of Appeal — Appeal allowed. The jury’s verdict and damages award were set aside, judgment was entered for the defendants, and costs orders were made. Permission to appeal was refused: [2001] EWCA Civ 33.
• High Court, before Mr Justice Gray — A jury awarded Mr Grobbelaar £85,000 for libel. The judge ruled that qualified privilege was unavailable and the jury rejected the defence of justification.