Grobbelaar (Appellant) v. News Group Newspapers Ltd and Another (Respondents)

A publisher pleading justification must prove the substantial truth of the sting of the defamatory publication. It need not prove every allegation. Where liability is determined by a jury, identifying the sting is a question for the jury.

An appellate court may overturn a civil jury’s factual verdict where no reasonable jury could have reached it. It should first consider every rational explanation consistent with the verdict. An excessive damages award does not, by itself, establish that the liability verdict was perverse.

Proved misconduct which falls short of justifying the sting may substantially reduce damages, even to a nominal sum. A narrowly confined injunction may nevertheless restrain repetition of the unproved defamatory allegation.

The respondents published articles alleging that the appellant, a professional football goalkeeper, had accepted bribes and had fixed or attempted to fix matches. The appellant brought libel proceedings. The parties agreed the defamatory meaning, but disputed whether its sting lay in the corrupt agreements or in the allegation that matches had actually been fixed.

Gray J left justification and damages to a jury. The jury found for the appellant, awarded £85,000 compensatory damages and declined to award exemplary damages. The Court of Appeal set aside the liability verdict as perverse and entered judgment for the respondents: [2001] 2 All ER 437.

The appeal concerned whether the jury’s verdict could rationally be explained, whether the damages could stand, and whether the House could substitute its own award. The respondents also cross-appealed against the judge’s directions on justification.

1. Disposition. By a majority of four to one, the House allowed the appeal, quashed the Court of Appeal’s order, restored the jury’s finding of liability and substituted nominal damages of £1 for the award of £85,000. The respondents’ cross-appeal concerning the directions on justification was dismissed. Lord Bingham delivered the leading speech and Lord Millett expressly agreed with it. Lords Hobhouse and Scott reached the same disposition. Lord Steyn dissented.

2. Justification and the jury’s verdict. Per Lord Bingham, the articles supported two possible accounts of their sting: corrupt agreements to fix matches, or the actual fixing or attempted fixing of matches. Under section 69(1)(b) of the Supreme Court Act 1981, the choice was for the jury. The evidence did not establish actual match-fixing. The jury could therefore rationally have found that the respondents failed to justify the sting, while also finding that the appellant had entered a corrupt agreement with Mr Vincent and accepted money from him.

   Lords Hobhouse, Millett and Scott likewise concluded that the unreasoned verdict should be upheld because a rational route to it existed. The excessive damages award did not logically establish that the separate liability verdict was perverse. An appellate court should overturn a civil jury’s factual verdict only where no reasonable jury could have reached it or no rational explanation for it exists.

3. Damages. The majority held that substantial damages were indefensible. The appellant’s corrupt agreement and receipt of money showed conduct which had gravely diminished his reputation as a professional sportsman. Although those facts did not prove the sting selected by the jury, they reduced the compensable injury to nominal proportions. Lord Hobhouse applied the partial-justification principle discussed in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116.

4. Appellate power. Per Lord Bingham, with the other Law Lords agreeing on this issue, section 8(2) of the Courts and Legal Services Act 1990 did not confine the power to substitute damages to the Court of Appeal. Section 4 of the Appellate Jurisdiction Act 1876 and the House’s inherent appellate jurisdiction enabled it to make any order which the Court of Appeal could have made.

5. Injunction. The majority gave the appellant liberty to apply to the High Court for a narrowly worded injunction restraining repetition of the allegation that he had fixed or attempted to fix matches. The order could extend no further and would be unnecessary if a suitable undertaking were offered. Restraining repetition of an unprivileged factual allegation which the jury found unproved was compatible with freedom of expression.

6. Dissent. Lord Steyn would have dismissed the appeal. He considered the most plausible interpretation of the award to be that the jury had rejected proof of both corrupt agreements, despite compelling evidence. On that interpretation, the liability verdict was perverse. He also would have refused an injunction because of the appellant’s corruption, the need to protect freedom of expression and the practical limits required by any order.

1. House of Lords: By a majority of four to one, allowed the appellant’s appeal, quashed the Court of Appeal’s order, restored the jury’s liability verdict and substituted damages of £1. The respondents’ cross-appeal was dismissed. [2002] UKHL 40.

2. Court of Appeal: Allowed the newspaper’s appeal against the liability verdict, held the jury’s finding to be perverse and entered judgment for the defendants. It dismissed the newspaper’s appeal concerning qualified privilege. [2001] 2 All ER 437.

3. High Court: Gray J rejected the newspaper’s reliance on qualified privilege. A jury found for the claimant, awarded £85,000 compensatory damages and declined to award exemplary damages.