Full case report
McKeown v Attheraces Ltd
Reference  EWHC 179 (QB);  ISLR, SLR-163
Court Queen's Bench Division
Judge Tugendhat J
Date of Judgment 7 Feb 2011
Libel – jockey – disciplinary proceedings – findings of non-trying – appeal – unsuccessful judicial review – broadcast interview with jockey – defence of qualified privilege – defence of honest comment – applications by defendant – summary judgment – striking out – abuse of process – no real and substantial tort – re-litigation abuse – application dismissed
C was a senior jockey. In October 2008, at the conclusion of disciplinary proceedings, the Disciplinary Penal of the regulator, the British Horseracing Authority, held that C had been guilty on four occasions in 2004 and 2005 of deliberately not riding his horse on its merits and of conspiring with others to commit a corrupt practice. A disqualification of 4 years was imposed, but suspended pending a possible appeal. C continued to ride in the meantime.
Less than two weeks after the Panel’s decision on penalty, BHA Stewards at Southwell found C to have deliberately not ridden another horse, RASCAL IN THE MIX, on its merits. The following day, 5 November 2008, C was interviewed on D’s racing TV channel, and it was suggested to him that the latest occasion was one of ‘many examples … during the last four or five years’ of his employing ‘these kinds of tactics’ and he had been ‘caught’. In October 2009 C issued proceedings for libel against the broadcaster.
In the meantime, C appealed the decision of the Disciplinary Panel. The BHA Appeal Board dismissed his appeal. He sought judicial review at common law of this decision. His claim was dismissed by Stadlen J in a judgment handed down on 12 March 2010.
D’s defence to C’s libel claim pleaded qualified privilege by statute for what was alleged to be a fair and accurate report of the findings of the BHA authorities and honest comment on those findings. Alternatively, D pleaded honest comment and/or justification based on the contention that C had done the things that the BHA authorities had found that he had done.
D now applied for C’s claim to be dismissed or stayed on four grounds: (i) D was bound to succeed on the defences of qualified privilege and/or honest comment; (ii) if there was any arguable claim to which these defences were not a sufficient answer, th residue did not raise a real and substantial complaint and was an abuse of process; (iii) C had no reputation worth vindicating; (iv) the action should be dismissed as an abuse because it sought re-litigation of the issues determined against C in the disciplinary and judicial review proceedings.
Part of C’s riposte was that he had found fresh evidence relating to several of the impugned rides, which altered the picture, and that he was intending to reopen the disciplinary process on those grounds. D responded by adding, in the alternative to the above, an application that the libel action be stayed pending an application by C to reopen the disciplinary process.
(1) Were the privilege and honest comment defences bound to succeed?
(2) Was any residual complaint real and substantial, or an abuse of process of the kind identified in Jameel v Dow Jones?
(3) Did C have any arguable case that his reputation at the time of publication was worth vindicating?
(4) Should the action be stayed or dismissed on the grounds of re-litigation abuse?
(5) Should the action be stayed to await the outcome of C’s proposed application to reopen the disciplinary process?
Dismissing the application:-
(1) There was a real prospect that C could persuade a Jury that D adopted rather than merely reporting the findings of the Panel and Stewards, in which case the privilege defence would fail. The defence of comment based on the facts reported would necessarily fail also. D’s alternative argument, that any imputation that those findings were correct was an expression of opinion rather than a factual imputation, so that the defence of honest opinion was made out, was not bound to succeed.
(2) & (3) In the light of the above conclusions neither the Jameel abuse point nor the bad reputation argument could succeed.
(4) There was force in D’s submission that the earlier proceedings gave C an Article 6 compliant fair hearing on the issues, such that permitting the present action to proceed would bring the administration of justice into disrepute. Against that, the effect of D’s argument would be to grant it an absolute privilege when Parliament had given only qualified privilege for the reporting of disciplinary findings. The issue was complicated both by the fact that the Stewards’ decision was of a different status from that of the Panel, and by C’s fresh evidence point. It was unnecessary to resolve the issue, however, because even if the BHA findings raised a rebuttable presumption C might rebut it, and the issues in the libel action were not identical to those in the disciplinary proceedings.
(5) The action would not be stayed pending the reopening of the BHA proceedings. It was uncertain what would happen in that respect and in any event the scope of the libel action differed from the process involving the Panel.
The Judge’s conclusions on re-litigation abuse are of particular interest. The Judge considered there was force in the Defendant’s submission that, taken as a whole, the disciplinary proceedings and the review proceedings which followed were sufficient to meet the Claimant’s right to a fair hearing under Art 6 ECHR, so that they should be considered equivalent to proceedings before a court. From this it was said to follow that pursuit of the libel action, with the possible result that inconsistent conclusions would be reached, would be an abuse of the court’s process. However, the Judge concluded that even if the earlier findings against the Claimant raised a rebuttable presumption he could not conclude that the Claimant had no prospect of rebutting it. Further, he concluded that the libel action did not cover exactly the same ground as the earlier proceedings. Hence he declined to dismiss the action on those grounds.
In a subsequent case in the Commercial Court, Teare J held it an abuse for A to raise in a High Court claim against C allegations which A had raised, but had been dismissed, in a previous commercial arbitration against B: Michael Wilson & Partners v Sinclair & Ors.
Stewart Moore for C; Farrer & Co for D