Defamation – Libel – Meaning – Justification – Substantial Justification – s.5 Defamation Act 1952
In April 2004 the BBC West early evening news bulletin Points West broadcast a report concerning the outcome of an inquiry into allegations that waiting list figures at a local hospital had been systematically falsified. The broadcast contained part of a press conference given by a former employee of the hospital in which she named Marion Henry, the Claimant in this action, as one of the managers who had given instructions to junior members of staff to falsify waiting lists and had subsequently covered up the fraud. The BBC’s defence of qualified privilege had been previously dismissed by the court.
Whether the following meanings were substantially true: (1) the Claimant was guilty of systematically falsifying waiting list figures at [WGH] and had been found to be so by an independent inquiry report; (2) the Claimant was guilty of bullying and placing heavy-handed pressure on staff at [WGH] under her management in order to perpetuate the waiting list fraud; (3) the Claimant had been complicit in a cover up of the waiting list fraud which allowed her to continue in her post when she should have been dismissed; and (4) patients may have suffered as a result of the Claimant’s role in perpetrating the waiting list fraud.
Dismissing the claim and upholding the defence of justification: Meanings (1), (3), and (4) had been proved by the BBC, on the balance of probabilities, to be substantially true. Meaning (2) was not proved to be substantially true. However, applying s.5 Defamation Act 1952, the failure to prove the truth of this imputation did not materially injury the Claimant’s reputation having regard to the imputations that had been proved true.
This case involved a substantial dispute of fact, and issues as to the credibility of witnesses. The Judge (at §89) set out a lengthy quote from a paper by Lord Bingham, The Judge as Juror: The Judicial Determination of Factual Issues. The Judge found Lord Bingham’s guidance was broadly to similar effect as guidance in the authorities of Armagas Ltd v Mundogas SA (“The Ocean Frost”) [1985] 1 Lloyd’s Rep 1, 57 and Nina Naicker Gow v Harker [2003] EWCA Civ 1160 §§54-56. Whether juries approach fact finding in such a sophisticated manner is open to substantial question.