Basham v Gregory (No.2)

Reference: [1998] EWCA Civ 1137

Court: Court of Appeal

Judge: Stuart-Smith & Otton LJJ & Sir Brian Neill

Date of judgment: 2 Jul 1998

Summary: Defamation - Libel - Meaning - Justification - Defamation Act 1952, s.5 - Summing up - Misdirection - Criticism of counsel - Retrial

Appearances: Patrick Milmo KC - Leading Counsel (Claimant)  David Sherborne (Claimant) 

Instructing Solicitors: Richard Sykes for the Claimant; Harbottle & Lewis for the Defendants.


The Claimant, a PR consultant, had complained that he had been libelled in a book (‘Dirty Tricks’) written by the First Defendant and published by the Second Defendant. The book was an account of the campaign waged by British Airways (BA) in the early 1990s against Virgin Airways and the ensuing litigation. The Defendants contended that the words complained of bore different meanings from those asserted by the Claimant, raised a limited plea of justification and relied on s.5 of the Defamation Act 1952. At trial, the jury found in favour of the Claimant and awarded him £20,000 damages. The Defendants appealed and sought a retrial on the grounds that the judge’s summing up to the jury was flawed in relation to each of the three aspects of their case and that the judge had unfairly criticised leading counsel for the Defendants for his conduct of the case.


Whether the judge’s summing up to the jury was flawed or he had unfairly criticised leading counsel for the Defendants.


The judge’s summing up on the issue of meaning was wholly appropriate. A fuller direction on justification would have been helpful to the jury, and the summing up on s.5 of the 1952 Act was not very satisfactory, but the judge’s summing up as a whole was not so flawed as to warrant the intervention of the Court of Appeal. The alleged flaws did not cause a miscarriage of justice. They clearly did not influence the result. It would be unjust to order a retrial.
The judge’s criticisms of leading counsel for the Defendants did not go beyond the permissible and in many instances appeared wholly justified. Appeal dismissed.


In the absence of a clear misdirection, appeals against a jury verdict after full trial are always difficult. Here the Court of Appeal was not impressed by the Defendants’ arguments and did not believe that the points raised would have affected the outcome.