Kieren Fallon v MGN Limited (No 3)
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 16 Jun 2008
Summary: Justification of Level 2 Meaning - Reasonable Grounds to suspect the Claimant of complicity in race-fixing - Whether adverse expert evidence on manner of Claimant's race riding is essential to the viability of the Defence
Instructing Solicitors: Christopher Stewart-Moore for the Claimant
Fallon complained that a Racing Post article about Miles Rodgers’ betting record meant that he was probably guility of conspiring with Rodgers to fix races in which Rodgers layed him to lose. The Defendants pleaded justification to a Level 2 meaning. Eady J struck out the original defence because there was no causal nexus shown between Rodgers’ betting and Fallon’s losing rides, and the Defendant’s race-riding expert agreed with the Claimant’s race-riding expert that Fallon looked as if he had lost on Ballinger Ridge by mistake, not by design. Following the acquittal of Fallon and Rodgers on a criminal charge of conspiracy to defraud, the Defendants applied to amend their Defence to rely upon the same material used by the CPS to mount their prosecution. The application was resisted on the grounds that the CPS case had proved to be too weak to be left to the Jury, so by parity of reasoning and having regard to the overall factual matrix (which includes the fact that Fallon’s win rate o
The key issue was whether the Court should adopt the reasoning of Forbes J at the criminal trial and hold that in order for the case to proceed there had to be prima facie evidence that Fallon had deliberately stopped his horse from winning in at least some of the suspect races. Forbes J had directed the Jury to acquit Fallon because the race-riding expert relied on by the CPS was not qualified to offer an opinion on UK racing, and his evidence fell short anyway of accusing any jockey of appearing not to try. The Defendants reproduced his “non-expert” criticisms of three of Fallon’s rides in the new Defence, and repeated in the new Defence an account of the Ballinger Ridge race which had been disowned by their own expert John McCririck.
The defence had been transformed by the inclusion of detailed particulars showing telephonic communications between the Claimant and associates of Rodgers at the time of the suspect races. Taken as a whole the new defence was arguable, and the matters raised by the Claimant by way of resistance to its introduction would have to be explored at trial. It was not essential that the defence should be underpinned by expert race-riding evidence.
This was not a predictable outcome given Forbes J’s ruling at the criminal trial and the exculpatory significance previously attached by Eady J to the expert race-riding evidence of John McCririck. But when granting the Defendant’s application for permission to appeal the earlier ruling (the appeal was later withdrawn), Sedley LJ opined that perhaps the Judge had given too much weight to Mr McCririck’s evidence, and not enough weight to the betting evidence.