The perversion of justice through miscalculation of the jury, is a difficult case to prove when the reliability of both witnesses and the courts complicate matters further.
On this occasion, a respected footballer is left with his professional integrity in tatters, after entrapment by a tabloid newspaper exposes his questionable conduct both on and off the pitch.
In late 1994, ‘The Sun newspaper’ ran a series of damning articles around the supposed match fixing activities of a reputable premier division goalkeeper.
As part of their campaign, the now respondents went to great lengths so as to not only expose the clandestine dealings of the appellant, but to further ridicule his character and dismantle his popular public persona.
In order to achieve this, the respondents colluded with the appellant’s former business partner, on the understanding that secret video taping of their conversations would provide sufficient evidence to seal a conviction for corruption.
Over a number of meetings, the agent successfully recorded several oral agreements made by the appellant to participate in providing match forecasts, which later transformed into regular meetings with foreign bookmakers, and the receipt of several cash payments for undisclosed reasons.
When the article was published, the appellant issued an immediate writ for defamation, which followed only after he had faced criminal charges under action taken by the respondents.
Having been acquitted before the courts, the civil action commenced with use of evidence used in the trial.
In the first hearing, the court opted for jury opinion so as to avoid overlooking the subjective nature of the case, and while it was admitted by the appellant that he had received money from unscrupulous individuals, he argued that his only intention was to establish the source of the racketeering, before revealing their identities to the authorities.
Admitted by both parties within the litigation, the appellant was accused of dishonestly taking bribes before fixing or attempting to fix, the result of matches in which he played, and dishonestly taking bribes with a view to fixing the result of matches in which he would be playing.
Here it was left to the jury to determine if, based upon his testimony and the recordings presented, the appellant was by virtue of his claim, innocent of any corrupt behaviour, and that in light of the respondent’s article, owed compensation for the pain and distress cased to both himself and his family.
After listening to the direction of the judge, and allowing for the small number of the appellant’s innocuous yet significant lies, the jury returned a verdict in favour of the appellant and awarded a reduced amount of £85,000 in damages.
Taken straight to the Court of Appeal, the Court reversed the decision on grounds of perversion by the jury, when in the summing up of the case, Brown LJ remarked:
“[O]ne is left with an inescapable core of fact and circumstance which to my mind leads inexorably to the view that Mr Grobbelaar’s story is, quite simply, incredible. All logic, common sense and reason compel one to that conclusion.”
It was then presented to the House of Lords for final evaluation, where the respondents challenged the rights of the House to question a forgone Appeal Court decision.
Here it was explained that under section 4 of the Appellate Jurisdictions Act 1876, the House of Lords (being the highest court in the land) was bestowed the power to “determine what of right, and according to the law and custom of this realm, ought to be done in the subject matter of such appeal”.
With that sentiment in mind, the House concluded by a majority, that under circumstances where the defamed party had been shown to lie, it would be a perversion of justice to award, or allow to be awarded, damages arsing from alleged defamatory remarks.
An act, which if unproven in the case of newspapers, is granted qualified privilege, as provided in Reynolds v Times Newspapers Ltd; and one where the claimant is shown to be less than deserving of financial remedy when their own behaviour is itself, questionable and unreliable.
This is known as the ‘Pamplin‘ principle, as laid down in Pamplin v Express Newspapers Ltd,in which:
“[A] plaintiff is entitled to a verdict in his favour on the justification issue but the evidence properly before the jury on the issue of justification has disclosed that the reputation to which he is entitled is so depreciated that the damages which he should be awarded for the damage to his reputation by the (ex hypothesi) defamatory publication should be reduced below the level that would be appropriate for a plaintiff with an impeccable reputation, maybe even to a nominal figure…”Pamplin v Express Newspapers Ltd
It was for the reasons given, that the House held that the appeal should be allowed, but on the condition that the award was reduced to a nominal sum of £1.
And that despite the argument that jury decisions were beyond review, the lower courts had allowed judge and jury roles to overlap, and so in order for justice to be done, the intervention of the House was merely academic, while the House reminded the parties that:
“The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection.”