ONE BRICK COURT | 1BC

Chambers of Sir Edward Garnier QC. clerks@onebrickcourt.com | Tel: 020 7353 8845 | Fax: 020 7583 9144 | @OneBrickCourt
News/Articles Search


Advanced search
Cases Search

Advanced search
Barristers
Timothy Atkinson

Timothy Atkinson
Call: 1988

Find out more


Cases 

Back to Cases

Dean McKeown v Attheraces Limited [2011] EWHC 179 (QB)

Case date: 07/02/2011

Court: High Court

Area/s of law: Defamation

Barrister/s: Catrin Evans QC

Factual background

The Claimant is a professional jockey. The Defendant operates a horseracing TV channel.

On 23.10.08 the British Horseracing Authority’s Disciplinary Panel found that the Claimant was guilty of deliberately failing to ride a horse on its merits in four races and was also guilty of conspiring to commit a corrupt practice. He was banned from riding for 4 years with the penalty stayed pending appeal. The decision was upheld by the BHA on appeal and the Claimant’s subsequent application to the High Court (Stadlen J) for a declaration that the BHA had acted unlawfully also failed.

Meanwhile, on 4.11.08, the Claimant rode a horse, Rascal in the Mix, in a race at Southwell. There was a Stewards inquiry and the Stewards found that the Claimant had deliberately failed to ride his horse on its merits. As a result the BHA revoked his licence with immediate effect and lifted the stay on penalty.

On 5.11.08, the Claimant gave a live interview to the Defendant’s TV channel. The libel claim was brought in relation to the questions put to him by the interviewer about the above events. He complained that the interviewer’s questions alleged that he was guilty of (or there were reasonable grounds to suspect him of) (a) having employed the tactic on many occasions over the last 4-5 years of only pretending to hit his horse or similar tactic and had thereby cheated the racing public; (b) having made no effort to ask Rascal in the Mix to get into contention for the race at Southwell because his dishonest objective was to prevent the horse from doing her best; and (c) having a dishonest motive in stopping Rascal in the Mix, namely to honour a corrupt bargain with others who had layed the horse to lose at long odds whereby he ensured their otherwise risky bets would be successful in exchange for financial kickback. (The words complained of and pleaded meanings are set out at para 11).

The Defendant pleaded defences of statutory qualified privilege, honest opinion, justification and bad reputation.

The Defendant sought summary judgment and/or to strike out the claim on various grounds, alternatively a stay pending the conclusion of any re-opened disciplinary proceedings. Tugendhat J rejected the applications.

Statutory qualified privilege 

  • The Defendant contended that the broadcast was a fair and accurate report (within s.15(1) & Sch 1 Part 2, para 14(c) of the Defamation Act 1996) of the findings of the BHA’s Disciplinary Panel of 23.10.08 and the Stewards inquiry on 4.11.08 into the Claimant’s riding of Rascal in the Mix.

  • Tugendhat J was prepared to assume that the journalist’s questions in the interview amounted to a ‘report’ within the meaning of the Act. However, he accepted the Claimant’s submission that it would not be perverse for the jury to find that the interviewer had ‘adopted’ the findings of the Stewards and the Disciplinary Panel. Amongst other parts of the broadcast, the Claimant relied on the interviewer saying to the Claimant, ‘You’ve been caught. It’s as simple as that, isn’t it?’ Such adoption can defeat the privilege, Curistan v Times Newspapers Ltd [2008] EWCA Civ 432.

  • In considering this issue, the Judge observed how the fact that the publication was a TV broadcast (rather than a written publication) affected whether he should leave the question of whether the report was ‘fair and accurate’ to the jury. The impression given by a broadcast was affected by ‘the tone of voice and the body language of the speaker’. He went on to state that ‘There may be more scope of a difference of view as to how a reasonable viewer would understand a TV broadcast’ (para 28). In respect of broadcasts, it may, therefore, be prima facie more difficult to have the matter decided on an interim application than it would be newspaper publications.

Honest comment 

  • In respect of the defence of honest comment, the question was whether the interviewer’s suggestions that the BHA’s and Stewards’ findings were correct must be expressions of opinion because they were inferences about the Claimant’s motives. The Defendant relied upon Branson v Bower [2001] EWCA Civ 791. However, Tugendhat J observed that intention is a state of mind and intention was capable of being, and was frequently treated as, a question of fact (para 35). He therefore was not able to say the defence was bound to succeed.

Re-litigation abuse 

  • Tugendhat J’s decision in respect of this limb of the Defendant’s application is perhaps of greater interest. The Defendant argued that, in respect of four races, because the issues had been considered by three tribunals (the Disciplinary Panel, the Appeal Board and, in its supervisory jurisdiction, the High Court (see above)), the libel action amounted to re-litigation abuse. It was accepted that the principle of res judicata applies to issues determined by non-statutory disciplinary proceedings, R(Coke-Wallis) v Institute of Chartered Accountants in England & Wales [2011] UKSC 1 (so long as the other requirements were met) (paras 36-38) and so applies to BHA disciplinary decisions.

  • Because the parties to the libel action were not the same as in those previous proceedings, the libel action would only be an abuse if it was “manifestly unfair” to the Defendant or “would bring the administration of justice into disrepute”, applying Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321, (paras 45-46). The former was not suggested and Tugendhat J rejected that it would do the latter.

  • In reaching his decision, the Judge took into account that the BHA Panel’s decision had been made without the benefit of a full set of recordings of three of the races concerned. The Claimant now had that evidence and it would be before the jury. He also took account of the fact that the Stewards inquiry at Southwell had a different status to the BHA Panel’s decision (paras 39-40).

  • Although Tugendhat J accepted that allowing the libel action to proceed risked inconsistent decisions (para 48), he observed that Parliament had not legislated to prohibit re-litigation and therefore preclude such a risk (para 49). The Judge saw force in the Claimant’s submissions that dismissing the claim on the grounds of re-litigation abuse (a) could amount to holding that the BHA findings created an irrebuttable presumption comparable to s.13 of the Civil Evidence Act 1968 (which only applies to a far more narrow range of decisions, namely convictions of the UK courts) and (b) would provide greater protection than the privilege afforded by section 15 of the 1996 Act (which the Judge had already held was an issue to be tried). Ultimately, the Judge held that he did not need to decide such issues, and the Defendant’s application failed because the issues in the libel action were different from those before the disciplinary proceedings and Stadlen J. The libel action was brought partly on the allegation that the Claimant was dishonest in his riding on 4.11.08 and there was nothing comparable to that in the findings of the Southwell Stewards inquiry.

Jameel abuse

  • The Defendant also sought to strike out the claim on the ground that, were the court to hold that the words complained of consisted of a report of disciplinary findings and/or comment then the residue of the words complained of did not amount to a real and substantial tort, particularly in view of the damage to his reputation already caused by the disciplinary findings themselves.

  • The application was refused because in view of the findings above, and the justification defence, it would be open to the Claimant to seek vindication at trial which could be of real value to him and substantial.

Stay 

  • The application to stay pending the Claimant’s attempt to re-open the disciplinary findings (on the ground of new video evidence of the races) was refused in the light of the conclusions above. It was uncertain what would happen in relation to any application to re-open and in any event the scope of the libel claim was wider than the issues before the BHA.

Catrin Evans, instructed by Farrer & Co, was junior counsel for the Defendant

Kate Wilson

Share this: