News of the World fails in appeal for new trial in Tommy Sheridan defamation case

Judges in the Inner House of the Court of Session refused the motion by News Group Newspapers Limited(NGN) to set aside the damages award which a civil jury made in favour of Mr Sheridan in 2006, after ruling that a new trial in the “complicated and unusual case” was not “essential to the justice of the cause”.

Lady Paton, Lord Drummond Young and Lord McGhie heard NGN argue first, that the existing civil jury’s verdict should be quashed as “unsafe” as Mr Sheridan was convicted of perjury in 2010 for evidence given in the civil trial.

Secondly, the applicants submitted that the verdict was “contrary to the evidence”, as without that perjured evidence Mr Sheridan would not have won.

And thirdly, it was submitted that three new matters had emerged since the 2006 trial, namely the criminal perjury conviction, a video-tape obtained from Mr Sheridan’s best man George McNeilage in which Mr Sheridan appeared to admit matters which he had denied at the civil trial, and an affidavit from a woman “MM” who claimed to have had a sexual affair with Mr Sheridan both before and after his marriage.

However, Mr Sheridan denied lying in the course of the civil jury trial and submitted that that the defenders had throughout adopted practices which amounted to “perverting the course of justice”.

He maintained that he had since obtained evidence which would “wholly undermine and discredit” the defenders, including “inadmissible evidence” obtained by criminal phone-hacking which led, “improperly”, to the perjury conviction.

He also claimed the McNeilage tape was fabricated and purchased for £200,000, while the MM allegations were similarly the “false product of unacceptable journalistic practices”.

Mr Sheridan further submitted that, in any event, his conviction could not have been evidence led before the jury in 2006.

While the pursuer did not ask the appeal court to make findings-in-fact, he did ask the court to evaluate the quality of the evidence which he had collected, and to conclude that a re-trial was “not essential to the justice of the cause”, in terms of section 29(1) of the Court of Session Act 1988.

In reply the defenders contended that the pursuer, by his dishonest evidence, had “perpetrated a fraud on the court”.

The perjured evidence covered so much of the territory of the civil jury issue that it was impossible to conclude that what was left (unperjured) could result in a “safe verdict”.

Had the true evidence been before the jury, the defenders’ senior counsel could have invited them to conclude that the pursuer was “an adulterer, a swinger who participated in orgies and was no stranger to swingers’ clubs, a liar, and a hypocrite”.

However, the judges refused to grant NGN’s application after observing that the court should be “slow to interfere” with the verdict of a civil jury, who were effectively “judges of fact”, and they were “entitled to believe parts of what a witness said, and to disbelieve other parts”.

Several lines or routes of reasoning had been open to the civil jury, at least one of which was not undermined by the perjury conviction or by the three new matters relied upon by NGN.

Delivering the opinion of the court, Lady Paton said: “Although it is fair to say that the pursuer appears to have presented his case on the basis that his honesty and his marital fidelity were key issues, we do not consider that this was critical to his claim to have been seriously defamed by certain material which was before the jury. The jury may well have disbelieved large parts of his evidence, and yet been satisfied that the issue should be answered in the way it was.

“It was the jury’s function to assess the credibility and reliability of witnesses; to decide whom to believe and whom to disbelieve; to determine what inferences could be drawn from the evidence which they accepted; to weigh up questions of current social standards, practices, and mores and to apply the legal directions given by the judge.”

She added: “In other words, the jury were entitled to conclude that the pursuer was not perfect; that he had lied to them in some respects; but that he was not someone who drank champagne, participated in orgies, and indulged in kinky sex including bondage, spiked heels, and whipping, those latter allegations being ones which tended to lower the pursuer’s reputation in the estimation of right-thinking members of society generally. Neither was he, in their assessment of current social mores and practices, a hypocrite or an abuser of his position of power as a party leader, allegations which again tended to lower the pursuer’s reputation in the estimation of right-thinking members of society generally.”

Accordingly, the court was not persuaded that the matters founded upon by NGN made it “essential to the justice of the cause” that the verdict reached by the jury in 2006 should be quashed, and a new trial ordered.

In that context, the judges felt they “should not ignore” the pursuer’s allegations of phone-hacking by the defenders, the defenders’ “disregard for proper journalistic conduct” and “wilful contempt” of the criminal process.

Lady Paton said: “We have concluded that, in weighing up the question whether the defenders have demonstrated a need for a new trial as being essential to the justice of the cause, we should not ignore this material. As discussed above, the jury award appears to us to demonstrate a discriminating verdict on the evidence before them. In all the circumstances we are not persuaded that a new trial in this complicated and unusual case is essential to the justice of the cause between these two parties.”

In the result, the civil jury’s verdict and assessment of damages remain unaltered.