Football tycoon Ken Bates scores in libel claim against Tom Rubython and BusinessF1

Background

The claimant was born in England and had a long career as a businessman in the UK, including as the former owner and chairman of Chelsea and Leeds United Football Clubs. He has been retired for the past ten years and lives in Monaco, where he has resided for the past 20 years. The claimant has family and friends living in England, where he and his wife visit up to a couple of times a year.

The first defendant is the editor of, and majority shareholder in, BusinessF1, the second defendant, as well as the author of the article.

In May 2023 Mr Rubython published the article in BusinessF1 in hard copy and online. The magazine has a print circulation of 7,000 to 8,000 copies a month, although as copies are read by multiple people, it has an estimated readership of 40,000. Around a quarter of its readers are in the UK, and so the article was likely to have been read by around 9,000 people in England and Wales.

The article was written by Mr Rubython in response to a long interview with Mr Bates that was published by the Mail on Sunday in March 2023, which was relatively positive, although not completely devoid of criticism, as a means to “set the record straight”.

On 12 June 2023, Mr Bates’ solicitors sent a letter of claim, which the defendants published in edited form in the July 2023 edition of the magazine, effectively repeating the allegations, but removing most of the letter’s explanation for why they were false. Mr Rubython also published a reply as the editor, in which he expressed his hatred for Mr Bates. The defendants published a further letter from the claimant’s solicitors in the September 2023 issue of the magazine, which again included a reply from the editor, which this time derided the claimant’s solicitors.

In their amended defence, the defendants did not advance defences of truth or public interest, but pleaded that the article had not caused serious harm to the claimant’s reputation, on the basis that Mr Bates already had a bad reputation. In support of their claim of bad reputation, the defendants included an “interim” survey that they had conducted of 20 people at the Chelsea FC ground, which they said proved the claimant’s bad character. No evidence of a final survey was adduced.

Before trial, the defendants failed to comply with an order for disclosure of the list of subscribers to the magazine in England and Wales.

Issues

The main issues for the High Court to determine at trial were: (a) meaning; (b) serious harm, including whether the claimant had a pre-existing bad relationship; and (c) remedies, if the claimant succeeded on serious harm.

Aidan Eardley KC, sitting as a Deputy High Court Judge, considered the meaning of the article in the usual way, applying principles that are well-established in case law.

The judge then considered the issue of serious harm in some detail, which included considering the defendants’ case on bad character (which also went to mitigation of damages).

The judge confirmed that there is a legal presumption that an individual has a reputation that can be harmed.^[2] If the defendant can show that the claimant has a bad reputation, the defendant can rebut that presumption and reduce the level of damages awarded. Yet there are rules of evidence on what is admissible. Any evidence adduced of bad reputation should be from "those who know him and have had dealings with him"^[3] and must be directly relevant to the matters that are the subject of the statements complained of.^[4] Rumours of, or other publications about, the same allegations cannot be relied on to demonstrate bad character.^[5] Specific examples of bad conduct cannot be relied on as evidence more generally about the claimant’s character.^[6] In any event, where the defendants did not plead a truth defence, they were not permitted to give evidence of facts that would go to the purported truth of the libel.

Evidence of bad reputation is also relevant to the issue of serious harm: if a claimant’s reputation is already bad among readers of the publication, the publication is less likely to cause serious harm to the claimant’s reputation.^[7] The judge reiterated that any proof of misconduct can therefore only be relied on for the issue of serious harm in conjunction with evidence (or an evidenced inference) that the publishees were aware of it.  

The judge also confirmed that the rule in Dingle^[8] applies to serious harm too, i.e. evidence of other publications making same allegations cannot be relied on to demonstrate the claimant’s pre-existing bad reputation. This was a relevant consideration where the defendants sought to rely on the prior publication of allegations about the claimant in a book titled “Broken Dreams” by Tom Bower, which was published in 2003. The defendants also referred the judge to two previous libel claims that the claimant had lost (one in 2009 and the other in 2015), which criticised the claimant and which, the defendants contended, demonstrated that the claimant had a bad reputation at the time of the article.

The claimant relied on the presumption that he had a good reputation that was capable of being harmed. The claimant did not adduce evidence to show that serious harm had been caused to his reputation as a direct result of the article, but invited the court to infer that serious harm had been caused in all the circumstances of the case.

Somewhat unusually, the judge was also asked to determine the more minor matters of the claimant’s applications to strike out parts of the amended defence and the first defendant’s witness statement. This included a request to strike out purported “evidence” of the claimant’s alleged misconduct, which did not give any indication that those matters were known to readers of the article. The judge agreed to strike out parts of both the amended defence and the first defendant’s witness statement.

Decision

Meaning

The judge noted that determining the meaning of the article in this case was not particularly difficult where, unusually, there were “very few qualifications or nuances in the article” and “no reflection whatsoever” of the claimant's position on the events in question, commenting: “It is all bane and no antidote.”

Yet the judge did not agree completely with all the claimant’s contended meanings and held that there was a small amount of doubt inserted in the article in relation to the murder allegation. The judge accepted the claimant’s position on the pleaded meaning of the allegation that the claimant had committed illegal tax evasion (rather than tax avoidance, which is lawful).

The judge found that the meanings of the article were that:

• the claimant had amassed his great wealth through a career built on dishonesty, including by fraudulent conduct;
• the claimant almost certainly had business rivals murdered when he was running a concrete business;
• there were very strong grounds to suspect that the claimant murdered Matthew Harding and four others by arranging for their helicopter to be sabotaged so that it crashed, and that he did so to prevent Mr Harding from exposing him as a crook;
• the claimant brought about the collapse of the Irish Trust Bank by lending its deposits to his associates in Hong Kong, leaving the Irish government to compensate the customers; and
• the claimant had prevented the public reporting of his crimes and misdeeds by issuing libel proceedings that he knew to be unfounded and sending thugs to remove copies of the magazine from London shops.

Serious harm

The judge rejected the defendants’ submissions on Mr Bates’ bad character: the evidence adduced by the defendants was largely historic, the majority of it did not go to the article allegations, and there was no evidence that the readers of the article would have been aware of it. The judge could place no real weight on the survey evidence in the amended defence (even if it was not struck out, as requested by the claimant), given that, although 13 of the 20 survey respondents did not consider Mr Bates to be an honest man, none of them had read the article.

So the judge approached the question of serious harm on the basis of the presumption that the claimant had a reputation that could be damaged.  He considered that the article had caused harm to the claimant’s reputation, based on the following factors:

• the allegations were serious;
• readers of the article were likely to have known who Mr Bates was and taken an interest in the subject matter;
• the defendants repeated the allegations in the publication of edited letters from the claimant’s solicitors in the magazine;
• there was substantial readership of the article (probably around 9,000 people);
• although the article was hostile and imbalanced, which may have caused some readers to question the allegations, the magazine holds itself out as an authoritative source, and so many of its readers were likely to have believed the allegations where they took the article at face value as “a well-informed, in-depth exposé” of the claimant’s true history, published “to debunk the sanitised account given in the Mail on Sunday”;
• the defendants refused to disclose the list of subscribers to the magazine, suggesting that a number of the subscribers were probably people who knew the claimant;
• no adverse inference was drawn from the fact that the claimant did not rely on witness evidence from any readers, in circumstances where the defendants had refused to provide the claimant with that information;
• although there were no obvious consequences for the claimant from the article, this was at least partly attributable to the fact he is now retired and lives in Monaco; and
• the article was not one among a number of other publications of harmful material that was relevant, and so there was no need to isolate the harm it caused.

Remedies

Damages of £150,000 were awarded in light of the seriousness of the allegations and the substantial number of readers. The judge considered some factors in favour of a lower sum in damages, such as the fact that there was limited republication of the allegations online, and that some readers would probably not have believed the article, including those known to the claimant. Yet the award was aggravated by the defendants’ conduct, including the failure to contact the claimant in advance of publication, the publication of edited correspondence from the claimant’s solicitors in the magazine and the editor’s conduct of the case at trial, including the manner in which he questioned the claimant in cross-examination on matters that (improperly) went to a defence of truth.

The judge also awarded an injunction, made an order under section 12(1) of the Defamation Act 2013 that the defendants publish a summary of the judgment and awarded the claimant his legal costs.

Comment

The case is a useful reminder of the law on adducing evidence of bad reputation, including the overlap between its relevance to the issue of serious harm and mitigation of damages. The judge summarises the rules of evidence, which are stringent, underlining that evidence of bad reputation must go to the allegations the subject of the libel and, in relation to serious harm, must be adduced with evidence that the publishees were aware of it.

The case particularly underscores the danger for publishers of publishing allegations without adhering to the well-established safeguards to ensure that a public-interest defence is available. Notably, the defendants failed to contact the claimant for comment in advance of publication and did not provide an “antidote” to the “bane” of the allegations that were made. Whether or not the defendants held a reasonable belief that publication of the article was in the public interest (which was not tested at trial, as no public-interest defence was pleaded), these failures, among others, suggest that it would have been difficult for the defendants to defend the case on the basis of public interest. In any event, the defendants elected not to try and instead attempted, unsuccessfully, to defend the case on the basis that the claimant’s reputation was already bad, such that no serious harm had been caused.

The defendants acted as litigants in person and, although the judge took into account “the difficulties faced by a litigant in person in libel litigation”, the defendants’ conduct was a factor in aggravating damages. It is worth bearing in mind that, while litigants in person may have some leeway, conduct that exacerbates harm to the claimant is likely to result in increased compensation.

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Written for Entertainment Law Review.