I promised you last week that I would let you see the second judgment of the Court of Appeal in the libel case brought by Richard Desmond against Tom Bower.
This was the ruling in which the appeal judges overruled Mr Justice Eady’s decision not to let the jury hear a recording of Desmond’s conversation with Jafar Omid, manager of a hedge fund in which Desmond’s son had an investment.
The tape could well have been crucial in persuading wavering jurors to find, by a majority, in favour of Bower.
The approved judgment is not yet available. But there is now a detailed report of the judges’ comments on the excellent Media Lawyer website (subscription only, but free trial available).
According to this report, the Court of Appeal said Mr Justice Eady had been “plainly wrong” to refuse to allow the defence to put the evidence of the telephone call to the jury, adding that it was a decision which risked a substantial injustice to Bower.
Lord Justice Pill said: “I have come to the conclusion that the evidence should be admitted. I am conscious of the need to respect the rulings of trial judges and that appeals to this court on interlocutory matters such as the admission of evidence will only rarely succeed and should not be regarded as routine.
“However, in this case it appears to me that, with respect, the decision of Mr Justice Eady in context was plainly wrong.”
He went on: “The judge in this case was required essentially to consider the justice or injustice of permitting the evidence to be introduced.”
The timing question could not be decisive, as Mr Justice Eady appeared to have considered it to be.
Another “important factor” was the Court of Appeal’s previous decision: it had given a very clear indication as to the approach which the judge should take. Case management decisions were for the trial judge – but had to be taken in the light of the Court of Appeal’s earlier ruling.
Lord Justice Hooper said he “had no doubt that the judge was wrong to exclude the evidence of the telephone call”.
He went on: “Indeed I would go further and say not to allow it would risk the possibility of a miscarriage of justice. In my view, the defendant was clearly entitled to rely on that evidence to show (if the jury accepted it to be the case) that the claimant was prepared to order his newspaper to run a damaging story indifferent as to its truth.
“The only way that that point could be made to the jury, if it be a good point, is by putting the evidence of the taped conversation before the jury as well as the settlement and the terms thereof.”
This was not a case of interfering with a case management decision or some discretionary decision of a judge, he said, adding: “It is taking steps to ensure that a possible miscarriage of justice does not occur.”
Lord Justice Wilson also agreed, saying he was “entirely persuaded” that the judge’s refusal to allow the tape of the telephone conversation between Omid and Desmond in as evidence was “plainly wrong”.
The prejudice to Desmond from admitting the tape was small when compared to the risk that, without it, the jury might reach a false conclusion.