Desmond v Bower: the Eady Judgment

A senior judge stood down from hearing an appeal in the libel case brought by Richard Desmond against Tom Bower because he knew the businessman Gerald Ronson, according to a recently-released judgment.

Lord Justice Pill said his fellow appeal judge Lord Justice Rix had “thought it right to recuse himself from the present appeal… out of an abundance of caution”. It emerged that Lord Justice Rix knew “a Mr Ronson”, who might have become a witness in the case.

Lord Justice Rix had been one of the judges who heard the earlier appeal. However, Lord Justice Pill added, this was “not a case in which knowledge that Lord Justice Rix had of Mr Ronson, as a potential witness, was likely to affect the outcome of the present appeal as between its parties”.

The full judgment now available on BAILLI is the one I promised readers last month and summarised here a few days later.

It is the one in which the Court of Appeal decided, contrary to an earlier ruling of Mr Justice Eady, that the jury should be permitted to hear an audio 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.

A point that emerges clearly in the full judgment is that Mr Justice Eady should have taken account of earlier rulings by the Court of Appeal.

Lord Justice Pill said:

It is clear from…  the judgment that the court had the telephone conversation in the forefront of its mind when giving the ruling it did…

The court gave a very clear indication on 7 July as to the approach which the judge should take…

Rightly, the court accepted that case management decisions were for the judge but the court stated… that they needed to be taken in light of the ruling of this court on the previous interlocutory appeal.

In other words, an experienced judge such as Mr Justice Eady should have been able to tell, without the need for an appeal, that the Court of Appeal would have let the jury hear the crucial recording.

As Lord Justice Hooper said,

I have no doubt that the judge was wrong to exclude the evidence of the telephone call …  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 to its truth. 

 

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