Moving the goalposts

After Bruce Grobbelaar’s damages award was reduced to just £1 by the House of Lords, Jon Robins talks to the lawyers involved in one of the UK’s biggest legal farces

Victories do not come much more Pyrrhic than that of the disgraced former Liverpool and Southampton goalkeeper Bruce Grobbelaar, who last week 'won' his epic legal battle against The Sun to clear his name of match-fixing charges. It has been eight years since the tabloid ran its exposé. Since then, there have been two criminal trials and a libel trial that went all the way to the House of Lords, making legal history en route by overturning a jury verdict for the first time and leaving the defence of qualified privilege somewhat worse for wear. Now Grobbelaar has the grand total of £1 in derisory damages to show for his efforts.
“Dishonest, corrupt, immoral and a liar,” was The Sun's typically forthright view of the player once known as the 'crown prince of goalkeepers', although the paper dedicated only a modest single page to its triumph, compared with the gloating 12 pages it devoted to the ruling by the Court of Appeal judges to quash his previous £85,000 libel victory last year.
Nevertheless, the scorn of the paper was more than matched by the evident distaste of the Law Lords for the ex-goalie. Lord Bingham, in a four to one majority, said that Grobbelaar had “acted in a way in which no decent or honest footballer would act and in a way which could, if not exposed and stamped on, undermine the integrity of a game which earns the loyalty and support of millions”.
Daniel Taylor, company solicitor for News International Newspapers, who advised The Sun on its investigation right from the start, says: “The bottom line is that Bruce Grobbelaar was seeking a total vindication in respect of the allegations, and last Thursday his reputation was trashed by the House of Lords and the damages reduced from £85,000 to a derisory £1.”
Meanwhile, Grobbelaar's lawyers are putting on a brave face. “We're delighted that they've upheld his position on the match-fixing point: that he has never thrown or tried to throw a football match in his life,” says David Rawlinson, a media lawyer at Liverpool firm Cuff Roberts, who represented the player at the House of Lords. “That's what he set out to prove in 1994 and that's what all the juries and all the judges have upheld.”
On the reduction of damages from £85,000 to £1, Rawlinson says: “It was disappointing that the judges who didn't hear the evidence over four weeks – including two days of cross-examination by George Carman QC – seem to have taken a different view on that issue from the one that the jurors took, both in the civil and criminal trials.” Not only could the case ruin the Zimbabwean goalkeeper, but losing out on an estimated £1m of costs could deliver a severe blow to Cuff Roberts, which took the case to the Lords on a 'no win, no fee' basis. Both sides have been given three weeks to furnish written submissions on costs.
In November 1994, two reporters from The Sun approached Grobbelaar at Gatwick Airport and put to him a number of allegations. The following day the paper ran a series of articles charging the player with corruption. The scandal was by far the most serious allegation of corruption to be levelled against professional football and within days the police began an investigation, which in 1997 was to lead to Grobbelaar and his alleged co-conspirators appearing in the dock as defendants in two criminal trials in which they were subsequently acquitted.
The Sun had secretly filmed Grobbelaar talking to Chris Vincent in a sting operation set up by the paper with his former business partner, with whom he also served in the Rhodesian army. In one conversation, a relaxed Grobbelaar is told that he could choose the game he wants to throw. Vincent told him that he would receive £2,000 every fortnight until the end of the football season and £100,000 after the match. The newspaper filmed him receiving an initial payment of £2,000, and Grobbelaar told Vincent on tape that he would throw the game between Southampton and his former club Liverpool. The tape also showed Grobbelaar talking about throwing three other games.
Taylor recommended that the meetings were taped. “It should be remembered that in 1994 the last major instance
of football corruption had taken place some 30 years previously,” the lawyer says.
Since then, of course, sport's reputation has been blighted by a number of high-profile scandals, including cricket's Hansie Cronje affair, the floodlight tampering that affected Premiership football and more recent allegations concerning horse racing. “So when this story came in, it was pretty stunning,” Taylor recalls. “We considered it essential to get Bruce Grobbelaar on video and audio tape making the admissions with which the House of Lords have now proved his corruption.”
The goalie was charged on two counts at Winchester Crown Court in 1997 of accepting gifts of money to influence the outcome of football matches and accepting £2,000 from Vincent to influence the outcome of the match. Grobbelaar's performance in the witness box was as convincing and consistent as his on-pitch one and he scored a remarkable hat-trick in persuading three juries of his innocence. In the first criminal trial, the jury was unable to reach a majority verdict on either of the two counts; and in the second trial it acquitted him on the first count and failed to reach a majority verdict on the second. The goalie argued that he himself was the victim of a classic scam and was trying to turn the tables on his own entrapper.
Taylor calls the case “a fascinating insight” into the somewhat different workings of the minds of juries and judges. “Two criminal juries failed to establish a conviction and one libel jury awarded him a very substantial sum of £85,000,” he reflects. “However, in front of three judges in the Court of Appeal and five judges in the House of Lords, they had no doubt he was corrupt.”
Even Carman could not convince the jury. Grobbelaar spent almost four days in the witness box being grilled by the libel legend, in what was to be his last stand in a courtroom before he died of prostate cancer at the beginning of 2001.
“None of us in the defence team knew of his illness or that he was getting treatment in hospital before arriving at court to
cross-examine Bruce Grobbelaar,” Taylor remembers. “At times he did look tired, but his cross-examination was masterful.” The libel legend was “frankly amazed” that the jury found for the player and awarded him £85,000, Taylor recalls.
But Grobbelaar's winning streak dramatically came to an end shortly after Carman died, when the Court of Appeal overturned the jury verdict with a ruling that stunned libel lawyers. Lord Justice Parker labelled the High Court jury's award against The Sun “a miscarriage of justice which this court can and must correct”, and the court overturned the conclusion of the jury in an unprecedented move.
As Amber Melville-Brown, a partner at defamation law specialist firm Schillings, says: “If libel actions concern how one
is viewed by one's peers, is it right that
where a jury of '12 good men' find a party's reputation has been damaged, that an Appellate Court of only three good judges should overrule them?”
But the appeal judges did not take such a ruling lightly. Judge Parker went out of his way to say that it was not for the Appellate Court to “second-guess the jury, it is for the jury to find the facts”. However, where “the verdict is so plainly wrong that no jury, acting reasonably, could have reached it, then the Appellate Court has not only the power, but the duty, to intervene”.
According to Dan Tench, a libel expert at media firm Olswang, last year's Court of Appeal decision was “questionable on all counts”. Although the original jury's verdict in favour of Grobbelaar was “a little strange in light of the evidence”, he believes that it was not “sufficiently unjustifiable for the court to go to the extraordinary step of ousting it”.
“In particular,” argues Tench, “it seemed conceivable, as the House of Lords found, that the jury accepted, although he clearly corruptly took money, that he did not in fact deliberately concede goals in games.”
Jonathan Coad, a libel expert at the Simkins Partnership, calls last week's ruling by the Law Lords “a pragmatic, political judgment” that says “we think the jury
was wrong but we must allow them their historical leeway to be its own arbiter”.
“So in a sense,” continues Coad, “they've achieved both their aims to reinstate the jury as prime arbiter of key issues, but also to deal with what they thought was a mistake in this case.”
The big outstanding issue for libel lawyers, however, is where the saga leaves the defence of qualified privilege. The Court of Appeal took into account the test in the case of former Irish Taoiseach Albert Reynolds against The Sunday Times, which held that newspapers might have a defence even when stories are incorrect. Despite Reynolds being hailed as a triumph for press freedom, qualified privilege has rarely succeeded, and Grobbelaar represented its biggest defeat to date.
In the High Court, Mr Justice Gray disallowed the qualified privilege defence because he was not satisfied that allegations of corruption against a footballer fell “within the category of information which a newspaper can be said to be under a duty to communicate to the world at large”.
According to Melville-Brown at Schillings, the appeal judges looked at the last two points of Lord Nicholl's 10-point test in Reynolds – concerning the tone of the article and the circumstances of the publication – and criticised the paper roundly. In the court's view, The Sun had asserted Grobbelaar's guilt “in the most unequivocal terms”, carrying out a “sustained and mocking campaign of vilification” and revelling in Grobbelaar's downfall. “By adopting the roles of police, prosecuting authority, judge and jury, the newspaper had deprived itself of the defence of qualified privilege,” she comments.
The emphasis on tone suggests the qualified privilege defence applies differently to the red-tops than to the broadsheets. “If followed, that in effect means that the qualified privilege defence for newspapers is likely to be available only to broadsheets and not tabloids, which is highly undesirable,” Tench states.
He calls last week's ruling “probably the most sensible in the circumstances”, given that there was no appeal of the Court of Appeal's decision on qualified privilege
and the best the Law Lords could do was reinstall the jury verdict and award nominal damages.
A number of libel lawyers wonder why The Sun never appealed on the narrow qualified privilege point – and wish it had. According to Taylor, the paper pleaded the defence in the High Court, again before the Court of Appeal, and applied for leave before the House of Lords, which decided that it was not entitled to proceed with it.
“It's a great shame, because we would have liked to have done that, and it wasn't through want of trying,” says Taylor.

The libel lottery

So far, few libel lawyers – with the two very notable exceptions of Peter Carter-Ruck and Partners and David Price Solicitors & Advocates – have yet to be persuaded of the business case of conditional fee arrangements (CFA) in the notoriously unpredictable world of libel. The experience of Liverpool firm Cuff Roberts in the Bruce Grobbelaar case looks unlikely to tempt others to brave the risk that is 'no win, no fee'.
It remains to be seen what happens on costs, and written submissions are currently being prepared. News International Newspapers' Daniel Taylor claims to be “confident” that The Sun will be successful, “albeit there is a discretion”. He points to the trashing of Grobbelaar's reputation last week, and in particular Lord Steyn's declaration that the footballer “has effectively lost his action to clear his name”. Taylor surmises: “We should therefore be entitled to the costs of the action.”
But Cuff Roberts' David Rawlinson claims to be “confident of getting significant parts of our costs, because we've been successful in overturning the Court of Appeal and restoring the High Court verdict”. Peter Carter-Ruck and Partners has been involved in some 200 such cases. Would it have taken such a case to the House of Lords? “There's no reason why we wouldn't do a CFA in the House of Lords as opposed to anywhere else,” replies partner Nigel Tait. “It's not as lawyer-intensive as a trial and almost all the work falls on the QC's shoulders. If they haven't got anything in the diary, it's worth a punt.”
His firm has zealously embraced CFAs and now somewhere between 25 and 30 per cent of its caseload is based on such arrangements. Over 200 cases have been completed on 'no win, no fee' so far. His answer to the concern that one big libel loss can blow a firm out of the water is that the inevitable risks are spread over the practice of 10 partners, all of whom run CFAs. Certainly, his own enthusiasm is undimmed by the “three of four quite big losses” that the firm has sustained. Tait believes that CFAs provide access to justice in an area of the law that has all too often been limited to only the wealthiest people. He recently won £100,000 for a client on social security who was wrongly accused of attempted murder in the Newcastle Chronicle. “She was a litigant-in-person for about three years and came to us six months before the trial,” he recalls. “We took it on and the other side collapsed within a few weeks and got their chequebooks out.” She is no longer on social security, he adds.