Clark v. Associated Newspapers Ltd [1998] EWHC Patents 345 (21st January, 1998)

JUDGMENT Mr Geoffrey Hobbs QC & Ms Emma Himsworth instructed by Denton Hall for the Plaintiff Mr Peter Prescott QC & Mr James Mellor instructed by Titmuss Sainer Dechert for the Defendant Hearing: 15-17 December 1997 & 12-13 January 1998 Judgment: 21 January 1998 1. Pursuant to Order 68 rule (1) of the Rules of the Supreme Court 1965 and all other powers hereunto enabling I certify that the attached text records my Judgment in this matter and direct that no further record or transcript of this Judgment need be made. THE HONOURABLE MR JUSTICE LIGHTMAN INTRODUCTION The Plaintiff in this action, Mr Alan Clark, is a member of Parliament and an author with an established reputation. The Defendant, Associated Newspapers Ltd, publish every day of the week from Monday to Friday throughout the year the Evening Standard, a London newspaper with over one million readers. The Plaintiff maintains that the Defendant is publishing articles written by Mr Peter Bradshaw ("Mr Bradshaw") in such a form that a substantial number of readers attribute them to the authorship of the Plaintiff. No objection is or can be made in this action to the publication of the articles themselves or their contents. At issue is the way they are presented to the reader. The articles are parodies of the well known Diaries of the Plaintiff ("the Diaries") which were published in June 1993 in hardback and in 1994 in paperback and which still enjoy substantial sales. The issue raised is what the publisher of a parody must do, and what he must not do, to avoid infringing the rights of the author parodied under the law of passing off and section 84(1) ("Section 84") of the Copyright Designs and Patents Act 1988 ("the 1988 Act"). FACTS 2. The Plaintiff is a well known Conservative Party politician and former Cabinet Minister. He decided to retire from politics and gave up his seat in Parliament at the General Election in 1992. In 1996, he decided to stand again for Parliament and on the 23rd January 1997 was selected as Conservative candidate for Kensington and Chelsea. He was duly elected at the General Election on the 1st May 1997. He also has an established reputation as an author. He has written a number of serious historical studies and is currently engaged on a study of the Conservative Party to be published under the title " The Torie " in the near future. By far his best known publication is the Diaries (published by Weidenfeld & Nicolson) which contains extracts from his diaries made until his temporary retirement from politics in 1992. This publication has already achieved sales in excess of 240,000 and continues to sell 20,000 copies a year. The Plaintiff on the 7th July 1997 entered into a contract with Union Pictures for a film edition of the Diaries. The Plaintiff has a contract with Weidenfeld & Nicolson to write a second volume of his diaries beginning with his retirement in 1992 and continuing until today. The character of the Diaries is perhaps most pithily expressed in the quotation from a review printed on the back cover of the paper back edition of the Diaries: "His diaries are ... malicious, lecherous and self-pitying, and they are enormous fun." 3. The Diaries reveal the Plaintiff’s decidedly right wing political views, his highly unconventional behaviour, thought processes and private life, his extensive sexual exploits and his unflattering or (as some may say) cruel and outrageous, judgments on his contemporaries. The revelations of his conduct and thoughts whilst in public life, and indeed whilst a Cabinet Minister, are startling. The two striking examples brought to my attention are his disclosures first of his fantasy whilst a Minister of urinating from the balcony outside his office on the members of the public on the street many floors below; and second of the fact that he seduced a married woman and her two daughters. Indeed he went so far as to give a sufficient clue as to their identities to invite further inquiries which subsequently led to their public disclosure. His trademarks as revealed in the Diaries would appear to be a larger than life character unconstrained by normal standards and conventions of behaviour and a total lack of discretion. Witnesses have variously viewed his writings, his indiscretions and lifestyle as fascinating and as repellant. It is sufficient to say that they invite parodying, and when terms could not be agreed between the Plaintiff and the Defendant for the Plaintiff to contribute articles in the form of diary entries to the Evening Standard , the Defendant accepted this invitation. 4. On the 19th January 1996 the Plaintiff entered into an agreement with the News of the World to provide a weekly column of a minimum of 1,000 words at "2,840 per column, totalling some "130,000 per annum. As from the 22nd April 1997, the News of the World required that the column be fortnightly instead of weekly, and the Plaintiff continues to provide a fortnightly article on the same terms. On the 24th January 1997, to mark the Plaintiff’s selection as Parliamentary candidate, the Evening Standard published a one-off article written by Mr Bradshaw parodying the Diaries, to which the Plaintiff made no complaint as the authorship was not attributed to him. On the 28th January 1997, the Defendant offered the Plaintiff "60,000 per annum to contribute a weekly column to the Evening Standard : the Plaintiff required "100,000. The gap could not be bridged, and negotiations came to an end. 5. The date of the General Election was announced on the 17th March 1997. In the lead-up to the General Election, the Defendant decided to lighten, and lend a little humour to, their election issues with a series of further like articles. The first was dated the 27th March 1997 and headed: "Tricky night in the Führerbunker." 2. 6. The standfirst followed consisting of 7 lines and reading as follows: "IT Will be a sad loss if the great diarist Alan Clark does not eventually publish a record of his campaign to retain Kensington and Chelsea for the Tories. Meantime PETER BRADSHAW, who recorded Mr Clark’s capture of the nomination in January, again imagines what a new diary might contain." 7. The name of Mr Bradshaw always appeared in capitals. 8. There followed a photograph (or "mugshot") of the Plaintiff and beside it in white against a black background the words: "Alan Clark’s Secret Election Diary." 9. This article was followed on the 9th, 11th, 17th, 23rd and 28th April and the 2nd May 1997 by a series of articles containing at their head the same photograph and words (I shall refer to them together as "the Heading"), and underneath as the standfirst one or two sentences about the Plaintiff followed by words to the effect that Mr Bradshaw imagines how the Plaintiff might record these events. This is followed in much larger print by the title of the Articles which I shall refer to as "the Title" and which is the prime subject of the diary entries. There then follows the diary entries which I shall refer to as "the Text" and which are in smaller print than the standfirst. The size of the print of the standfirst is larger than that of the Text, but substantially smaller than that of the words in the Heading and of the Title. The overall impression can best be given by the reproduction of part of one of the Articles. 10. The example I have randomly selected is the article of the 23rd April 1997. Only a small portion of the Text is included: the portion is included to show the respective size and prominence of the component elements in the article: 11. With the General Election over on the 1st May, the Defendant decided to continue with the series in much the same format, but with the words in the Heading changed to "Alan Clark’s Secret Political Diaries". The first such article was dated the 8th May 1997. The third leader in the Evening Standard of the 12th May referred to the article as though in fact written by the Plaintiff: this was no doubt intended as a joke but may not have been read as such by its readers. The second article dated the 15th May led to a letter before action dated the 19th May enclosing the writ in this action and inviting constructive proposals. The Defendant was determined to continue with the series, and accordingly this action has proceeded to trial. Further articles appeared on the 22nd and 29th May, the 12th, 16th, 19th and 26th June, the 3rd, 10th, 17th, 24th and 31st July, and indeed have continued up to, during and after the trial. 12. The Plaintiff’s complaint in this action relates to all the articles beginning with that of the 27th March 1997. I shall refer to them collectively as "the Articles". The stand taken by the Defendant may be found in the witness statement of Mr Berry (the Associate Editor of the Evening Standard ): "The format of ‘Alan Clark’s Secret Political Diary’ was dictated by the fact that it was to be a spoof diary or a parody. As such, it had to attract the attention of the reader and have the hallmarks of a genuine diary but simultaneously convey the clear message that there was something odd about it; that it was not quite what it seemed. The use of the word ‘Secret’ in the title was a clear signal that the piece was not what it might initially seem. In deciding on the title, I believe that I thought about other titles such as ‘Alan Clark’s Unwritten Election Diary’ or ‘Alan Clark’s Undisclosed Election Diary’. But I settled on ‘Secret’ which seemed to me both intriguing and likely to raise the question in readers’ minds: if the diary was ‘Secret’, how come it was appearing in a newspaper? This was the first major signal that the piece was not what it seemed. After that first signal to readers, came the words in the standfirst or introductory paragraph. Although these words varied from week to week, there were two things that did not change. The first was that Peter Bradshaw’s name always appeared in capitals and the second was that the word ‘imagines’ also appeared so as to make it crystal clear that the words which followed were the product of Peter Bradshaw’s imagination. The shape and format of the columns is not the only one used for columns in the Evening Standard and two other styles from 7 August 1997 are attached marked ‘DAB1’. However, it is true that the shape of the Bradshaw spoof columns is one of the Evening Standard’s formats for regular columns and deliberately so. The art of parody is to make something look almost real, but not quite. That is what we sought to do, and I hope and believe succeeded in doing, with the Peter Bradshaw pieces. The use of the word ‘Secret’ in the title, the prominent references to Peter Bradshaw’s name and the word ‘imagines’ in the standfirst, and indeed the obviously exaggerated comic text are all signals to the reader that the columns are spoofs. We always believed that Peter Bradshaw’s pieces should include something which the reader knew had actually happened. In the weeks that followed, during the General Election campaign, events helped us as Mr Clark began to raise his profile and start doing things. News reporters from the Evening Standard were keeping an eye on what Mr Clark was doing and, if it was sufficiently newsworthy, reporting it in the normal way but also feeding information back to Mr Bradshaw so that Mr Bradshaw’s pieces could include strands of reality on which to hang his fantasies. Naturally, the joke would not work unless Mr Bradshaw’s pieces exaggerated reality, parody being about exaggerating and distorting real facts. I believe that Mr Bradshaw succeeded admirably and that his pieces have worked well. The issue is whether their presentation is such as to cause people wrongly to believe that they were written by the Plaintiff." LEGAL PRINCIPLES 13. The Plaintiff invokes two rights to protection from false attribution of authorship, one statutory and one common law. The Plaintiff can succeed in this action if he establishes that either right has been infringed. The statutory right is that conferred by Section 84 "not to have a literary ... work falsely attributed to him as author." (Section 84 re-enacts the provision to like effect in section 43 of the Copyright Act 1956). An "attribution" in relation to such a work means "a statement (express or implied) as to who is the author", and the right is infringed "by a person who ... issues to the public copies of a work of any of those descriptions in or on which there is a false attribution" (see section 84(2)(a)). An example of the commission of this tort is to be found in the case of Moore v. News of the World [1972] 1 QB 441. The newspaper in that case published an article under the headline: "The Girl Who Lost The Saint. When Love Turns Sour by Dorothy Squires talking to Weston Taylor" 14. The words attributed to the plaintiff (Dorothy Squires) were not her words: they were the words of Weston Taylor. The issue was whether the article pretended to be written by Dorothy Squires. The trial judge directed the jury to make up their minds what the impression was to the reader. The jury found that the article did pretend to be written by Dorothy Squires. The Court of Appeal approved the direction by the trial judge and affirmed the decision that the tort had been committed. 15. Two distinctive features of the statutory tort are: (a) that it is unnecessary that the plaintiff be a professional author and accordingly that he has any goodwill or reputation as an author to protect or which may be damaged by false attribution; and (b) consequently the tort is actionable per se without proof of damage. In short Section 84 confers a personal or civic right on everyone not to have authorship of any literary work falsely attributed to him. The Plaintiff is accordingly entitled to relief under Section 84 if he merely establishes the false attribution alleged. 16. By contrast the common law right conferred by the law of passing off is to protection from damage arising from false attribution of authorship to the proprietary right to goodwill, and accordingly the existence both of goodwill and of actual damage or of the likelihood of damage must be established to entitle a plaintiff to relief. In this case the requirement of the law of passing off to prove the existence of the proprietary right to goodwill poses no problem to the Plaintiff, for his goodwill as an author could not be and is not in dispute. The existence or risk of damage to that goodwill arising from the alleged false attribution is however put in issue, but (for reasons set out later in this judgment), if the false attribution is established, damage and the risk of damage may readily be presumed. The real issue in this case is whether the Plaintiff can establish the false attribution required by Section 84 and the law of passing off. I have concluded (for the reasons set out later in this judgment) that the constituents of false attribution in Section 84 are different from those under the law of passing off. In view of this difference I shall consider separately first the relevant principles of the law of passing off and this issue of construction of Section 84. Before I do so, I should consider, if only to brush aside, one argument addressed to me by Mr Prescott (Counsel for the Defendant) in respect of both claims by the Plaintiff. Mr Prescott invoked Article 10(1) of the European Convention on Human Rights, which provides that everyone shall have the right to freedom of expression, and he waxed eloquently on what he denigrated as an attempt by the Plaintiff in this action to interfere with the right of the Defendant to publish parodies. This argument is totally misconceived. First there is no interference with the Defendant’s freedom of expression. The right of the Defendant to parody the works of the Plaintiff has never been in question and could never be in question. Secondly Article 10(2) spells out that the citizens’ right to freedom of expression is subject to the rights of others, and these must include the rights which the Plaintiff seeks to enforce in this action. The only limitation on the Defendant’s freedom is in respect of the presentation or packaging of the parody. The Defendant is required to respect the right of the Plaintiff to object to false attribution of authorship. This view is entirely in accordance with the approach adopted in the USA where it has been held that the constitutional right under the First Amendment to freedom of expression does not excuse a parodist from liability for trademark infringement: see e.g . Nike Inc v. "Just Did It" Enterprises (1993) 6F 3d 1225. a. Passing Off 18. Since the early years of the 19th century the law of passing off has afforded to authors protection of their goodwill from damage occasioned by false attribution of authorship. An example of the approach taken by the Courts in cases such as the present is to be found in the speech of Lord Simonds in Marengo v. Daily Sketch [1948] 65 RPC 242 at 250. In that case the plaintiff/appellant had a reputation as a cartoonist with the pseudonym "Kem" and the defendant/respondent published the work of another cartoonist with the pseudonym "Kim" but without the dot over the "i". Lord Simonds observed: "Is it ‘Kim’ or ‘Kem’? That is the question. With great respect to those who have thought otherwise, I do not see how it is possible to form a confident opinion one way or the other. For inevitably I approach the question, knowing that there is a question, whereas the real test is what impression would be made upon the citizen, who, finding his ‘Daily Sketch’ on his breakfast table or buying it at a bookstall, opens it and sees a cartoon bearing this signature." ... "In these circumstances I could not avoid the conclusion, even if the Appellant had called no evidence of confusion, that the Respondents were taking a course which was in the highest degree likely to lead to confusion. But in fact the Appellant called witnesses of candour and good reputation who had seen the offending cartoons and had been misled, partly no doubt by the character of the cartoons, but also by the signature, into the belief that they were the works of the Appellant. Here then was a clear case of confusion arising from the fact that Mr Price had so signed his pseudonym of ‘Kim’ and the Respondents had published his signature, that his work had been wrongly attributed to ‘Kem’. What more is required to entitle the Appellant to the relief that he claims? Upon the evidence I would only make two further observations. First, where it appears to the eye of the court that there is likely to be deception, and there is evidence of rational men that they have been deceived there is little value in the evidence of witnesses who say they have not been deceived. Secondly, there is a suggestion in the judgment of at least Somervell LJ (it may be per incuriam), that the evidence of witnesses, who, knowing ‘Kem’ but not ‘Kim’. were deceived, does not advance matters much. But in a passing-off action the persons whose evidence is most cogent are those who, because they know only the plaintiff’s goods are the more easily deceived by the similarity of the defendant’s goods and it is from just that deception that the plaintiff is entitled to be protected." 19. In the light of, and in answer to, the elaborate arguments adduced before me, I should set out the relevant principles to be applied in deciding whether there has been a false attribution in this case for the purposes of the common law tort. i. The issue before the Court is whether a substantial (or large) number of readers of the Evening Standard have been misled or are likely to be misled. The deception must be more than momentary and inconsequential: see Cadbury-Schweppes Pty Ltd v. The Pub Squash Co [1981] 1 WLR 193 at 205B. It is unnecessary that the readers in question should have purchased the Evening Standard to read the Articles or indeed have purchased the Evening Standard . The protection afforded by the law is against deception of readers of a literary work as to its authorship. It is sufficient that they have read the Articles in the Evening Standard and been misled. The Plaintiff is entitled to protection from false attribution of authorship made to readers of a newspaper put into circulation by the Defendant. It is no defence that many people are not deceived. ii. Members of the public must be taken as they are found, and should not be assumed to know (as the judge knows) that there is a question as to the authorship of the work in question. It is necessary that the authorship of the work in question shall be a matter of moment to them when they read the work or decide whether to read the work: no claim lies if they are indifferent or careless as to who is the author. But it is no defence that they would not be misled if they were more literate, careful, perspicacious, wary or prudent (see Reckitt & Colman v. Borden [1990] RPC 341 at 414-6 per Lord Oliver and at 422-3 per Lord Jauncey). iii. The judge has the sole responsibility for determining the issue: he may be assisted by the evidence of rational men that they have been misled and (to a much lesser degree) by evidence of rational men that they have not been misled, but he must not surrender his own independent judgment to any witness or number of witnesses (see Spalding v. Gamage (1915) 32 RPC 273 at 283-4 per Lord Parker). The judge may also be assisted by the evidence of experts explaining special features of the relevant "market" of which he may otherwise be ignorant and which are relevant to the likelihood of deception or damage (see The European Ltd v. The Economist Newspaper Ltd, Court of Appeal 20.11.97). iv. In a case where there are "mixed" or conflicting messages, that is to say a representation (express or implied) that the plaintiff is the author and a representation (express or implied) that the plaintiff is not the author, it is not sufficient for the defendant to establish the existence of the second representation which the customer could (if he wanted to) or should (if he was sensible) have read. It is necessary to look at the work as a whole and decide whether the latter representation is sufficient to ensure that a substantial body of readers will not be misled (see Reckitt & Colman v. Borden supra ). In carrying out this exercise, it is, I think, helpful to have in mind by way of general guidance the words of Lord Widgery CJ in Norman v. Bennett [1974] 1 WLR 1229 at 1232 (a case on the Trade Descriptions Act 1968 cited with approval in Regina v. Southwood [1987] 1 WLR 1361 at 1366): "I think that, where a false description is attached to goods, its effect can be neutralised by an express disclaimer or contradiction of the message contained in the trade description. To be effective any such disclaimer must be as bold, precise and compelling as the trade description itself and must be as effectively brought to the notice of any person to whom the goods may be supplied. In other words the disclaimer must equal the trade description in the extent to which it is likely to get home to anyone interested in receiving the goods." v. An example of an occasion for conflicting messages is the publication of a parody, as illuminated in the judgment of the US Court of Appeals for the 7th Circuit in Nike Inc. v. "Just Did It" Enterprises supra at pp.1227-8: "Parodies date back as far as Greek antiquity ... ‘Parody or satire, as we understand it, is when one artist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new art work which makes ridiculous the style and expression of the original’... [citation omitted] But parodies have a legal hurdle to overcome. Federal law prohibits copies or imitations that confuse consumers ... This protects trademarks as a form of intellectual property ... and guards against confusion, deception or mistake by the consuming public ... Whether a customer is confused is the ultimate question. If the defendant employs a successful parody, the customer would not be confused, but amused ... Thus we agree with the district court that parody is not an affirmative defense, but an additional factor in the analysis. The keystone of parody is imitation. It is hard to imagine, for example, a successful parody of Time magazine that did not reproduce Time’s trademarked red border. A parody must convey two simultaneous - and contradictory - messages: that it is the original, but also that is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody, but also vulnerable under trademark law, since the customer will be confused.’ [citation omitted]. Thus the parody has to be a take-off, not a rip-off." 3. A parody which occasions only a momentary and inconsequential deception is both successful and permissible; but a parody which occasions an enduring deception is neither. vi. For passing off to be established, a complainant must establish either actual damage or the likelihood of damage. False attribution of authorship (most particularly to an author with an established reputation) is calculated to place his reputation and goodwill at risk of substantial damage and indeed to cause damage and damage may be presumed; and if the threat is made to continue the false attribution, the plaintiff is again entitled to injunctive relief (consider Joseph v. National Magazine [1959] Ch 14 at 19-20). 20. In summary, I must accordingly exercise my own judgment whether a substantial body of readers of the Evening Standard have been or are likely to be misled more than momentarily and inconsequentially into believing that the Plaintiff is the author of the Articles and whether the Plaintiff (as an author with an established goodwill as such) has suffered or is likely to suffer damage in consequence. On the issues of the existence of misrepresentation and probability of damage, I can be assisted by the evidence of witnesses who have seen or read the Articles and of experts as to features of the market for newspapers and other published works. The evidence of particular significance in this case must be the evidence of rational men who have been deceived and evidence of the degree of attention given by its readers to the contents of the Evening Standard and (in particular) to the standfirst. b. Section 84 21. The law of passing off embraces the concept that one and the same representation may mean something different to different members of the public and in order to succeed it is sufficient for the plaintiff to establish that one of those meanings misleads a substantial number of people. Mr Prescott has argued that the position is different under Section 84, and that upon the true construction of Section 84 for the purposes of that section a representation can only have one single correct meaning and, if the tort is to be established, that meaning must be the false attribution of authorship. Some support may be found in the direction to the jury of Cantley J. approved by the Court of Appeal in Moore v. News of the World supra at 444D, 451G and 453. No other judicial or textbook guidance was cited to me. In my judgment, Mr Prescott’s submission is correct and to succeed in a claim under Section 84 a plaintiff must establish that the work in question contains what is a false attribution of authorship, and not merely what is or may be understood by some or more people to be, a false attribution. The proper approach (as under the law of defamation) is to determine what is the single meaning which the literary work conveys to the notional reasonable reader (compare Charleston v. News Group Newspapers Ltd [1995] 2 AC 65 at 71). I must accordingly read the Articles and decide whether they contain what would be understood by a reasonable reader to be a false attribution of authorship to the Plaintiff. EVIDENCE OF DECEPTION 23. The Defendant’s evidence included a number of witnesses who were not deceived. Whilst this evidence is to be taken into account (and I have taken it into account), more significant is the evidence of witnesses called by the Plaintiff who were misled. The Plaintiff called some 22 witnesses who gave witness statements to the effect that, when they read the Articles, by reason of the Heading they believed that it was written by the Plaintiff. The value of the evidence of a number of these witnesses was in varying degrees diminished by admissions volunteered or extracted in cross-examination. On the other hand, the evidence of a number of others was not even challenged. I am satisfied that all the Plaintiff’s witnesses sought honestly to assist the Court. I shall only refer to the evidence of those witnesses to whose individual testimony I think it appropriate to give weight. I am satisfied in the case of each of these that they are "rational men" (as referred to by Lord Simonds in Marengo v. Daily Sketch supra ) and that they are fairly representative of the public at large and not some insignificant portion of it. Contrary to the contention of the Defendant, I can and do reach this conclusion without any need on the part of the Plaintiff to adduce survey evidence as to prevalence of the deception amongst readers of the Evening Standard . The evidence of the Plaintiff’s witnesses establishes to my satisfaction that: (a) the readers of the Evening Standard read it with varying degrees of attention. A substantial number of such readers do so after the day’s work, often on the journey home; they do not see the Evening Standard as, or want, what may be termed a heavy or serious newspaper calling for attentive reading, or attentive reading throughout; rather it is something generally to skim read looking for something which may attract the reader’s interest and only focusing attention as and when required. It is not the type of publication which is read "word for word". This is most particularly so in the case of the pages on which the Articles appear; and (b) far from only a small number, a substantial number of such readers have failed to focus on or take in the standfirst and have been misled into believing that the Articles were written by the Plaintiff. This deception has been enduring and only ended if and when the readers have been disabused by what someone else has subsequently told them. 24. The witnesses fall into 4 categories: (i) Politicians 4. A number of Members of Parliament gave evidence that they skim read at least one of the Articles and did not see or take in the standfirst. I fully accept the evidence of Mr Sayeed, Mr Luff and Mrs Browning that they were all taken in at least on one occasion. It is not surprising that they (in common with certain other witnesses) have difficulty remembering exactly which one of the Articles they read: it is to be expected that they recall that they were misled rather than the contents of an article intended for amusement only which they merely skim read. (ii) Plaintiff’s Porters 5. Mr Staples, the head porter, and Mr Osborne, a porter, at the building where the Plaintiff resides in London both gave unchallenged evidence that they were both regular readers of the Evening Standard and that until the Plaintiff disabused them on or about the 22nd May 1997 they both were under the impression that the Articles were written by the Plaintiff. (iii) Lawyers 6. A number of barristers and solicitors gave evidence to like effect. (a) Amongst the barristers Mr Halkerston recalled being misled specifically in the case of one article where mention was made of the daughter of Mr Bell MP; Mr Giuliani, a regular reader of the Evening Standard, on looking at the Articles by reason of the Heading thought they were by the Plaintiff and for that reason, because of his antipathy to the Plaintiff, consciously decided not to read them; and Mr Collins, another regular reader of the Evening Standard , was likewise misled until he was informed of the true state of affairs by the Plaintiff’s solicitors on the 18th September 1997. (b) Mrs Goff-Forth, a solicitor, then a regular purchaser of the Evening Standard , around mid-October skim read one of the Articles, believed that it was written by the Plaintiff and became extremely annoyed that he should write what he appeared to be writing about the leadership of the Conservative Party. She mentioned this to her husband, a Conservative Member of Parliament, who pointed out to her the "small" standfirst which she had not noticed. Mrs Dawe, a solicitor and legal advisor for Harper-Collins (the well known publishing company), who customarily skim reads the Evening Standard and skim read some 6 or 7 of the Articles, believed they were written by the Plaintiff until the 15th August 1997 when a solicitor acting for the Plaintiff pointed out to her the standfirst and she noticed it for the first time. Mr Mortell, the Director of Finance and Personnel at the Plaintiff’s solicitors, regularly read, sometimes skim-reading, 10 of the Articles over a period of some 2-3 months before June or July 1997; he did not read the standfirst and falsely attributed the Articles to the Plaintiff. Mr Alan Joseph Clark, an employee of the same firm, until about the 12th June 1997, when informed otherwise, regularly read the Articles as written by the Plaintiff. (c) A number of solicitors gave evidence of being tested by the Plaintiff’s solicitors by being invited to glimpse at one of the Articles and then identify the author: Miss Halliday and Mrs Neale identified the Plaintiff as the author. (iv) General 7. Mr Cullinane, a clerk employed by Lloyds Bank, regularly saw the Articles in the Evening Standard and attributed them to the Plaintiff: he did not however read the Articles. Mrs Powers, an occasional reader of the Articles, always believed that those which she read were written by the Plaintiff because of the Heading. The article in the edition of the Evening Standard dated the 25th September 1997, which refers to the flogging of two nurses arrested in Saudi Arabia, did so in what she considered to be a most inappropriate and offensive manner and so upset her that she dictated a letter of complaint to the Evening Standard answering machine which reads as follows: "Reading Alan Clark’s Secret Political Diary for Tuesday 23rd September confirmed my suspicion that he really is a very nasty piece of work. How ever did he become my representative in Parliament?" 8. The tape recording of this call was played to me. It revealed clearly how deeply she had felt. Beyond these four categories of witnesses, evidence of deception is to be found in two other places. The first is the evidence of Mr Trewin, a director of Weidenfeld & Nicolson. He stated that a number of people rang him up to ask where they could get the new volume of the Plaintiff’s diaries, being under the clear misapprehension that the Articles were written by the Plaintiff. The second is the evidence of the Plaintiff himself who told me that a number of friends and colleagues beyond those he felt free to call as witnesses or mention by name had made it clear to him that they believed he had written the Articles and were offended by the contents. EXPERT EVIDENCE 26. Much of the evidence adduced before me was of "expert witnesses" and much of the time at the trial was expended on their cross-examination. I derived limited assistance from such evidence. Before however I examine the evidence in more detail, I should make one general observation in respect of the most contentious of this evidence, namely that of Mr Coen, Mr Evans and Professor Trelford. The disturbing phenomenon was observed which is all too often observed as an occupational hazard of expert witnesses. Their critical evidence supportive of the party calling them was expressed in forthright terms in their witness statements, but was repudiated in cross-examination. Either the experts never seriously held the views expressed in their witness statements or in the course of their cross-examination they experienced a revelation and conversion on a par with that of St Paul on the road to Damascus. Measures need to be taken to enforce the recognition by experts (and the solicitors that instruct them) of their paramount duty at all times to assist the Court: any duty or inclination to assist their clients must be subordinated to this overriding obligation. This does mean that they should be furnished with any relevant evidence which may affect or tone down what they say. In this case quite remarkably the critical witness statements of the Plaintiff’s witnesses testifying to their deception were withheld by the Defendant’s solicitors from the Defendant’s experts. This even included the statements of witnesses whose evidence on this issue would not be challenged in cross-examination. If this course had not been followed, the Defendant’s experts might not in their evidence have lost touch with reality, and the length of this trial might have been substantially shortened. 27. The expert evidence was directed to two issues: (1) whether readers would be likely to be misled as to the authorship of the Articles. The Plaintiff’s expert on this issue was Mr Coen an experienced production journalist. The Defendant’s experts were Mr Evans the Chairman of the publishers Faber & Faber Limited, and Professor Trelford formerly editor of The Observer and now Professor of Journalism Studies at Sheffield University; and (2) whether the false attribution was likely to cause the Plaintiff damage. The Plaintiff’s expert on this issue was Mr Trewin. The Defendant’s experts were again Mr Evans and Professor Trelford. a. Likelihood of Deception Mr Coen 28. Mr Coen, in his summary of his evidence given on the basis of 30 years’ experience as a production journalist, stated that there were "clearly defined and distinct practices and conventions for personal columns and spoof articles"; and that "Alan Clark’s Secret Political Diary" is "a glaring exception", "a spoof article dressed up as a personal column [using] all the presentational conventions that indicate a serious personal column". It became clear early in his cross-examination that there were no such "clearly defined and distinct practices and conventions"; certain practices and conventions are often adopted but there is no rule and these practices and conventions are frequently departed from. (This accords with the evidence of Professor Trelford on this point). I derive no assistance from this part of Mr Coen’s evidence. 29. I do however find two other parts of his evidence of some interest. The first is a review he undertook (most particularly in cross-examination) of how spoofs are signalled to the reader. It may be signalled by the total improbability that the subject of the spoof would have written the article in question in the satirical magazine in which it appears (e.g. "the Secret Diary of John Major Aged 47" in Private Eye ) or under the style (in the sense of name and title) used and without a mugshot (e.g. "Mrs Blair’s Diary" in The Observer ). The fact that publishers have "got away" with spoofs in the past does not mean that the signal given was in law sufficient: it may only mean that the subject of the spoof has for any of a number of reasons decided to take no action. A different reaction may be expected to a "one-off" good joke and to a whole series of publications exploiting the name and style of a professional author. The second is his view, based on the received wisdom in newspaper publishing and backed by his own observation over a long career, that depending on the size of print, readers do often jump over and not read standfirsts. I fully accept that Mr Coen has not conducted any formal research into the habits of readers, but nonetheless his evidence is of some value lending comfort to the conclusions to this effect which I have reached based on the evidence of the readers called as witnesses by the Plaintiff. Mr Evans and Professor Trelford 30. I consider their evidence on the issue of likelihood of deception together with their evidence on the issue of likelihood of damage next in this judgment. For the reasons I will give, I do not consider their evidence on either question of any assistance to the Defendant in this case. b. Likelihood of Damage 31. Before I turn to the expert evidence on this issue, I should briefly say a word about the non-expert evidence on this issue. 32. The Plaintiff gave evidence that the reason for bringing this action was concern that false attribution of authorship of the Articles to him would devalue his reputation as a serious political and historical writer and affect sales of his books. He was extensively cross-examined in an effort to suggest that the purpose was to hamper or prevent effective criticism and ridicule of him as a politician and as a man, and that the publicity could do him no damage. This cross-examination totally failed to achieve its object. By reason of his place in public life and (more importantly) his publication of the Diaries the Plaintiff is (as I think he accepts) a legitimate subject for criticism and satire, but genuinely and for good reason he does object to the false attribution which (as he alleges) is being made of the Articles to him because he believes it to be damaging to him as an author. (I shall say more about this cross-examination later). 33. At least two of the Plaintiff’s witnesses as to deception (Mrs Goff-Forth and Mrs Powers) plainly were seriously misled into thinking very much worse of the Plaintiff as an author until they were disabused. 34. Both the Plaintiff and the Defendant called expert evidence on the issue whether false attribution of the Articles to the Plaintiff was likely to cause him damage. 35. Mr Trewin, to whom I have already referred, was an impressive witness. He gave evidence on behalf of the Plaintiff of the serious risk of damage. In his view the inferior quality (and in particular the smuttiness) of the "unauthorised serialisation" in the Articles will damage sales of the Diaries and the much awaited second volume which his company will be publishing. He can point to no evidence of any damage having yet occurred, but that is his professional judgment. 36. Mr Evans in his witness statement gave evidence for the Defendant. He stated that it never crossed his mind when he read one of the Articles that it was written by the Plaintiff and that: "I find it very difficult to believe that anyone seeing Mr Bradshaw’s piece would form a different view". 37. This disbelief (which was the premise on which his evidence was given) was no doubt encouraged by the Defendant’s solicitors withholding from him the witness statements of the Plaintiff’s witnesses (even the witness statements of those witnesses whose evidence was not to be challenged). I know (and was told) of no conceivable justification for adopting this course. But for the high standard and reputation of the Defendant’s solicitors in this case the inference might have been drawn that the witness statements were withheld because of a fear that, if he read the evidence, he might tone down or retract his evidence and be a less forceful advocate for the Defendant. If the Defendant’s solicitors had not adopted this extraordinary (and in my view wholly objectionable) tactic, he would have been disabused, and he would not have continued to give his evidence on a false premise. 38. He went on to say that any confusion as to the authorship of the Articles could not have any adverse effect on the saleability of the Plaintiff’s works or the terms which might be offered to him for publishing rights: "In fact I am amazed that Mr Clark should hold a contrary view" (para 9). "I think that if any confusion were to arise, any effect on Mr Clark’s commercial success would be a beneficial one from his point of view." (para 12). 39. In cross-examination Mr Evans however inevitably accepted that, if readers were misled as to the authorship of the Articles, that could prejudicially affect the sales of his work in the future. 40. Professor Trelford was another expert witness called by the Defendant. Professor Trelford gave clear and unequivocal evidence in his witness statement on two areas. 41. First (subject to the qualification that it is an occupational hazard of journalism, however careful a newspaper is, that some readers will misunderstand or miss the point of humorous and other pieces published) he went on to say: "I do not think that a reader would get as far as turning the page on which Mr Bradshaw’s pieces appear before realising that the pieces are a pastiche and were not written by Mr Clark". 42. Again unfortunately the witness statements of the Plaintiff’s witnesses were withheld from him, and this passage in his evidence is patently misconceived advocacy of the Defendant’s case. 43. Secondly, he stated that, even if readers were misled, this could occasion no damages to the Plaintiff. "There really is no such thing as bad publicity for generating demand for, and maximising the commercial value of, such a figure [as the Plaintiff]. Anything Mr Clark does or is thought to have done, however disreputable to some, could in my view only add to his value and demand for his work". Professor Trelford conceded in cross-examination that the position he had taken was quite untenable, that false attribution of authorship could be damaging, indeed a nightmare, for an author such as the Plaintiff, and, in answer to a question from me about the last sentence quoted above (as though this was a mere matter of drafting and of no practical significance) he replied that the word "only" in that passage in his evidence should be deleted. The deletion of this word of course totally transforms of his evidence from being wholly supportive of the Defendant’s case to being (at best) neutral. DECISION a. Passing Off Misrepresentation. 45. Mr Berry in a passage in his witness statement which I have already quoted says: "The art of parody is to make something look almost real, but not quite. That is what we sought to do, and I hope and believe succeeded in doing, with Peter Bradshaw’s pieces". 46. The question raised is whether by the adoption of the format chosen the Defendant succeeded too well in making the Articles look real. After anxious consideration I have reached the conclusion that it did. This is my own view looking at the Articles without regard to the evidence of the Plaintiff’s witnesses of deception. I am firmly confirmed and supported in that view by this evidence. 47. This is a case where the Articles, as I have already said, contain conflicting messages as to their authorship. The words "Alan Clark’s Secret Election Diary" and "Alan Clark’s Secret Political Diary" and the photograph of the Plaintiff alongside these words so prominently displayed at the head of the Articles constitute a distinct and unequivocal representation that the Plaintiff was the author. The layout of the Articles has the hallmarks of a genuine diary and accords with the layout of the Diaries, even to the extent of including before each entry in the diary (in imitation of the Diaries) a statement of the place where the entry was made, in each case a location associated with the Plaintiff. The Defendant however contends that the effect of this representation is cancelled out by a number of contrary representations, each of which I shall consider in turn, and then cumulatively. (i) The first counter-message relied on is the word "Secret" included in the title. The Defendant says that this word was included because (i) it suggested that the contents were intriguing; and (ii) it was likely to raise the question in readers’ minds how, if the diary was secret, it came to appear in a newspaper. As to (i) I agree that the word is calculated to suggest that the contents are intriguing and indeed that the author is again being indiscreet as he was in the Diaries. As to (ii) I think this is far too subtle for the unsuspecting mind, and certainly for the readership in question. I do not think that it is calculated to raise the question suggested in the minds of any significant number of readers. Certainly it did not do so in the case of the Plaintiff’s witnesses. I accordingly do not find that this word diluted the representation of the Plaintiff’s authorship. (ii) The standfirst sets out that Mr Bradshaw (and not the Plaintiff) is the author. This is the foremost "counter-message" relied on by the Defendant. The Defendant first contends that the Heading and the standfirst constitute one compound message to readers. I do not think that this is so. They are distinct messages, and the Heading is that much more prominently displayed than the latter. As it seems to me, it is easy for a reader, most particularly a skim reader, having seen the Heading, to pass over the standfirst and move straight to the Text. This is clearly what the Plaintiff’s witnesses to whom I have referred have done. Having taken in the unequivocal message in the Heading of the Plaintiff’s authorship, the interest may naturally immediately pass to the Text under the continuing impression that the Plaintiff is the author. I do not need to find any support for this conclusion in Mr Coen’s evidence as to the impact of the standfirst on readers, but I do derive some comfort from it. (iii) The Defendant contends that the Text of the Articles would disabuse any reader of any misapprehension that the Plaintiff was the author. Mr Berry in his witness statement says that the Evening Standard took pains to feed information relating to Mr Clark and what he was doing to Mr Bradshaw "so that Mr Bradshaw’s pieces could include strands of reality on which to hang his fantasies." Mr Bradshaw in his witness statement says that his brief was to include in his spoof references to events which actually happened and to mirror the style of the Diaries. Much of the contents of the Articles is obvious fantasy, incredible and wild exaggeration - parodying the extraordinary character of the contents of the Diaries. This characteristic of the Articles, whether regarded as a development of, or departure from, the character of the Diaries, may lead some critical readers to question the authorship, but did not disabuse the Plaintiff’s witnesses and in my view would not disabuse a substantial body of readers of the false attribution of the authorship. (iv) I finally look at the Articles as a whole and the totality of the messages and counter-messages. In my view the dominant message in the Defendant’s presentation of the articles is of the Plaintiff’s authorship; and the counter-messages can be expected to be insufficient to disabuse a substantial number of unsuspecting readers of the Evening Standard , who tend to skim read; and accordingly a substantial number of readers would be left (as were the Plaintiff’s witnesses) with the impression that the Plaintiff was the author. 48. In summary, the Plaintiff has a substantial reputation as a diarist and his identity as author of the Articles would plainly be of importance to readers of the Evening Standard in deciding whether to read the Articles. This, as it seems to me, is reflected in the choice of format adopted, and most particularly in the design of the Heading, which is calculated to exploit the public recognition enjoyed by the Plaintiff as author of the Diaries and the public interest which any diary written by the Plaintiff may be expected to generate. The consequent identification of the Plaintiff as author is not sufficiently neutralised to prevent a substantial number of readers being deceived. Damage 49. There can be no doubt that for the Defendant falsely to attribute the Articles to the Plaintiff can cause serious damage to the Plaintiff: his reputation and goodwill as an author is placed at risk and so accordingly are the prospective sales of his published works and the market value of the publishing rights and other rights to exploit his works. The Plaintiff must be entitled to an injunction to restrain the Defendant from continuing their present course of conduct. The question raised is whether there is a probability that he has suffered more than nominal damage. In the light of the evidence before me, I am satisfied that I can and should find that he has suffered such damage and that the Plaintiff is entitled to an enquiry as to damages. b. Section 84 50. In my judgment (as I have already held) the Headings of the Articles contain a clear and unequivocal false statement attributing their authorship to the Plaintiff, and the vice of this statement is not cured by the various "counter-messages" relied on by the Defendant. I would be minded to accept that (as in certain cases of false trade description) the effect of such a false statement can be neutralised by an express contradiction, but (as in the case of a false trade description) it has to be as bold, precise and compelling as the false statement (consider the citation from the judgment of Lord Widgery CJ in Norman v. Bennett supra ) , and in this case the contradiction lacks the required prominence and is less likely to get home to the readers, as is confirmed (if confirmation is necessary) by the evidence in this case. The Plaintiff is accordingly entitled to relief in respect of the commission of the statutory tort. CONCLUSION 52. I accordingly hold that the Plaintiff has made out his case that the Defendant has committed the common law tort of passing off and the statutory tort of false attribution of authorship. The parties have agreed that I should leave over the form of any order I shall make for further argument after I have given this judgment. 53. I will conclude this judgment with a few words on two matters. The first is that it is important to make it quite clear that this judgment is no bar to publication of parodies. Where the line is to be drawn between what does and what does not constitute false attribution of authorship is a question of judgment, and often a difficult question on which minds may differ. In this case in respect of the format which it adopted in the fully understandable aim of achieving the maximum impact on readers, I hold that the Defendant made an honest and understandable error of judgment: the Articles fall on the wrong side of the line. The vice in this case lies in the format of the Articles. The Defendant can however continue to publish parodies of the Diaries so long as there is no attribution of authorship to the Plaintiff and it is made sufficiently clear that Mr Bradshaw, and not the Plaintiff, is the author. 54. The second relates to the cross-examination of the Plaintiff. This was apparently undertaken in an endeavour to establish that the publication of the Articles could occasion the Plaintiff no damage. Yet the cross-examination took the form of a totally uncalled for personal attack on the Plaintiff. It was quite unjustified by any pleaded issue in this case and was made without any prior intimation that this was in store. This attack was particularly surprising in view of the protestations by Mr Hastings (the editor of the Evening Standard ) in his witness statement of "affection" for the Plaintiff. I repeatedly expressed grave concern at the course the cross-examination was taking, but was assured by Mr Prescott that it was leading to some critical, indeed essential, element in his case. I felt I had to rely on such an assurance given (as it was) by leading counsel experienced in this field, though I warned him not to trespass beyond the proper limits of this cross-examination. Finally I reached the conclusion that I could no longer rely on this assurance and that the cross-examination was, not merely irrelevant, but improper and oppressive. I accordingly brought it to a halt. The cross-examination elicited nothing of any value whatsoever save as copy for the press (and in particular the Evening Standard ). The only consolation is that the Plaintiff stood his ground and survived the onslaught unfazed and unbowed. ***** © 1998 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII