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    43. I am grateful to my noble and learned friend Lord Bingham for his review of the facts which will release me from that task and permit me to proceed straight to the critical features of this case and the reasons which have led me to conclude that the appeal should be allowed.

    44. This is a case where there is an agreed natural and ordinary meaning of the libellous publications:

"The Plaintiff,

(a) having dishonestly taken bribes, had fixed or attempted to fix the result of games of football in which he had played, and

(b) had dishonestly taken bribes with a view to fixing the result of games in which he would be playing."

    This was the meaning which the plaintiff had pleaded and the defendants had admitted. The first limb, (a), related to what it was said had occurred with a man known as 'the short man' (one Richard Lim) earlier than the time of the taped meetings with Vincent and the second limb, (b), to what it was said the plaintiff agreed with Vincent to do for Vincent's supposed principals in the future. Further, in each limb, the agreed meaning contained two aspects: one was fixing, or attempting to fix, or intending to fix, the result of football matches in which the plaintiff was playing and the other was the dishonest taking of bribes to do so. The plaintiff had pleaded the whole of the published material and the defendants had abandoned any reliance upon s.5 of the Defamation Act 1952. It was therefore for the jury to decide where the sting of the defamatory statements lay and to decide whether the defendants had proved that it was in substance true - ie substantially justified.

    45. But there was a complication: although the parties had agreed the meaning of the defamatory publications, they were not, anyway by the closing stages of the trial, agreeing about where the sting of the libel lay. The plaintiff had argued throughout that it lay in the allegation that he had deliberately fixed or 'thrown' matches and was prepared to do so again. The defendants by the end of the trial were arguing that the sting lay simply in the statement that he had taken bribes. The reason for this development was, so far as the defendants were concerned, not far to seek. In their pleading, they pleaded the defence of justification but they alleged that there was only one match where the plaintiff had deliberately let in a goal: Coventry City v Southampton, 24th September 1994. At the trial the plaintiff had made a positive case that he had never deliberately let in any goal, that he had never attempted to and that he never would. He not only gave evidence to that effect himself but relied upon film evidence of the games in which he had played and the unimpeached expert evidence already referred to by my noble and learned friend. The defendants called no evidence to contradict this part of the plaintiff's case. The defendants were therefore inevitably going to fail on the issue of justification unless they could persuade the jury that the sting lay in the taking of bribes rather than in the fixing of the result of matches and willingness to do so again.

    46. The defendants failed in this endeavour and it is not difficult to see why. This was a trial by jury: the relevant issues were for the jury to decide. The assessment of the jurors would be closer to that of the football fans, who go to football matches and who would be outraged by the idea that one of their footballing heroes was only pretending to play and the match which they had paid to watch was only a charade, than it would be to that of others, like lawyers, who would be outraged by the taking of bribes whether or not accompanied by the deception of the would-be briber. The plaintiff's view of the sting of the libel was amply supported by the way in which the newspaper had itself presented the story to its readers with references to

- "The £40,000 was his reward for cheating fans and team mates by making sure Liverpool crashed 3-0 away to Newcastle last November"

- "... despite him giving away goals"

- "... for throwing a Premiership match"

- "... cheating Grobbelaar"

-"…unlike Grobbelaar, [M] was never accused of fixing games, just betting on results"

"Grobbelaar could be jailed for two years for match rigging"

"he has betrayed every soccer fan in the country by cynically reducing the game they love to a sham"

"the shame of his game-throwing will haunt him for the rest of his life"

"making a fan on the Kop a fool on the hill"

    [Quotes taken from the 9th and 10th November.]

    The newspaper and its editor clearly knew where the real impact of the story lay with the public. This impact was reflected in the agreed meaning of the words published. One of the first things which the plaintiff said to the second defendant on the telephone after the confrontation at the airport on 8th November was: "I've never attempted to throw a game in my life." (The newspaper quoted this statement the next day clearly implying that it was a lie.)

    47. Under these circumstances, the jury could not be criticised for taking the view that the sting was the accusation of match fixing. Even standing alone, it was a very serious accusation to make against a professional footballer and, if true, completely destructive of his reputation as a professional footballer. A goal keeper who deliberately lets in goals is betraying the fans and reducing the game to a sham. For myself, I would have been surprised if the jury had come to any other verdict on the justification issue. But, in any event, it was a matter for them and their conclusion was not unreasonable. It was a conclusion which was open to them. The issue was properly left to them by the trial judge with proper directions and their first verdict was in no way perverse.

    48. Two arguments have been advanced in response. The first is that advanced in argument by the newspaper. It can be expressed in words such as these: That a professional sportsman has deliberately underperformed in a match is bound to be very difficult to prove - all sportsmen make mistakes in the course of play - an international class striker may miss the goal from point blank range - deliberate errors are virtually impossible to prove. If this argument is meant to suggest that when the truth of a defamatory statement is difficult to prove, and has not been proved, then the truth of the statement may be treated as proved nevertheless, it is not the law, nor should it be. The law is that so far as the issue of justification is concerned, the publisher of the defamatory statement must allege and prove that the statements of fact were substantially true, no more, no less. In the present case, the defendants did not at the trial attempt to rebut the plaintiff's evidence that he had never attempted to throw a game. The legitimate relevance of the argument is to the defence of qualified privilege: Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The defendants attempted to set up the defence of qualified privilege. If they had succeeded, the defendants would then not have had to prove truth and the plaintiff would have had to prove malice. But they failed both before the judge and the Court of Appeal in their claim to qualified privilege. If the publication is not privileged, the publisher must prove that the relevant statement was substantially true. If he thinks that he may be unable to prove its truth, he must make sure that he conducts himself responsibly so as to be able to rely upon qualified privilege. Few would quarrel with the proposition that newspapers which are publishing defamatory statements of fact which they may not be able to prove are true must behave responsibly if they wish to take advantage of the protection of the law of qualified privilege.

    49. The other argument is in essence that which succeeded before the Court of Appeal. It is said that the jury misunderstood the gravamen of the accusation. Corruption is much more serious than letting in goals deliberately. The one is a criminal offence and the other, as such, is not. Thus, Thorpe LJ, having (at p.464) stressed the criminality of even accepting a bribe, identified what he described as "the relevant realities" and distinguishing between the corrupt agreement "capable of clear proof" and (overlooking the fact that this was a case where the evidence had actually disproved any "betrayal on the pitch") the "betrayal on the pitch" which was not, said (at p.467):

"The proper recognition of corruption rather than fixing as the primary issue renders Mr Hartley's submission [for the plaintiff] almost repugnant."

At p.461 Simon Brown summed up his own view of the case:

"All that had to be decided was whether Mr Grobbelaar took corrupt payments."

    50. There are two straight forward and obvious answers to this line of argument. The first is that it was a matter for the jury and the Court of Appeal should have accepted the jury's verdict on this point unless they were prepared to decide that there was no issue to go to the jury on this point. It was correctly accepted that there was an issue to go to the jury and that the agreed meaning and the publication were capable of having the significance contended for by the plaintiff. The second is that, for the purposes of the law of defamation, what is relevant is the effect of the publication upon the perceptions of the ordinary reader of the Sun newspaper, not upon those of a judge of the Court of Appeal, and how it would alter such a reader's view of the plaintiff. Thus, the Court of Appeal not only confused the respective roles of judge and jury but also confused what might be relevant in other legal contexts with what is relevant in relation to defamatory publications. As counsel succinctly put it, citations from Bowstead and Reynolds on Agency, A-G v Blake, and judgments in the Court of Appeal Criminal Division (R v Carr and R v Mills), see per Simon Brown LJ at p.458, do not have much of a place in the consciousness of the ordinary reader of a tabloid newspaper. The Lord Justice was seriously in error when he summed up his own view of the case, supplanting the principled approach to the issues and usurping the function of the jury.

    51. The judgment of the Court of Appeal set aside the first verdict of the jury as perverse. It followed from this that judgment was to be entered for the defendants, not the plaintiff, and the question of the perversity or otherwise of the other two verdicts did not formally arise. Thus, they decided that it was perverse of the jury to remain unpersuaded that the agreed meaning of the defamatory material had been proved to have been substantially true. This was a remarkable decision since it was always open to the jury to remain unpersuaded upon an issue which has been properly left to them by the trial judge and of which the burden of proof rested upon the party against whom they are finding, as was the case here.

    52. Leaving on one side the fact that there was ample justification for the jury's first verdict, it is instructive to identify the route by which the Court of Appeal arrived at their conclusion. The defendants had by their notice of appeal included the ground of appeal:

"and/or the damages [the jury] awarded were excessive and were such that no reasonable jury could have thought that such an award was necessary to compensate the Claimant and to re-establish his reputation."

By their second verdict, the jury had awarded the plaintiff damages in the sum of £85,000.

    53. In argument before the Court of Appeal, counsel for the plaintiff inevitably had to accept that he could not contend that £85,000 was not excessive unless he could persuade the Court of Appeal that (as was his client's case) the bribery allegations were also unjustified. This led the Court of Appeal to reason that the award of excessive damages by the jury's second verdict led to the conclusion not that, like many juries, they had gone over the top in their award of damages (about which I will have something to say later) but that their first verdict must have been perverse. This reasoning is remarkable: it reasons that because the jury has gone wrong on verdict No.2, it has gone wrong on verdict No.1 - perversely wrong. This is simply a non sequitur. Verdict No.1 is not dependent upon the correctness of verdict No.2.

    54. This was a case in which the quantum of damages was a real issue and, at the request of the defendants, a Pamplin direction was given: see Pamplin v Express Newspapers Ltd [1988] 1 WLR 116. A Pamplin direction addresses the situation where a plaintiff is entitled to a verdict in his favour on the justification issue but the evidence properly before the jury on the issue of justification has disclosed that the reputation to which he is entitled is so depreciated that the damages which he should be awarded for the damage to his reputation by the (ex hypothesi) defamatory publication should be reduced below the level that would be appropriate for a plaintiff with an impeccable reputation, maybe even to a nominal figure: as Neill LJ said in Pamplin at [1988] 1 WLR p.120,

"There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in s.5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely upon such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages."

    55. The problem of the defamation of persons of bad character is not new. The law has, with the assistance of the legislature, worked out a principled approach. What Neill LJ has said and the summing-up in the present case of Gray J reflects that principled approach. Before the publications in question, the plaintiff had a very high reputation in the world of football as an outstanding goalkeeper. The publications were designed to destroy that reputation. The defendants were unable fully to justify the libel. It was, as the Court of Appeal would have been entitled to conclude, a case of partial justification. On this basis the award of damages was excessive and liable to be set aside. But it is not principled to say that, because the damages should be reduced on grounds of partial justification, maybe even to a nominal sum, the defendants were entitled to a verdict and judgment on liability. It is to be noted that the only reference to the Pamplin case in the Court of Appeal judgments is at p.459 in the judgment of Simon Brown LJ where he dismisses it as irrelevant and the Pamplin direction as "most unhelpful". With respect to the learned Lord Justice, this shows a serious error on his part in the understanding of the issues in a defamation action and the correct treatment of the question of a plaintiff who has been defamed but shown by admissible evidence to have a defective character. In so far as the learned Lord Justice in the same passage comments upon the facts of the case and expresses his own view about them, he is improperly trespassing upon the function of the jury.

    56. But the unsatisfactory consequences of the Court of Appeal's treatment of the damages issue do not stop there. The forensic position in which counsel for the plaintiff found himself led to his making only a restricted response to the appeal on the amount of the damages award (the jury's second verdict). The way Jonathan Parker LJ described it (at paragraph 219) was -

"Mr Hartley concedes that in awarding damages of £85,000 the jury must have been satisfied not only that no actual match-fixing had taken place .... but also that he had not been party to any corrupt arrangement, either with Mr Lim or with Mr Vincent: ....."

    This restricted response was then treated as a concession and used as a basis for discrediting the jury's first verdict as well. The so-called 'concession' has now been advanced as a reason for dismissing the plaintiff's appeal to your Lordship's House. It is said that the 'concession' having been made, the plaintiff should be held to it (although no prejudice to the defendants is suggested) and the decision of the Court of Appeal upheld without further examination. To accede to this submission would serve no greater purpose than to compound the Court of Appeal's error. Your Lordships have been shown the passages in the transcript of the Court of Appeal upon which the argument is based. To my reading they are of very limited significance and do not extend beyond what would be expected in exchanges which take place when an advocate is being subjected to close questioning by an unsympathetic court. It is a misuse of the privilege of having an oral hearing with oral arguments for a court to try to decide the case by obtaining 'concessions' from counsel. The purpose of oral argument is to inform, clarify and enlighten the minds of the court (hopefully in favour of the advocate's client). It is not right to seek to decide cases upon the tenacity of the advocate or 'concessions' forced out of the advocate in the course of oral argument. (This is not a case where a point has been conceded, in the proper sense of that word, either by a pleading or a statement in court and has thereafter governed what issues do and do not arise.) Still less is it right to decide appeals upon the basis of upholding wrong decisions arrived at using legally mistaken 'concessions' by counsel. To have conceded that the excessive amount of the jury's second verdict invalidated, or demonstrated perversity in, their first verdict would have been both legally and logically wrong (as well as being based upon wrong factual assumptions).

    57. A further criticism to be made of the Court of Appeal's decision in the present case is that they chose to make a questionable inference in preference to adopting the ordinary and obvious explanation of the jury's second verdict. The ordinary explanation is that the jury went wrong in some way in deciding upon the amount of their award. It is a commonplace that juries, even after an impeccable direction from the judge, may make such a mistake. Why should one not infer that that is what occurred in the present case? I will come to the factors which may have led the jury to over-assess the damages. But, first, there are factors which militate against their having delivered a perverse verdict on liability. The jury were properly directed. It should not lightly be assumed that, in failing to be satisfied that a burden of proof had been discharged, a jury had acted perversely. There is no evidence that the jury were behaving irrationally during the trial. The verdicts were unanimous. Their third verdict was that the plaintiff should not recover exemplary (penal) damages. At criminal trials in 1997, the plaintiff was tried on two counts, the first of conspiring corruptly with Lim and others and accepting money to fix or for having fixed matches, the second for corruptly accepting a bribe of £2,000 from Vincent to fix or for having fixed matches. At the first criminal trial, the jury was unable to agree on either count. The jury was discharged and a re-trial was ordered. At the re-trial, the plaintiff was unanimously acquitted on the first count and the jury was again unable to agree on the second count. It has not been suggested on this appeal that the criminal juries were acting perversely. At the civil trial, the defendants did not call Mr Vincent even though some of what they had published had only come from him. Mr Carman told the jury:

"We would regard him as a wholly unreliable witness, therefore we do not propose to call him to give evidence because I do not want to present to you on behalf of the Sun newspaper someone whose evidence we believe may be highly suspect and whose whole character may be deeply flawed."

    58. But the other aspect affecting the inference is the probable explanation for an inflated award of damages against the defendants. The primary focus of the present appeal has been the conduct of the plaintiff and what he is recorded as having said on the tapes. This is quite right. What he had said, if true, was gravely incriminating. His only answer was that what he had said was not true. Some of what he had said was proved to be untrue: where did that leave the remainder? As juries are reminded every day of the week in relation to confessions, the fact that a person has admitted something means that what he has said may be used against him as powerful evidence of the truth of what he has said; but the jury must still consider whether, in the circumstances, the admission is reliable and does in fact represent the truth. To prove that the plaintiff was a liar does not of itself prove the truth of anything that he said. What occurred in the present case involved sordid and wholly despicable conversations, apparently incriminating of both the plaintiff and Vincent, which took place in a bugged hotel bedroom and a bugged flat, secretly taped, between the plaintiff and a person who may have cheated the plaintiff in the past and whom the defendants did not call for the reasons (quoted above) which Mr Carman explained to the jury. How much credence to give to what the plaintiff had said, first, in the hotel bedroom and the flat and, then, on oath in the witness box at the trial was a matter for the jury and was relevant, under the Pamplin principle, to the assessment of damages. The Court of Appeal considered that the jury must have given more credit to what the plaintiff had said in the witness box and less to what he had said on tape than they, the Court of Appeal, considered appropriate. On this view, the damages awarded were excessive (as counsel accepted). As the Court of Appeal held, there was an ample basis for the view that the jury had over-estimated the damages.

    59. But the jury were also entitled to, and no doubt did, take into account the conduct of the defendants in connection with the publication, the character of the publication and the effect of their conduct in aggravating the injury to the plaintiff. These aspects of the case were discussed by the Court of Appeal in the context of qualified privilege. They were remarkable. The publication was not a single publication but was a sustained campaign extending over eight issues of the newspaper with no less than six pages devoted to the story in the first of these issues. The publications included, at the least, a mixture of allegations which the newspaper could and could not substantiate. They depended in part upon a disreputable witness, Vincent, whom their counsel was later to describe as "wholly unreliable" and as having, in their belief, a maybe "deeply flawed" character. The entrapment which they had engineered had had a number of very questionable features. They gratuitously involved in the publications the plaintiff's wife and children with successive series of pictures of them and statements such as -

"Shameful secret has Deb close to tears. Grobbelaar's wife Debbie was close to tears yesterday when we broke news of how her husband fixed matches for money."

"10 questions he didn't answer ........ How much of what's been happening have you told the children about? Have they been getting a hard time at school as a result of the allegations against you? ......"

    They staged a deliberately intimidating ambush of the plaintiff at Gatwick by a team of six photographers and reporters. When the plaintiff had issued a writ against them, they informed their readers that they had retained Mr Carman and, referring to the plaintiff, said: "What will happen to the case? We're confident he will drop it like he drops everything else." They quoted Vincent as saying: "I'll see you in court."

    60. Many juries would in these circumstances make a substantial award of damages. An award of £85,000 is within the range of awards which a jury might erroneously think appropriate. It is wrong to treat it as evidence of perversity. The conclusion that a jury has acted perversely, that is to say in breach of their oath, is a serious matter and not lightly to be inferred. If there is another more plausible explanation of their verdict, it should certainly be preferred. To assume perversity unworthily discredits an integral and honourable part of the justice system.

    61. I therefore consider that the appeal should be allowed and the first verdict of the jury upheld. I agree that the award of damages in the sum of £85,000 was excessive and must be reduced. If it had been much more modest, say a four figure sum, it would in my judgment have been unappealable. But it was not and, in respect for the opinion of my noble and learned friend, Lord Bingham, that the award should be reduced to a nominal sum, I will, applying Pamplin, concur in a reduction of the award to £1. The plaintiff has been shown by the first verdict to be entitled to a verdict and judgment in his favour and to some award of damages to demonstrate that he has been tortiously defamed by the defendants. There remains the formulation of a limited injunction or undertaking to restrain any repetition of the tortious statements as is the normal practice. Indeed, counsel suggested that they should agree a suitable wording should the appeal be allowed, as it has been. However, in deference again to the view of my noble and learned friend and notwithstanding that it may merely serve to increase the costs, I am prepared to accept his proposal that, in the absence of an agreed undertaking, the question of the grant of an injunction should be left to be dealt with on an application to a judge of the High Court, Queen's Bench Division, if the plaintiff chooses to make one, and I am accordingly content that the plaintiff should be given the proposed liberty to apply.

    62. Two points remain. Both sides' counsel suggested to your Lordships that this House had no power to set aside an excessive award and substitute a lesser award of damages in a defamation case tried with a jury. They said that that power was confined to the Court of Appeal. This was not a correct view since, on an appeal from the Court of Appeal, this House has the power to make any order which the Court of Appeal could have made. Secondly, the defendants were given leave to cross-appeal on the ground that the trial judge had misdirected the jury on the justification issues relevant to their first verdict. I agree with the Court of Appeal and with your Lordships that the judge's directions were correct and that the cross-appeal should accordingly be dismissed.

    63. Human Rights have also been referred to. Article 10 of the Convention is always important. But Article 10(1) is subject to 10(2) and the English law of defamation gives effect to this and recognises that other human rights may be engaged as well, as for example under 8(1). The relevant decisions of the E.C.H.R. have been referred to in other cases which have raised points under Article 10, including Reynolds [2001] 2 AC 127 at 203-4 and Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29 [2002] 1 WLR 2033, and this is not the occasion to go over the ground again. Article 10 is not a licence knowingly to publish untrue statements of fact about another on unprivileged occasions and the proper protection of the person defamed may require that repetitions of the untrue statements be restrained. As my noble and learned friend Lord Bingham has said: "The newspaper's important right of free expression is not infringed by restraining re-publication of what the jury has found to be a falsehood."

LORD MILLETT

My Lords,