Freddie Starr loses defamation claim
Starr v Ward [2015] EWHC 1987 (QB)
Overview
Comedian and entertainer Freddy Starr has lost a defamation claim which he brought against Karin Ward. Ms Ward had alleged that Mr Starr had groped and humiliated her at a recording of a Jimmy Savile TV programme in 1974. The claim preceded the entry into force of the 2013 Defamation Act and was therefore heard under the pre-existing law. Ms Ward's defence of justification (equivalent to the Defamation Act defence of truth) succeeded.
Facts
The allegations stemmed from the filming of a TV programme in 1974 called "Clunk Click" which was hosted by Jimmy Savile. Ms Ward (who was 15 at the time) attended the filming of the programme and Mr Starr (then aged 32) was one of the guests.
After the programme was recorded, Ms Ward and several other teenage girls were invited into Jimmy Savile's dressing room where Mr Starr was also present. Ms Ward alleged that Mr Starr groped her bottom and made a vulgar remark which caused her humiliation and embarrassment.
On 14 November 2011 Ms Ward was interviewed by the BBC for the purpose of an item for 'Newsnight' about Jimmy Savile. In this interview Ms Ward stated that she had been groped and humiliated by "a famous person" who was not Savile (the "BBC Words"). The Newsnight segment on Savile, including the interview with Ms Ward, was controversially pulled by the BBC and was not broadcast.
On 2 October 2012, Ms Ward was interviewed by ITV, also for a programme on Jimmy Savile called 'Exposure'. During the interview Ms Ward directly named Mr Starr who she stated "groped me… and it frightened and freaked me out and I rebuffed him and he humiliated me in front of everyone in the dressing room" (the "ITV Words"). The interview was not included in the final cut of Exposure, which was broadcast on 3 October 2012.
On 3 October 2012 an ITV news editor emailed Mr Starr's solicitor for comment regarding the allegation. Mr Starr immediately applied for an interim injunction which was initially granted at a hearing without notice, but then discharged following an on notice hearing before Tugendhat J on 4 October 2012. This judgment was public and refuelled media interest in Mr Starr.
Mr Starr gave several interviews in which he denied the allegations and claimed he had never been with Jimmy Savile on BBC premises. This was swiftly proven incorrect when footage emerged of Mr Starr as one of the guests with Savile on Clunk Click.
On 8 October 2012 Ms Ward's interview with ITV was broadcast on Channel 4 news. It was broadcast again on ITV on 10 October.
On 22 October, the BBC interview was broadcast on the BBC 'Panorama' programme.
In addition, Ms Ward published an e-book on 13 October 2012 which detailed the allegation but only referred to Mr Starr as "a very popular comedian of the time, whom I shall simply refer to as 'F'" (the "E-Book Words").
The Claims
Mr Starr did not sue ITV or BBC. He brought claims against Ms Ward for slander (the limb of defamation which concerns more transient forms such as spoken words or gestures) in respect of the BBC and ITV Words. He sued in libel in respect of the E-Book Words.
Mr Starr argued that the consequential loss flowed from the original slander in the ITV Words and BBC Words and that Ms Ward was liable for this further loss since she knew or should have known that there was at least a significant risk that the ITV Words and BBC Words would be broadcast to a wide audience. In the alternative, Mr Starr argued that Ms Ward was liable as a co-publisher of the relevant broadcasts on the basis that she intended or authorised the ITV Words and BBC Words to be broadcast.
Mr Starr claimed that he could be identified in the E-Book Words and these were libellous.
Mr Starr claimed that the natural and ordinary meaning of the ITV, BBC and E-Book Words was that he, inter alia, was a paedophile who had sexually assaulted Ms Ward when she was a schoolgirl and that he had humiliated and frightened her.
In defence, Ms Ward pleaded that the words did not have the meanings attributed to them and in the alternative, justification.
Judgment
The BBC Words
(i) Time bar of the BBC Words
Nicol J first held that the BBC Words were not actionable because they were time-barred. The words were spoken by Ms Ward in the BBC Newsnight interview on 14 November 2011 and a claim was not issued until 23 September 2013. The limitation period for defamation claims is one year. Nicol J ruled that there was an absence of any evidence as to why Mr Starr delayed bringing a claim and he would not disapply the ordinary time limit.
(ii) The Defendant as a co-publisher of the BBC Words
Although Mr Starr's claim in respect of the BBC Words was time-barred, he argued that Ms Ward was a co-publisher of the BBC Panorama broadcast in 2012 and was responsible for the repetition of the BBC Words therein. The Panorama broadcast date was within the time limit in which the claim was brought.
Mr Starr argued that Ms Ward was a co-publisher in that she could foresee that her words would subsequently be broadcast and Mr Starr would be identified from those words.
Nicol J held that this argument failed for three reasons: (i) it was not how Mr Starr's case was pleaded; (ii) this alternative was not supported by the law; and (iii) it was not reasonably foreseeable that the BBC would broadcast the interview in such a way as to identify Mr Starr, and in fact the opposite was true.
The ITV Words
(i) Actionable slander without proof of special loss
Mr Starr was faced with an immediate problem at the trial in that he was unable to prove special loss (i.e. some financial loss) in respect of the ITV Words. A slander will generally be actionable only if the claimant can show that it has caused special loss. In contrast, in libel, damage is presumed.
Mr Starr made a last-minute application to amend his claim to rely on two categories of case where slander was actionable per se, without proof of special loss. The first of these was that the words were calculated to disparage him in his professional capacity and the second was where the words impute a criminal offence that is punishable by imprisonment.
Nicol J held that both exceptions applied to the ITV Words and Mr Starr's slander claim was therefore not excluded.
(ii) Justification of the ITV Words
Nicol J held that the ITV Words meant that Mr Starr had groped and thereby sexually assaulted a fourteen year old schoolgirl who he had also humiliated and frightened her. Mr Starr denied that this had ever occurred.
Mr Starr's evidence as to what took place in the dressing room was vague and contradicted his earlier statements made in TV interviews in 2012. He had initially claimed that he had not appeared on Clunk Click at all and later stated that he had left the studio immediately after the recording and had not been in the dressing room. Nicol J could only conclude that Mr Starr had "very little, if any, recollection of that night."
Mr Starr's case was further damaged by one of his own witnesses. Mr Starr put forward in his evidence that he "didn't like younger women" and the cut-off point for him was 22 or 23. However, this was contrasted by evidence given for Mr Starr by Ms Susan Bunce, another girl who had been present in the dressing room and was also 15 at the time. Ms Bunce stated that Mr Starr had picked her up in the dressing room and given her a passionate kiss.
In Nicol J's judgment, the account given by Ms Ward was, on the balance of probabilities, true. Ms Ward's defence of justification therefore succeeded and was a complete answer to the claim.
The E-Book Words
Whilst the E-Book Words were not identical to the ITV Words, the sting of the libel was the same. In light of the ITV Words being true, Nicol J held that the E-Book Words were also true.
Comment
This case highlights the danger of litigating a slander claim about events which occurred more than forty years prior and without a clear knowledge or recollection of what happened. Whilst the judge did not state that Mr Starr had been untruthful in his recollection of the events in the dressing room, it was plain that Mr Starr's memory of what happened was at best hazy. In circumstances where a slander claim rests on people's recollections, rather than documentary evidence, the claimant should be very confident of his position before instigating proceedings.
From a procedural perspective, this case also highlights the fact that time is of the essence when bringing a defamation claim outside of the one year statutory time limit. The Court has discretion to exclude the limitation period, and will have regard to all of the circumstances of the case in its determination. The Court will pay particular attention to (i) the length of the delay and the reasons for it; (ii) where the delay was caused by the claimant not knowing all of the facts relevant to the case, when the claimant became aware of those facts and the extent to which he acted promptly and reasonably to pursue the matter once he became aware; and (iii) the extent to which the delay has caused prejudice to the defendant owing to lack of or less cogent evidence. In this case, Mr Starr failed to provide any good reason for the nine month delay bringing his claim after expiry of the limitation period.