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Justice Bell's Verdict
19th June 1997
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Chief Justice Bell's 800 page judgement was handed down on Thursday 19th June 1997 after his presentation of the Summary - the whole judgement is presented here for your enjoyment.
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12. The Defendants' counterclaims.
Their claims are based on three documents which were first put out by the Second Plaintiff in March, April and May,1994, as the beginning of the trial of this action drew near. The first document was a press release published on the 14th March,1994, in the form of a "Note to News Editors" with a briefing attached. The Note to News Editors read as follows: "McDonald's Restaurants and "London Greenpeace". The attached briefing gives the background to the reasons why McDonald's Restaurants is bringing a libel action against two individuals representing the self-styled anarchist group "London Greenpeace". Tomorrow (15th March) an Appeal relating to the case is being heard at the High Court. Please note that "London Greenpeace" is nothing to do with the respected Greenpeace organisation. Attached is a copy of a letter to that effect from Greenpeace". The attached briefing read as follows:
LIBEL CASE - UPDATE 14/3/94 The High Court will tomorrow (15th March) consider an Appeal by two members of the self-styled anarchist group "London Greenpeace" against a judge's ruling on two procedural issues in the libel action being brought against them by McDonald's. Many of the issues are complex, being of a scientific or technical nature and Mr Justice Bell determined that the case should not be heard in front of a jury. This is not an unusual decision in such circumstances. The forthcoming libel case is a matter of great public importance and it is in the public interest that the judge will be able to give a detailed explanation of his final decision, as opposed to cases heard by a judge and jury which result in a simple "proven" or "not proven". Background
Both the Note to News Editors and the attached briefing were on sheets of paper with a McDonald's logo and the word "information" printed boldly at the top, and the name of the Second Plaintiff and its address printed at the bottom. They gave the telephone number of the Second Plaintiff's Communications Department for further information. The Second Plaintiff admitted publication of the Note and briefing to over forty representatives of about twenty prominent arms of the media. The second document was a leaflet which the Second Plaintiff issued to all McDonald's restaurants in the UK in April and May,1994. The leaflet was headed:
WHY McDONALD'S IS GOING TO COURT" It read as follows:
The leaflet bore the McDonald's Golden Arches and name and said that further information could be obtained from Mike Love of the Second Plaintiff at its Finchley address. 300,000 leaflets, 600 boxes each containing 500 of the leaflets, were produced. One box was sent to each McDonald's restaurant in the UK, and seventy were retained. The leaflets were distributed, and therefore published, to the management and franchisees of restaurants with a view to them giving them to any customers who asked about the legal action, but some leaflets were placed on the 'Did You Know' boards of some restaurants or left lying around, on restaurant tables for instance, for anyone to pick up. I have no way of knowing, or even estimating just how many leaflets were published to visitors to McDonald's restaurants in any of these ways but in my view the probability is that a significant number were, because the litigation had attracted a lot of media attention. The third document was a "LIBEL ACTION BACKGROUND BRIEFING" which the Second Plaintiff sent to various people in anticipation of the beginning of the trial. The document may have been first produced sometime before the 14th March,1994, because the Second Plaintiff admitted publishing it to two journalists on that date, although the earliest copy which I have seen is dated 12/4/94. In fact the start of the trial was postponed from mid April to late June. The text was modified very slightly to take account of the change in date, but its essence remained the same. I quote the text from a copy dated 5/94 because that is the one quoted in the Counterclaim itself, although I also have a third copy dated 6/94 which is virtually identical to the earlier two versions. The 5/94 copy read as follows: "McDonald's (McDonald's Corporation and McDonald's Restaurants Ltd.) goes to the High Court in June in order to establish that a leaflet entitled "What's Wrong With McDonald's", produced by London Greenpeace, is libellous. London Greenpeace is an independent group of activists - NOT connected in any way with Greenpeace Limited the internationally renowned organisation (see attached letter). The leaflet in question, which was first published by the group in 1984 contains many lies about McDonald's. In December 1984 McDonald's solicitors wrote to the group expressing concern about the leaflet, stating that it was defamatory and requesting that the organisation disassociated themselves from the leaflet and its contents. Despite several subsequent letters, no acknowledgement or reply was ever received and persistent distribution of the leaflet continued. In September 1990 McDonald's wrote to the five core members of the group. They were again advised that the leaflet was defamatory and that proceedings had been issued. They were asked to apologise and undertake to stop repeating/publishing the allegations. As a result, three of the group did admit in court that the leaflet was libellous, they apologised and undertook not to repeat the lies. However, two of the group said they stood by the contents of the leaflet and chose to defend it on the grounds that they maintained it to be true. The leaflet has been distributed extensively since 1984 not just in the UK but worldwide, to the extent that its contents have been reported in the media, in schools and even a church magazine. If McDonald's does not take action to correct these lies they will be assumed to be true and come to form part of public perception about McDonald's. These lies are affecting McDonald's staff, customers, suppliers and thousands of independent franchisees. McDonald's has no choice, therefore, but to take steps to stop these lies otherwise the group will continue to deceive the public. The group is not incorporated therefore it was only possible for McDonald's action to be against those individuals who were responsible for distributing the leaflet and who chose to defend it. This action is not, however, about groups or individuals -it is about establishing the truth. Nor is it about freedom of speech - it is about the right to stop people telling lies. The leaflet states that McDonald's:
Through the evidence and statements of both independent experts and company employees McDonald's will demonstrate in court that the company is:
Humane treatment of animals - McDonald's will only deal with suppliers who meet the highest standards of animal welfare. Only EC approved abattoirs are used. An excellent employer - McDonald's has an outstanding record as an equal opportunities employer. The company offers excellent career opportunities with promotion on merit. Flexible work arrangements exist for full and part-time staff. The company provides the highest level of training. There are a number of additional issues which have been raised: * The group has suggested that McDonald's is attempting to thwart free speech - this case is about stopping the further publication of lies, it is not about freedom of speech it is about the truth and they are not telling the truth. * The imbalance between McDonald's Corporation and two individuals - this case is not about groups or companies or individuals. These two individuals have chosen to stand by the contents of the leaflet, McDonald's maintains the leaflet is libellous. This case is about establishing the truth and stopping further publication of these lies. * It has also been suggested that McDonald's has the unfair benefit of legal advice - the group have long had the informal support of lawyers and this was formalised with the appointment of a City law firm and two specialist libel barristers to advise them. The fact that legal aid is not available for libel cases is a matter for Parliament, not McDonald's. * The group have suggested that McDonald's used "spies" to infiltrate the group - it is important to note that their meetings were advertised as public meetings and, in order to establish precisely who was responsible for distributing the lies in the leaflet, these meetings were indeed attended on McDonald's behalf. * These two individuals have chosen to defend the leaflet and, contrary to their claims that they are not actively involved they have, for many years, taken leading roles in a consistent campaign against McDonald's, including responsibility for organising demonstrations and anti-McDonald's fayres. * The group have complained that McDonald's has withheld evidence - McDonald's has complied fully with all obligations to disclose documents". The leaflet did not in fact allege that McDonald's damages the ozone layer, although such an allegation was made in the Defendants' pleaded Particulars of Justification of the charges in the leaflet. It appeared from the evidence that the Background Briefing was produced in order that it could be given to anyone, particularly journalists, who asked for information about the trial. The Second Plaintiff accepted that up to the filing of the Counterclaim on 3rd June,1994, the background briefing was sent to nine representatives of the media, whom I take to be potential routes to further, wide publication. Thereafter in June and July,1994, it was sent to eleven more. Thereafter again, it must have been sent to others who enquired because it was sent to Mr Ken Livingstone M.P. on 7th March,1996, and a German journalist in May,1996. Ms Steel and Mr Morris each claimed that the wording of each of the documents, the press release, the leaflet to customers and the background briefing, bore meanings which were defamatory of each of them. They pleaded a number of detailed defamatory meanings which can be boiled down to two main charges: firstly, that by distributing the leaflet with which this case is concerned, knowing that its contents are untrue, both Ms Steel and Mr Morris have persistently spread lies and intentionally made numerous false statements about McDonald's, thereby deliberately deceiving the public and thereby harming McDonald's staff, customers, suppliers and franchisees; and that they have tried to avoid responsibility for what they have done by falsely claiming that they have not been involved in a London Greenpeace campaign against McDonald's and by ignoring several letters sent to them since 1984 by McDonald's solicitors, complaining about the leaflet in question. In my judgment the third document put out by the Second Plaintiff from March,1994, onwards clearly bore those meanings and the first and second documents bore those meanings, save that they did not allege that the Defendants had falsely claimed that they had not been involved in a campaign against McDonald's. The sting was that the Defendants had published a leaflet which they knew to be untrue and that they had tried to avoid responsibility for it. The documents clearly stated that the widely and long published leaflet was lies published by the two remaining Defendants to the Second Plaintiff's libel action, who were in fact Ms Steel and Mr Morris and who could easily be identified although they were not named in the documents. Lies are false statements of fact which you know to be untrue. Mr Preston accepted this. He said that to him a lie was "something that is untrue....and known to be untrue....by the giver of the information". Lies go beyond and are generally more serious than careless or even reckless misstatements of alleged fact, although some careless or reckless misstatements may be so important that they are more serious than some lies. I cannot accept the suggestion by counsel for the Second Plaintiff that the use of the word "lies" was just an emphatic way of saying that the allegations in the leaflet were untrue. That may be so in some cicumstances where the word is used once or twice in immediate reaction to something which is forcefully challenged as inaccurate. But here the word "lies" was used repeatedly in carefully drafted documents. Nor do I accept that a defamatory charge of lying can be justified by proof that a hopelessly untrue statement was made recklessly, despite authority that a reckless misstatement may be as effective as a dishonest one in proving malice on the part of the maker. The charges of lying in the leaflet, but trying to avoid responsibility for it, are clearly defamatory, but the Second Plaintiff defended them in two ways. Firstly, it contended that the words of which Ms Steel and Mr Morris complain are true in substance and in fact and therefore justified. Alternatively it claimed that the words complained of were published in each case on an occasion of "qualified privilege" which protected it from a successful claim for libel. It said that the words were published in necessary, reasonable and legitimate response to, or anticipation of public attack upon both Plaintiffs, made or prompted by the Defendants, and that the words complained of were therefore published "pursuant to a moral or social duty and/or legitimate interest to protect the Plaintiffs' respective reputations from public attack and in each case the publishees were under a moral or social duty and/or had a legitimate interest to receive the same by way of response to or reasonable anticipation of the public attack". The Defendants contended, of course, that the contents of the leaflet were true, so there could be no question of lying. If parts of the leaflet were untrue then, they contended, they did not know then to be untrue. They believed everything in the leaflet to be true. Neither of them had ever received a letter from the Second Plaintiff or its solicitors, and they had not falsely denied being involved in a campaign against McDonald's, until they each got a letter with a copy of the writ in September,1990. The Defendants denied that qualified privilege protected the publication of the three documents. They contended that even if the documents were published on occasions of qualified privilege the privilege was vitiated by "express malice" on the part of the Second Plaintiff, that is with the dominant, improper motive of "a desire to vent its spite or ill-will towards the Defendants" and "to discredit the Defendants in the eyes of the media and the public prior to the trial." I will deal with the question of justification first, lies and avoidance of responsibility, before going on to qualified privilege. If my findings are sound, much of the leaflet is in fact untrue. It carries general, defamatory messages which I have judged to be untrue, such as being to blame for starvation in the Third World and being guilty of destruction of rainforest. Early on, it makes statements such as "McDonald's is one of several giant corporations with investments in vast tracts of land in poor countries, sold to them by the dollar-hungry rulers (often military) and privileged elites" and "McDonald's [is one] of the many US corporations using lethal poisons to destroy vast areas of Central American rainforest", which are untrue. The Defendants did not point me at any evidence or information which actually supports them. Even where I have found justification for the leaflet's general message, or part of it, in relation to advertising for instance, there was nothing to support some of the specific allegations made for instance the statement that "nearly all" McDonald's advertising is aimed at children. On the other hand some statements in the leaflet, inoffensive in themselves if taken out of context, are true or partially true. A diet high in fat, sugar, animal products (sodium), and low in fibre, vitamins and minerals has been "linked" with cancers of the breast and bowel, and heart disease. A "quarter-pounder" does contain a lot of water. So do an awful lot of food products on a weight for weight basis. Lettuce is nearly all water on a weight for weight basis. I do not doubt that few children are slow to spot the gaudy red and yellow standardised McDonald's frontages in shopping centres and high streets throughout the country, as the leaflet says. Moreover, I have judged some substantial defamatory messages to be true: culpable responsibility for some practices which are cruel to some of the animals which are used for McDonald's meat products, and exploitation of children to some extent by advertising, and low pay for the Second Plaintiff's workers. I do not find it necessary to go through every statement or allegation in the leaflet (let alone some which are not, like alleged responsibility for damage to the ozone layer) making findings as to what is true and what is untrue, where I have not already done so. The fact is that the majority of the defamatory charges are untrue, although some are true, and some of the inoffensive or less consequential statements of alleged fact are true, but some are untrue or misleading in their context. In my view the important thing so far as the counterclaim is concerned is to see whether there is anything untrue in the leaflet, which Ms Steel or Mr Morris knew to be untrue, it being for the Second Plaintiff to prove not only that it was untrue but also that Ms Steel or Ms Morris knew full well that it was untrue, that is a lie. The state of mind of each Defendant is to be considered separately, and I will take Ms Steel first. She is first of the two remaining Defendants and she gave evidence. I start from the firm view that she is by nature an honest woman, although I have been unable to accept some of what she told me in relation to the issue of publication. She gave her evidence on the issue of publication and other issues including her belief in the truth of the leaflet when she was under the pressure of litigation which it was important for her to win. Ms Steel was thirty years of age by the time that she gave evidence in July,1996. She was interested in environmental matters and animal welfare throughout her secondary school years and she started campaigning at the age of sixteen or seventeen. In her first witness statement, made in July,1993, and confirmed in her oral evidence in July,1996, Ms Steel said: "I am motivated to campaign against McDonald's, and other multinationals, because of my love for the planet we live on, and my love and respect for the people and animals living on it, and because of my desire to see a world free from exploitation and oppression". I have no doubt that those words genuinely express her own view of what her basic motives have been since she first joined London Greenpeace, and perhaps before that.
Ms Steel said that she believed that the contents of the leaflet complained of were true and that she had every reason to believe that they were true, from articles and books which she had read, from documentary films which she had seen and, so far as employment practices were concerned, from talking to people who had worked at McDonald's. She went into a little detail in her first witness statement which she read as part of her evidence, and in her additional oral evidence. Although it was difficult for her to say which of the documents, exhibited in Court to support allegations in the leaflet, she had seen before she attended the picket at the Second Plaintiff's head office in October,1989, for instance, she said that: "As far as I was concerned, none of the matters that are in the London Greenpeace fact sheet that we are being sued over were anything new. They were all things I had heard before from various sources, and I believed they were true. I can remember some specific things that I have read or seen before we got the writs. For example, "Working for the Big Mac"; I remember reading through at least part of that when I saw it in the London Greenpeace office. I remember reading parts of "Hoof Prints on The Forest". I also remember reading the Veggies' correspondence at some time, and in fact I remember reading the article that appeared in Peace News, which has been referred to in court, at the time, or around the time, that that would have been printed because I used to read Peace News on a fairly regular basis. So, as far as I was concerned, everything that I had read in the fact sheet I believed to be true, it was all things that I had seen elsewhere, it was nothing new". The contents of the Veggies leaflet were very largely the same as those of the London Greenpeace leaflet complained of. The Veggies retraction did include the statement that "we are now willing to apologise for having repeated claims for which we have been unable to trace specific evidence concerning the connection with McDonald's and the raising of beef on former Rain-forest". However, Ms Steel said that Veggies had been pushed into retracting because they were a limited company which could not afford to fight a libel case. The only other "retraction" was a rather half-baked concession that, by common usage, the words "murder" and "torture" were not yet widely used in connection with the killing of animals. Ms Steel said that she had her own experience of McDonald's litter and she had read pamphlets about the links between diet and heart disease and cancer and she had read about how minced beef and chicken caused food poisoning, and she had a concern about pesticide residues. She had views of McDonald's advertising. She had studied Agricultural Science at school and what she saw during her studies, including a visit to a slaughterhouse when she was about sixteen, turned her off her original wish to work in farming. Save in two respects relating to land in poor countries and the use by McDonald's of lethal poisons to destroy rainforest, I accept all this from Ms Steel, and it seems to me that a lot of her feelings about topics covered in this case were well set before she developed her antipathy to multinationals including McDonald's, although I believe that her involvement in the publication shows that she had a strong antipathy to McDonald's in particular before this action was started and that when the Plaintiffs sued her that antipathy grew even stranger. Ms Steel said: "Another thing about my belief in the fact sheet and whether or not it was true, I do recall it being said on a number of occasions -- and I think it appears in some of the leaflets that are in the trial bundles -- that McDonald's had written to London Greenpeace in 1984. Or, I mean, I do not suppose I knew the year that they had written, but it was always said that the group had replied saying, you know, go ahead, we have got nothing to fear, sort of thing. And the clear implication to me was that the group was firm in its belief that the leaflet was true and that they had nothing to fear from McDonald's trying to take any action to suppress it, or to taking any legal action over it. Obviously, I cannot say whether or not in fact the solicitors were replied to, but I just do recall that being brought up on a couple of occasions". In fact that 1984 letter was not about the leaflet complained of (Ms Steel corrected this later), and I am not sure whether it was answered, but it was about anti-McDonald's material from London Greenpeace and I have no reason to doubt that Miss Steel was told something to the effect that McDonald's had not followed up their 1984 objection to London Greenpeace's activities. They did not in fact follow it up, so far as anyone in London Greenpeace was aware, until 1990. She was sure that the three co-defendants who apologised to the Plaintiffs did so because they thought that it would be nigh on an impossible task to fight a libel case and the costs would be high. Ms Steel repeated that she believed that "the fact sheet" was true and that the shorter A5 leaflets which were being circulated to this day were true: "It is important to me as a campaigner to be trusted and it is important to me to put out truthful information, and I would never distribute something which I did not believe to be true. It is important to me that I am not publicly accused. I do find it offensive to be publicly accused of deliberately deceiving the public on matters of great public importance, and I state categorically I would never deliberately deceive the public on matters of such public importance as health, working conditions, the environment, animal welfare, and so on. They are just far too important things. .....as far as I can see, everybody who has ever talked about anti-McDonald's literature, who has ever distributed it or anything like that, has always believed in it and I have never ever heard anybody say that they thought it was untrue. If they had, then you know, I would have said something like, "Well, why do you think that?", and if they had a good reason I would say, "Well, we should not distribute it then". Because I am not interested in putting out false information. .....I would not spend five years defending something I did not believe to be true, and I would not risk getting made bankrupt to defend something that I did not believe in". When counsel for the Plaintiffs cross-examined Ms Steel on her belief in what the leaflet said, he concentrated on the allegations about starvation in the Third World and destruction of the rainforest. Ms Steel said that there was material which she had read which supported the allegation: "McDonald's is one of several giant corporations with investments in vast tracts of land in poor countries sold to them by the dollar hungry rulers (often military) and privileged elites, evicting the small farmers that live these growing food for their own people". She said that McDonald's did have investments in vast tracts of lands in poor countries. It had interests in the cattle that were raised there. Those investments were sold to them by the rulers. In my judgment Ms Steel was not giving honest answers when she gave evidence to that effect. She is an intelligent woman and she knows perfectly well that the leaflet means that vast tracts of land were sold to McDonald's by dollar hungry rulers (often military) and privileged elites. The interpretation of "investments" as the cattle on the land was argued for by her and Mr Morris, but it was a ruse, at odds with the words of the leaflet, to try to get round the plain fact that the statement in the leaflet, which I have quoted, was untrue and that there was nothing in any of the material which Ms Steel had seen to support it. Ms Steel said that she had read somewhere about McDonald's being one of the largest land property owners around. In fact "McDonald's's: Behind The Arches" which she bought and took to London Greenpeace's office, refers to the First Plaintiff making a lot of money out of real estate, but that was the land upon which its restaurants were built. "Hoof Prints on the Forest" has McDonald's in a chart of "companies with cattle ranching interests in tropical Latin America" but the entry against McDonald's was "hamburger franchises". Much later in her evidence Ms Steel referred to a paragraph in "Hoof Prints on the Forest" which stated that "more than one respected "environmentalist" has alleged that McDonald's operates a cattle ranch in Brazil. But the corporation denies [that]". I thought that was a completely inadequate basis, thought of very late in the day, for a belief that what the leaflet said about vast tracts of land in poor countries was true. In my view Ms Steel was pretending to have seen support for the statement which I have quoted, which she did not in fact have. She looked uncomfortable during this part of her evidence. However, Ms Steel also said: "Well, it is a common thing in political literature to read about governments in Third World countries and the privileged elites kicking the original inhabitants off the land and selling it on to multinational companies. Whether specifically McDonald's was named in what I had read, I could not say. But all I am saying is that this did not come as a surprise to me. If somebody writes a leaflet on behalf of a group, I trust them to check up what they are writing. And I had seen something about, like I was saying, about McDonald's owning lots of real estate and that, really, there was something about that in actual fact they made more money from the real estate than they did from the burgers and, I mean, this was early on in their history. And so it was not like, you know, that is contradicted by anything I personally know about McDonald's". When Ms Steel was asked where she had read that McDonald's were using lethal poisons to destroy vast areas of central American rainforest to create grazing pastures for cattle to be sent back to the States as burgers and to provide fast food packaging materials, she answered: "I have seen lots of programmes, books, reports and so on, about the destruction of rainforest sometimes using lethal poisons and that McDonald's had an involvement in that". If there were lots of such programmes, books, reports and so on, I would have expected Ms Steel to be able to put her finger on at least one of them. After all she must have seen the question coming when she decided to give evidence. But the best she could do was to say that there was something in "Hoof Prints on the Forest" about using lethal poisons. Then she said: "Can I just clarify something? I am not saying that the chapter about using lethal poisons names McDonald's. I am just saying that that was my understanding, that lethal poisons were one of the methods used by which deforestation took place and that McDonald's were implicated in using beef from ex-rainforest land and had involvement in it". She said that she was not saying that McDonald's was one of those that used lethal poisons to destroy vast areas of rainforest, but she said she knew the leaflet said that it was. Again Ms Steel looked uncomfortable during this part of her evidence and again, in my view, she was pretending to have seen support for the statement for McDonald's use of lethal poisons to destroy rainforest, which she did not have. Later in her evidence she reasserted that she believed that McDonald's had used lethal poisons to destroy Central American rainforests, deliberately, I thought, confusing that clear, categoric statement in the leaflet with the different concept of McDonald's using cattle from land which had been cleared by the use of lethal poisons. (In fact there was no evidence that McDonald's have used cattle from land cleared by lethal poisons). But were the untrue statements about the purchase of vast tracts of farming land and the use of lethal poisons to destroy vast areas of rainforest lies in Ms Steel's case? Has it been proved that she knew the statements to be untrue? In Horrocks v. Lowe [1975] A.C. 135 at page 150, Lord Diplock, speaking on the question of positive belief or "honest belief" of what a person published, said: "If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more". One should be slow to find that the person publishing defamatory matter has done so without honest belief in its truth. Although Lord Diplock was there dealing with the question of lack of honest belief as an indiction of express malice vitiating qualified privilege for a defamatory statement, a matter to which I must return, it seems to me that what he said applies equally strongly to judging whether a person has lied by saying something which he or she know to be untrue. Throughout the trial, and throughout what I know of their involvement with London Greenpeace, Ms Steel and Mr Morris have adopted what they see as superior, high, moral ground in relation to McDonald's, and I believe that Ms Steel was telling me the truth in the evidence which I have quoted earlier, to the effect that it did not come as a surprise to her to read what she found in the leaflet complained of, and that she trusted the author or authors to have checked what they were writing and that it was not contradicted by anything she personally knew about McDonald's. So she believed it. Ms Steel did not say this specifically in respect of lethal poisons, as she did in respect of the purchase of vast tracts of farming land, but as I heard her evidence, the clear inference was there. Ms Steel's attitude to the facts may not be a very reassuring one in someone who says that her reputation as a reliable campaigner is important, and it would have been better if she had told me at the start that she just took the leaflet to be true in these two specific respects. She clearly found the whole idea of making any concession to the Plaintiffs intolerable, as I have said before. For all that, however, at the end of the day I am not persuaded that at the time of relevant publication of the leaflet, or at the time when the Second Plaintiff published its allegation of "lies", she knew that the allegation of sale to McDonald's of vast tracts of farming land in poor countries and the allegation of the use by McDonald's of lethal poisons to destroy vast tracts of rainforest were untrue. I believe that she knows now that both allegations are untrue, whatever she may say, but I am not satisfied that she knew then. The statements about the sale to McDonald's of vast tracts of farming land in poor countries and the use by McDonald's of lethal poisons to destroy vast tracts of rainforest were the high water marks of the Second Plaintiff's case that Ms Steel had known that what was in the leaflet was untrue and that she had, therefore, lied. In the other parts of the leaflet, even where I have held its defamatory messages to be untrue, there was material upon which Ms Steel could base a belief that the allegations were true, if she chose to. In all these circumstances I hold that the defamatory message of the press release, the leaflet to customers and the background briefing to the effect that by distributing the leaflet with which this case is concerned, knowing that its contents were untrue, Ms Steel had persistently spread lies and intentionally made numerous false statements about McDonald's, thereby deliberately deceiving the public and thereby harming McDonald's staff, customers, suppliers and franchisees, has not been justified. So far as Mr Morris is concerned the question of whether he knew anything in the leaflet to be untrue is more difficult because he did not give evidence. However, I saw a lot of him in Court between November,1993, and December,1996, and although his feelings carry him away in the froth of his own turbulence from time to time, I start from the firm view that he is by nature an honest man of strongly held beliefs, well-founded or not. I have a suspicion, though suspicion it must remain, that he eventually chose not to give evidence, in part at least because honesty would require him to make admissions of involvement in the production and publication of the leaflet complained of, which he hoped the evidence would not prove to my satisfaction. He had also had an opportunity to see how Ms Steel fared under cross-examination before he made his final decision not to give evidence. But I put those thoughts aside as mere speculation. Mr Morris did seek some confirmation of his own frame of mind from Ms Steel when he "cross-examined" her, and she did say: "I personally am convinced that the criticisms made of McDonald's are true. And every time I have ever discussed it with you, you have given every indication that that is your view as well. ......Throughout all the time I have known you, you have been concerned about a wide range of issues, social, environmental, and about trying to change society to end exploitation and oppression of people and of animals and of the environment". Ms Steel had never heard Mr Morris express a grudge against McDonald's. As far as she was concerned both of them believed that they were defending the truth. That was why they wanted to see the case through. Even supposing that such evidence was admissible as evidence of what Mr Morris believed as opposed to evidence of what he purported to believe, I do not attach much weight to it, when it would have been so easy for Mr Morris to tell me himself, from the witness box. However, as with Ms Steel it is for the Second Plaintiff to satisfy me that Mr Morris knew that some statements, at least, in the leaflet which he continued to defend up to the time of the allegations of "lies" were untrue. Like Ms Steel, Mr Morris must have known of the Veggies compromise and probably saw it as confirmation by McDonald's of many of the allegations contained in the leaflet, which he wanted to believe. Although I am satisfied that Mr Morris was involved in the original production of the leaflet, I am not satisfied that he played any part in writing it. Although there was no direct evidence of it, I believe that there is room for Mr Morris like Ms Steel, believing what the author or authors of the leaflet, whom I believe he knew well, had written so long as it was not contradicted by something else which he knew. In my judgment the Plaintiffs have not discharged the burden of justifying the defamatory message of the press release, the leaflet to customers and the background briefing to the effect that by distributing the leaflet with which this case is concerned, knowing that its contents are untrue, Mr Morris had persistently spread lies and intentionally made numerous false statements about McDonald's, thereby deliberately deceiving the public and thereby harming McDonald's staff, customers, suppliers and franchisees. I turn to the charge that Ms Steel and Mr Morris tried to avoid responsibility for what they had done by falsely claiming that they had not been involved in a London Greenpeace campaign against McDonald's and by ignoring several letters sent to them since 1984 by McDonald's solicitors, complaining about the leaflet in question. I see no practical difference between Ms Steel and Mr Morris, although he was involved with London Greenpeace in 1984, and she was not. The Second Plaintiff's solicitors only ever wrote two letters at most to London Greenpeace, until they sent letters on 20th September,1990, with the writs. The first letter was dated 13th December,1984, and it asked "London Greenpeace" to disassociate itself from a leaflet which was being distributed in North London. The leaflet in question was not the leaflet complained of in these proceedings, which first saw the light of day in 1986, but it did carry some of the same features and allegations as the later leaflet complained of. There was no further correspondence between the Plaintiffs and London Greenpeace until the possible further letter in 1987 or 1988. No copy of any such letter has been discovered, but the terms of London Greenpeace's aims and objectives leaflet indicate that a letter was written to London Greenpeace in 1988 and they do not suggest that it was answered.
There was, of course, the correspondence between the Plaintiffs' solicitors and Veggies about their similar leaflet in 1987 and 1988, but there was no further correspondence with London Greenpeace or anyone associated with it until the identical letters dated 20th September,1990, which accompanied sealed copy writs, forms of acknowledgement of service and copies of the Statement of Claim in these proceedings, which were sent to each of the original five defendants including Ms Steel and Mr Morris, on that date. Those September,1990, letters were answered by the solicitors who acted for the Defendants at the time. In my judgment the allegation of several unanswered letters was made in order to paint the Defendants as unresponsive to attempts by the Second Plaintiff to deal with publication of the leaflet without recourse to litigation, and it was inaccurate. Nevertheless, there was justification for the allegation that the Defendants claimed that they had not been involved in a London Greenpeace campaign against McDonald's. Their formal Defence pleaded: "It is denied that the Defendant (sic) and each of them published or caused to be published and/or were party to the distribution and publication of the said leaflet entitled "What's wrong with McDonald's?" as alleged in paragraph 3 of the Statement of Claim". Admittedly that might have related to the specific details of publication pleaded in paragraph 3 of the Statement of Claim and in her answers to Interrogatories in March,1993, Ms Steel admitted some involvement in London Greenpeace's anti-McDonald's campaign. But she never admitted involvement in the anti-McDonald's campaign to the extent of participation in the publication of the leaflet, which was what the case was all about. Nor did Mr Morris whose answers to Interrogatories in March,1993, said that he could not remember whether he took part in or became involved in or participated in the campaign in 1989 or 1990. In reply to an Interrogatory as to whether London Greenpeace produced the leaflet complained of as part of its anti-McDonald's campaign he replied, merely: "I believe so". Ms Steel gave the same answer to the same Interrogatory. The witness statement which Ms Steel served in July,1993, limited her involvement with the anti-McDonald's campaign and said that she did not ever remember handing out the leaflet complained of. Mr Morris's served witness statement accepted some involvement in the anti-McDonald's campaign, but by the time that the Second Plaintiff published the three documents of which the Defendants complained, neither of them had accepted responsibility for full involvement in the anti-McDonald's campaign or for publication of the leaflet complained of, and they have never done so. The reality is that they tried to avoid responsibility. Ms Steel gave evidence to the effect that if she had received letters asking for an apology for the allegations in the leaflet she would not have given it, and I would not have expected Mr Morris to have given one either. The reality is that in their three publicity documents, put out as the trial approached, the Second Plaintiff was trying to portray itself in a favourable light by claiming attempts to resolve matters by letters sent to intransigent Defendants. The Second Plaintiff had not tried to resolve matters by correspondence but the fact is that the Defendants would have been intransigent anyway.
In my judgment the Defendants did try to avoid responsibility for what they had done by seeking to limit their involvement, and by denying participation in the publication of the leaflet complained of. In my view the allegation of ignoring several letters sent to them since 1984 by McDonald's solicitors, complaining about the leaflet was an inconsequential detail in those circumstances. The main thrust of the defamatory parts of the three documents was that the Defendants had told lies in the leaflet, spreading its untruths knowing them to be untrue, and moreover that they had denied responsibility for the leaflet. The second part of this was justified in substance and in fact, but the first part was not, and it follows that the Second Plaintiff must sustain its defence of qualified privilege if it is to avoid an award of damages to Ms Steel and Mr Morris for the accusation of lying. The basis of the qualified privilege claimed by the Second Plaintiff on the facts of this case is "the right to reply to attack". Counsel for the Plaintiffs gave me a number of references to authorities and text books to support his propositions of law from which I take the following principles. Where a person (including a company) is the subject of an attack upon his character or conduct the law permits him (whether out of duty or interest) to answer that attack to anyone who has an interest in receiving, or a duty to receive his reply, and any defamatory statements about the attacker contained in his reply to the attack are privileged and immune from a successful claim for privilege subject to certain qualifications. Firstly, it is important to note that to be covered by the qualified privilege of reply to attack the reply must be published to those who have a common or corresponding duty or interest to receive it. This will usually mean the persons or class of persons to whom the original attack was published, but where the attack has been made publicly, the reply may be made publicly because the public have an interest or duty to receive the reply. Where the attacker makes an appeal to public opinion the person attacked is entitled to answer by counter-appeal. Secondly, to be covered by the qualified privilege of reply to attack the reply must be broadly speaking relevant to the defence to the attack. In Adams v. Ward [1917] A.C. 309 at page 320-321 Lord Loreburn said of both those qualifications:
So, in my view, a person who is publicly attacked may be entitled to communicate his reply to the media with a view to publication in the media where that is commensurate to wide publicity achieved by the original attack and that attack relates to matters of public interest, so that publication of the reply to the media with a view to its wide dissemination is no more than reasonable self-defence to a public charge. There is nothing to gainsay this, in my view, in the cases which establish that there is no general "media privilege" protecting statements in which the public may be interested. Moreover, the contents of a reply to attack do not became irrelevant so as to fall outside the privilege given to a reply to attack, just because the terms in which it is expressed are excessive and not strictly necessary to the discharge of the duty or the protection of the interest which is the foundation of the privilege. In Adams v. Ward, Lord Loreburn went on to say that in ruling an excess of privilege "a judge may well think that a man is justified in inculpating his accuser in order more effectively to exculpate himself, and also may well think that the defendant has not exceeded the privilege when he has expressed himself with some warmth under real provocation, though no one can be justified in using such an occasion beyond the reasonable limits of self-defence". In Murray v. Batley and another, unreported, Court of Appeal, 6th August,1992, a case of reply to attack, Ralph Gibson L.J. referred to what Lord Loreburn said in Adams v. Ward and to the reasoning Lord Diplock in Horrocks v. Lowe [1975] A.C. 135 and, at pages 36 and 37 of the transcript, he concluded that "...... it seems to me that, in a case of this nature, the judge in deciding whether the words used were reasonably appropriate to the occasion and therefore relevant and pertinent, should not proceed by any strict test of asking whether it was necessary to use the words in order to reply to the attack, or whether an effective reply to the attack could have been made without reference to the subject matter of the words which were used. He should consider the words used in the context of the attack made, and of the general circumstances in which that attack was made, and then decide whether the words used were capable of being fairly regarded as reasonably appropriate". However, the third qualification to privilege in reply to attack is that the privilege is lost if the reply is made with actual or express malice, that is with a sole or dominant motive which is improper so that the privileged occasion is abused, and where a statement is excessive having reference to the privileged occasion, albeit relevant to it, the excess is material as evidence of malice. In Adam v. Ward, at page 327 to 328, Lord Dunedin adopted the law as laid down by Lord Esher M.R. in Nevill v. Fine Arts and General Insurance Co. [1895] 2 Q.B. 156 at 170: "There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it. Instances have been put during the argument of cases where a defendant on an occasion which is privileged as between himself and some other person makes some defamatory statement affecting a third person which has nothing to do with the privileged occasion, in which case, of course, that third person would have a right of action against the defendant, and, as between him and the defendant, there would be no privileged occasion. But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice". The other possible indicator of express malice, relevant to the circumstances of this case is lack of honest belief in what is said, by the person claiming privilege. Guidance on how to approach the question of express malice, lack of honest belief in the defamatory matter and the incorporation of defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded, was given by Lord Diplock in Horrocks v. Lowe, to which I have already referred, at pages 149 to 151. I take the following points to guide me. Firstly: "In all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege. So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. "Express malice" is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests". Secondly: "The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be provided that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person. Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief"". Then follows the reference to not equating indifference to the truth with carelessness, impulsiveness or irrationality in arriving at a positive belief in defamatory matter, which I have quoted earlier. Thirdly: "Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true. Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found". Fourthly, malice may be inferred "where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded". But the test is not merely whether the defamatory material is logically unnecessary, but whether it can be inferred that the person publishing, even though believing it to be true, realised that it was not necessary but nevertheless dragged it in to vent his personal spite, or for some other improper motive. Finally, Lord Diplock made it clear that one should be slow to find that the person publishing defamatory material has done so without honest belief in its truth, as I have already said, and slow to draw the inference that some unnecessary allegation has been to vent spite or for some other improper motive. The burden of proving express malice is not one that is lightly satisfied. The Defendants argued that the Second Plaintiff was fixed with actual malice on the part of Mr Preston or Mr Nicholson or Mr Mike Love, its Head of Communications, or Ms Eddie Bensilum, an Assistant Public Relations Manager. The burden of establishing that defamatory material was published on an occasion of qualified privilege, lies on the party who claims the privilege and in this case the Second Plaintiff pleaded and contended that the words of which the Defendants complained were published on occasions of qualified privilege because they were in each case published in necessary, reasonable and legitimate response to or anticipation of public attack upon the Plaintiffs, made or prompted by the Defendants in the form particularly of material published by the "McLibel Support Campaign", in which the Defendants were alleged to have played a full part. The Second Plaintiff did not contend, for its case of qualified privilege, that the "reply" was to the original "attack" made by publication of the leaflet between September,1987, and September,1990, upon which its own claim in the proceedings relied. That attack was, of course, about to be subjected to formal trial. The Second Plaintiff pleaded and contended that the public attack comprised a variety of material put out or prompted by the Defendants as part of the "McLibel Support Campaign", after the commencement of the Plaintiffs' libel action, and involving a repetition of the allegations in the leaflet complained of, assertions that those allegations were true, and criticism of the Plaintiffs for having instituted and continued libel proceedings against the Defendants to intimidate the Defendants and to suppress freedom of speech. In argument it was contended that the public attack also involved a false allegation that the Second Plaintiff had suppressed material documents to cover up the truth contained in the leaflet complained of. It was contended that the words of which the Defendants complained were published pursuant to a moral or social duty or pursuant to a legitimate interest to protect the Plaintiffs' reputations from public attack, for the benefit of its staff, shareholders, suppliers and franchisees whose interests were obviously affected by the Defendants' unjustified attack and for the benefit of its customers in whose interest it was to know the truth, namely that the Defendants' attack was unjustified. The Second Plaintiff alleged that those to whom each document was published by the Second Plaintiff were under a moral or social duty or had a legitimate interest to receive the same by way of response to or reasonable anticipation of the Defendants' public attack. The moral and social duty of those to whom the documents were published was to receive the truth, namely that the Defendants' public attack was unjustified. In his final submissions counsel for the Second Plaintiff put the basis of the privilege into ordinary language, as follows:
Within a month of service of the writ "The McLibel Support Campaign", otherwise, to start with, "the McLibel 5 Support Campaign", which gave its address as "c/o London Greenpeace 5 Caledonian Road ..." started putting out leaflets reasserting the truth of the leaflet complained of and attacking the Plaintiffs for taking legal action. Ms Steel sought to limit her direct involvement with the McLibel Support Campaign when giving evidence, but one of the early leaflets contained the statement:
If McDonald's think we will apologise to them they are wrong. We are going to fight them every inch of the way and are launching the McLibel 5 Support Campaign to raise money and bring public attention to their crimes. It is going to be extremely costly to fight this action but we know from the past six years that we will have huge public support. McDonald's are going to regret ever taking us to court". In my judgment it was an early indication that Ms Steel and Mr Morris were not going to be content to fight the matter in Court. I do not criticise them for this. Whether or not it was true, it would be understandable if they thought that, with legal aid unavailable for libel cases even if the Legal Aid Board had thought that there was enough merit in their defence to finance it, and unable to finance legal representation out of their own pockets, they would be at a considerable disadvantage in Court against two wealthy companies represented by able lawyers, unless they could raise enough money by voluntary public subscription to pay their own legal expenses, in getting their witnesses to Court at least, or they could put sufficient public pressure on the Plaintiffs to make them drop their claim. They were entitled to do anything lawful to achieve those ends, but they must have known that the Plaintiffs might fight back and that the harsher their out of court campaign, the harsher might be the response. The early leaflets were followed by many others, and I will take only a few examples. In about February,1991, after three of the original Defendants had decided to apologise, a leaflet was produced, with the heading "McLibel Support Campaign - McDONALD'S vs LONDON GREENPEACE". It ended with the statements "McWrits may win in the Courts - which are there to protect the rich and powerful -but we can win on the streets. What McDonald's fear most is bad publicity and loss of custom", "the campaign needs your support", "Picket your local McDonald's", and "Boycott all McDonald's -demand they drop the McLibel action". It invited those who read the leaflet to "Come to a planning meeting of the McLibel Support Campaign at ...... 6 Endsleigh Street" and to send donations to "The McLibel Support Campaign, c/o London Greenpeace, 5 Caledonian Road, London, N1". The leaflet spoke of "McDonald's" but in the context of the legal proceedings to which it referred this could only mean the two Plaintiffs. It accused them of "intimidation" by bringing the proceedings. It set out the points which the Plaintiffs' writ was said to allege against the Defendants, before saying that the Plaintiffs were not concerned with the truth, and calling them "McLiars", and saying that they had turned to the legal system to suppress free speech and fair criticism. In May,1991, the "McLibel Support Campaign, Greenpeace (London)" issued a press release publicising a protest to be held outside the Second Plaintiff's head office in East Finchley, accusing the Plaintiffs of a serious threat to civil liberties and calling on them to drop the libel action. Ms Steel and Mr Morris were among those who attended and took part in the protest. On 9th November,1991, Ms Steel and Mr Morris took a prominent place in a march through part of London. The many placards and banners carried by marchers included a number of identical placards bearing the legend: "Fight Censorship, Smash McDonald's". Leaflets, "updates", "mailouts", summaries and newsletters were produced by the campaign on the Defendant's behalf as the proceedings dragged through various interlocutory stages in 1992 and 1993. The thrust of the campaign's message was that the allegations in the leaflet complained of were true and that the trial would prove it; that nevertheless the Plaintiffs were trying to suppress free speech and pressure should be put on them to drop the case; but that funds were required for the legal battle which looked like going ahead; and that the Plaintiffs had withheld vital documents from disclosure. The case and the campaign against it received wide publicity in national and local newspapers and magazines and on radio and television. It was originally expected that the case would be tried in 1993 but it was put off to the 28th February,1994, and then to 18th April,1994, and then to 28th June,1994, when the trial of the action started in Open Court. The publicity surrounding the case increased as trial dates approached. In January, February and March,1994, when it was expected that the trial would start on 28th February,1994, later 18th april,1994, the McLibel Support Campaign put out six documents upon which counsel for the Second Plaintiff particularly referred for its claim to qualified privilege. The first was a "Summary Jan 94". Among other matters it accused "the McDonald's Hamburger Corporation" of being "a profiteering racket", of trying to "create a climate of intimidation against activists" by issuing the writs in the action, of trying to cover up the fact "that they are a fraud" and of threatening free speech. The second was an "Update 11th January,1994". Among other matters it accused the First Plaintiff expressly, and the Second Plaintiff by inference, of censorship and withholding documents. The third was a "Pre-trial Mailout - End of Jan 1994". It accused the Plaintiffs of "censorship and legal thuggery". The fourth was a leaflet publicising a day of action at McDonald's stores throughout London. It started with the statement: "McDonald's have got billions of pounds to play with, extensive media contacts, a huge City Law firm working on the case and direct access to the public via their 'McFact' cards at their 474 UK stores. We just have each other and our determination to expose and to fight injustice. We have built up a countrywide network of hundreds of supporters (groups and individuals), but we need more individuals to join the London MSC group". Although the leaflet was put out by the McLibel Support Campaign, some of the "we"s in the leaflet clearly referred to the Campaign as a whole rather than just Ms Steel and Mr Morris alone, and I have no ground for finding that Ms Steel and Mr Morris actually wrote it, the statement "we just have each other" clearly referred to the two of them alone, in my judgment, and it must have been put out with their active agreement, as must the other campaign leaflets. The fifth document was a "McLibel - Backgrounder, Fri, Feb 11,1994" from the "Press Office, c/o London Greenpeace, 5 Caledonian Road, London N1 9DX 071-837-7557", and it was marked "For Immediate Release". It referred to the many witnesses whom the Defence proposed to call, and it said that free speech was on trial. Those who wanted more information were invited to contact "McLibel Support Campaign Press Office - 071 837 7557". It appears to me to be a press release. The last particular document, was another press release headed "McLibel Trial No-Jury Appeal Set". It was dated 5 March 1994 and had the same London Greenpeace Press Office reference and "For Immediate Release" marking. The 5th March,1994, was nine days before the first apparent publication of the first of the Second Plaintiff's document of which the Defendants complain in their counterclaim. The Press Release quoted Mr Philip Leach, Liberty's legal officer, as saying: "The case concerns fundamental issues of access to justice, the right to a fair trial and freedom of speech. Steel and Morris are denied legal aid for lawyers to defend their case and since 1990 have defended themselves against a team of experienced libel lawyers acting for McDonald's". The Press Release said that "Steel and Morris" were determined to resist censorship and defend the truth. It quoted them as saying: "We have had to fight at every stage to defend our legal rights and freedom of speech. The business practices of multinationals should be subject to public scrutiny without fear of censorship. Robert Maxwell's dependence on legal intimidation to silence his critics was eventually shown to have not been in the public interest. This case is also of great public interest". In my judgment the reference to Robert Maxwell meant that the Plaintiffs were using legal proceedings to avoid disclosure of their wrongdoing. All the Campaign's January, February and March,1994, publications to which I have just referred, called for funds or help in fund raising to help meet the costs of the approaching trial. I have no doubt that the media publicity was in part engendered by the efforts of the McLibel Support Campaign although the Plaintiffs must have expected that their commencement of proceedings would draw publicity which, equally, they must have expected to be favourable to the McDonald's system. The Defendants contended that there was no satisfactory evidence of their involvement in any of the particular items put out by the campaign, but on the strength of what I see as the Defendants' clear and express involvement in the first McLibel Support Campaign leaflet to which I have referred, their part in the May,1991, protest at the Second Plaintiff's head office, their part in the November,1991, march, their express involvement in the January,1994, "we just have each other" leaflet and in the 5th March,1994, Press Release in which they were quoted, as well as their obvious wish to drum up public antipathy to the Plaintiffs' legal claim, I have no doubt that both Ms Steel and Mr Morris played a full part in the activities of the McLibel Support Campaign from beginning to end including the January to early March,1994, documents. Those activities amounted to an attack which involved a repetition of the allegations in the leaflet complained of, by summaries of the points at issue and averments that the contents of the leaflet were true. It involved criticism of the Plaintiff for having taken and pressed on with an intimidatory libel action, and for allegedly trying to silence its critics and trying to defeat the right to freedom of speech. It involved accusing the Plaintiff of keeping vital documents hidden away. I have no doubt that the Second Plaintiff had an interest in replying publicly to that attack in order to seek to protect its reputation and that it had a duty to do so in the light of the large number of people to whom its continued trading success, reliant as it must be on its reputation and brand image, was important; not just to the First Plaintiff and to stock holders in the First Plaintiff which owns it, but employees, franchisees and suppliers with an interest in the McDonald's system. In my judgment the media generally, having been made aware of the attack, had an interest and duty to hear the Second Plaintiff's reply so that it might have the accounts of both sides in what had became a very public dispute on matters of important public interest. The Second Plaintiff had a similar interest and duty to bring its reply to the attention of its customers, by publication of its reply in its restaurants if it chose to use that method, and the customers had an interest and duty to hear its reply so that they heard the accounts of both sides. Mr Preston said that in January,1994, it became clear that the Defendants, through the McLibel Support Campaign, were intensifying their publicity efforts with a view to manipulating public opinion in the run-up to the trial. I accept that Mr Preston believed that that was happening and in my judgment he was right. Mr Preston said that it was clear that as the trial approached and media interest increased there was a real danger that McDonald's customers, franchisees, employees and their families might be misled into accepting what the Defendants, through the McLibel Support Campaign, were saying if it was allowed to pass without challenge. "We wanted to put the record straight". From time to time before January,1994, the Second Plaintiff responded to enquiries from the media about the libel proceedings but in or about January,1994, it involved Scope Communications Management, a company which it retained for public relations services, to prepare briefings for employees and "key media" in the run up to 28th February when the libel action was expected to start. The "goal" of "McDonald's London Greenpeace Trial Communications Strategy", according to a scope memorandum, was:
Mr Preston accepted that this was the goal. The aim was not, he said, to discredit the Defendants publicly or to undermine their attempts to raise donations from the public. The memorandum stated that the "Communications Objectives" were:
The first draft briefing appears to have been for internal use, but two of the topics for a "PR brainstorm" on 28 February, by which date the trial had gone off until April, were:
What impact will local coverage have on restaurants, and how will staff deal with customer questions? Should we have a leaflet prepared for handing out in response to questions, or even included in the leaflet dispensers?". The minutes of the meeting recorded, among other matters:
Agreed to prepare bullet point information sheet for customers who ask restaurant managers about the case". Mr Nicholson was present at that meeting, although he said that his presence at that and other meeting was to give factual background. Mr Preston was not present at that or other meetings, although he said that he was kept informed of what was going on. He said that he was not involved in drafting the three documents which were produced but he was sure that he was shown them for approval before they were released. Counsel and solicitors were present, indeed the meeting was held at the solicitors' offices, but the majority of those present were public relations and communications people including Mr Mike Love, the Second Plaintiff's Head of Communications, and Ms Bensilum. From 14th March,1994, the three documents of which the Defendants complain, were published. Ms Steel and Mr Morris contended that the three documents were not a response to any attack by the McLibel Support Campaign, let alone by them, the Defendants. They contended that the three documents were simply a carefully timed attempt to discredit them on the eve of the trial. In my judgment those arguments fail to take sufficient account of the strong terms of the McLibel Support Campaign's attack on the Plaintiffs, particularly at the beginning of 1994 and of the actual terms of the three documents. I have only referred to a few of The McLibel Campaign's documents. They were expressed in challenging, provocative language, and although the contents of the three documents of which the Defendants complain, generally seek to portray the Plaintiffs in a good light, they pick up a number of the points made by the Defendants, as part of the McLibel Campaign, in their public attack; the alleged assault on the principle of free speech, the alleged cover-up of the truth and the alleged intimidation by the proceedings and by the claim for damages and costs. The Scope minutes offer some confirmation of Mr Preston's evidence that he and others wanted to set the record straight as they saw it. The parts of the three documents, which expressed the defamatory charges of which the Defendants complain, were clearly relevant to the defence to the attack. The allegation that the leaflet was "lies" went to the assertions that the allegations in the leaflet complained of were true and to the assertions that the Plaintiffs were trying to cover up the truth, and to the question of why the Plaintiff should want to sue the Defendants for libel. The allegation that the Defendants had tried to avoid responsibility for what they had done and ignored several letters went to the question of why the PLaintiffs should need to sue and to the allegation of intimidation. So in my judgment the three documents and their contents, defamatory of the Defendants, were published on occasions of qualified privileged and they are protected by qualified privilege unless they are shown to have been published with express malice, that is with a sole or predominant motive which was improper, most readily demonstrated by lack of honest belief in their truth. The Defendants contended that the four people whom they named, Mr Preston, Mr Nicholson, Mr Love and Ms Bensilum, could not have honestly believed that they had lied in the leaflet or that they had failed to answer several letters. They argued that it was not necessary to accuse them, wrongly, of lying and that it was not necessary to accuse them, wrongly, of failing to answer several letters, and that the motive or dominant motive for making those defamatory statements was to damage the credibility of the Defendants on the eve of trial, to deter people from making contributions to the Defendants' costs of the trial and, generally, to vent its spite on the Defendants, when it could perfectly well have published material putting over its point of view that the leaflet complained of was untrue, without alleging lies, or, better still, waited a short while for the trial to put its case. It could not be right that anyone who brought a libel action, knowing that it would attract media attention, could go out and try to discredit the character of a Defendant. It was not a coincidence that the Second Plaintiff produced material defamatory of the Defendants on the eve of the trial. It was deliberately timed and carefully crafted to cause the Defendants the most damage. Ms Steel and Mr Morris did not spend much time on the question of the express malice of the four individuals or the Second Plaintiff, their employer, when addressing me on the question of the counterclaim. But they did refer, directly or indirectly in final submission or cross-examination, to various matters for their contention that the Second Plaintiff and particular officers had no honest belief in the defamatory parts of the three documents of which the Defendants complained and that the three documents and their defamatory contents were published for an improper motive. I will try to gather together, what I understood to be their particular points. Mr Preston, Mr Nicholson, Mr Love and Ms Bensilum must have known that the Defendants believed in the truth of the leaflet complained of and that it was not therefore "lies" in their hands, because by the beginning of 1994 they had produced a large number of witness statements which, it was said, demonstrated the truth of many allegations in the leaflet. Mr Preston accepted in evidence that he could have made his point without referring to "lies". Both he and Mr Nicholson must have known that the 1984 letter to London Greenpeace was written about another leaflet and that there was at best only one further letter in 1987 or 1988 to anyone associated with London Greenpeace before the September,1990, letters covering the writs. Since Mr Nicholson attended meetings to help those who produced the three documents, about the background to the litigation, he must have passed this information on to Mr Love and Ms Bensilum. Ms Bensilum must have known that she was not telling the truth when she wrote to an enquirer on the 18th May,1994:
As you have seen, the allegations in their leaflet are of an extremely serious nature and potentially very damaging. Our initial contact with the group was a letter written in December 1984 and since that time we have made repeated attempts to present our position to the group and demonstrate to them the fact that their allegations were untrue, however they have ignored our correspondence and refused to stop further publication of the leaflet". The Background Briefing was calculated to give the impression that a City Law firm and two specialist libel barristers had been appointed to act for the Defendants generally in the proceedings, when they had only acted on a pro bono basis on an interlocutory appeal, as Mr Nicholson who followed all the proceedings carefully must have known and as he must have told Mr Love and Ms Bensilum. Mr Love wrote to Mr George Galloway MP on 3rd July,1995, saying: "It has never been our intention to seek damages or to recover costs from the defendants", and that became a recurring theme of the Second Plaintiff's public pronouncements. Yet the Plaintiffs were still claiming costs and the letter came long after the three documents in March, April and May,1994, but it showed that the Second Plaintiff and Mr Love in particular had no regard for the truth. On 8th March,1996, Mr Preston signed a further witness statement which must have been prepared some time before, accepting that it was wrong to say that several letters had been written to London Greenpeace and remained unanswered. Yet the Second Plaintiff continued to send out the Background Briefing uncorrected on this point. This demonstrated that the Second Plaintiff had no honest belief in that part of the Briefing which dealt with unanswered letters. Mr Love, in particular, must have known that it was untrue when he sent a copy of the Background Briefing to Mr Ken Livingstone on 7th March,1996. A month before that, on 6th February,1996, he had written to Mr Livingstone saying: "It has never been our intention to seek damages or recover costs from the defendants". In fact he must have known that damages and costs were still being claimed. The same applied to the Briefing which he sent to Stern in May,1996. Neither Mr Love nor Ms Bensilum was called to refute an inference of express malice. The allegation of lies, the allegation of unanswered letters, and the other allegedly dishonest statements were not necessary to reply to any attack from the Plaintiffs and they could only have been an improper attempt to discredit the Defendants and to lessen their prospects of obtaining donations towards their legal costs on the eve of trial and to vent spite on the Defendants. All that amounted to express malice. It is convenient to deal with the allegations of bad faith first. I saw Mr Preston in the witness box for the best part of seven days; three in July,1994, and four in May,1996. He left me with two strong impressions. First, he is a decent man. Second, he reveres McDonald's and all it stands for. Whatever others may think, to his mind the McDonald's brand image of a benevolent, community-based, family aware, green giant providing consistent quality, service, cleanliness and value, to which I referred in the introduction to this judgment, is true. I have no hesitation in accepting that he believed that the leaflet complained of consisted of lie after lie. On 30th June,1994, when asked about the allegations in the leaflet complained of, he said: "They are not true. There is not a thing in that document which is true, not one single solitary thing; that is damaging to my reputation, it is damaging to the reputation of the entire system, its licensees who have made an investment in their communities who employ individuals, it is damaging to our suppliers, who service the organisation. I take the comments across the top of the leaflet to call me a murderer, to call me a killer, to call me a liar. I take great offence to that". On 7th May,1996, he accepted that people could criticise McDonald's because they believed the criticisms to be true, but not in the case of Ms Steel and Mr Morris who talked about smashing McDonald's. When asked by Mr Morris about the three documents attacking Mr Morris and Ms Steel for distributing lies and asked to name what in the "factsheet" they knew to be a lie, Mr Preston said that they knew the whole thing to be untrue "and you went ahead and talked about it anyhow". Mr Preston rationalised his belief by saying that Ms Steel and Mr Morris must have known that the leaflet was untrue because their three co-defendants had apologised as had arms of the media which had made similar allegations to some of those made in the leaflet, and because by the beginning of 1994 they had seen the Plaintiffs' witness statements. He was not impressed by the defence witness statements. He particularly mentioned the allegations in the leaflet of buying vast tracts of farming land and of using of lethal poisons to destroy rainforest. Mr Robert Beavers, Senior Vice President of the First Plaintiff Corporation and an Executive Member of its Board of Directors said that he found everything which he read in the leaflet complained of "completely untrue". He was "quite shocked" at some of the things he read in it. The McDeadly, McCancer, McMurder, McTorture etcetera banners particularly shocked him. Like Mr Preston he is a decent man and like Mr Preston he reveres McDonald's and all it stands for. He told me: "I think that the business is almost magical to some of us, in the sense that you are so motivated, so involved in working with the different aspects of McDonald's, that we have often used the phrase, many of us old-timers ...... that if you were to cut us ...... we would probably ...... bleed ketchup". Other used the same metaphor to express their feeling for McDonald's. It is true that Mr Beavers said that "we are not perfect. We strive for perfection and from time to time we make mistakes, but I think the important thing is that when we make mistakes, we clear them up and go on". But I think that Mr Beavers was thinking of operational details when he said that. It is a short step from believing that a leaflet covering a number of topics going to the heart of the operations of the business which one reveres, is completely untrue to believing that it is all "lies", however defined. Some of Mr Preston's rationalisation of why the Defendants must have known it to be true may not on analysis hold water, but I have no hesitation in accepting that from his particular point of view the whole substance of the leaflet was untrue and that he genuinely believed that Ms Steel and Mr Morris knew it. I have no reason to doubt that Mr Nicholson, Mr Love and Ms Bensilum shared their Chief Executive Officer's view. So far as the assertions of several unanswered letters are concerned, had Mr Nicholson checked the files he would have known that there was one letter in December,1984, about a rather different leaflet, and he would presumably have found no record of any other letter to any "member" of London Greenpeace until the letters with the writs in September,1990, because any such letter should have been disclosed if it still exists. It is fair to assume that Mr Love and Ms Bensilum, and probably Mr Preston, would have relied on Mr Nicholson's recollection. However, although the December,1984, letter was about a rather different leaflet it carried much the same kind of attack on McDonald's as the leaflet complained of, and I have no reason to believe that Mr Nicholson knew of any reply, if there was one. Mr Nicholson clearly thought that a second letter had been written in 1987 or 1988 without any reply. In addition, he may have confused the Veggies correspondence with correpondence with London Greenpeace although this is unlikely because that correspondence was answered. The 20th September,1990, letters, did elicit a response from solicitors then acting for the Defendants, but neither they nor the writs elicited the retraction which the Plaintiffs sought. It is fair to assume that Mr Preston, Mr Love and Ms Bensilum relied upon Mr Nicholson's recollection, so far as unanswered letters were concerned. All this received, in the hands of Mr Love and Ms Bensilum, and the other communications advisers, the interpretation of several ignored requests to stop publishing, and failing to reply to several letters after 1984. It was put to Mr Preston that this was dishonest. The Plaintiffs' solicitors were present at the Scope meetings. In his second supplementary statement made in March,1996, Preston referred to the 1984 letter, the Veggies correspondence and the September,1990, letters and went on: "I am informed that at the time the company's customer leaflet and media briefings were prepared, the 1984 London Greenpeace file was not available and the information relating to it was based on the understanding of the partner conducting this litigation who had not had the conduct of the matter in 1984". When Mr Preston gave evidence in July,1996, he said: "Well, this is pretty straightforward stuff. A person admits they made a mistake. A file was not there. They tried to do it from memory. It did not work. They got something wrong". It was a mistake that someone had sent an uncorrected release to Mr Livingstone but "I think it is a mistake and it was wrong ...... and I am sorry for that". Although uncorrected releases might still be going out, it was incorrect in one element. It did not concern him enough to stop it in the light of the other far stranger matters which it contained. I have already said that in my judgment the reference to failure to respond to several letters was a mere detail in the light of the Defendants' attempts to avoid responsibility for the leaflet. There had been one or two letters, and in the context of a no doubt irritated reply to attack, and taking Lord Diplock's guidance into full account, as I have done in judging the question of the Defendants' honesty in relation to untrue allegations in the leaflet, I am not persuaded that the statement about unanswered letters was made in bad faith. I take the same view of the references to the longstanding, informal support of lawyers and its formalisation by the appointment of a City Law firm and two specialist libel barristers to advise them. They were not accurate if they meant as I think that they probably did to most readers of the May,1994, background briefing, left unaltered in this respect from the original March or 12th April,1994, that legal luminaries were going to represent them, or give them advice, all through the case. But it was strictly accurate when written for release as the interlocutory appeal of March,1994, approached or had just been heard. The Defendants had had the informal support of some lawyers for a long time. The form of their pleadings from October,1991, onwards, albeit signed by the Defendants rather than counsel, shows that. They were receiving the advice of City solicitors and defamation counsel in March,1994. Leading defamation counsel represented the Defendant before me on 8th April,1994, on an application to adjourn the trial which counsel for the Plaintiffs thought would last about twelve weeks. I confess that I hoped that a way would be found for counsel who appeared before me to represent the Defendants at trial. I am not persuaded that the failure to remove the reference to City solicitors and counsel in the May,1994, briefing relied upon in the counterclaim was dishonest. I do not accept that the Defendants' contention that the reference to solicitors and counsel was a calculated ploy to dissuade people from responding to the Defendants' appeals for money. It can readily be explained by the Second Plaintiff's desire to answer the allegations that all the legal might was on the Plaintiffs' side, at a time when the Defendants were receiving first class legal advice themselves. So far as the Plaintiffs' claims for damages and costs are concerned, I believe that the Plaintiffs found themselves in a quandary. There is no doubt that they claimed damages in the writ and Statement of Claim and a claim for costs of legal proceedings goes without saying. The 20th September,1990, letters offered to waive the Plaintiffs' "undoubted right to damages" if the allegations in the leaflet were retracted within fourteen days, but Ms Steel and Mr Morris did not retract so the claim for damages, and by inference costs, remained. However, the Plaintiffs at some stage must have decided that it would be good public relations not to pursue its claim for damages and costs against impecunious Defendants and those representing them clearly said so on any number of occasions. When counsel for the Plaintiffs opened their case on 28th June,1994, he said that the purpose of the action was to seek an injunction to stop the Defendants from repeating the allegations complained of "but ...... the plaintiffs were not concerned with damages". With a jury that might cause difficulty because the award of damages was the jury's vindication of the Plaintiffs, but the Plaintiffs could expect a reasoned judgement from me, vindicating their position: or so counsel said. At some later stage in the proceedings I wondered aloud that whatever I said in my judgment the public might get the wrong idea if I awarded no damages to the Plaintiffs but awarded damages to the Defendants on their counterclaim. In due course the Plaintiffs' active claim for damages reappeared although Mr Preston said that "whether McDonald's collects (damages and costs) or not, whether we even attempt to, is a totally different issue". So the Plaintiffs have wanted the best of both worlds, in my view. They want an award of damages and costs to vindicate their reputations, but they do not want the public to think that they are thereby putting undue pressure on the Defendants. However, I do not believe that the Plaintiffs' vacillation over damages and costs gives me any indication that they were acting in bad faith or for some improper motive in publishing the three documents, none of which mention the question of damages or costs. So, applying Lord Diplock's approach to the question of honest belief, I am not satisfied that those identified as the embodiment of the Second Plaintiff for the purposes of publication of the three documents with their defamatory contents, did not believe in their essential truth and I am not satisfied that they were indifferent to their essential truth of falsity. Although the allegation of "lies" went beyond the averment of lack of truth which was all that was strictly necessary and the allegation of failing to respond to several letters went beyond the averment of avoidance of responsibility for the leaflet, which was all that was strictly necessary, I do not consider that this excess, such as it was, demonstrated a dominant improper motive. I consider that part of the motive for the three documents and the parts of them which were defamatory of the Defendants was to discredit the Defendants, although Mr Preston did not accept that, and I am satisfied that there was considerable ill will towards the Defendants by the time that the three documents were published. But all that was understandable in the light of the terms used in the material put out by the McLibel Support Campaign of which the Defendants were part, and I am not satisfied that there was an improper motive in all the circumstances. Even if there was an element of improper motive. I am satisfied that the predominant motive of the three documents, expressed as they were, was to refute the out-of-court public attack which the Defendants, with others, had made. That attack had been expressed in the strongest terms and the Defendants cannot complain that like was to some extent met with like. In my judgment the defamatory statements upon which Ms Steel and Mr Morris relied for their counterclaims were made by the Second Plaintiff on occasions of qualified privilege which was not vitiated by express malice, and it follows that the counterclaims must fail.
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