Adequacy of the summing-up
94 The defendants pleaded a number of contextual imputations. Sufficiently for present purposes, they said that if the imputations on which the plaintiffs relied were conveyed and were defamatory, the letter and the article conveyed other imputations reflecting adversely on the plaintiffs; that the other imputations were substantially true; that the plaintiffs' reputations were injured because of the other (true) imputations; that the plaintiffs' reputations were not further injured by the imputations on which they relied; and so that the plaintiffs should not have any damages.
95 The pleaded contextual imputations were extensive, but at the trial they came down to one in relation to the letter and one in relation to the article. The contextual imputation in relation to the letter was that it conveyed that the plaintiffs were lining their pockets with taxpayers' money for doing very little. The contextual imputation in relation to the article was that the plaintiffs were taking money from the taxpayers in a "rort" and giving little in return. The questions to the jury asked whether the letter and the article conveyed the respective imputations and whether each was substantially true. The jury answered yes as to conveying the imputations and no as to substantial truth.
96 The issue on appeal was whether the summing-up in relation to the substantial truth of these contextual imputations was inadequate.
97 After directing the jury as to the way contextual imputations operated, Carruthers AJ said that the jury would first have to resolve whether the contextual imputations were conveyed. After briefly dealing with that, his Honour then said -
"Now assuming that you find these contextual imputations to be conveyed. That takes us to the question of whether the imputations were substantially true. Now this was a very, very extensive, unquestionably you might think, the most extensive area to which evidence was directed in this case. Because it was to this particular question that the evidence of alleged overcharging and unreasonable profits and the like was addressed.
You have been addressed with great care and detail by both counsel in relation to that particular material. I think the most I could do to help you in that regard is to suggest that these are the battle lines on this question as to whether the defendants have established to be substantially true that the plaintiffs were lining their pockets with taxpayer's money, and that the plaintiffs were taking money from the taxpayers in a rort and giving little in return.
Fundamentally of course, the defendants rely upon the expert evidence of Mr Prowse, the expert evidence of Dr Craig-Lees and the evidence of Mr Hawker. But they call in aid there much of the documentary material, and what they contend was material adduced from the cross-examination of Mr Assaf, to suggest that when his evidence is examined he cannot justify the charges that were rendered in these various invoices to the government departments or the advertising body, which had been the subject of such close analysis and scrutiny by Dr Craig-Lees and Mr Prowse.
Now right at the outset of his address, Mr Littlemore took you in the most detailed way to what he contends were the inadequacies of Mr Assaf's evidence, of his explanations of what work went into particular jobs, and the appropriateness, or otherwise, of the ultimate charges. I can't go through all that again.
So there you have got in the most brief and succinct fashion the defendants' side of the equation. As against that there is the plaintiffs' side of the equation - the plaintiffs contending that Mr Assaf is to be relied on as a credible witness; that his explanation as to the absence of records was fair, particularly bearing in mind that this plea was filed in May 1999.
Then he relies on the evidence of Mr Rutledge, Mr Elliot, Mr Jennings, Miss Mitchell and Miss Fairman. And he addressed you forcefully at length about what he contends is the credibility, reliability and integrity of the evidence which they gave, and he referred to such matters as the fact that Telecom, according to one witness, had some records of the plaintiffs' business audited. I just can't go through all this. You remember it. You were obviously listening with great care. Of course, none of them undertook the exercise of examining the cost structure of the defendants' organisation in the way in which Dr Craig-Lees and Mr Prowse did.
They are the two battle lines. Mr Hughes in his cross-examination and in his address yesterday sought to demonstrate to you, for the reasons he gave you, that Mr Prowse's approach was flawed in two very specific ways. He failed to take into account certain matters; made unjustified assumptions, he submits. And similarly that Dr Craig-Lees' evidence was incapable of satisfying you, on her conclusions that the charges were unreasonable, for the reasons on which he addressed you at length yesterday, and in particular, he relied upon the fact that she had given a report, he contends, confined to the translation industry where that was not the field in which she was operating - it was a creative agency providing a full package.
In turn, Mr Littlemore has put to you that the witnesses from Telecom and Mr Rutledge are suspect and unreliable, and that, to a certain extent, they were in the pocket of, if I could use that expression crudely, Mr Assaf; that there was a degree of favouritism showed by them to him to varying degrees. That, really you would be satisfied after listening to the cross-examination and in consideration of the evidence, that Telecom insofar, as certainly this part of its activities was concerned, was not having its business conducted properly.
So, Mr Littlemore put to you that their evidence is suspect.
So, repeating again, on the one hand you have got Mr Assaf, Mr Rutledge, Mr Jennings, Miss Mitchell and Miss Fairman on the plaintiffs' side. You have got Mr Prowse, Dr Craig-Lees and Mr Hawker on the defendants' side - perhaps I should add parenthetically, that Mr Hughes also put to you that you wouldn't give any weight to Mr Hawker's evidence for the reasons he gave. You have got the criticisms of the other party.
So that is what you should consider, the detailed evidence that has been expounded to you by counsel."
98 As the transcript shows, counsel (Mr Littlemore QC for the defendants, Mr Hughes QC for the plaintiffs) had indeed expounded the detailed evidence to the jury.
99 Returning to the summing-up, Mr Littlemore then reminded Carruthers AJ that his Honour had not mentioned two further witnesses, and there was a brief dialogue which was not recorded. There was then reference to persons who had not been called and how the jury could take that into account, and eventually the jury was directed as to giving effect to the finding that a contextual imputation was conveyed and was substantially true.
100 At the conclusion of the summing-up Mr Littlemore submitted that Carruthers AJ's "summary on the contextual truth defence was too compendious, fairly to reflect our position". It was said that his Honour had dealt with the defence in "a matter of minutes", that much more time had been spent on damages, and that his Honour had "objectively indicated to the jury that damages is a much more substantial issue than is contextual truth". Carruthers AJ was asked "to redirect the jury giving a less compendious and more detailed summary of both parties' cases on contextual truth", and a document was handed up setting out "the major points that we ask you Honour to go to".
101 The document relevantly said -
"4. It is respectfully submitted that your Honour's summary of the 'battle lines' between the parties was too compendious fairly to reflect the Defendants' position, and should include the essential 'battle line' - ie that the line on excessive profit should be drawn at 50%, as Mr Assaf conceded.
Further, while your Honour summarised the evidence of Messrs Rutledge and Harvey and Misses Hall, Mitchell and Fairman on the reasonability of the Plaintiffs' charges, your Honour did not summarise the evidence of Mr Prowse, Dr Craig-Lees or Mr Hawker.
Still further, the 'battle lines' summary must fairly include reference to the significance in the Defendants' case of the attack on Mr Assaf's credit. Your Honour directed the jury as to credit issues affecting the evidence of the Telecom witnesses and Mr Hawker, and the Plaintiffs' attack on Mr Prowse and Dr Craig-Lees; but made no reference to the issues involving the credit of the First Plaintiff."
102 In the discussion which followed, Mr Littlemore referred in particular to what was said to be a concession by Mr Assaf that "anything more than a 50 per cent profit margin would be ripping off the taxpayer", and his Honour was asked at the very least to remind the jury of that concession.
103 There had been extensive evidence as to an appropriate profit margin in the plaintiffs' field of endeavour, and the defendants had endeavoured through Mr Prowse, Dr Craig-Lees and Mr Hawker to establish the second plaintiff's profit margins and that they exceeded an appropriate profit margin. The defendants' essential complaint to his Honour was that he had not summarised the evidence of those persons - it should be said that his Honour had not summarised the evidence of Messrs Rutledge and Harvey and Misses Hall, Mitchell and Fairman, contrary to what was said in the defendants' document. Related complaints were that his Honour had not specifically reminded the jury of the asserted concession by Mr Assaf or, in the specific context, of matters said to affect Mr Assaf's credit.
104 After hearing further from Mr Littlemore and from Mr Hughes, Carruthers AJ said that it was difficult in summing up in a long and difficult case "to hold the balance fairly between the parties", that he was "sensitive to the matters [Mr Littlemore had] put", but that he had "crossed the Rubicon" and did not propose to give any further directions.
105 The course taken by his Honour was to remind the jury of counsels' addresses. The complaint on appeal was a little different from the complaints made below. It was submitted on appeal that, while his Honour did not have to go through every piece of evidence, he was obliged to give the jury more assistance by bringing to their attention in a general way how the evidence which had been given bore upon the issues before them. It was said that reminding the jury of counsels' addresses could be appropriate in some circumstances, but that more was required in this case; but when asked to illustrate what his Honour should have done, the defendants did not descend into any detail and only repeated that more should have been done.
106 I do not think that there was appealable inadequacy in the summing-up in this respect. The relevant issue had been made clear, namely, whether the contextual imputations were substantially true. The jury can not have failed to appreciate that they were required to consider whether, given the evidence going to what was a reasonable profit margin and what the second plaintiff's profit margins were, the proper conclusion was that the plaintiffs were getting a lot of money for doing little in circumstances in which the substance of the contextual imputations was made good. Carruthers AJ was in an ideal position to judge whether it was necessary to remind the jury of how the evidence, then fresh in their minds from counsels' detailed attention, bore upon the issue, or whether that would be an undesirable imposition on them. It was open to his Honour to determine that the better course was to remind the jury in general terms of the so-called battle lines and the material recently canvassed by counsel, without himself going into the detail of the evidence. The asserted concession by Mr Assaf had featured in addresses, and did not need to be singled out - indeed, there was a danger that singling it out would distort the summing-up - and the jury had been made well aware of the challenge to Mr Assaf's credit. I do not think it has been shown that, in the circumstances of this case, the jury was left without the assistance which they should have received, or that injustice was occasioned to the defendants because the summing-up did not go into the material evidence in more detail.