MR JUSTICE WARBY
Approved Judgment
NT1 & NT2 v Google LLC
reporting proceedings in Court or in Parliament, going so far as to permit reporting
which conveys the “impression” of the journalist (see, eg, Cook v Alexander [1974] 2
QB 279, CA). It would be wrong to treat the two branches of the law as coterminous, as they not only have different origins but also serve different purposes. It
is possible to give more weight to literal accuracy in the context of data protection
law, with its broader aims and its wider and more flexible range of remedies. It is
appropriate, however, to bear in mind domestic principles in order to ensure, as far as
possible, that the law has the “coherence” to which Lord Sumption referred in Khuja.
The evidence
88.
Google’s case depends on documentary evidence, and such support as it can derive
from answers given by the claimant under cross-examination. The hearsay rule has
been abolished for civil proceedings so there is no difficulty, generally, about reliance
on statements of fact contained in third party documents. Among the documents relied
on here, however, are transcripts of the Judge’s sentencing remarks, and of the Court
of Appeal’s judgment dismissing the appeal of NT1 and allowing that of Mr
Fitzgerald. That prompted a discussion of whether Google’s case was in any way
limited by Hollington v F Hewthorn & Co Ltd [1943] KB 587. Nobody doubts that
convictions are admissible as evidence of guilt. Section 11 of the 1968 Act provides
for that. Nor is there room for doubt that judgments or sentencing remarks (which are
a form of judgment) are admissible as hearsay evidence of the facts of the case,
subject always to the requirements of s 4 of the Civil Evidence Act 1995 regarding the
evaluation of hearsay: see Hourani v Thomson [2017] EWHC (QB) [21]-[22]. Section
11(2) of the 1968 Act plainly contemplates that evidence can be adduced of the facts
on which a conviction is based. But I wondered whether Hollington v Hewthorn might
be an impediment to reliance on the Court’s conclusions or findings on contested
issues of fact, whether made at first instance or on appeal, if those go beyond the facts
leading to the conviction. In the end I do not think this is a problem.
89.
As Tugendhat J pointed out in Director of Assets Recovery Agency v Virtosu [2008]
EWHC149 (QB) [2009] 1 WLR 2808 [39]-[40], Hollington v Hewthorn is
distinguishable where, as here, the previous judgment that is placed before the Court
enables it to link up the conduct found proved by the previous court and the conduct
to be proved in the instant case, and the issue for consideration is identical. As further
pointed out in Virtosu at [41], it has been held by the Court of Appeal that Hollington
v Hewthorn “does not purport to be an authority” on the matter of “raising in a civil
action the identical question that had already been decided in a criminal court of
competent jurisdiction”. It is fair to mention that Mr Tomlinson did not seek to
exclude reliance on the sentencing remarks in reliance on Hollington v Hewthorn,
perhaps in part because his client’s case relies in part on findings made by the Courts,
which are said to exculpate NT1. Further, it is for the claimant to prove inaccuracy. I
agree with Mr White that, on the face of it, an attempt to do so in reliance on a
proposition contrary to the findings of a criminal court of competent jurisdiction
would be an abuse of process (cf. Hunter v Chief Constable of West Midlands Police
[1982] AC 529).
90.
It is not an inherently easy task to determine the truth or falsity of statements
published nearly 20 years ago about events that were older still, following two lengthy
trials. The evidence I have to help me in that task is limited and far, far less than was
before the trial Court or the Court of Appeal. NT1 has chosen, as is his right, to place