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Complainant Name:
Messrs Freeth Cartwright Hunt Dickins on behalf of Melanie Douglas (part 1)

Clauses Noted: 1, 3, 4, 5, 10

Publication: Sunday Mercury

Complaint:

Messrs Freeth Cartwright Hunt Dickins, solicitors of Nottingham, were authorised to complain on behalf of Melanie Douglas, who had given birth to a child whilst in a coma after suffering extensive head injuries in a car crash in 1992, that a lead story in the Sunday Mercury dated 6 October 1996 headlined "3 Million For Tragic Coma Mum", together with an accompanying article were inaccurate contrary to Clause 1 (Accuracy) of the Code of Practice; failed to distinguish between comment, conjecture and fact contrary to Clause 3 (Comment, conjecture and fact); were published without the consent of Ms Douglas in breach of Clause 4 (Privacy) after enquiries involving misrepresentation in breach of Clause 7 (Misrepresentation), harassment in breach of Clause 8 (Harassment) and intrusion into grief and shock in breach of Clause 10 (Intrusion into grief and shock). The complaints were originally made in October 1996. Following a decision in February 1997 against the complainant, the Commission agreed in May 1997 to reopen and reconsider the complaints made on the grounds set out above.

The complaints fell into two groups. The first concerned the conduct of the reporter concerned, whom the solicitors said had continued to contact the complainant's family with enquiries which were not conducted with sympathy and discretion and to write the newspaper a story, even though she was told there were no developments in the case and had been asked to desist by the persons concerned, including the applicant's solicitor and press agent. They alleged that she had failed to check the accuracy of her story which was published without the consent of the complainant or those representing her interests, even though it raised matters concerning Ms Douglas' private life. They also said she had misrepresented the position to an outside expert in seeking his opinion about Ms Douglas' case.

The second group of complaints related to the actual contents of the articles themselves, which the solicitors for the complainant claimed were seriously inaccurate. There was no likelihood of the legal action for damages brought on behalf of Ms Douglas being settled by Christmas 1996. She was not "set" or even likely to receive anything close to the sums of 3 million, as stated in the headline, or 3.5 million as claimed in the body of the text of the articles. Liability had not been decided, nor had any valuation of a likely award been made. Conjecture had been presented as fact. The solicitors complained that the newspaper had not consulted several outside experts as claimed; the only expert asked his opinion had never commented in the terms reported. His views were wrongly presented as if they were an authoritative judgement based on a knowledge of the relevant facts. Ms Douglas did not have "the mental age of a child of six"; nor had she lost custody of her child after a bitter court battle. The solicitors contested the suggestion that any comment to the newspaper had been made by Ms Douglas' family on the night before publication of the articles or in the terms suggested. This last complaint is dealt with by the Commission in a separate adjudication.

The complainant's solicitors had originally requested an appropriate retraction and financial compensation and costs for Ms Douglas and her family from the newspaper. This had not been provided, nor any apology published.

The former editor told the Commission that the newspaper had been the first to report the story about Ms Douglas in 1993. During the next few years it had carried a number of articles about her case and condition with the co-operation of her family. Indeed, in late 1993 they had supported the former editor when he successfully applied to lift a court order restricting press coverage. More recently he had asked the reporter concerned to produce a feature article on Ms Douglas' current state of recovery and outlook. At first there was some suggestion that the order restricting press reporting of the case was still in place but the editor had taken legal advice to the effect that there was no legal impediment to the publication of an article.

The newspaper said that the information about Ms Douglas' present state of health had come directly from her mother who readily spoke to the reporter on the telephone. There was no intrusion or harassment or any visit to the family home. After the reporter had been told by the press agent appointed to act on behalf of Ms Douglas that a settlement of the claim could take place "before Christmas" she began to make enquiries about the possible size of any damages award. She had telephoned an expert solicitor in a well known personal injuries firm who confirmed what she had been told by a source at the Law Society and Ms Douglas' mother, namely that a person in Ms Douglas' situation might expect to receive over 3 million. On that basis the newspaper had published the story legitimately speculating that Ms Douglas was "in line" to get a settlement of that order. The newspaper provided the Commission with a note by the reporter of her conversation with the expert solicitor as well as a transcription of her contemporaneous shorthand note of her conversation. It did not believe that the story could have caused distress to Ms Douglas who he understood had a mental age of six, or to her family who had made no complaint. The basis for the assertion that the custody battle had been bitter stemmed from newspaper cuttings from the time.

Further contentions of the parties and findings by the Commission are set out below.

Decision:
Not Upheld

Adjudication:

The Commission did not accept the solicitors' contention that the publication of the article concerned was a breach of the privacy provisions of the Code of Practice because it had been published without the consent of the applicant or her advisers although it raised matters concerning her private life. The circumstances of the accident in which she was involved, her medical condition afterwards and her court claim for damages were either matters of public interest, matters of public record or put into the public domain by, or with the co-operation of her family or advisers.

The solicitors accepted that press interest was not surprising given the unusual facts. A court Order had been obtained banning press reporting or other identification of Ms Douglas' child but this, as the solicitors conceded, had lapsed when the custody and access arrangements were concluded. A successful application was made to the Court of Protection for the appointment of a press agent for Ms Douglas intended to restrict any unnecessary intrusion, to deal with the media and to release information about the case including the sale of stories and co-operation in exchange for financial reward. The Commission did not criticise this sensible arrangement. On the contrary all the evidence suggested that Ms Douglas' family and advisers had throughout conducted themselves in a proper and responsible way with Ms Douglas' best interests in mind.

The result was that there was a considerable amount of press coverage of Ms Douglas' case (including by the particular local newspaper concerned) some of it with the approval of her family and advisers and payments made for the benefit of Ms Douglas or members of her family. It should be stressed that this did not mean that the press had carte blanche to breach Ms Douglas' right to privacy under the Code of Practice in any respect or that right could not be breached because her condition was such that she was unaware of the press article concerned. The Commission carefully scrutinised the article concerned but found nothing which was not a matter of continuing public interest or already in the public domain of which complaint could be made. The fact of publication could not be a breach of privacy under the Code if the contents of the article concerned were not otherwise objectionable.

Notwithstanding that the complainant's advisers did not believe that there were any current developments in the case worth reporting it was a matter for the editor's discretion whether he published an article about Ms Douglas' case so long as it only covered matters which were matters of public interest or subjects already in the public domain. There was no breach of privacy in the newspaper speculating on the likely size of an award which Ms Douglas might receive as a result of the court action brought on her behalf. The Commission did not find that the contents of the articles were disproportionate to any legitimate public interest in respect of the ongoing litigation.

The solicitors complained that no steps were taken by the reporter or the newspaper to check the accuracy of the story, and in particular the likelihood of a resolution of the complainant's claim and the level of likely damages, with her solicitor or press agent. However, the reporter had already been told clearly by Ms Douglas' solicitors that there was no information to be given about the case at that time. It was made clear that the advisers were not prepared to co-operate in, or sanction the publication of, an article about Ms Douglas and she was referred on several occasions to the Court of Protection Order which was faxed through to her. In the circumstances it was not surprising that she did not attempt to check the wording of her story or the information she had obtained from other sources with Ms Douglas' advisers, nor was there any obligation on her to do so.

The solicitors complained that the reporter persisted with her questions even though she had been asked by the complainant's solicitor and press agent to desist and she continued to contact the complainant's family after she had clearly been told that all contact should come through the solicitors or press agent. The solicitors provided the Commission with a chronology purporting to list the contacts made by the reporter relating to her story. There was no suggestion that Ms Douglas was directly harassed by the reporter's work or was even aware of the publication of the article. The Commission did not accept that it could credibly be maintained that her solicitor and press agent (who had been specifically employed to deal with the press) were harassed in terms of the Code of Practice by any telephone calls from the reporter. Nor was it suggested that either had asked her to desist from telephoning. Indeed until a few days before the article appeared her calls were being responded to by the faxing to her of a copy of the Court of Protection Order. The Commission accepted that indirect harassment of the complainant might occur through approaches made, for example, to her family. In this case it was not suggested that Ms Douglas was aware of such approaches. No member of her family had complained to the Commission in relation to this matter. The chronology produced by the solicitors shows that the reporter made two short telephone calls to Ms Douglas' mother after an initial approach and on both occasions was referred on to the press agent. No instructions were recorded as being given to her to desist from calling again. In the circumstances the Commission took the view that any harassment (if there was any) in terms of the Code was minimal and did not deserve censure by the Commission.

Similar consideration applied to the allegations of intrusion into grief and shock. The complainant's medical condition precluded her from being aware of any intrusion if it occurred. This did not by itself prevent a breach of Clause 10 of the Code of Practice (which deals with enquiries before publication) from occurring. But no member of Ms Douglas' family had complained to the Commission. The three telephone calls made to Ms Douglas' mother appeared to have been quite short and there was no indication, other than that in relation to one enquiry that the approach was otherwise than with sympathy or discretion. The reporter did not contact Ms Douglas' family after the Court of Protection Order had been faxed to her. The solicitors also attempted to assert that such intrusion resulted from publication of the article per se and resulting difficulties with their client's mother who wrongly believed that they had misled her. The Commission was unable to conclude that there was any breach of Clause 10 thereby, especially in circumstances where articles on matters relating to Ms Douglas had previously been published, with the consent of her family and advisers. Legitimate speculation about the size of any damages awards could not constitute a breach of Clause 10. If there was any inadvertent breach of the Clause by the reporter concerned the Commission did not believe it merited censure under the Code.

The solicitors complained that the reporter pretended to the expert solicitor that she did not know much about the applicant's case and that she did not know or have access to the applicant's solicitor. They alleged that she failed to reveal that she had already had her enquiries rebuffed by the complainant's solicitor and her press agent. Had she done so, they alleged, he could or would not have discussed the case with her. The expert solicitor did not complain directly to the Commission but he supported the complaint now being made and provided a note of his conversation with the reporter made some time after the event. There were differences in the respective accounts of the conversation by the reporter and the expert solicitor between which, for the reasons set out below, the Commission had not found it necessary to decide. The reporter was seeking a view about the likely scale of damages in the circumstances of Ms Douglas. The Commission took the view in this case that she was under no obligation to reveal all she knew of the matter, and specifically the matters mentioned in the complaint, so long as she did not misrepresent the substantive facts of Ms Douglas' case on which a view was sought. Here it was common ground that the expert solicitor was prepared to give a reply (as to which terms see below) in answer to some statements which were put to him about the broad facts of Ms Douglas' case and after he had asked questions about what he regarded as the relevant circumstances of this case. The reporter's statements about the substantial facts did not misrepresent the circumstances of the High Court action and the Commission therefore found no breach of the Code of Practice in this regard.

The main complaint about the substance of the article was that speculation about the size of the award was presented as fact contrary to the Code of Practice. The Commission's task was not to approach the matter in a technical way but to look at the matter in the round using common sense. Reading the articles as a whole the Commission took the view that, notwithstanding the headings, readers could clearly have understood this to have been speculation on the part of the newspaper. In the view of the Commission it was permissible for the newspaper to speculate on the possible size of any award so long as such speculation was not presented as fact. The same applied to the suggestion that settlement might take place before Christmas which was only presented as a speculative possibility.

The solicitors complained that the statement that Ms Douglas "has the mental age of a child of six" was factually inaccurate. They provided the Commission with medical reports demonstrating that their client had suffered severe head injuries which had seriously impaired her mental capacity. The Commission concluded that although the statement published was literally incorrect, it conveyed in a popular and shorthand way which readers could well understand that Ms Douglas had suffered serious mental impairment. For this reason the Commission did not regard this as a significant breach of the Code or one which merited censure under it.

The solicitors complained that the reporter had not consulted more than one expert as claimed: nor had any expert said that the complainant could receive more than 3.5 million. The words attributed to the expert solicitor had never been spoken. The reporter said she had spoken to someone at the Law Society as well as the expert solicitor. The reporter's shorthand notes recorded the expert solicitor as saying that "3 million or more could be possible" and that "it is quite clear that Melanie could expect a similar if not larger pay-out" than a previous client of the expert solicitor who had received 3.4 million. The Commission did not find it necessary to make a finding between the different accounts. The expert solicitor agreed that he had said, in answer to the reporter's questions that "it was not inconceivable that a claim could be worth 3 million but it would be a very big claim" and therefore the text of the article summarised his reply. In this regard therefore the Commission did not regard the article as meriting censure under the Code of Practice for being inaccurate or misleading, even if the expert solicitor's account was correct.

The Commission was unable to satisfactorily determine whether the custody issue in the case had been a bitter one, as reported by other newspapers at the time and decided to make no finding on this particular complaint.

Notwithstanding the adjudication above the Commission considered the article taken as a whole. Although it found that publication of the matters concerned were within the editor's discretion it also considered with sympathy the solicitor's account of Ms Douglas' current position and that of her family in relation to the ongoing action for financial compensation. The newspaper should ensure that there should be no further approach to Ms Douglas' family without prior consent having been obtained; the Commission would also hope that the salient facts of any future article would be checked with the press and/or legal advisers and that the newspaper would only deal with the matter when there were significant developments to report.

With the exception of one complaint which is dealt with separately, the complaints were either rejected or did not merit censure under the Code of Practice. In one case there was no adjudication.

Report:
40



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