Media lawBy Amber Melville-Brown, Finers Stephens Innocent, LondonA game of two halves for Bruce GrobbelaarGrobbelaar v News Group Newspapers LtdThe Libel Cup 2001 is under way, pitting the Fleet Street Hacks against the suing celebrities.

And in a recent match, the Sun has won in extra time.A libel action brought by the former Liverpool goalkeeper and Zimbabwean international, Bruce Grobbelaar, against the Sun has resulted in the unprecedented quashing by the Court of Appeal of a libel jury's verdict, which it found 'not merely surprising but unacceptable' and 'an affront to justice'.The warm-upAllegations giving rise to two criminal trials, a Football Association disciplinary charge, a libel action and an appeal, were published by the Sun in 1994.

In the words of the first headline, the Sun said: 'Grobbelaar took bribes to fix games'.Denying the allegations, Mr Grobbelaar issued libel proceedings at the beginning of 1995.

However, he was also charged with two criminal offences concerning conspiring with others corruptly to give and receive money as inducements to influence the outcome of football matches.

The charges related to a period between 1992 and 1994, and in relation to the newspapers' 'sting operation', set up with its informer - a disenchanted former business associate of Mr Grobbelaar - to attempt to corroborate its story.At the criminal trial, the jury disagreed on both counts.

A second trial was held, with Mr Grobbelaar unanimously acquitted on the first charge.

But the jury disagreed on the second.

The prosecution offered no further evidence and the judge ordered a not guilty verdict.So far so good for the goalie.

But in the words of Daniel Taylor, in-house lawyer acting for the Sun, there then came 'an action too far'.

Mr Grobbelaar pursued his libel action and in the summer of 1999, and after a 16-day trial before a libel jury and Mr Justice Gray, he was awarded 85,000 damages against the newspaper.

The Sun appealed on the grounds that the jury's verdict, and in particular its rejection of the defence of justification, that is to say, the truth of the allegations, was 'perverse'.

It also argued that, in light of the House of Lords ruling in Reynolds, the judge had been wrong to rule that the defence of qualified privilege ('QP') was not available to the defendant newspaper (see [1998] Gazette, 7 October, 36).Applying qualified privilege - an own goal for the Sun?Relying on the Court of Appeal's interpretation of the Reynolds, case as the House of Lords had not yet given judgment, Mr Justice Gray disallowed the defence.

'I am not satisfied that allegations of corruption against a footballer fall within the category of information which a newspaper can be said to be under a duty to communicate to the world at large ...'The Sun argued that this restrictive approach did not reflect the importance given to freedom of speech by the Law Lords and that this would add to the 'chilling effect' on freedom of speech, limiting the vital role of the press as watchdog and bloodhound.

But the Court of Appeal, having regard in particular to the last two points of Lord Nicholl's ten-point test in Reynolds - which concerns the tone of the article and the circumstances of the publication - criticised the paper roundly.

In the court's view, it had asserted Mr Grobbelaar's guilt 'in the most unequivocal terms', carrying out a 'sustained and mocking campaign of vilification' and revelling in Mr Grobbelaar's downfall.

By adopting the roles of police, prosecuting authority, judge and jury, the newspaper had deprived itself of the defence of qualified privilege.Lord Justice Simon Brown rejected any suggestion that freedom of speech would be chilled by not allowing the paper this defence, suggesting rather that 'the protection of publications of this nature would ...

give rise to the altogether greater risk that newspaper investigations would become less thorough, and their exposs more sensational, (even) than at present.' It was not, according to Lord Justice Thorpe, a case of 'the investigative bloodhound fulfilling some high duty to inform'.

The Sun had got a yellow card from the Court of Appeal.Nevertheless, Daniel Taylor maintains that this is an important decision in the continued expansion of the defence of qualified privilege.

'Although the Court of Appeal ruled against the paper on QP, it did widen the categories of subject matter regarding the defence to include corruption in sport, not just political corruption,' he says.

Overruling the jury - who's the ref here?The Sun's appeal also concerned the alleged 'perverse' nature of the jury decision, in Lord Justice Brown's opinion, a 'bold' argument for the appellant paper to make.

Those seeking to have their besmirched reputations cleansed in the libel courts, are entitled to do so before a jury of their peers.

In certain circumstances, where complex issues and voluminous documents are involved, the matter may be decided by a judge alone, but this is the exception rather than the rule.

Even rarer still is interference by an appellate court once a jury has made its finding.

According to the seminal work, Gatley on Libel and Slander, 'the appellate court will only interfere with a finding of the jury if it was one which a jury, viewing the whole of the evidence reasonably, could not properly find'.Counsel for the respondent warned the court of exceeding its appellate functions by making findings of fact in a jury matter, while counsel for the appellant invited the court not to shrink from its duty to substitute a rational decision for the jury's irrational one.

But if libel actions concern how one is viewed by one's peers, is it right that where a jury of 'twelve good men' find a party's reputation has been damaged, that an appellate court of only three good judges should overrule them?It is clear from the judgments that their Lordships did not take lightly this burden.

Lord Justice Brown allowed the appeal, but with 'misgiving'.

He said: 'The court must inevitably be reluctant to find a jury's verdict perverse and anxious not to usurp their function.' But where 'all logic, common sense and reason' compelled him to conclude that a story was incredible, he had no option but to overturn the jury decision.Lord Justice Thorpe was equally reticent, yet pragmatic about his responsibility.

Recognising and respecting 'the unique function of a jury,' he said it would be an injustice to the paper to allow the outcome to stand.Lord Justice Jonathan Parker accepted that 'it is not for an appellate court to second-guess the jury; it is for the jury to find the facts'.

However, where 'the verdict is so plainly wrong that no jury, acting reasonably, could have reached it, then the appellate court has not only the power but the duty to intervene.'In the Court of Appeal's view, the jury had got it wrong.

Parts of Mr Grobbelaar's case were variously absurd, incredible, unrealistic, implausible and beggared belief.

There were 'simply too many improbabilities piled one upon another inherent in Mr Grobbelaar's case for it to begin to be credible'; he had 'just too much to explain away'; and some of Mr Grobbelaar's explanations 'went well beyond the boundary of the implausible deep into the territory of the incredible'.There are at least two sides to every story.

Mr Grobbelaar continues to deny the allegations and has been reported as saying that he will appeal against the Court of Appeal's decision.

On the other hand, the appellate court's interference with the jury verdict may have been a case of the ends justifying the means.Amber Melville-Brown is head of defamation at London firm Finers Stephens Innocent