8. The Statement of Claim
The wording of the writ itself was surprisingly vague and I would be kept in suspense whilst awaiting an official “Statement of Claim”, before learning the full details of the damages claimed by Rechem. Nevertheless, I used my imagination and I got down working on what thought I would ultimately need to defend myself. The Statement of Claim actually took months to materialise, so by that time my work was well advanced. Long before all this happened, out of personal necessity and from assisting previously sued members of the media, I’d become acquainted with some aspects of the law on defamation. For example, I knew that, effectively, I was guilty unless I could prove myself innocent and that many defendants failed to do this because they ran out of money. I was also aware that the least demanding direction of defence would be to plead that I regarded my remarks as “Comment” in legal terms, i.e. opinion based on fact, made in good faith and not meant to be malicious.However, to do that would have been dishonest, since my words were deliberately designed to damage ReChem’s reputation and business. Another position open to me was the more daunting one of proving that the things I said would stand up as factual entities in themselves. After deciding on that more difficult approach, my early work on the defence was therefore geared towards the legal plea of “Justification”.
The “Statement of Claim” that came along in November did give more details of Rechem’s demands though there remained some ambiguity about the basis for those demands.The document repeated the writ’s requirement for an injunction against me, though with different wording. It required that I would be restrained; as would my “servants or agents otherwise howsoever from further publishing the statements complained of or any similar statements defamatory to the Plaintiff . . .”The writ’s claim for damages for libel in connection with the “World Tonight” re-appeared in the new document but that there was also a parallel claim for slander. The new claim had been agreed by the Court along with the altered injunction, as an amendment to the original writ.The writ had already amazed me with its inclusion of a dubious Evening Standard article but I was still surprised that the Statement of Claim demanded damages due to the article.I vividly remembered the newspaper’s reputable reporter, Colin Adamson, who visited me at home. His 10th August article was published the day after The World Tonight was broadcast on the radio, so why no mention of that piece in Nabarro Nathanson’s original warning letter which related only to the BBC broadcast. I remained puzzled by the article’s appearance in the subsequent writ and now by its inclusion in the Statement of Claim.
The offending article appeared in the Evening Standard beneath an associated report entitled: “Europe watch on toxic cargo”, whilst Colin Adamson’s personalised piece about me was headed “Greenpeace victory in the valley” and contained vivid exaggerations of what the reporter saw and heard when he came to see me. One distortion was that I claimed that the incinerator was responsible for eye abnormalities in local children. I was always careful not to say that. To compile the piece, the convivial journalist came from London and was at home with me from afternoon into evening before my wife took him to his train at Newport Station.I remembered taking pains to be clear with him about contentious aspects of the ReChem issue and, as he took notes, he appeared to understand the limits of inference in the science of the subject. Therefore, I was intrigued by the difference between my face-to-face impression of his understanding and the contrasting content of the article that appeared in the Newspaper. My intrigue turned to suspicion when I could find no evidence that Rechem had taken action against the newspaper itself. My solicitor Sarah pursued the Evening Standard for a copy of the journalist’s notes, but she got nowhere and I was left puzzled by that and also puzzled as to why ReChem were pursuing me over the article rather than pursuing the newspaper, when ReChem would have known I didn’t say things like that.
The original warning letter from Nabarro Nathanson had quoted three particular parts of the BBC interview. One related to “smell and smoke” from the plant, another to my opinion of its “second rate” nature and the third was about our “fight” to stop the Canadian waste. What the company was complaining about had seemed quite clear at that initial stage. The writ which quickly followed, and which included the newspaper article, confused my comprehension of the company’s complaints and didn’t help with the direction of my defence. Then, in addition to reiterating the additional comments from the newspaper, the Statement of Claim now quoted just about everything I had said on the BBC, as if every word of my interview was of concern to the company. Next, the vagueness of the complaints was underlined when they were presented from an entirely new angle. The claim document included the passage: “On or about 9th August 1989 the Defendant spoke and published to one Michael Woodhead, a reporter for the BBC Radio 4, the following defamatory words of and concerning the Plaintiff and of and concerning their said business.”
This has been a great day for Greenpeace and a great day for Gwent – to get this container turned back to Canada. That’s what we want to happen to the whole lot of the 1500 tonnes of waste that is destined for the UK. This material is extremely toxic, it is coming over thousands of miles of sea and land, being handled many times, and worst of all coming to an incinerator in Pontypool which smells and smokes and has done for the last 15 years.
As far as we’re concerned it’s a second rate activity, sitting in a second rate regulatory system with a government who sees only the monetary aspects of its operation and doesn’t really care about the people who have to suffer it from day-to-day.
We were promised that the material from the fire would not be exported from Canada. And 6th months later, behind our backs, we discover it’s on a boat and on its way.
Now of course we’re disgusted about the way the Canadian authorities have treated this thing. It seems as if they wanted it to come without us knowing, but that reflects the whole nature of this very dirty, confused, chaotic and clandestine business.
We’re going to be at Liverpool to make sure that doesn’t happen. We’re going to thank the dockers and the port authorities for the action that they’ve already taken. But if in any way those containers are offloaded and set on the road on their way to ReChem at Pontypool, we’re going to make sure that they don’t get through those gates without a good fight.
With a broad brush approach, all those comments were lumped together and said to form unfounded and defamatory criticism, whereas I’d been working on the basis that the terms “smell, smoke”, “second rate activity” and “fight” were specific culprits.My idea was that my defence of “smell and smoke” would help support my “second rate” contentions, which themselves would be built on a foundation of science, technology and the prospects of environmental contamination. Those pillars of the defence would implicitly challenge the company’s simplistic claims regarding PCB destruction efficiency. I wasn’t concerned about any grievance over my saying we would put up a”fight” as the word was commonly used as metaphor for just making an effort. In our campaigning context, “fight” had never before been taken as a threat of personal violence and I hadn’t even gone as far as others who proposed barricades on the roads around the plant. Anyway, I’d never heard of anyone having action taken against them for metaphorical fighting talk. After all, in 1985, I survived the first attempt to curb me from making symbolic “attacks” on the company and I viewed “fight” as further down the threatening scale than a symbolic attack.The snag was that neither the Government, nor the national regulatory authorities would agree that the toxic waste plant they espoused as a world leader was not really as good as the company said it was. The staunch support given to ReChem by the institutions was going to be powerful evidence against me. The opinions of institutional experts were already on record, therefore, to win against Rechem I knew that I would have to make the government and the other bodies change their minds. Still, I viewed the prospect of achieving that as not impossible, since I could make a very good case against the plant’s performance, its technology, its regulation and against the efficacy of importing toxic waste. Sure, the Statement of Claim meant that the goalposts were moving away from the clear light of my statements into a haze of interpretations, but I felt that I could, if necessary, build a defence to justify every word, separately or together. I actually relished the idea of assuming that the company was now complaining about what I’d originally thought were the harshest of my words and which were those contained in the generalisation: “. . . . this very dirty, confused, chaotic and clandestine business”.
Unfortunately, my thoughts about where the “Statement of Claim” should steer my defence were premature, whereas now I appreciated the full plight of being a libel defendant when I saw the new document, with the goalposts having been moved by my adversaries.This was a legal leap, where the complaints now omitted my actual words and translated my comments into concocted, imaginative meanings that were far more damning. The seismic shift in semantics was introduced by the traditional, official understatement: “In their natural and ordinary meaning the said words meant and were understood to mean”:
(1) That the Plaintiffs were sloppy and inefficient in operation of their waste disposal plant; and
(2) That the Plaintiffs could not be trusted to dispose of extremely toxic waste in a safe and efficient manner
(3) That if the consignment of extremely toxic waste was incinerated by the Plaintiffs, they were likely through carelessness or inefficiency, to release highly toxic matter into the atmosphere, thereby seriously polluting the environment and endangering human life or human health
(4) The words complained of in paragraph 2 hereof were calculated to disparage the plaintiffs in the way of their said business.”
Although I believed there was some truth in those interpretations, they were neither what I had said, nor what I meant and I didn’t agree that the ordinary and natural meanings of my words could be stretched as far by anyone listening to the broadcast. I would readily admit that I did intend to “disparage the plaintiffs in the way of their said business”, but the way I was supposed to have done that, I now saw as the product of a mischievous imagination. Presumably to ensure that both libel and slander were covered, and with what seemed be a large amount of duplication and different ways of stating the obvious, before reiterating all of my comments the Statement of Claim continued:
The Defendant spoke the words complained of in paragraph 3 hereof, well knowing that Michael Woodhead was a reporter for BBC Radio 4 and intending that his words should be (as in fact they were) republished in a BBC radio 4 broadcast. Further or alternatively it was the natural and probable consequence of the Defendant speaking the said words to a BBC reporter in front of a microphone that they would be reported in a BBC radio broadcast.
In the edition of “The World Tonight” broadcast on BBC Radio 4 at 10.30 pm on 9th August 1989, the defendant caused to be published and broadcast the following defamatory words of and concerning the Plaintiffs and of and concerning them in the way of their said business.
When the Statement of Claim turned to the Evening Standard, the interpretations attached to the article had only passing interest for me, since I knew I hadn’t made the quoted comments. Colin Adamson reported that “Mr Powell talked of babies born with serious eye defects, which he claimed was a result of emissions from the ReChem plant”. Although I did confirm that there were some babies born locally with such defects I qualified the facts extensively. I explained to the reporter that I would often say that dioxins had been linked to such congenital eye abnormalities; that with ReChem’s potential for producing dioxins, it was natural for anyone to speculate on the cause of the birth defects; that we shouldn’t prevent discussion about the possibility of a connection between them and Rechem but that at the same time a causal link had not been not proven and was unlikely to be established. At the time I knew it would be difficult enough to gain acceptance that ReChem actually emitted any PCBs or dioxins into the environment and I knew that playing on health was playing into Rechem’s hands. I had plenty of evidence to support the way I interpreted eye defects or other health issues and since the newspaper article contained some other distortions I felt that I could almost ignore it for the time being.I was much more interested in the continuing and perplexing absence of action from ReChem, against the Evening Standard itself.
As for the BBC broadcast, not only did I now need to justify my actual comments, but it appeared I either had to accept the other side’s interpretations, agree with those interpretations and justify them too, or alternatively appeal against those interpretations and fall back to my actual comments. In appreciating the complexity of defending an action arising over perceptions rather than actualities I felt some sympathy for the BBC and others in the media who found it easier to give in to Rechem. To state, for example, the incontrovertible truth that “ReChem smells” could result in a claim alleging an inference of something more serious about the company and something personal about its people. I could see how this sort of manipulation would be a nuisance to any media organisation covering a controversial subject, where commercial interests were threatened by any form of publicity. By the plaintiff shifting the emphasis from fact to fiction it certainly made the complaints harder to grasp and the defence less easy to envisage.
Reverting to a positive outlook, I rationalised the new complications out of existence. I would have found it peculiar trying to prove that what I’d said didn’t mean what Rechem’s solicitors said I meant.For example, fancy me trying to prove that I didn’t mean the comments to be disparaging, when I really did intend them to be. If I now said I didn’t mean to imply that the process was inefficient then I could be taken to be implying it was truly efficient.If that’s what the solicitors wanted, I wasn’t going to be caught in such a trap. In short, I decided that since somebody’s imagination had simply generated some additional criticisms of Rechem and toxic waste, which I wouldn’t disagree with, I would take those criticisms on board as my own. Therefore, as well as defending my specific comments, I would try to justify some of the more serious meanings placed on them. After all, if I could prove that the interpretation “inefficiency in the incineration process” was true, it could be of more benefit to me than justifying my actual, but less objective term, “second rate”. Proving the “emission of highly toxic matter into the atmosphere”, as I was said to have implied, would be more condemning that simply giving evidence of “smell and smoke”. Overall, if I could prove that my comments were justifiable both in their plain meanings and also in the interpretations attached to them, it would be a better result than the victory over Canadian Waste. This style of defence would be fine by me.