‘Chilling lack of concern’: The Bates v Levi Judgement
As soon as we heard the appeal on Yorkshire Radio for fans to contact the club if they knew the whereabouts of Melvyn Levi, we knew we were heading for trouble. Ken Bates had already lost a libel case to Levi, costing £50,000 in damages and an estimated £1.5million in costs. It was no surprise that the ‘Levi-watch’ bulletin – which, it has been revealed in the judgement, Yorkshire Radio considered broadcasting along with the Crimewatch theme – along with comments in Ken’s programme notes, ended up with a court case against Bates, Leeds United and Yorkshire Radio for harassment of Melvyn Levi and his wife, Carole.
It was no real surprise, either, that Ken Bates substantially lost the case. His Honour Judge Gosnell has ruled that Bates, LUFC, and Yorkshire Radio’s actions did constitute harassment of Melvyn Levi but not of Carole Levi. The judge ruled that Mrs Levi, while clearly affected by the harassment of her husband, was not its target.
They were targeted at Melvyn Levi, and were calculated in an objective sense to cause alarm or distress; I find them to be oppressive and unacceptable when viewed objectively; I find them to be more than unattractive and boorish and are serious enough to sustain criminal liability in the event of breach. The judge also found that Ken Bates, “lack of concern, particularly as he must have read the medical evidence on both Levis was chilling.”The damages awarded are £10,000, and a two year injunction preventing Bates from harassing Melvyn Levi further; the judge has also ruled that Bates, LUFC and Yorkshire Radio must pay their own court costs, plus 30% of the Levis’ costs. Where this money will be found is an open question, but as Shaun Harvey did confirm in his evidence that “[the club] are spending a fortune on legal fees, yes,” we must fear that Leeds United’s club funds will ultimately be used to foot this bill.
The full, forty-page judgement can be downloaded here in pdf format. We think several details are worth bringing to the attention of Leeds fans and are publishing them below. They particularly highlight the use of the club’s matchday programme and the club’s in-house radio station in the case. These two media outlets are often cited by Ken Bates as important source of income for Leeds United, but this judgement shows instead that both have been used in a course of harassment which has resulted in an unsavoury court case and hefty legal bills.
When asked who had told him about the Claimants dining in Leeds on the 21st December Shaun Harvey sought permission to avoid answering the question. I thought this somewhat odd as the information was relied on by him. He did give the name of his contact Mr Michaelson but it then transpired that Mr Michaelson had not seen the Claimants; someone else had and then told Mr Michaelson. It became clear that this second hand hearsay did not extend to exactly which restaurant they had been at and what time. Mr Harvey had the good grace to accept that the Claimants had not been in Leeds on 21st December although he did appear embarrassed by the admission.
Shaun Harvey … confirmed that Yorkshire Radio has about 93,000 listeners per week with 10,000 additional listeners tuning in for match commentary.
Shaun Harvey was shown an email he had received from the Sports Correspondent of Yorkshire Radio suggesting that perhaps the “Crimewatch Theme” could be used in the radio broadcast. Again he seemed embarrassed and said it had not in fact been used. His embarrassment increased during the course of the trial when he had to serve a second statement to confirm that the radio message had been broadcast two or three times on 22nd December 2010 again on 23rd December 2010 and twice on 26th December 2010.
Mr Harvey confirmed that there have never been any discussions about what effect the programme notes are likely to have had on the Claimants. He accepted from the medical evidence that they have in fact been made ill by the experience and with the benefit of hindsight felt they could have done more. In a telling exchange at the end of his evidence, he was asked whether he ever felt a conflict of interest could arise as Chief Executive Officer of Leeds United if Ken Bates chose to publish something which was not in Leeds United’s interests. His reply was that as Ken Bates is a 76% shareholder there could be no conflict. This of course was rather missing the point but spoke volumes as to what influence or control if any Leeds United could exercise over Ken Bates. I gained the impression that Mr Harvey was a somewhat defensive witness who was very reluctant to concede anything which was against the interests of the Defendants. As a human being however, he had the decency to look embarrassed at some of the positions he was being forced to defend.
Ken Bates was asked whether he considered what effect these articles would have on Carole Levi particularly when she had given evidence in the libel claim how much it was upsetting her. He said when he writes the articles Carole Levi doesn’t come into his calculations at all. He said Melvyn Levi was a big boy and big enough to look after himself. I felt his lack of concern, particularly as he must have read the medical evidence on both Claimants was chilling.
It was a combative performance in the witness box with several bad tempered exchanges with leading counsel for the Claimants. At times he seemed more concerned with belittling and criticising Mr Myerson than giving convincing evidence to the court. Describing the questions as pathetic and answering “rubbish” on several occasions did nothing to advance his case.
The decision to broadcast a message, potentially to 103,000 people, to indicate that Leeds United are currently searching for the whereabouts of Melvyn Levi and to encourage people to ring in and disclose where and when they saw him was an extreme and bizarre response to this problem.
What therefore was the motive for broadcasting the message? I am prepared to accept that one of the motives was to provide information to assist in the service of Melvyn Levi with the proceedings. I am however convinced that another motive was to harass Melvyn Levi. I reach this decision firstly because the decision to broadcast the message was an entirely unreasonable decision and one which was disproportionate to the problem trying to be solved. There are also two other factors which persuades me that the mischief behind this decision was to “wind up” Melyvn Levi. Firstly, the fact that when Mr Harvey asked Mr Kirwin to broadcast the message Mr Kirwin suggested he could use the “Crimewatch theme”. If the litigation with Melvyn Levi was being treated seriously by the Defendants it seems to me unlikely that this suggestion would be made. Secondly, Ken Bates’ suggestion (which was not put into effect) that anyone providing information would win a free meal for two again suggests a less than serious attitude to the issue more in keeping with a motive to upset the butt of the joke. The fact that the message was broadcast over three days at least six times supports the fact that this was a disproportionate response.
This brings me to an important issue in relation to the case as a whole. Are Ken Bates’ programme notes a reflection of his genuinely held views of interest to the fans of Leeds United? Or are they, as the Claimant contends, a vehicle for Ken Bates’ to pursue his personal animosity against Melvyn Levi by publishing partial, inaccurate and damaging comments about Melvyn Levi under the guise of freedom of speech. Clearly the fact that in the past, three of them have been found to be defamatory in relation to Melvyn Levi is relevant. The fact that Ken Bates accepted that, other than managers and players, he had written more about Melvyn Levi than any other person is also relevant. He also accepted that he had not mentioned anyone else’s wife, son, home address or phone number.
Is the dispute with Melvyn Levi of genuine interest to the fans of Leeds United or does Ken Bates publish information embarrassing to Melvyn Levi irrespective of whether there is any genuine interest in the story? I find it difficult to accept that genuine fans have any interest in this dispute. It arose in 2004 over a disputed debt of £190,400. The dispute about the call option can be of no interest to the fans as Ken Bates succeeded in taking over the club without having to exercise it. Whilst £190,400 would seem like a lot of money to most of the fans of the club it is a very modest amount in modern day football when, even in the Championship, players are paid £20,000-£30,000 per week. When the fact that the debt was actually owed to the limited company who previously owned the club, (and was subsequently assigned by the administrator), is taken into account and the fact that the club has gone through two relegations, one promotion and an administration since then, it is hard to see how the fans would regard this issue as significant. Some support for this assessment is found in the fact that no fans appear to have either telephoned Melvyn Levi or accosted him at his home despite the invitation to do so in the programme.
I have reached the conclusion that the motivation to report matters which are derogatory about Melvyn Levi is founded in a personal grudge which Ken Bates has arising from the original business dealings in 2004. I find this is not a genuine attempt to report matters of interest to the fans of the club. Whilst I accept that the column may well contain such information, when mention is made of Melvyn Levi it is always derogatory and often inaccurate. No attempt at balance is made and when setbacks occur in the legal process which is supposedly of interest to the fans no attempt is made to report them. It is against this background that the ultimate balancing exercise must take place.
Would it be an unreasonable interference with Ken Bates’s right to freedom of expression to prevent him publishing these oppressive and unreasonable opinions? The radio broadcast and the article on 1st January 2011 are both occasions where Melvyn Levi’s right to privacy has been seriously breached without any objectively reasonable need for the information to be published at all. If Ken Bates had been prevented from publishing both these items it does not seem to me that it would have been an unreasonable interference with his right to free speech.
Standing back from the situation for a moment therefore and taking everything into account I find that radio broadcasts and article dated 1st January 2011 constitute acts of harassment. They were targeted at Melvyn Levi, and were calculated in an objective sense to cause alarm or distress; I find them to be oppressive and unacceptable when viewed objectively; I find them to be more than unattractive and boorish and are serious enough to sustain criminal liability in the event of breach. The previous articles have relevance to the issue as they provide the context to these events and go some way to explain why Melvyn Levi would in fact suffer alarm and distress and why the Defendants ought to have known that they would.