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THE SUPREME COURT OF JUDICATURE
OF APPEAL (CIVIL DIVISION)
APPEAL FROM THE HIGH COURT OF JUSTICE
Courts of Justice
28th October 1998
e f o r e :
down transcript of
Bernal Reporting Limited
Fleet Street, London EC4A 2HD
0171 421 4040 Fax: 404 1424
Shorthand Writers to the Court)
G. Robertson QC and Mr. G. Bussuttil
(instructed by Messrs. Farrer & Co.) appeared on behalf of the Appellant.
J. Price QC
(instructed by Messrs. Eversheds) appeared on behalf of the Respondent.
U D G M E N T
approved by the court)
is a libel action brought by the plaintiff Saif Al Islam Gaddafi, who is the 26
year old son of Colonel Gaddafi, the Libyan leader, against the defendant
Telegraph Group Ltd. in respect of two articles published in the Sunday
Telegraph on 26 November and 3 December 1995 respectively, the latter following
a complaint by the plaintiff.
first article was trailed on page 1 of the Newspaper under the heading "Gaddafi
Son's" "Sting" followed by the words:-
Gaddifi, 23 year old elder son of the Libyan leader, has been linked to a plan
to flood Iran with fake currency. The scheme involving black market oil deals
was foiled by the Egyptian authorities".
article itself was headed "Gaddafi's son linked to sting on Iran" and was
accompanied by a photograph of the plaintiff captioned:-
rial sting: Saif Gaddafi in Tripoli. Egyptian bankers were wary of his name
behind a plan to convert billions of dinars into US dollars".
plaintiff attributes the following natural and ordinary meanings to the article
had masterminded or alternatively had actively participated in an outrageous
international criminal conspiracy to defraud Iran and to flood that country
with fake currency; and
had thereby shown himself to be a thoroughly dishonest unscrupulous and
untrustworthy maverick against whom the international banking community had
been warned to be on its guard.
second article published in the Mandrake column referred to an alleged
invitation to the author of the article, Mr. Con Coughlin, to fly to Tripoli
and meet the plaintiff, hinting that there was a much more sinister plan such
as stringing him up from the nearest Tripoli lamp post.
plaintiff attributes to the second article the same two meanings by way of
innuendo, coupled with the meaning that the plaintiff had attempted, through
his henchmen, to lure Mr. Coughlin to Libya with the object or at least the
probable object of murdering him in revenge for an article published in the
previous week's Sunday Telegraph.
its defence the defendant first of all, somewhat optimistically, contends that
neither article bears the meanings complained of or any defamatory meaning. It
then puts forward the following substantive defences:-
In relation to the first article:-
Justification of the following Lucas-Box meanings:-
that the plaintiff was involved in a plan to evade the UN sanctions imposed on
Libya because of its terrorist activities by arranging for Libyan currency to
be laundered through Egyptian banks. The plaintiff's intention was to defy the
international community by obtaining tradeable foreign currency needed by the
regime to which he belongs for its purposes (which include the support and/or
protection of terrorism);
that the plaintiff was a loyal servant of a thoroughly dishonest, unscrupulous,
untrustworthy and maverick regime against which the international banking
community and the international community in general would be well advised to
be on its guard.
In relation to the second article:-
Justification in the same Lucas-Box meanings by way of innuendo, coupled with
the meaning that the plaintiff was a leading member of a regime which brutally
and lawlessly murders and/or intimidates its opponents in Libya and in the UK
and elsewhere, and is a person capable of inviting Mr. Coughlin to Libya in
order that the revenge might be taken upon him there such revenge possibly
taking the form of murder.
23 January 1997 Butterfield J upheld in part an application by the plaintiff
under Order 18 rule 19 and struck out:-
parts of the defendant's Lucas-Box meanings and of their particulars of
justification in relation to both articles.
the plea of qualified privilege in relation to the first article in its entirety.
defendant now appeals against all these rulings, and the plaintiff for his part
cross appeals against the judge's refusal to strike out other parts of the
particulars of justification, and also the plea of fair comment.
most important issue in this appeal concerns the plea of qualified privilege in
relation to the first article, which has been radically affected by the very
recent decision of the Court of Appeal on 8 July 1998 (Lord Bingham of Cornhill
CJ, Robert Walker LJ and myself) in
v . Times Newspapers Ltd and ors.
 3AER 961.
section of the judgment dealing with this topic is to be found at page 988
onwards to the end.
shall be returning to this case in greater detail later, but suffice it to say
for the present that, following a comprehensive review of all the relevant
common law authorities and statutory provisions both here and in the
Commonwealth, and of the relevant ECHR jurisprudence, the Court declined to
depart from the time honoured criteria of common and corresponding duty and
interest between the publisher and the publishee, which was restated (and to
some degree reformulated) as follows at page 994 to 995:-
our judgment, when applying the present English common law of qualified
privilege, the following questions need to be answered in relation to any
the publisher under a legal, moral or social duty to those to whom the material
was published (which in appropriate cases, as noted above, may be the general
public) to publish the material in question? (We call this the duty test).
those to whom the material was published (which again in appropriate cases may
be the general public) have an interest to receive that material? (We call
this the interest test).
the nature, status and source of the material, and the circumstances of the
publication, such that the publication should in the public interest be
protected in the absence of proof of express malice? (We call this the
court went on to stress that, in modern conditions, both the duty and the
interest tests should be rather more readily held to be satisfied than
hitherto, and that, in applying the circumstantial test, the question was
whether the circumstances of the publication were such as to make it proper in
the public interest to afford the publisher immunity from liability, in the
absence of malice, for the publication of, ex hypothesi, false and defamatory
statements of fact concerning the plaintiff.
reformulation of the old test has led Mr. Geoffrey Robertson QC on behalf of
the defendant to seek leave to make significant amendments to the plea of
qualified privilege, which, he submits, at least arguably bring him within the
James Price QC on behalf of the plaintiff, on the other hand, submits that the
new plea is as doomed to failure as the old one.
have to decide whether the new plea is at least arguably sustainable, or
whether as the plaintiff submits it is plainly and obviously so hopeless that
it should be struck out.
this context it is most important to bear in mind that at the present juncture
we are obliged to assume that the factual assertions in the defendant's
particulars are true, even though they are strenuously denied by the plaintiff.
in this context, the defendant contends that the plaintiff is a key official of
the Libyan government, and both the agent and heir apparent of his father.
plaintiff denies this in an affidavit which, though not strictly admissible, it
is only fair to him that I should quote:-
have not had and do not have any role of any kind linking me with my father's
position or with Libyan government affairs. I am simply one of my father's
sons. I am not the heir apparent. I am a supporter of my father only in the
same sense that any son loves his father and I am not a beneficiary of the
Libyan government although I do have some privileges (and restrictions and
drawbacks) due to my father's position."
describes his career as follows:-
own recent history is that having completed my secondary education I joined the
Architectural and Urban Planning Department of the Faculty of Engineering at Al
Fateh University in Tripoli, and graduated in 1994 with a B.Sc. degree in
engineering science. Since then I have worked in the Industrial research
Centre (in lieu of military service). I have also taken a computer course and
courses in English and French, because I hope to go to a European university
for higher studies in architecture. I have never taken part in any business
activities of any kind."
goes without saying that the assumption which we are obliged to make at the
present stage is in no way conclusive against the plaintiff, who will have full
opportunity to place his version before the jury at the trial.
issues which arise on the pleas of justification and fair comment are questions
more of detail than of basic principle.
plaintiff did not apply to strike out the particulars of justification relating
to U.N. sanction-busting, nor the biographical details concerning the
plaintiff. He did, however, apply to strike out both in the Lucas-Box
particulars and in the particulars of justification more general references to
terrorist activity by Libyans who were said to have been sponsored by the
regime and to the generally oppressive nature of the regime, together with
specific allegations against third parties in which the plaintiff was not
alleged to have been involved. As already noted, the judge acceded to most
though not all of these detailed applications, and the question is whether, as
the defendant contends, they were legitimate background material properly to be
placed before the jury for consideration in relation to the general allegations
in the first article, or whether as the plaintiff contends all the passages to
which they object should go.
fair comment the question is whether the words complained of in the second
article were of their nature comment at all, or whether, as the plaintiff
contends and the judge held, they are essentially assertions of fact.
have already set out the text of the trailer on page 1 of the article and the
headline of the article itself. It then proceeded as follows, adding for
convenience numbers to each paragraph:-
LIKE father, like son. Barely in his twenties, the eldest son of the Libyan
leader, Muammar Gaddafi, is winning himself a reputation as an untrustworthy
maverick after being linked to an outrageous plan to flood Iran with fake
Had it not been for the vigilance of the Egyptian banking authorities, the
Iranian economy would now be awash with fake rials, the national currency, and
the perpetrators of the sting would be enjoying the fruits of a multi-million
The plan was foiled only after Egyptian officials discovered that Saif
Gaddafi was behind a plan to convert billions of Libyan dinars, one of the
world's less attractive currencies, into more widely accepted American dollars.
Although young Gaddafi himself had done nothing wrong in trying to set up the
banking deal in Cairo, residual Egyptian suspicions about anything to do with
the Gaddafi regime persuaded the bankers to pass up a golden opportunity to
earn themselves a lucrative commission.
By so doing, they inadvertently ruined a bizarre scheme to purchase millions
of dollars worth of fake rials that would, in turn, have been sold back to
Iran's ayatollahs, further destabilising the country's battered economy.
´If they'd been successful, this operation would have made the Great
Train robbery look like a teddy-bears' picnic', said a British banking official
who acted as a consultant to the Egyptians. ´If the Egyptians had agreed
to go through with the deal the next step would have been to use it for an
elaborate operation to flood Teheran with fake rials.'
The operation involved the Vienna headquarters of Bandaran, an Iranian
import-export company that tries to sell Iran's surplus oil supplies on the
international black market.
Bandaran is run from Teheran by Dr. Abbaspour Tehrani Fahd, one of President
Rafsanjani's closest advisers and the man responsible for Iran's crushingly
expensive programme to develop chemical weapons.
To finance the project, Dr. Fahd is given large quantities of oil that is
surplus to Iran's Opec oil quota. The oil is sold on the black market and the
profits are used by Bandaran to finance the purchase of equipment for the
chemical weapons programme.
Bandaran's Vienna office is the main outlet for the oil sales, which generate
vast sums of cash.
In one transaction alone, which was negotiated earlier this year, Bandaran
made more than £100 million from the sale of a cargo of 80 million barrels
of oil on the black market.
The Vienna office plays a vital role in helping the mullahs to alleviate the
harsh effects of economic sanctions.
Like Iran, Libya is also suffering the effects of economic sanctions imposed
because of Colonel Gaddafi's refusal to hand over two suspects wanted in
connection with the Lockerbie bombing seven years ago.
As part of a ploy to generate much-needed dollars, Gaddafi authorised Saif to
negotiate a complicated deal with bandaran, whereby the Iranians and Libyans
agreed to work together on a multi-million-dollar money-laundering deal.
The first step in this complicated formula was to draw the equivalent of $8
billion from a group of banks in Cairo, in return for which the Libyans agreed
to pay the Egyptians an equivalent sum in Libyan dinars.
At first the Egyptians, who stood to make a handsome profit, were tempted by
the deal. But before they granted authorisation, the bankers made some
discreet inquiries about who was behind the scheme.
When they discovered that Gaddafi's 23-year old son was involved, they decided
the venture was too risky and pulled out.
One of the reasons they decided to abandon the deal was that, in the course of
their investigations, the bankers discovered that an Iranian businessman
intended to use the vast amounts of money involved in the deal to launder fake
For reasons that have still not been satisfactorily explained, billions of
dollars of fake Iranian rials have been produced in the Far East.
The Iranian middleman, most probably without young Gaddafi's knowledge,
intended to purchase large quantities of these fake rials. The next step in
the sting operation required Bandaran to sell a multi-million-dollar
consignment of black market oil.
Once the transaction went through, the Iranian intended to substitute the fake
rials, while pocketing the dollar payment himself.
If the plan had worked he would have made enough money never to have to worry
about working again, while Dr. Fahd would unwittingly have polluted the Iranian
economy with fake currency.
The Iranian's dreams of making a killing have been ruined, for the moment at
least, because of the resourcefulness of the Egyptian bankers.
Now the international banking community has been warned to be on its guard in
case another attempt is made to exploit the desperation of both Iran and Libya
to acquire foreign earnings.
In particular, they have been told to be on the look-out for enterprising
young Gaddafis bearing gifts."
will be noted that the two sides are wholly at odds as to the sting of this
article. The plaintiff concentrates on the imputation of the fake rial
conspiracy, and makes no complaint concerning the imputation of UN sanction
busting; the defendant, on the other hand, concentrates entirely on the latter
meaning. Mr. Robertson disowns the former meaning on the footing that the
article in paragraph 20 exculpates the plaintiff, and it will of course be an
important question for the jury to decide whether the antidote in paragraph 20
removes the bane.
Price, although not seeking to strike out the defendant's sanction-busting
meaning, submits that, as the judge held at one stage in his judgment, the
words are in truth incapable of bearing that meaning, and that his abstention
from seeking to strike it out is charitable; I disagree, since it seems to me
to be very strongly arguable that paragraphs 13 to 15 do carry this imputation,
which is also reflected in paragraph 24 and in part of the caption to the
photograph; here again, it will ultimately be a matter for the jury to decide
whether this meaning is made out.
Particulars of Justification
have gone through numerous metamorphoses, culminating in a final version which
was presented to us in the course of the hearing, and which removed a number of
the allegations concerning third parties to which the judge had objected, and
with which we no longer need to be concerned.
text of this final version is as follows, with the passages to which Mr. Price
objects either in support of the judge's decision or by virtue of his
cross-appeal being bracketed:-
plaintiff is a key official of a terrorist regime, being the close assistant,
agent and heir apparent of his father Colonel Gadaffi, dictator of Libya and
instigator and an abettor of numerous acts of terrorism, murder and crimes
against humanity in the UK and elsewhere.]
government takes the form of a dictatorship in which all power emanates from or
is responsible to the plaintiff's father, [who suppresses opposition at home
and abroad by (inter alia) directing assassinations and intimidation by his
army and extensive security services. Libyans do not have the ability to
change their government, political parties are banned, and any who criticise
the dictator or his family and his close associates (i.e. any who criticise the
plaintiff) are at risk of detention without trial, torture, execution or long
periods of imprisonment or (if overseas) of assassination. The plaintiff is a
beneficiary, supporter and functionary of this undemocratic and brutal regime,
and hence is associated with his father's repeated public calls for terrorist
violence against the family's opponents.]
plaintiff is the eldest son of the dictator's second marriage. His mother is
Safiya Farkash. As befits his role as heir apparent in a dynastic
dictatorship, the plaintiff
with the rank of Major from the Military Training Academy of libya, and has
taken part in training Libyan troops;
heads the ´Drugs and Narcotic Action Group', an officially designated
been given by his father special authority to oversee the country's main
industries, namely petroleum and electronics;
been appointed by his father to conduct various foreign assignments of great
importance to the regime, including re-negotiation of the nations's debt with
Bulgaria (approximately US$500 million); representation of Libya at the
birthday celebrations of Sheikh Zayed bin Sultan, ruler of the United Arab
Emirates and at visits to Iranian President Ali Akbar Hashemi Ratsanjani; and
the sanctions-busting operation which is referred to in the articles of which
complaint is made;
helped to negotiate multi-million pound contracts for the importation into
Libya of gas turbines and computer equipment;
in consequence of his father's support, great political power and influence in
the governance of Libya. In 1955, for example, Minister of Information Ahmed
Ibrahim was dismissed because he disagreed with the plaintiff over a printing
contract for the international distribution of an official Libyan newspaper
al-Fair al-Jadeed (´New Dawn')
regime of which the plaintiff is an important and enthusiastic part has been
and remains the instigator and/or abettor of acts of international terrorism in
Britain and elsewhere, which acts have destroyed thousands of innocent lives.
The defence will instance]
arms, explosives, finance and training provided to the IRA;]
shooting of WPC Yvonne Fletcher outside the ´Libyan Peoples Bureau' in
London in 1984 and the regime's refusal, to this day, to apologise or accept
responsibility for this atrocity, in consequence of which diplomatic relations
between the United Kingdom and Libya were severed;]
1988 conspiracy by person including Lamen Khalifa Fhimah and Abdel Basset Ali
Al-Megrahi, intelligence officers of the regime to place a bomb aboard Pan Am
Flight 103, which exploded over Lockerbie causing the death of 270 passengers
and crew, and its harbouring of these two named conspirators in defiance of
international law and the United Nations;]
conspiracy in 1989 to explode a bomb aboard UTA Flight 772, which caused the
death of all passengers and crew;]
of a Libyan oppositionist while resident in the United kingdom, namely, Ali
Mehmed Abuzeid (London 1995) who was, to the plaintiff's knowledge murdered at
the direct instigation of the father whom the plaintiff loves and
massive and continual support - in funding, equipment, housing, training,
intelligence and misuse of diplomatic privileges to smuggle passports, guns and
bombs - provided since 1986 to Abu Nidal and his terrorist network.]
activities of Khalifa Ahmed Bazelya, head of the Libyan interest section of the
Saudi Embassy in London, ordered to leave the UK in December 1995 because on
the orders of the regime of which the plaintiff is a part he engaged in spying
and intimidation of Libyan dissidents resident in the UK.]
1992 the United Nations Security Council repeatedly condemned Libyan
involvement in international terrorism (Resolutions 731 and 748). [The United
Kingdom representative, Sir David Hannay, pointed out that ´the Libyan
authorities, by their own admission, continue to give direct assistance to
terrorists'] Resolution 748 imposed limited sanctions unless and until the
Libyan regime renounced terrorism. Resolution 883 (adopted by the Security
Council on 11 November 1993) extended these sanctions and imposed a freeze on
Libyan assets held outside that country, ie that no funds or financial
resources owned or controlled, directly or indirectly, by official Libyan
interests can be made available to or to the use of such interests. These
resolutions were last reviewed and renewed on 21 March 1996.
a consequence of the economic sanctions identified above, the plaintiff's
regime was at all material times in need of hard currency. To this end, on its
behalf and to the knowledge of the plaintiff in or about June 1995 the mother
sought to raise American dollars through the agency of the Arab Investment Bank
of Cairo in an exchange of one billion Libyan dinars as a rate of 38 units to
the US Dollar, the deposit to take place in Teheran.
Arab Investment Bank declined to proceed with the transaction, whereupon
Colonel Al-Gaddafi authorised the plaintiff to negotiate a similar and larger
transaction through banks in Geneva. [The plaintiff's actions were supported
by the regime's external security services, headed by Moussa Koussa, who had
been ordered to leave the UK in 1980 for conspiring to assassinate enemies of
plaintiff commenced negotiations on behalf of the regime, using the Geneva
branch of Safaforex SA (a Liechtenstein company) located at 3 Rue des Alpes
1201 as a vehicle for disguising Libyan government involvement. The said
branch is managed by Abdullah Safa a Bolivian national associated with the
the plaintiff's instigation, Safaforex approached UBS Bank in Geneva with a
request to procure the purchase of US$ 800 million (the first of proposed
purchases of US$ 8 billion) from a syndicate of Egyptian banks in Cairo,
including the Arab Investment Bank, by advancing an amount of Libyan dinars
which would more than cover the purchase, allowing the bank (and the Egyptian
syndicate of banks it might put together for the proposed total deal) a
proposal made to UBS by Safaforex envisaged that the required amount of Libyan
dinars would be paid in four tranches at weekly intervals, these funds to be
guaranteed by Bandaran, a Vienna-based Iranian company represented by Mehdi
Farshi which is controlled from Teheran by Dr. Abbaspour Fahd, chief security
adviser to President Rafsanjani. The main purpose of Bandaran is to sell on
the black market oil which is surplus to Iran's OPEC requirements.
order to secure the co-operation of Bandaran in the project, the plaintiff
attended a meeting with Mehdi Farshi at the Wilson Hotel (now the President
Wilson Hotel) in Geneva in August 1995. The plaintiff was accompanied by
Mohammed Umar Saleh al-Baba, a senior Libyan intelligence officer [whose
previous duties have included the arranging of Libyan funding for the IRA.] An
official of the Iranian Central Bank, and other Iranian government official,
also attended. The Iranian delegation agreed to assist the plaintiff (ie the
Libyan government) in the sanctions-busting transaction.
syndicate of Egyptian banks investigated the proposed transaction when informed
of it by their Geneva office. On discovering that members of the Gaddafi family
were involved, they determined to have nothing further to do with it.
[Farshi was minded to use Bandaran's involvement in the plaintiff's transaction
as a cover for his own scheme to steal hard currency earned by Bandaran and to
account for his theft by sending back to Iran an equivalent amount in rials,
which would in fact and to his knowledge be counterfeit.]
was recalled to Teheran for interrogation about his involvement in the
production of counterfeit rials.]
or about July 1995 the plaintiff sought permission to enter the United Kingdom,
which permission was refused by the government on the grounds that his presence
would not be conducive to the public good. The plaintiff has not sought to
challenge this determination, by way of judicial review or otherwise.]
the resolutions of the United Nations Security Council referred to in
sub-paragraph (v) are of great importance, and we were furnished with the texts
of two of them during the course of the hearing which so far as relevant are as
731 dated 21 January 1992:-
by the world-wide persistence of acts of international terrorism in all its
forms, including those in which States are directly or indirectly involved,
which endanger or take innocent lives, have a deleterious effect on
international relations and jeopardize the security of States.
by all illegal activities directed against international civil aviation, and
affirming the right of all States, in accordance with the Charter of the United
Nations and relevant principles of international law, to protect their
nationals from acts of international terrorism that constitute threats to
international peace and security.
its resolution 635 (1989) of 14 June 1989, in which it condemned all acts of
unlawful interference against the security of civil aviation and called upon
all States to cooperate in devising and implementing measure to prevent all
acts of terrorism, including those involving explosives.
the statement made on 30 December 1988 by the President of the Security Council
on behalf of the members of the Council strongly condemning the destruction of
Pan Am flight 103 and calling on all States to assist in the apprehension and
prosecution of those responsible for this criminal act.
over the results of investigations, which implicate officials of the Libyan
Government and which are contained in Security Council documents that include
the requests addressed to the Libyan authorities by France,
the United Kingdom of Great Britain and Northern Ireland
and the United States of America
in connection with the legal procedures related to the attacks carried out
against Pan American flight 103 and Union de transports aerens flight 772.
to eliminate international terrorism.
the destruction of Pan American flight 103 and Union de tranports aerens flight
772 and the resultant loss of hundreds of lives;
the fact that the Libyan Government has not yet responded effectively to the
above requests to cooperate fully in establishing responsibility for the
terrorist acts referred to above against Pan American flight 103 and Union de
tranports aerens flight 772;
the Libyan Government immediately to provide a full and effective response to
those requests so as to contribute to the elimination of international terrorism;
the Secretary-General to seek the cooperation of the Libyan Government to
provide a full and effective response to those requests;
all States individually and collectively to encourage the Libyan Government to
respond fully and effectively to those requests;
to remain seized of the matter."
883 dated 11 November 1993:-
its resolutions 731 (1992) of 21 January 1992 and 748 (1992) of 31 March 1992,
concerned that after more than twenty months the Libyan government has not
fully complied with these resolutions,
to eliminate international terrorism,
that those responsible for acts of international terrorism must be brought to
also that the suppression of acts of international terrorism, including those
in which States are directly or indirectly involved, is essential for the
maintenance of international peace and security,
in this context, that the continued failure by the Libyan Government to
demonstrate by concrete actions its renunciation of terrorism, and in
particular its continued failure to respond fully and effectively to the
requests and decisions in resolutions 731 (1992) and 748 (1992), constitute a
threat to international peace and security,
note of the letters to the Secretary-General dated 29 September and 1 October
1993 from the Secretary of the General People's Committee for Foreign Liaison
and International Cooperation of Libya (S/26523) and his speech in the General
Debate at the forty-eighth session of the General Assembly (A/48/PV.20) in
which Libya stated its intention to encourage those charged with bombing of Pan
Am 103 to appear for trial in Scotland and its willingness to cooperate with
the competent French authorities in the case of the bombing of UTA 772, ...
under Chapter VII of the Charter,
Demands once again that the Libyan Government comply without any further delay
with resolutions 731 (1992) and 748 (1992);
Decides, in order to secure compliance by the Libyan Government with the
decisions of the Council, to take the following measures, which shall come into
force at 00.01 EST on 1 December 1993 ..."
then follow the detailed sanction provisions.]
main thrust of Mr. Price's argument is that his objective is to ensure that the
trial is not diverted from the plaintiff's own activities, and he concedes that
if the plaintiff is indeed a top official in the Libyan government his case
will be blown out of the water: what he wants to avoid is the diversion of the
trial into controversial areas relating to the activities of the Libyan
government generally, which he submits will prejudice the plaintiff in the eyes
of the jury.
relies particularly on the well known passages from O'Connor LJ's judgment in
Peck v. Trelford
 QB 1000 at pages 1021H and 1032F:-
The trial of the action should concern itself with the essential issues and the
evidence relevant thereto and that public policy and the interest of the
parties require that the trial should be kept strictly to the issues necessary
for a fair determination of the dispute between the parties......."
all cases it is the duty of the court to see that the defendant, in
particularising a plea of justification or fair comment, does not act
oppressively. Whether the particularisation of the plea is oppressive depends
not only on the facts of each case, but also on the attitude of the plaintiff.
I say this because a plaintiff can limit the extent and cost of inquiry at
trial by making timely admissions of fact."
particularly, Mr. Price objects to any reference to the plaintiff involving
himself in terrorism, which, he submits, reflects a meaning which the article
is not capable of bearing. I cannot accept this submission, since I am quite
satisfied that, in the light of recent history, any jury would inevitably
associate the Libyan regime led by Colonel Gaddafi with terrorism, not least
because of the very well known terms of the two UN resolutions which I have
just quoted. Furthermore the article itself in paragraph 13 specifically
mentions the Lockerbie bombing.
indeed the article is right in implicating the plaintiff in the activities of
the Libyan regime (NB for example the opening words of the article "Like father
like son"), it seems to me quite unrealistic to suggest that he can be entirely
disassociated from its general conduct.
follows that in my judgment the two Lucas-Box meanings, and sub-paragraphs (i),
(ii), (iv) (a) (b) (c) (d) and (e) of the particulars should remain intact.
is noteworthy, and I would stress, that (a) (b) and (c) all relate to
activities directly connected with the UK, and moreover items (c) and (d) are
the subject-matter of the two UN resolutions.
4 (e) survives because Ali Abuzeid also figures in the particulars of qualified
(f) and (g), however, seem unduly remote, and akin to a number of the previous
allegations concerning terrorism abroad which the defendants have now dropped;
I would therefore rule those two paragraphs out on
(v) I would retain the reference to Sir David Hannay's speech in the Security
Council, which seems to me part and parcel of the Security Council's
proceedings, and therefore not an imputation, which, as the judge held, should
be struck out on the ground that it is hearsay.
remaining paragraphs, apart from (xiii) and (xiv), seem to me unobjectionable,
and in particular I would not rule out the reference to Mr. Al Baba's alleged
role in relation to the IRA which seems to me directly material.
the other hand, (xiii) and (xiv) are, for similar reasons to those given above
to (iv) (f) and (g), objectionable on
have already cited the three tests laid down in
which of course govern our decision in the present case.
following this passage, the judgment proceeds as follows at page 995:-
make reference to ´status' bearing in mind the use of that expression in
some of the more recent authorities to denote the degree to which information
on a matter of public concern may (because of its character and known
provenance) command respect ... The higher the status of a report, the more
likely it is to meet the circumstantial test. Conversely, unverified
information from unidentified and unofficial sources may have little or no
status, and where defamatory statements of fact are to be published to the
widest audience on the strength of such sources, the publisher undertakes a
heavy burden in showing that the publication is ´fairly warranted by any
reasonable occasion or exigency'".
in an important passage under the heading "The General Principle Analysis and
Conclusions" the judgment states as follows:-
do not for an instant doubt that the common convenience and welfare of a modern
plural democracy such as ours are best served by an ample flow of information
to the public concerning, and by vigorous public discussion of, matters of
public interest to the community. By that we mean matters relating to the
public life of the community and those who take part in it, including within
the expression ´public life' activities such as the conduct of government
and political life, elections (subject to s 10 of the 1952 Act, so long as it
remains in force) and public administration, but we use the expression more
widely than that, to embrace matters such as (for instance) the governance of
public bodies, institutions and companies which give rise to a public interest
in disclosure, but excluding matters which are personal and private, such that
there is no public interest in their disclosure. Recognition that the common
convenience and welfare of society are best served in this way is a modern
democratic imperative which the law must accept. In differing ways and to
somewhat differing extent the law has recognised this imperative, in the United
States, Australia, New Zealand and elsewhere, as also in the jurisprudence of
the European Court of Human Rights. It would be strange if the law in this
country - the land of Milton, Paine and Mill - were to deny this recognition,
and the history recited above in our judgment makes plain that it does not.
it is the task of the news media to inform the public and engage in public
discussion of matters of public interest, so is that to be recognised as its
duty. The cases cited show acceptance of such a duty, even where publication
is by a newspaper to the public at large. In modern conditions what we have
called the duty test should, in our view, be rather more readily held to be
to the duty of the media to inform is the interest of the public to receive
information. Article 10 of the Convention laid down a right to receive
information. We have no doubt that the public also have an interest to receive
information on matters of public interest to the community (as opposed, of
course, to information about matters in which the public may happen to be
interested). The cases have accepted that the public generally may have an
interest to receive information published in a newspaper, so satisfying that we
have called the interest test. In modern conditions the interest test should
also, in our view, be rather more readily held to be satisfied.
would, however, in our judgment, run counter to English authority and do
nothing to promote the common convenience of our society to discard the
circumstantial test. Assuming in each case that a statement is defamatory and
factually false although honestly believed to be true, it is one thing to
publish a statement taken from a government press release, or the report of a
public company chairman, or the speech of a university vice-chancellor, and
quite another to publish the statement of a political opponent, or a business
competitor or a disgruntled ex-employee; it is one thing to publish a
statement which the person defamed has been given the opportunity to rebut, and
quite another to publish a statement without any recourse to the person defamed
where such recourse was possible; it is one thing to publish a statement which
has been so far as possible checked, and quite another to publish it without
such verification as was possible and as the significance of the statement
called for. While those who engage in public life must expect and accept that
their public conduct will be the subject of close scrutiny and robust
criticism, they should not in our view be taken to expect or accept that their
conduct should be the subject of false and defamatory statements of fact unless
the circumstances of the publication are such as to make it proper, in the
public interest, to afford the publisher immunity from liability in the absence
of malice. We question whether in practice this is a test very different from
the test of reasonableness upheld in Australia.
view of the law which Lord Lester has urged upon us is in our view both too
broad and too narrow. It is too broad because it exposes those who are
properly the subject of political speech to false and defamatory factual
statements about them with no protection save on proof, which will often be
difficult or impossible, that the publisher lacked an honest belief in the
truth of the statement. It is too narrow because confined to political speech
or discussion. For understandable forensic reasons, Lord Lester framed his
submission in terms wide enough to cover this case but no wider. That does
not, however, absolve us from the need to state the law in terms which are
clear and workable and serve the common convenience and welfare of society. If
a businessman were said to have corrupted a serving politician, Lord Lester's
´political speech' qualified privilege would, in the absence of malice,
protect the publisher in a suit by the politician. But what of a suit by the
businessman? If, as we understood him to accept, the same privilege would
apply in a suit by the businessman, it would seem unlikely that the privilege
could be confined to political speech. But if the privilege could be and were
so confined, we question whether the common convenience and welfare of society
would be thereby served: there are, after all, many matters which affect the
public interest and the health of society much more profoundly than the small
change of political controversy.
is also plain that Lord Lester's rule would emasculate, in the area of
political speech, the defence of fair comment. While, as we have shown, this
defence permits the expression of very strong opinions, so long as they are
honest, it does require (subject to s 6 of the 1952 Act) that the facts
commented upon be true. If Lord Lester's rule were adopted, the defence of
fair comment would be unnecessary in political cases, as Cantley J pointed out
case; the important safeguard of truth would effectively disappear.
his reply Lord Lester sought to demonstrate that his rule would have the
positive virtue of discouraging irresponsible journalism by imposing a salutary
discipline on the editor and journalists involved, since, absent a plea of
justification, the focus of a trial would shift from the conduct of the
plaintiff to the conduct of the newspaper, which in answer to a plea of malice
would need to vindicate the conscientiousness of its investigation and of its
conduct leading up to the publication. In our view, application of the
circumstantial test would exert the same beneficial influence; and we remind
ourselves that the law of defamation is concerned primarily to maintain the
proper balance, not to regulate the practice of journalism.
all these reasons we reject Lord Lester's proposed rule and adhere to the
existing tests of qualified privilege, applied in the way we have described."
main body of the plea of qualified privilege in its new amended form is as
or alternatively, the said words were published on an occasion of qualified
privilege, it being the duty of the defendant to alert the general public to
attempts being made by the Plaintiff and others on behalf of the Libyan and
Iranian regimes to evade sanctions imposed as punishment for terrorism and
other breaches of international law, such duty being reasonably discharged by
publication to the readers of ´The Sunday Telegraph' who as citizens of a
country which supports these sanctions and as potential innocent victims of
State-supported terrorism had a corresponding and legitimate interest in being
so alerted. The nature, status and source of the information expressed by the
said words, and the circumstances in which they came to be published, were such
that the publication is deserving of protection in the public interest."
plea is of course primarily directed towards the duty and interest test.
particulars which follow are framed to meet the circumstantial test, and they
fall into two parts.
1 in effect repeats the particulars of justification.
2 to 9 set out in detail the background to and the circumstances of the
compilation of the article and are as follows:
defendant newspaper has won many awards for its coverage of international
affairs and is widely recognised as an appropriate media vehicle for
dissemination of such information to an interested general readership in
Britain and beyond to the international community, including organs of the
United Nations, and international law enforcement agencies and financial
author of the first article, Con Coughlin, was at all material times the
defendant's Chief Foreign Correspondent. He had been employed by the defendant
since 1980, after earning a degree in modern history and completing
professional training as a journalist. Since then he has specialised in
analysing the domestic and international politics of the Middle East and North
Africa, travelling widely throughout the region and operating
from Libya and Iran. He reported extensively on the Lockerbie bombing and its
aftermath, and is widely recognised as an expert on international terrorism.
He has twice earned the British Press Awards commendations for his Middle-East
reporting, and has published two books, "Hostage - the complete story of the
Lebanon captives" (Little Brown, 1992) and "A Golden Basin Full of Scorpions -
The Quest for Modern Jerusalem" (Little Brown, 1997). Prior to his work on the
first article he had been engaged in investigating the attempts being made by
Iran to obtain components for nuclear and chemical weapons. In the course of a
distinguished career he has professionally cultivated many sources in this
country and abroad in senior political, security, intelligence, military,
diplomatic and business positions, as well as academics and members of
dissident groups: confidentiality is a recognised obligation of his
relationships with many of these sources.
genesis of the first article was a luncheon meeting on 19 October 1995 between
Mr. Coughlin (with several other members of the Defendant's staff) and the then
Foreign Secretary, the Right Honourable Malcolm Rifkind, and two senior
diplomats. The Foreign Secretary briefed them,
on the danger to world peace of certain Middle-East countries and notably Iran
obtaining components for nuclear, chemical or biological weapons, as a result
of the clandestine arrangements they were making to obtain ´hard' currency
(i.e. US dollars) to fund such purchases. The Foreign Secretary encouraged Mr.
Coughlin to continue investigating such arrangements, which were breach of
economic sanctions imposed by the United Nations.
Coughlin over the next fortnight set up meetings with persons in security
agencies who might have special knowledge of the subject. He had lengthy
meetings on 25 and 31 October 1995 with one such person (Source A) whom he had
known for some years, knew to be in a senior position, and whose information
had always proved reliable. Source A informed him of the activities of the
Vienna-based company Bandaran, which was raising hard currency for Iran to fund
its weapons programme by selling Opec surplus oil on the international black
market. Source A provided details of Mr. Mehdi Farshi's connection with
Bandaran, and his connection with a man named Felber who had been convicted and
imprisoned in the United States for attempting to purchase components for
chemical weapons for Iran, on Farshi's behalf.
Coughlin confirmed the information which appeared in the first article about
Bandaran, Farshi and Dr. Abbaspour Tehrani Fahd from a number of other sources,
both in London (after a meeting with Hussein Aberdini, spokesman for the
National Council Resistance of Iran) and from a number of contacts in the USA
including a customs investigator who worked on the Felber case, prosecution and
defence lawyers, and others. He obtained documentary evidence that Bandaran,
Farshi and Fahd were engaged in UN sanctions-breaking to obtain for Iran
components for weapons of mass destruction, including records from the U.S.
District Court in Oregon relating to the prosecution of Manfred Felber which
indicated that the money for Felber's unlawful purchase (namely components for
chemical weapons) had been supplied by Farshi.
early November Mr. Coughlin visited Israel to cover the aftermath of the
assassination of Yitzhak Rabin: he obtained further corroboration from
security sources there.
21 November 1995 Mr. Coughlin had a private luncheon meeting with Source A,
who introduced him to another senior security official (Source B) whom he
described as having expertise in Middle-East banking and finance, and as
possessing particular knowledge of Egypt. In the course of this meeting Source
B explained the plaintiff's connection with Farshi and Bandaran and with the
failed money-laundering plan to obtain ´dollars for dinars'. Source B
explained that Farshi (who is the ´businessman' or ´middleman'
referred to in the article) had intended to exploit his connection with the
plaintiff to pull off the ´rials sting', and may well have succeeded had
he (Source B) not tipped off one of the banking consortium about the
´Gaddafi connection'. Source B made these disclosures under the guarantee
from Mr. Coughlin of complete confidentiality.
Coughlin said that he wished to examine the matter in more detail, for which
purpose a four-hour meeting was convened the following day, 22 November.
Sources A and B attended. At this lengthy meeting, Mr. Coughlin was told that
the Plaintiff had been authorised by his father to enter into a
money-laundering deal with Farshi and Bandaran, using the Geneva branch of an
international finance company (Safaforex) to disguise Libyan government
involvement. They would procure the purchase of US$ 8 billion in ´clean'
US dollars from a consortium of Egyptian banks in Cairo (including the Arab
Investment Bank) in consideration of the equivalent in ´dirty' Libyan
dinars together with a generous commission. He was given further details of
the complicated transaction, which he attempted to summarise in the article;
he was told it would have culminated, probably without the plaintiff's
knowledge, in a private plot by Farshi to substitute counterfeit rials from the
Far East for currency to be repatriated to Iran, Mr. Farshi's scheme failed
because the Egyptian banks who were to sell the dollars to Safaforex in
exchange for the Libyan dinars, upon learning that a member of the Gaddafi
family was behind Safaforex, pulled out of the deal. In this way, the Egyptian
bankers ´advertently' foiled the money-laundering part of the scheme,
whilst ´inadvertently' foiling Mr. Farshi's ´fake rial' plot'.
Coughlin regarded the information provided to him on 22 November as credible in
view of the status of his sources and their detailed knowledge displayed in
answer to his questions. However he was concerned to examine first-hand
evidence, and had a further lengthy meeting with the sources on 23 November, in
the course of which he was permitted to view documents which included copies of
banking records evidencing business links between the plaintiff and Bandaran.
He was not permitted, under the confidentiality condition of these meetings, to
take away or copy the said documents. As a result of his own assessment of
information provided by his sources, he became convinced that what he wrote
abut the plaintiff in the first article was true. He commenced writing it
after the meeting on 23 November. There was a mistake made by sub-editors in
paragraph 18, which wrongly suggests that the Egyptian bankers became aware of
the ´fake rials' scheme: as paragraph 5 makes clear, this was not the case.
Coughlin believed that the information in the first article was of great public
interest and should be published as soon as possible, preferably in the next
edition of ´The Sunday Telegraph' on 26 November. He was concerned to be
fair to the plaintiff, although direct contact with him was impracticable - Mr.
Coughlin had been deported from Libya after his last visit and believed himself
to be ´persona non grata' with the regime. Since the Libyan regime had no
embassy in London, as a consequence of the expulsion of its diplomats after the
murder of W.P.C. Yvonne Fletcher, Mr. Coughlin telephoned the Libyan Interests
Section at the Saudi Arabian embassy and was put through to a person who
described himself as ´Mr. Issa' and claimed to be responsible for dealing
with media enquiries relating to persons in Libya. Mr. Coughlin explained that
he wished to contact the plaintiff urgently to discuss the article with him.
Mr. Issa promised to make the relevant enquiries and to call Mr. Coughlin by
early afternoon: when he failed to do so Mr. Coughlin called the Libyan
Interests Section again, and was told that nobody named ´Mr. Issa' worked
there. Mr. Coughlin concluded from this incident and from past experience in
attempting to get through to Libyan government personalities, that obtaining
any comment would in the circumstances be impractical.
writing the article without the benefit of questioning the plaintiff, Mr.
Coughlin endeavoured to be fair to him by making clear that he had nothing
´wrong' in the banking transactions themselves and that ´the
middleman' had acted ´most probably without young Gaddafi's knowledge' in
advancing the ´fake rials' sub-plot.
defendant was, as a matter of policy, prepared to publish a letter from the
plaintiff commenting on the article, or to interview him about it. On November
28 1995, two days after publication, Mr. Coughlin was telephoned on behalf of
the plaintiff by a Mr. Hashin Ibrahim, who issued an invitation to meet the
plaintiff in Tripoli to ´correct certain statements'. Mr. Coughlin
counter-offered to meet and interview the plaintiff in a country other then
Libya, but that offer received no response. It was repeated by the defendant's
solicitor on 29 December but by letter of 6th February the plaintiff's
solicitors rejected it. On 29 February they wrote ´our client is not
interested in clearing his name by giving his version of the facts'.
the premises, the nature status and source of the material in the first
article, and the circumstances attending its publication were such as to
attract qualified privilege."
Robertson in his skeleton argument characterized the circumstantial test as
novel, and undoubtedly in its reformulation it acquires much greater prominence
than hitherto. However, its origin is to be found as far back as the judgment
of Parke B in
 1 CR M & R 181, quoted on page 90 of
and in particular his statement that "...if fairly warranted by any reasonable
and honestly made such communications are protected ...".
seems to me manifest that, provided the defendants establish their case that
the plaintiff is a prominent member of the Libyan regime, the duty and interest
tests are arguably met. Indeed Mr. Price did not press any argument to the
contrary. If on the other hand the defendant fails in this respect, the whole
bottom will fall out of its defence of qualified privilege, and indeed of its
defence as a whole.
argument therefore focused on the circumstantial test, and in particular
whether the sources relied upon by Mr. Coughlin in the particulars are
adequately identified to demonstrate that, at least arguably, they had the
status exemplified in
his opening submissions, Mr. Price submitted that, in the particulars as
presently drafted, their precise status was left up in the air. Was the
security agency to which Source A and Source B belonged a government agency, or
a commercial agency, or a dissident group? Where did Source B glean his
information? Was the information allegedly obtained paid for?
questions had been raised by him in a request for further and better
particulars to which the defendants had so far declined to respond.
this juncture, towards the end of the first day of the hearing, the court
expressed its disquiet to Mr. Robertson, and invited him to be more specific.
response, at the opening of the sitting on the second day, Mr. Robertson stated
that, on instructions, he was able to confirm that the security agency to
which both Source A and Source B belong is a Western Government Security
Agency, and that no money was paid by the defendants to either Source A or
Source B. Further than that he said that he was unable to go since any more
detailed information (e.g. of the actual Western Government in question) might
well lead to the precise identification of the two individuals themselves, and
thus imperil their safety in face of a hostile foreign government.
Price responded that this was not good enough, and said that the plaintiff's
advisers were apprehensive lest further information may be (to use his words)
drip fed by the defendant either in subsequent witness statements or at the
trial itself: The defendant should be compelled to disclose its bottom line
here and now, and leave to amend should be made conditional on it identifying
the Western Government, and also the origin of Source B's information. Without
this information, Mr. Price submitted, he would be unable to give his client
the advice to which he was entitled on the prospects of the qualified privilege
Robertson replied that it is inconceivable that the position will change
between now and the trial, since it is highly unlikely that the two sources
will release Mr. Coughlin from his undertaking to preserve their
confidentiality and thus expose themselves to obvious risks, unless a radical
improvement occurs in Libya's relations with the West.
Robertson then cited a number of authorities and statutory provisions which
enshrine the journalist's right to protect his sources, which he submitted,
should prevail in the present case viz:-
Steel Corporation v. Granada Television
 AC 1096 Lord Fraser stated as follows at page 1197-8:-
claim of the press to be in a special position is rested on two grounds. The
first is the so-called newspaper rule, the effect of which was described thus
by Bankes LJ in
v. Odhams Ltd.
 1 KB 135, 143:
I say is that this is an action of libel against the publishers of a newspaper,
that it is well established that in the case of newspapers there is an
exception to the rule requiring a defendant to disclose the source of his
information where he pleads either privilege or fair comment.'
would make the following comments on the newspaper rule.
The rule applied only to libel actions. It has recently been extended in
Corporation of New Zealand v. Alex Harvey Industries Ltd.
 1 NZLR 163 to slander of title, but the present case has nothing to do
with libel or slander of title.
The rule applied only at the interlocutory stage of discovery. The reasons for
the rule are obscure as judges have often pointed out: see for example
Scrutton LJ in
v. Odhams Ltd.
 1 KB 135, 144 and Scott LJ in
Suburban Co-operative Society Ltd. v. Orum
 2 KB 690, 703. It has sometimes been held that the same informant was
(1890) 24 QBD 441
(1914) 30 TLR 288. But that reason cannot apply in a case where the defendant
pleads privilege: see
 1 KB 870
case  1 KB 135. I agree with Lord Hailsham of St. Marylebone that the
rule must have been based on public policy:
v. National Society for the Prevention of Cruelty to Children
 AC 171
, 228. The reasons of public policy, and the limits of the rule,
were explained by Dixon J in the Australian case of
v. Attorney-General for Victoria,
63 CLR 73
, 104, when he said:
although all authority is against the existence of any rule of evidence under
which an editor or journalist is protected when called as a witness on the
trial of an action from the necessity of deposing to the source of the
information contained in his publication or to statements made in confidence to
him in the exercise of his calling, yet a special exception is made in favour
of publishers, proprietors and editors of newspapers as defendants in actions
of libel from the general rule that discovery by affidavit of documents and
answer to interrogatories must be made of all relevant matters.
a long line of cases a practice is recognised of refusing to compel such a
defendant to disclose the name of the writer of an article complained of as a
libel or of the sources of information he has relied upon. The foundation of
the rule is the special position of those publishing and conducting newspapers,
who accept responsibility for and are liable in respect of the matters
contained in their journals, and the desirability of protecting those who
contribute to their columns from the consequences of unnecessary disclosure of
their identity. The cases are collected in
v. Odhams Ltd.
 1 KB 135 and
Suburban Co-operative Society Ltd.v. Orum
 2 KB 690, which are the latest authorities upon the application of the
rule. The appellant stands upon these decisions and says that they disclose a
development which, in reason and logic, should not stop at discovery, but
should supply a general justification for withholding the names of contributors
and the sources of information at all stages of any legal proceeding. The
answer is that it is not a rule of evidence but a practice of refusing in an
action of libel against the publisher, &c., of a newspaper to compel
discovery of the name of his informants. It ´rests not on a principle of
privilege but on the limitations of discovery' ...'"
RSC Order 82 rule 6 provides as follows:-
an action for libel or slander where the defendant pleads that the words or
matters complained of are fair comment on a matter of public interest or were
published on a privileged occasion, no interrogatories as to the defendant's
sources of information or grounds of belief shall be allowed."
Section 10 of the Contempt of Court Act 1981 stipulates as follows:-
court may require a person to disclose, nor is any person guilty of contempt of
court for refusing to disclose, the source of information contained in a
publication for which he is responsible, unless it be established to the
satisfaction of the court that disclosure is necessary in the interests of
justice or national security or for the prevention of disorder or crime."
of State for Defence v. Guardian Newspapers Ltd.
 1 AC 339 Lord Diplock stated as follows at page 347:-
10 is concerned solely with the power of a court of justice (or by virtue of
the extended definition in section 19, any other tribunal or body exercising
the judicial power of the State) to order a person to disclose the source of
information contained in a publication for which he is responsible; a power
which is exercisable only where the identity of or nature of such sources is
relevant to some issue that falls to be determined by the court in the
particular proceedings. The section confers no powers upon the court
additional to those powers, whether discretionary or not, which already existed
at common law or under rules of court, to order disclosure of sources of
information; its effect is restrictive only. As I have pointed out, the
disclosure of sources of information with which the section deals is not, like
the old ´newspaper rule' at common law, limited to disclosure upon
discovery where disobedience to the order for discovery would fall into the
category of a civil contempt; it applies also to disclosure in response to a
question put to a witness at the trial, where a refusal to answer the question
if ordered to by the judge to do so would constitute a contempt committed in
the face of the court and thus as criminal contempt."
he proceeded as follows at page 349:-
nature of the protection for the removal of compulsion to disclose in judicial
proceedings the identity or nature of the source of any information contained
in the publication, even though the disclosure would be relevant to the
determination by the court of an issue in those particular proceedings; and
the only reasonable inference is that the purpose of the protection is the same
as that which underlay the discretion vested in the judge at common law to
to compel disclosure of sources of information; videlicet - unless informers
could be confident that their identity would not be revealed sources of
information would dry up.
words with which the section starts, before it comes to specifying any
exceptions, impose a prohibition on the court itself that is perfectly general
in its terms: ´No court may require a person to disclose ... the source of
information contained in a publication for which he is responsible ...'. This
prohibition is in no way qualified by the nature of the judicial proceedings,
or of the claim or cause of action in respect of which such judicial
proceedings, if they are civil, are brought.....
what the court is prohibited from requiring is not described by reference to
the form the requirement takes, but by reference to its consequences, viz.
disclosure of the source of information. If compliance with the requirement,
whatever form it takes, will, or is sought in order to enable, another party to
the proceedings to identify the source by adding to the pieces already in
possession of that party the last piece to a jigsaw puzzle in which the
identity of the source of information would remain concealed unless that last
piece became available to put into position, the requirement will fall foul of
the ban imposed by the general words with which the section starts. I
therefore, with respect, do not share the doubts expressed by Shade LJ as to
whether section 10 of the Act of 1981 to resist delivery up of a document the
person responsible for its publication must establish by affirmative evidence
that compliance will (not just may) compel him to reveal a source of
information. If he can show that there is a reasonable chance that it will do
so, then (subject always to the exceptions provided for later in the section)
this will suffice to bring the prohibition into effect."
The European dimension of this rule was laid down by the ECHR in
22 EHRR 123
at page 143 in paragraph 39 as follows:
Court recalls that freedom of expression constitutes one of the essential
foundations of a democratic society and that the safeguards to be afforded to
the press are of particular importance.
of journalistic sources is one of the basic conditions for press freedom, as is
reflected in the laws and the professional codes of conduct in a number of
Contracting States and is affirmed in several international instruments on
journalistic freedoms. Without such protection, sources may be deterred from
assisting the press in informing the public on matters of public interest. As
a result the vital public watchdog role of the press may be undermined and the
ability of the press to provide accurate and reliable information may be
adversely affected. Having regard to the importance of the protection of
journalistic sources for press freedom in a democratic society and the
potentially chilling effect an order of source disclosure has on the exercise
of that freedom, such a measure cannot be compatible with Article 10 of the
Convention unless it is justified by an overriding requirement in the public
considerations are to be take into account in applying to the facts of the
present case the test of necessity in a democratic society under Article 10(2)."
part of the case has caused me considerable anxiety since undoubtedly, in the
new climate created by
it is very important that the plaintiff should have adequate particulars not
only of the matters relied upon under the duty and interest test, but also
those relied upon under the circumstantial test, in order to evaluate the
prospects of the defence of qualified privilege succeeding.
I am satisfied that in the present case there is no realistic prospect of the
defendants elaborating or refining the particulars as presently drafted, for
the reasons given by Mr. Robertson, and I also consider that to accede to Mr.
Price's request would infringe the important principles just cited.
Consequently I would allow the amendment as it stands.
second article was in the following terms:-
offers are just too easy to refuse. After my colleague Mr. Con Coughlin wrote
last week about the strange business activities of Saif Gaddafi, the Libyan
leader's errant son, he received a call from one of his henchmen. Young
Gaddafi, it seems, was very upset about the adverse publicity he had received
and wanted to set the record straight.
Mr. Coughlin, he inquired, be prepared to fly to ~Tripoli to meet Gaddafi
that he could ´make the correction'? This offer was made it should be
remembered, just hours after Ali Mehmet Abuzeid, a leading figure in the
National Front for the Salvation of Libya, the London-based opponents of
Gaddafi, was brutally stabbed to death at his grocery shop.
kind of ´correction' did the Libyans have in mind? Did they merely desire
to challenge the article's factual accuracy (in which case Mr. Coughlin would
be happy to oblige)? Or was there a much more sinister plan, such as stringing
up the hapless hack from the nearest Tripoli lamp-post?
henchmen were eager to stress Mr. Coughlin had nothing to fear. ´You will
be our guest. We just want to make the correction,' they said by way of
reassurance. Having carefully weighed up all the options, my colleague has
decided to take his chances and stay in London.
have already quoted the defendants' Lucas-Box meanings.
judge struck out the words "was a leading member of a regime which brutally and
lawlessly murders and/or intimidates its opponents in Libya and in the United
Kingdom and elsewhere ...", but for reasons already given in relation to the
first article, it seems to me clear that those words should stand.
particulars of justification in paragraph (i) repeat the particulars of
justification of the first article. The ensuing particulars, in which I have
bracketed the passages struck out by the judge, are as follows:-
particulars to paragraph 5 hereof are repeated.
September 1995, after 30 dissidents had been killed by his security forces,
Colonel Al Gaddafi publicly stated that his regime would kill its opponents.
He said ´We will corner the traitors here, and we will trample them
underfoot, and we will physically liquidate them. With their blood, we will
wash off the disgrace they have left on our soil']
London in November 1995 Ali Mehmet Abuzeid, a prominent opponent of Gaddafi's
family and its rule, was stabbed to death by Libyan agents.
Libya, law No. 71 of 1972 mandates the death penalty for any person associated
with a group ´opposed to the principles of the revolution.']
exposing the plaintiff's attempts on behalf of the regime to evade United
Nations sanctions, Mr. Con Coughlin would or would be considered a candidate
for punishment under law No. 71 of 1972.]
the event of being apprehended for such offence in Libya, Mr. Coughlin would
not be permitted to retain a private defence counsel, since private practice of
law is illegal. He would not be tried by an independent court or an
established Islamic court, but by one of the ´special' revolutionary
courts established in 1980 to try political offences. These courts usually sit
in secret, and sometimes in the absence of the accused. If convicted, the
regime could order his execution to be shown on television.]
Coughlin could, if apprehended in Libya, be detained indefinitely without
trial, a fate which had befallen approximately 500 political prisoners in 1995.
He could be tortured and forced to confess on television to being a US spy, a
fate visited upon three political detainees (including leukaemia victim Miftah
Zarrum al-Wirfali in March 1995.]
not arrested by the security forces, Mr. Coughlin may nonetheless become the
target of a local revolutionary cadre, which cadres haver been incited by the
regime to take extrajudicial action against suspected opponents. Such action
has in the past included hanging the suspect from lamp posts and other
makeshift public gallows.]
nationals are not protected from the actions described above. In recent years
many foreign nationals have been held in custody without trial, tortured and
then deported, while several have been extrajudicially executed. There is no
British embassy to protect UK citizens in Libya, as diplomatic relations ceased
after the murder of WPC Yvonne Fletcher by Libyan diplomats in London in 1984.]
or about the time the said words were published, the plaintiff's regime had
commenced a policy of discrimination against foreign nationals, expelling tens
of thousands of foreign workers and residents without notice or reason or any
rights of appeal, defaming them as unlawful entrants and as spreader of the
´AIDS' virus, and detaining them for weeks or months in insanitary camps.]
28 November 1995 Mr. Coughlin was telephoned on behalf of the plaintiff by a
Mr. Hisham Ibrahim, who said that the plaintiff issued an invitation to meet
him in Tripoli to correct certain statements in the article. The plaintiff
declined, by his subsequent silence, Mr, Coughlin's counter-offer to meet in a
country other than Libya.
29 February 1996 the plaintiff's solicitor wrote to the defendant that
´our client is not interested in clearing his name by giving his version
of the facts.' It may be inferred from this that the plaintiff's invitation to
Mr. Coughlin to Tripoli was not for the reason stated, but for some ulterior
in the case of the first article, Mr. Price objects that this is a theme which
indicts the regime rather than the plaintiff himself, but once again, on the
assumption that he is a key figure in that regime, it seems to me that the
defendants must be entitled to give instances of punishment by the Libyan
regime of dissidents and of its opponents, subject always to the
rule. On this basis, drawing the line as best I can, I would retain sub
paragraphs (ii) to (vi) inclusive, the first ten words of sub paragraph (vii),
the whole of sub paragraph (viii), and the first and third sentences of sub
would however disallow the remainder of paragraph (vii), the second sentence of
paragraph (ix), and the whole of paragraph (x), on
plea of fair comment is as follows:-
or alternatively the words set out in paragraph 5 of the statement of claim
were fair comment on a matter of public interest, namely on the lawless and
brutal nature of the regime of which the plaintiff is par, and its record for
murdering, torturing and otherwise abusing its opponents, in Libya and in
London and elsewhere, upon the Plaintiff's brazenness and hypocrisy in issuing
an invitation to Mr. Coughlin to travel to Libya as a guest well knowing that
once there Mr. Coughlin could be murdered for writing critically of the
Plaintiff in the Sunday Telegraph.
judge held, after considerable hesitation, that this plea was just sustainable.
quite apart from the fact that I find it very difficult to see how the second
article could qualify as comment, despite its publication in the Mandrake
column, it is manifest
this plea will fail if the facts on which it is based, namely the particulars
of justification, are not proved; conversely, if those facts are proved, the
plea of fair comment will become superfluous.
long as the plea of fair comment remains, the judge will be required to give,
and the jury required to heed, the usual somewhat elaborate direction as to the
ingredients of the defence which will add a further and unnecessary dimension
to the heavy burden which they already have to bear in this case.
would therefore strike out the plea of fair comment.
all these reasons I would allow both the appeal and the cross-appeal to the
extent, but only to the extent, set out above.
JUSTICE TUCKEY: I agree.
JUSTICE STUART-SMITH: I also agree.
allowed in part;
allowed in part as per judgment;
to have 50% of costs here and below.
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