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||Neutral Citation Number:  EWCA Civ 536
||Case No: A2/2001/0305 QBENI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVILCIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Gray)
||Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 3rd April 2001
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE BROOKE
SIR MARTIN NOURSE
|| GRIGORI LOUTCHANSKY
||TIMES NEWSPAPERS LIMITED
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Richard Spearman QC & Richard Parkes (instructed by Reynolds Porter Chamberlain for the Appellants)
Desmond Browne QC & Hugh Tomlinson (instructed by Olswang for the Respondents)
HTML VERSION OF JUDGMENT
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LORD JUSTICE BROOKE :
- This is an appeal by the defendants from a decision of Gray J on 22nd January 2001 when he refused them permission to amend their defence to add certain additional paragraphs to their plea of qualified privilege. The issue arises in the context of a libel action which started on 19th March 2001 before Gray J and a jury. At the end of the hearing of the appeal on 12th March we said we were dismissing the appeal and that we would give our reasons in due course.
- In this action the claimant, who was born in Tashkent and was subsequently based in Latvia, complains that he was libelled by two publications which appeared in the columns of The Times on 8th September and 14th October 1999 respectively. These articles accused him of being engaged in international criminal activities of a very serious kind. There is no substantive plea of justification in the defence. Instead the defendants rely mainly on a defence of qualified privilege. They contend that given the nature and seriousness of the allegations against the claimant and the evidence to support them, including the claimant's criminal conviction and the fact that the allegations had received official endorsement by public authorities such as the Home Office and the US Department of State, the allegations were of great public interest and concern, such that the public were entitled to know of them.
- On 12th January the judge granted the defendants permission to amplify their reasons for saying that they were under a duty to publish the articles complained of, and their grounds for saying that the information available to them was reliable. He also gave them permission to add various matters to the existing particulars, including the addition of a fourth source of information of which no mention had hitherto been made in their statement of case. He adjourned until 22nd January consideration of the question whether he would grant them permission to add certain additional matters, set out in paragraphs 18.2.1 to 18.2.7 of a draft amended defence, and on that day he refused such permission, setting out his reasons in a short oral judgment.
- It was a feature of these additional matters that none of them were known to the defendants at the time they published the articles of which complaint is made. They consisted of reports or views expressed about the claimant by various governments or governmental bodies in this country, Austria and Israel, and also by Interpol. It is, for instance, already part of the defendants' case that the claimant was excluded from the United Kingdom by direction of the Home Secretary in 1994, and they now wish to rely on an affidavit sworn on behalf of the Home Secretary in judicial review proceedings in 1996 which sets out the Home Secretary's reasons for making the exclusion order.
- The judge recorded how on a hearing on 23rd October 2000 it had been common ground between the parties that the defendants could not rely on facts in support of their claim to privilege unless they were known to the journalist involved with the articles complained of at the time of their publication. He said that the defendants had now changed their stance. They were now asserting that they were entitled to rely on facts of which they had been unaware at the material time in support of their contention that they were under a duty to publish the matters of which complaint is made.
- The judge, who has immense experience in this field of law, took as his starting point what he called certain basic principles relating to the common law defence of privilege. He understood these principles to represent common ground between the parties, and they were not disputed on the appeal to this court. He expressed them in the following terms:
(1) The question is not whether the publication itself is privileged, but rather whether the occasion of the publication was privileged.
(2) For privilege to obtain, there must be established a duty to publish on the part of the defendant and a reciprocal interest on the part of those to whom the words were published in the subject-matter of the publication.
(3) The duty must be established to have existed in fact, as must the existence of the legitimate interest on the part of those to whom the publication was made.
(4) The consequence of an occasion being privileged is that the publisher acquires an immunity to legal liability for the publication of untrue defamatory statements about a person, subject always to the question of malice.
- The judge then divided his consideration of the matter he had to decide into two parts. In the first part, in which his conclusions were not challenged by Mr Spearman QC on this appeal, he said that it appeared beyond doubt that a defendant pleading qualified privilege could rely only on facts and circumstances which existed at the time of publication. In the second part, in which his conclusions are the subject of this appeal, he decided that a defendant could not pray in aid in support of an alleged entitlement to privilege facts of which it had been unaware at the time of publication. Referring to the speeches in the House of Lords in Reynolds v Times Newspapers Ltd  3 WLR 1010, he said that it appeared to him that this conclusion provided the certainty which Lord Steyn at p 1036C considered to be a desirable objective. He added that this view of the law also appeared to be productive of the higher standard of journalism mentioned by Lord Nicholls at p 1024H.
- In so far as the judge was determining the matter as a point of principle, it was common ground that the point had not been authoritatively determined, even by the House of Lords in Reynolds or by this court in GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd (No1)  1 WLR 2571. Indeed, May LJ, who gave the leading judgment in the latter case, said when granting permission for the present appeal that the point was an important one, adding that there was a real, if problematic, prospect of success.
- In order to resolve this matter, it is necessary to refer to the historical development of the common law defence of qualified privilege. For this purpose there is a very helpful summary of the matter in the judgment of Dunn LJ in Blackshaw v Lord  QB 1 at pp 32G-36C, in which he referred with approval to the history set out in the argument of Sir Valentine Holmes KC in Perera v Peiris  AC 1, 9. This showed that in the eighteenth century privilege afforded no defence to a defamatory publication. Dunn LJ continued at pp 33F-34A:
"During the 19th century the judges were using the word 'privilege' as meaning the existence of a set of circumstances in which the presumption of malice was negatived. It was said in Gilpin v Fowler (1854) 9 Exch 615, 623-624:
'Instead of the expression 'privileged communication' it would be more correct to say that the communication was made on an occasion which rebutted the presumption of malice.'
The judges, having to face the problem of what would be the circumstances in which the presumption of malice would be negatived, went on two lines, duty and interest and the public good and for the public interest.
By the end of the ensuing 100 years it had been established that certain categories of documents by their very nature rebutted the presumption of malice, and publication of them was accordingly privileged. These included fair and accurate reports of judicial proceedings and of proceedings in Parliament. But the courts stressed that the categories were not closed, and in each case it was necessary to determine whether the occasion was privileged not only by reference to the subject matter of the information published but also to its status, and whether that gave rise to the duty to publish."
- In Watts v Times Newspapers Ltd  QB 650 Hirst LJ, who also had vast experience of this branch of the law, said at p 659D that the general principle on which common law qualified privilege was founded was the public interest frequently expressed as "the common convenience and welfare of society" or "the general interest of society". He went on to say that the first classic exposition of the doctrine was to be found in the judgment of Baron Parke in Toogood v Spyring 1 CM&R 181, 193-4, in which he held that a defamatory publication would be protected by common law privilege in cases where the occasion of the publication afforded a defence in the absence of express malice. Parke B rationalised the position in these terms:
"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."
- It is not necessary for the purposes of this judgment to trace the later expositions of the "duty and interest" formulation. A number of them are conveniently brought together and discussed in paragraphs 14.04 to 14.06 of Duncan & Neill on Defamation (2nd Edition, 1983). In Jones v Baird  SC(HL) 158 Earl Loreburn described how a court should set about its task of determining whether the occasion of publication attracted privilege. He said at pp 163-4:
"If the document is capable of a defamatory meaning, then may be considered the point as to whether the occasion was privileged or not. In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine by whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of questions of public policy ... ."
- In the same year Lord Buckmaster LC said in London Association for the Protection of Trade v Greenlands Ltd  1 AC 15 at p 23:
"... [It] is, I think, essential to consider every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained ... ."
- In Turkington v Times Newspapers Ltd (2nd November 2000, HL(NI)) Lord Cooke of Thorndon observed at p 23 that until the decision in Reynolds it would seem that the legal profession in England might not have been fully alive to the possibility of a particular rather than a generic qualified privilege for newspaper reports where the circumstances warranted a finding of sufficient general public interest. He mentioned in this context the fact that in Blackshaw v Lord  QB 1 this court had recognised this possibility, although the judgments may have been somewhat discouraging.
- Although the nature and extent of the defence in such a case was not fully explored in this country until Reynolds, it is worth considering the judgments of this court in Blackshaw, which Lord Cooke in his speech in Reynolds at p 1046 picked out for specific mention as adopting "substantially the right approach": see also Lord Hobhouse of Woodborough at p 1060.
- In Blackshaw the Daily Telegraph had published an article headed "Incompetence at ministry cost £52 million" in which it recorded that a number of senior civil servants had been reprimanded following certain investigations by the Public Accounts Committee of the House of Commons, and that the plaintiff had been the official in charge of the office of the relevant department at the material time. The article also stated that the plaintiff had resigned from the civil service. The publication of the article followed a press conference at which some of the evidence had been disclosed, and at which it was revealed that an unnamed senior department official in Scotland had been reprimanded. The name of the official concerned was said to have been subsequently divulged to the journalist (Mr Lord) by one of the department's press officers (Mr Smith) on request.
- One of the newspaper's defences was that the publication of the article was protected by common law privilege. It was said that the newspaper had a moral duty to publish information concerning departmental maladministration, the more so since a substantial amount of taxpayers' money was involved.
- Although the appeal was dismissed on other grounds relating to the findings of fact which it was held that the jury was entitled to make, all three members of the court considered the viability of the plea of common law privilege on an occasion in which a newspaper was maintaining that it was under a moral duty to publish information to the world at large, and that the world at large had a corresponding interest in receiving it.
- Stephenson LJ listed at p 25G-H the principal authorities on this topic, and then said:
"The question here is, assuming Mr Lord recorded Mr Smith's conversation with him fairly and accurately, did Mr Lord (and his newspaper) publish his report of that conversation in pursuance of a duty, legal, social or moral to persons who had a corresponding duty or interest to receive it? ...
I cannot extract from any of those authorities any relaxation of the requirements incorporated in that question. No privilege attaches yet to a statement on a matter of public interest believed by the publisher to be true in relation to which he has exercised reasonable care. That needed statutory enactment which the Committee on Defamation refused to recommend: see paragraphs 211-215. 'Fair information on a matter of public interest' is not enough without a duty to publish it and I do not understand Pearson J's ruling in Webb v Times Publishing Co  1 QB 535 that a plea of a fair and accurate report of foreign judicial proceedings was not demurrable, was intended to convey that it was enough. Public interest and public benefit are necessary (cf section 7(3) of the Defamation Act 1952), but not enough without more. There must be a duty to publish to the public at large and an interest in the public at large to receive the publication, and a section of the public is not enough."
- Dunn LJ, after the historical excursion to which I have already referred (during the course of which he quoted passages from the judgments of Mellish LJ and Bramwell LJ in Purcell v Sowler LR 2 CP 215, 221 and 223), concluded this part of his judgment at p 35F-G in these terms:
"This review of the authorities shows that, save where the publication is of a report which falls into one of the recognised privileged categories, the court must look at the circumstances of the case before it in order to ascertain whether the occasion of the publication was privileged. It is not enough that the publication should be of general interest to the public. The public must have a legitimate interest in receiving the information contained in it, and there must be a correlative duty in the publisher to publish, which depends also on the status of the information which he receives, at any rate where the information is being made public for the first time."
- Fox LJ used his own words to reach a similar conclusion. He said at p 42B-G:
"A wider principle is stated by Pearson J in Webb v Times Publishing Co Ltd  1 QB 535, 570:
'As the administration of justice in England is a matter of legitimate and proper interest to English newspaper readers so also is this report [of foreign proceedings] which has so much connection with the administration of justice in England. In general, therefore, this report is privileged.'
I think that states the principle rather too widely. It is necessary to a satisfactory law of defamation that there should be privileged occasions. But the existence of privilege involves a balance of conflicting pressures. On the one hand there is the need that the press should be able to publish fearlessly what is necessary for the protection of the public. On the other hand there is the need to protect the individual from falsehoods. I think there are cases where the test of 'legitimate and proper interest to English newspaper readers' would tilt the balance to an unacceptable degree against the individual. It would, it seems to me, protect persons who disseminate
'any untrue defamatory information of apparently legitimate public interest, provided only that they honestly believed it and honestly thought that it was information which the public ought to have.' See London Artists Ltd v Littler  1 WLR 607, 615.
If, as in my opinion the law requires, it is necessary for the defendants to establish that they had a duty to publish the article if they are to be entitled to common law privilege in respect of it, I do not think that the defendants have done so. Mr Smith was not prepared to give the authority of the Department of Energy to the naming of the plaintiff. In so far as the article implied that the plaintiff had been reprimanded or forced to resign from the civil service it was based upon inference or conjecture derived from insufficient knowledge of the facts. In my opinion the defendants were under no duty to the public to publish the article in the form in which it appeared having regard to the actual degree of knowledge available to them. Accordingly, in my view the defence of common law privilege fails."
- The final part of this extract contains an echo of Lord Buckmaster's requirement that a court must examine all the circumstances associated with the origin and publication of defamatory matter before deciding that its publication on the particular occasion was privileged. Fox LJ was saying that if a journalist published information based on inference or conjecture derived from insufficient knowledge of the facts, he could not successfully assert that he was under a duty to publish it.
- Although the House of Lords disapproved the three-stage test suggested by the Court of Appeal in its judgment in Reynolds v Times Newspapers Ltd  3 WLR 862, that judgment contains at pp 894F-899B a valuable discussion of earlier English decisions in which courts held that the particular circumstances of a publication taken as a whole warranted its dissemination to the public at large. This discussion ended with part of the extract from Fox LJ's judgment in Blackshaw which I have set out in paragraph 20 above.
- The House of Lords, like the Court of Appeal, rejected in Reynolds the defendants' contention that the common law should develop a new subject-matter category of common law privilege whereby the publication of all political information would attract qualified privilege whatever the circumstances. All five members of the House, however, stated in clear terms that an occasion of publication to the world at large would attract qualified privilege if it satisfied what Lord Nicholls called "the duty-interest test" (see the report at  3 WLR 1010 at pp 1020B-C, 1035C-1036H, 1046A-E, 1056C-G, 1060C-G). Lord Hobhouse in particular said at p 1060F:
"No genus is satisfactory, nor is any genus more satisfactory than the criterion of what it is in the public interest that the public should know and what the publisher could properly consider that he was under a public duty to tell the public."
- I have noted how in Blackshaw Fox LJ held at p 42G that the defence of common law privilege failed because the journalist's state of knowledge at the time of publication was based on inference or conjecture derived from insufficient knowledge of the facts. Stephenson LJ touched on the same issue at pp 26G-27B:
"The general topic of the waste of taxpayers' money was, Mr Eady concedes, a matter in which the public, including the readers of the 'Daily Telegraph's' first edition, had a legitimate interest and which the press were under a duty to publish; but they had no legitimate interest in Mr Lord's particular inferences and guesses, or even in Mr Smith's, and the defendants had certainly no duty to publish what Mr Eady unkindly called 'half-baked' rumours about the plaintiff at that stage of Mr Lord's investigations.
There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there is danger to the public from a suspected terrorist or the distribution of contaminated food or drugs, but there is nothing of that sort here.
So Mr Lord took the risk of the defamatory matter, which he derived from what he said were Mr Smith's statements and assumptions, turning out untrue."
- Dunn LJ, for his part, justified his conclusion that The Daily Telegraph were under no duty at common law to publish the article in the form they did by saying at p 38C-D:
"Taken at its most favourable to Mr Lord, what Mr Smith said about the plaintiff was no more than an ex parte statement based on inference, into the truth of which Mr Smith had made no investigation, and upon which the plaintiff had had no opportunity to comment."
- In Reynolds, Lord Bingham CJ began the process of seeking to identify the circumstances in which a publication to the world at large might attract privilege. He said at p 899G that the higher the status of a report, the more likely it was to meet the circumstantial test he proposed. He added:
"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'."
He then quoted the examples given by Stephenson LJ in Blackshaw which, he said, "put the requirement quite high".
- Lord Nicholls developed this issue in the guideline passage with which he ended that part of his speech in Reynolds in which he identified the correct approach to matters of this kind. He dismissed the proposal that "political information" should become a new "subject-matter of qualified privilege" on the grounds that this would not provide adequate protection for reputation and that it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. He continued, at p 1027B-F:
"The elasticity of the common law principle enables freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject-matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.
The list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time a valuable corpus of case law will be built up."
- After explaining that a newspaper's unwillingness to disclose the identity of its sources should not weigh against it, he ended by saying (p 1027F-G):
"Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication."
- A little earlier in his speech he had addressed at p 1024F-H the problems faced by the media because the outcome of a court decision could not always be predicted with certainty when a newspaper was deciding whether to publish a story. After saying that a degree of uncertainty in borderline cases was inevitable, he added:
"However, the extent of this uncertainty should not be exaggerated. With the enunciation of some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse."
- In GKR Karate (UK) Ltd v Yorkshire Post Ltd  1 WLR 2571 this court was concerned with a case in which the claimants complained of an article in the Leeds Weekly News which was critical of the way they ran their business of teaching karate. The first and third defendants were the newspaper publishers and the writer of the article (Mrs Holmes) respectively and the second defendant was the general administrator of the English Karate Governing Body (Mr Porch). Each of the defendants pleaded justification, fair comment and qualified privilege. At a pre-trial review held less than a month before the trial was due to start the trial judge ordered that the judge and jury should hear and determine two issues before they went on to the trial of the other issues. The first of these issues was whether the article had been published on an occasion of qualified privilege. If the answer was "yes", the second issue was whether the newspaper defendants or any of them were actuated by express malice. It was believed that the trial of these issues would take three days or so, while a full trial which included the issues of justification would take four to six weeks to try. The case against Mr Porch, which was linked with a separate action against him, would in any event proceed in full whatever the outcome of these preliminary issues. The particulars of malice alleged against him were much more extensive.
- The claimants appealed against this order on the grounds that its effect involved a departure from the test of qualified privilege found in Reynolds and the substitution of a different test. Mr George Carman QC, who presented their case on the appeal, argued that all the circumstances of the publication had to be investigated in order to decide whether the publication of the article was in the public interest, so that the occasion was privileged. These circumstances included the question whether the article was true. He said that the practical effect of the judge's judgment and order was that all that would be considered would be what the journalist knew and what inquiries the journalist should have made. What the journalist would have discovered if she had made further inquiries would be left out. He submitted that the reliability of the journalist's source, objectively determined, was relevant to the issue of privilege.
- May LJ, in a judgment with which Tuckey LJ agreed, quoted at p 2588F-G that part of Lord Nicholls's speech in Reynolds at p 1020 in which he said that:
"... in deciding whether an occasion is privileged the court considers, among other matters, the nature, status and source of the material published and the circumstances of the publication. ... These factors are to be taken into account in determining whether the duty-interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. ... A claim to privilege stands or falls according to whether the claim passes or fails this test."
- May LJ commented that this passage justified Mr Carman's submission that the test was whether the public was entitled to know the information, but it did not support his submission that after-events, including the subsequently determined truth or falsity of the publication, were relevant. The words "the circumstances of the publication" meant in this context the circumstances at the time of the publication. A little earlier in his speech, at p 1016E, Lord Nicholls had quoted from the judgment of Blackburn J in Davies v Snead (1870) LR 5 QB 608, 611 where that judge spoke of circumstances where a person is so situated that it "becomes right in the interests of society" that he should tell certain facts to another. Lord Nicholls had also cited (at p 1017G) the dictum of Lord Buckmaster LC in the Greenlands case (for which see para 12 above).
- After quoting the passage of Lord Nicholls's speech which I have reproduced in paragraph 27 of this judgment, May LJ said at p 2578F-H:
"This passage, in my opinion, clearly supports Mr Moloney's submission that the existence or otherwise of qualified privilege is to be judged in all the circumstances at the time of the publication. It is not necessary or relevant to determine whether the publication was true or not. None of Lord Nicholls's 10 considerations require such a determination and some of them (for example number 8) positively suggest otherwise. Nor is it necessary or relevant to speculate (for the purposes, for instance, of considerations 3, 4 or 7) what further information the publisher might have received if he had made more extensive inquires. The question is rather whether, in all the circumstances, the public was entitled to know the particular information without the publisher making further such inquiries. The reliability of the source of the information is a relevant consideration, but that, in my view, is to be judged by how objectively it should have appeared to the defendant at the time. It is to be considered in conjunction with the inquiries which the defendant made at the time relevant to the reliability of the source. If the defendant made careful inquiries which, judged objectively, reasonably justified a conclusion that the source was apparently reliable, that will be a positive (though not determinative) indication in favour of the occasion being privileged. If the defendant made no, or only perfunctory, inquiries, a conclusion that the source was apparently reliable will be less likely. In neither instance is a subsequent investigation at trial into the actual reliability of the source relevant. The judge was, in my view, right so to conclude in the present case. Mr Porch may or may not have had an axe to grind. But, if he did, what is relevant is whether Mrs Holmes knew it at the time or, if she did not, whether she made proper inquiries on that subject."
- For these and other reasons the court considered that the judge's order, which involved determining first the issues of privilege and malice in the proceedings against the newspaper defendants was fair, sensible and economic. The truth or falsity of the publication was not relevant to those issues, nor was any present determination of Mr Porch's reliability in the light of any evidence he might give in these proceedings.
- The ruling made by the judge, Sir Oliver Popplewell, at the trial of this issue has also been reported: see GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd  EMLR 410. He accepted at p 421 counsel for the defendants' summary of the general principles established by the House of Lords in Reynolds:
"A privileged occasion exists if the public is entitled to know the particular information. That is, if it was the journalist's social or moral duty to communicate it and the interest of the particular public to receive it. This is determined in the light of all the circumstances of the publication and, in particular, whether the sources were, or appeared to be reliable, to a reasonable and responsible journalist. While Lord Nicholls' ten examples are not to be taken as written in stone, they form the basic framework upon which a judge can do the balancing exercise."
He then added:
"In particular, I am adjured to avoid hindsight, attach importance to the freedom of expression, be slow to conclude that publication was not in the public interest, to resolve any lingering doubts in favour of publication, and to be flexible in my approach."
- These appear to me to be useful summaries of the approach which judges should adopt when deciding whether an occasion of publication of this kind attracts qualified privilege.
- The final case we were invited to consider was the unreported judgment of Smith J in Saad Al-Fagih v HH Saudi Research & Marketing (UK) Ltd. Smith J had the same task of directing herself on the law she should apply in this libel action against a newspaper publisher in respect of an article of which the claimant made complaint. She referred to the speeches in the House of Lords in Reynolds and the decision of the European Court of Human Rights in Bladet Tromso and Stensaas v Norway 29 EHRR 125.
- In paragraph 50 of her judgment Smith J said:
"Lord Nicholls provided a list, not intended to be exhaustive, of the factors which the court should take into account when carrying out the balancing process. To a very large extent they are the same factors which the ECHR discussed in the Tromso case when considering whether the publications in that case, which contained untrue (as it later turned out) allegations of improper conduct by seal hunters, had been in the public interest or whether they had wrongly damaged the reputations of those concerned. The factors considered are relevant to the 'duties and responsibilities' referred to in Article 10 which Lord Nicholls equates to the standards of responsible journalism. In due course, I shall return to consider such of those factors as appear to me to apply to the circumstances of this case. Some factors relate to the quality, status and importance of the material. Others relate to the conduct and decisions of the publisher or journalist concerned. The factors are to be considered objectively in the light of matters known to the publisher or journalist at the time. In so far as a journalist's conduct and his decision to publish come under scrutiny, he or she should not be judged with the benefit of hindsight. The standards which will be expected of the journalist are no more than is required by responsible and ethical journalism. One of a journalist's duties is to take reasonable care not to publish false information as the public interest is not served thereby. This may impose on the journalist a duty to verify information if such verification is feasible. In some cases, information may come to the journalist from a source which he reasonably considers to be of sufficient authority and reliability that he is entitled to rely upon its truth without verification. The weight to be accorded to each of the various factors will vary according to the circumstances of the case. If at the end of the balancing exercise, the court is in doubt, it will resolve the doubt in favour of publication."
- It appears to me that throughout the caselaw I have considered the judges are speaking with a single voice. The court has to consider all the circumstances surrounding a publication when it considers whether the publisher had a duty to publish the information in question on that particular occasion. I have shown how Lord Bingham and Lord Nicholls in Reynolds set out to give guidance about the kind of matters a publisher should take into account when deciding whether or not to publish. Lord Nicholls would, I think, have been surprised if he had thought that a publisher could bolster his contention that he was under a duty to publish by going out afterwards in search of material which was not to hand when he took the decision to publish, and there is no sign of this possibility in his guidelines. Indeed, if that was the law, matters like "the steps taken to verify the information", "the urgency of the matter" and "the circumstances of the publication, including the timing" would lose a lot of their potent effect if the law permitted a publisher to publish untrue defamatory matter without sufficient inquiry and then to justify that publication (in the sense of establishing a plea of qualified privilege) by being allowed to rely on after-acquired information.
- Mr Browne QC observed, in effect, that, if Mr Spearman's contention was right, a wealthy newspaper, after complaint was made, could go out to scour the highways and byways in search of material which it might then call in aid to justify retrospectively its decision to publish untrue defamatory matter. If it found material which seemed to provide that retrospective justification it would add it to its defence. If it found material which appeared to point the other way, it would be entitled to claim that this material in its hands was privileged from production, however extensive and persuasive it might be. This appears to me to be an odd way of setting out to prove that at the time the decision to publish was made, all the circumstances surrounding that publication, including the matters known to the publisher, justified publication in the sense that there was at that time a duty to publish and a correlative interest in the public in receiving the information published. I agree with Smith J that the factors relating to the conduct and decisions of the publisher or journalist are to be considered objectively in the light of the matters known to them at the time and are not to be judged with the benefit of hindsight.
- It appeared to me that in his powerful and well argued submissions Mr Spearman was seeking to reopen the issues which have been authoritatively decided, at any rate for the time being, in Reynolds. He also appeared to be contending at the same time for a wider specific genus of information which should attract qualified privilege automatically than the genus "political information" for which Lord Lester QC argued in Reynolds. As Mr Browne pointed out, Mr Spearman from time to time elided the distinction between duty and interest, focused as this distinction should be on the particular occasion of publication. A typical example of this tendency can be seen in paragraph 17 of his written argument in which he said:
"Whether three questions are asked (as per the Court of Appeal) or whether there is but one test (Lord Nicholls' duty-interest test, tasted in a marinade of nature, status, source and circumstances), the primary issues in each case where the court considers a claim of privilege for publication to the world remain (a) whether the nature of the material is such as to raise issues of legitimate interest and concern (in more traditional language, whether there is a duty to publish and an interest in receiving the information), and (b) whether the circumstances of publication, including the newspaper's conduct, are such as to justify the newspaper in publishing false and defamatory material."
- Mr Spearman conceded, as he had before the judge, that most of the illustrative factors mentioned by Lord Nicholls gave rise to questions to be determined in the light of the defendant's state of knowledge at the time of publication. He argued, however, that factor 2 (the nature of the information and the extent to which the subject-matter is a matter of public concern) and factor 5 (the status of the information) should be treated differently because they bore directly on the question whether the public had a right to know the information which the defendants published.
- Mr Browne countered this argument, in my judgment convincingly, by submitting that the cases of both Blackshaw and Reynolds demonstrate that if there is no duty to publish, it is facile to talk about a public "right to know". The public has no right to know untrue defamatory matter about which a newspaper made no sufficient inquiry before deciding to publish it. The right to freedom of expression has never been absolute, whether at common law or under the jurisprudence of the European Convention of Human Rights ("ECHR"). In the present context Article 10(2) provides:
"The exercise of these freedoms [freedom of expression etc], since it carries with it duties and responsibilities, may be subject to such ... restrictions ... as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation ... of others."
- The delicate balance between the right to freedom of expression and the individual's right to the protection of his reputation has now been struck by the decision of the House of Lords in Reynolds. To talk of a public right to know, without more, is misleading. The Convention explicitly states that the right to freedom of expression carries with it duties and responsibilities, and its jurisprudence shows how the right to freedom of expression is circumscribed by what is strictly necessary and proportionate in a democratic society for the protection of individuals' reputations. In Reynolds Lord Nicholls said at p 1023E-F that "reputation is an integral and important part of the individual ... protection of reputation is conducive to the public good". If the public "right to know" was to be adopted, as it has not, as the sole criterion for conferring immunity from liability for damaging and untrue statements, then the courts would be turning their back on their duty to prescribe such restrictions on freedom of expression as are needed in order to achieve that public good.
- In its judgment in Sunday Times v United Kingdom (No 1) 2 EHRR 245, the European Court of Human Rights explained at para 65 that in determining whether or not an Article 10 right was infringed, the court's supervision covered not only "the basic legislation" but also "the decision applying it". The court said:
"It is not sufficient that the interference involved belongs to that class of the exceptions listed in Article 10(2) which has been invoked; neither is it sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms: the court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it."
It is therefore necessary to consider the applications of the principles I have been discussing in this judgment in the context of the facts of the present case.
- Mr Loutchansky maintains in his statement of case, as re-amended, that he is a well known international businessman. He was born in Tashkent and was subsequently based in Latvia. He has Russian and Israeli dual nationality. He was a regular visitor to England prior to December 1994, and had numerous personal and business contacts here. In that month the Home Secretary personally directed his exclusion from the United Kingdom on the ground that his presence here would not be conducive to the public good. It appears that this direction has been under challenge ever since, and an appeal is now pending to the new Special Immigration Appeals Commission.
- The four defendants are the publishers of The Times newspaper, its editor and two of its journalists. Mr Loutchansky observes that The Times has an enormous circulation and readership throughout this jurisdiction, and a substantial circulation in the countries of the former Soviet Union, Austria, Germany and Switzerland. It is also published on the Internet.
- The first article of which he makes complaint was published on page 13 of the issue of The Times dated 8th September 1999. It was in these terms:
"Second Russian Linked to money-laundering
British and American investigators are examining the role of an alleged second Russian mafia boss over possible involvement in money-laundering through the Bank of New York. Investigators are understood to be looking at links to Grigori Loutchansky, whose company, Nordex, has been described by the CIA as 'an organisation associated with Russian criminal activity'.
Mr Loutchansky's name surfaced in earlier money-laundering investigations which may have links to the Bank of New York affair in which billions of dollars of Russian money are alleged to have been laundered.
The Russian-born businessman came to the attention of European and American investigators in the early Nineties. They suspected Nordex of using its former international base in Vienna as a front for a large-scale money-laundering operation. His name also figured in a British police report in 1995, known as Operation Ivan, which looked at the extent of the influence of the Russian mob in London.
Mr Loutchansky has repeatedly denied any wrong-doing or links to criminal activity.
Nordex, which has since moved out of Vienna, is also alleged to have been involved in the smuggling of nuclear weapons and by the mid-1990s reportedly controlled about 60 businesses in the former Soviet Union and another 40 companies in the West.
The Times has learnt that these included between eight and ten offshore companies in British jurisdictions including the Channel Islands and the Isle of Man.
They were administered through a chartered accountant in central London whose offices and homes were raided in 1996 by officers from the City of London Police.
The companies were suspected of being used to help launder money from Russia, which was then channelled through European banks. No charges were ever filed against the accountant.
At about the same time, a Yugoslav associate said to have been a front man for Mr Loutchansky was stopped and questioned after arriving at a London airport. No charges were filed against him.
The British investigation into Nordex is believed to have failed because of the difficulty of establishing that the money funnelled through offshore companies controlled by Nordex was linked to criminal activities.
Mr Loutchansky is alleged to be a former business associate of Viktor Chernomyrdin, the former Russian Prime Minister, and in 1995 his name hit the headlines after it emerged that he had been photographed with President Clinton at a Democrat fund-raising event in 1993.
He is also alleged to have had business dealings with Semyon Mogilevich, the Hungarian-based mafia figure at the centre of the Bank of New York investigation."
- Mr Loutchansky says that these words in their natural and ordinary meaning meant and were understood to mean:
i) that he was the boss of a major Russian criminal organisation;
ii) that he was involved in the smuggling of nuclear weapons through Nordex, the company he owned and controlled;
iii) that either personally or by means of companies he owned and controlled, he was involved in the criminal laundering of billions of dollars from Russia; alternatively, by his conduct, he had given reasonable cause to suspect him or the companies he owned or controlled of such involvement.
- Mr Loutchansky also complains of certain further publications in September 1999, by the national Russian television company NTV and by the national Russian newspaper "Arguments and Facts", which he maintains were the natural and probable and/or foreseeable consequence of the words complained of.
- The second article of which he makes complaint was published on page 22 of the issue of The Times on 14th October 1999. It was in these terms:
"Trader linked to mafia boss, wife claims
A Russian businessman under investigation by Swiss authorities pursuing allegations of money-laundering was a friend of Grigori Loutchansky, a suspected mafia boss, the businessman's wife claims ...
If Mrs Chernoi's allegations about a connection between her husband and Mr Loutchansky is true, it will raise further questions about Mr Chernoi. In 1996 the CIA described Nordex, a company operated by Mr Loutchansky and alleged to have been used to launder money and smuggle nuclear weapons, as an 'organisation associated with Russian criminal activity'."
- Mr Loutchansky says that these words in their natural and ordinary meaning meant and were understood to mean that he was the boss of a major Russian criminal organisation, and that he was involved in the criminal laundering of money and the smuggling of nuclear weapons through Nordex, the company he owned and controlled. He again complains of a republication by NTV, on the same day in October, for which he asserted that the defendants were liable.
- The matters on which he relies in support of his claim for aggravated damages include a contention that although these allegations were obviously extremely serious, the defendants made no attempt to contact him to obtain his comments before the articles in The Times were published.
- By their statement of case, as amended on 12th January 2001, the defendants accept that Mr Loutchansky is well known internationally, but say that he is known as a man suspected to be involved in international criminal activity, not as a legitimate businessman. They assert that he has been investigated for criminal activity by the authorities in various countries and excluded from several jurisdictions, including this one, by reason of strong suspicion as to his involvement in organised crime. These facts, they say, are known publicly because they have been reported in the Western media over about the last decade and published on the Internet.
- They have explained that it is at present no part of their case that Mr Loutchansky is either rightly or reasonably suspected of criminal activity. They do not know at present if such suspicions are justified. Their case is that he has a bad reputation as a man involved in international criminal activity.
- They have given the best particulars they can about investigations carried out by investigative authorities in various countries. These are said to have included the CIA, the National Security Agency and the FBI in the United States, Interpol, and police authorities or intelligence agencies in Switzerland, Germany, Austria, England and Israel. They say that Mr Loutchansky has publicly conceded the fact that he has been investigated on numerous occasions by various authorities. In this context they refer to a television interview with him on CBS in December 1998.
- The defendants were asked on what date and from what source they first became aware of the allegations that Mr Loutchansky had been investigated by these different authorities. In their response they distinguish between the matters of which each of them were aware when the articles were published, the matters of which they were not then aware, and the matters about which they cannot recall their then state of knowledge.
- The defendants refer to Mr Loutchansky's exclusion from this country and say that it was on the grounds that his presence here would not be conducive to the public good. They add that on 13th November 2000 the Home Secretary told Mr Loutchansky's solicitors that he had completed a review of his exclusion and had decided to maintain it.
- There followed, in paragraphs 2-17 of the Amended Defence, various admissions, non-admissions, averments and/or denials which are not material in the context of this appeal. Paragraph 18 contains a very substantial plea of qualified privilege.
- It is not necessary for the purposes of this judgment to describe in any detail the particulars of this plea of qualified privilege, or Mr Loutchansky's reply to this plea. The nature of the dispute between the parties, on which the judge will in due course have to rule, after the jury has made any necessary findings of fact, is apparent from the pleas and counterpleas now contained, by amendment, under what is numbered as paragraph 18A. In the defendants' statement of case this contained six averments, which are followed by detailed particulars. The parties' contentions follow the pattern I set out below.
- First, it is common ground that it is the function of a free press in a democratic society to acquire and communicate to the public at large information about matters which are of public interest, and that the public at large has a common and corresponding interest in receiving such information and a right to receive it. Mr Loutchansky would make minor additions to this formulation. He adds that the press must exercise this function responsibly and with proper regard to the protection of the reputation and rights of others.
- Next, the defendants contend that the information in their articles concerned matters of the greatest general interest and importance to the public at large, and the readership of the Times in particular, that is to say
"the corruption and criminalisation of Russian society since the break up of the USSR, the involvement of Russian organised criminal groups in money laundering through Western banks, the smuggling of nuclear weapons, and the activities of such groups, including the acquisition of businesses, in the West and the United Kingdom in particular."
- Mr Loutchansky denies that the words published about him concerned matters of general interest or importance. In particular they concerned him and did not involve the provision of any proper information as to the four matters identified by the defendants. The first article contained a speculative and unsubstantiated link between him and the Bank of New York based on manifestly insubstantial sources. Its publication was used as an occasion to repeat false and obviously unsubstantiated allegations concerning him drawn from other publications. The other article contained an allegation made in pursuance of Mrs Chernoi's own agenda in divorce proceedings, used as an occasion to repeat false allegations concerning him drawn from other publications.
- Thirdly, the defendants say that it was particularly their duty to inform the readership of The Times about him. That readership had a particular interest in knowing about him, and a particular right to know about him, because of the widespread concerns expressed about him and his business activities by and to Western governmental and police authorities (including the British Home Secretary).
- Mr Loutchansky denies that it was the defendants' duty to inform the readership of The Times about him by publishing allegations which had the features set out in paragraph 64 above. He denies that "widespread concerns" had been expressed about him and his business activities by or to Western Governments at or around the time of publication, and he puts the defendants to proof as to which allegation they were aware of at the time of publication.
- Fourthly, the defendants contend that to the extent that their articles defamed Mr Loutchansky, they were based on sources which they were entitled to treat as reliable, responsible and authoritative, and on which it was reasonable for them to rely, having regard in particular to the identities of their sources of information. They also rely on the fact that the clandestine nature of the activities described in the articles, and the classified nature of the information and documents available to their sources, had the consequence that corroboration from primary sources or documents was in practice quite impossible to obtain. Mr Loutchansky puts all these contentions in issue. In particular, he says that the defendants were not entitled to treat their sources as sufficiently reputable, well informed, reliable and authoritative to justify the publication of defamatory allegations they were unable to verify and which had not been put to him.
- The defendants next contend that the information drawn from their sources was fairly and accurately stated in the words complained of, and that they presented it in a reasonable and responsible manner. They included a statement of Mr Loutchansky's repeated denial of any wrongdoing or any links to criminal activity. Mr Loutchansky puts the first of these propositions in issue. He adds that the defendants' sources did not tell them that there were, in fact, any investigations of links between him and the Bank of New York or state what those links were. Nevertheless, he complains, the defendants unfairly and inaccurately reported that "British and American investigators" were examining such links. Moreover, he says, the defendants repeated false and unsubstantiated rumours as to his background without checking the information with him or with any other source likely to have first-hand knowledge of the events alleged.
- Finally, in this context, the defendants maintain that as a consequence they had a duty to communicate the information set out in the words complained of to the readership of The Times, and that the readership of The Times had a corresponding interest in receiving this information and a right to do so. This contention is denied.
- There followed a number of detailed factual averments, to each of which Mr Loutchansky has responded. In paragraph 18.3 of their statement of case the defendants set out a quantity of information about Mr Loutchansky which they said was in the public domain, and they later gave particulars of this assertion. In paragraph 18.4 they maintain that they relied, and were entitled to rely, on those publicly known matters to support the information about Mr Loutchansky culled from their own sources. They then supply details of the information given to the third defendant by four sources (whose identity they do not reveal). Three of these contacts were made in August 1999. The other is undated (save to say that the contact was made before the first article was published). Mr Loutchansky, for his part, puts in issue the truth of the matters which have been publicly said about him, and maintains that the defendants should have been suspicious of each of their sources.
- There followed an assertion by the defendants that the third defendant attempted to contact Mr Loutchansky. This is put in issue. Finally, the defendants make the assertion with which I started this judgment (see paragraph 2 above), which Mr Loutchansky disputes. In paragraphs 4.1 and 4.2 of his Amended Reply he sets out his positive case in relation to the defendants' claim of qualified privilege. In particular he maintains that since the allegations were of very serious criminal wrongdoing, the defendants should have taken great care to ensure that they were true. They were of a type which were likely to have been made by people seeking to discredit him for ulterior but undisclosed motives. He said that the defendants knew or should have known that the sources of information on which they relied were of poor quality. They took no proper steps to verify the information the informants provided. They knew (or should have known) that the criminal allegations against him were unsubstantiated. He adds that there was no urgency in relation to the publication of these allegations. The defendants took no proper steps to contact him and seek his comments. The articles did not contain the gist of his side of the story, but simply stated that he denied the allegations. The tone of the articles was sensationalist and inappropriate to the seriousness of the subject-matter. And the defendants knew that he had no involvement in public life in this country.
- Mr Loutchansky maintains that if the defendants had taken proper steps to contact him, he would have been able to deal with and explain the many misapprehensions and mistakes which they were under (sic) as to his career and background. He says that on the assumption that the defendants would have approached his rebuttals in a fair and open way, it could reasonably be inferred that defamatory allegations in the articles would not have been made.
- This, then, was the state of the parties' cases when the judge was invited to consider whether the defendants should be allowed to add the additional matter contained in paragraphs 18.2.1 to 18.2.7 of their draft amended pleading. These were to follow paragraph 18.2, which in turn formed one of six sub-paragraphs (some of which were fairly expansive) which contained, according to paragraph 18.1.7, details of the facts and matters relied upon in support of the contentions in paragraphs 18A.1 to 18A.6, which end with the averment that the defendants had a duty to communicate the information in the articles to readers of The Times who had a corresponding interest in receiving this information and a right to do so.
- The context is all-important. The only reason why the defendants wished to rely on the disputed material was to strengthen their case that they had the duty for which they contended.
- Paragraph 18.2, in its form permitted by the judge on 12th January 2001, is in the following terms:
"As was reported in the articles complained of, for many years the claimant has been suspected of and investigated for very serious crimes with international repercussions by law-enforcement agencies in various jurisdictions. In consequence, he has been excluded from several jurisdictions, including this one. The defendants rely on and repeat paragraph 1.1 above and on the further information supplied under that paragraph."
I have summarised this information in paragraphs 55 and 59 above.
- What the defendants sought to achieve by the amendment which was disallowed was to add the following further matters by way of particularisation:
(i) The reasons given by the Home Secretary, as set out in an affidavit sworn in July 1996, for the exclusion order he made in December 1994;
(ii) Opinions expressed by the Home Secretary in a letter sent on his behalf to Mr Loutchansky's solicitors in January 1998;
(iii) Comments made by the US Department of State to the US Embassy in Tel Aviv which led to Mr Loutchansky being refused a visa for entry into the Untied States in July 1995;
(iv) References to Mr Loutchansky in a crime intelligence summary produced by the Israeli national police in April 1996;
(v) References to him and to the Nordex Group in a situation report produced by the Austrian criminal police in December 1996;
(vi) References to the Nordex Group in an Interpol intelligence report produced in February 1997; and
(vii) The contents of an affidavit sworn by a representative of the Israeli Ministry of the Interior in July 1998 setting out the Ministry's reasons for opposing the renewal of the validity of Mr Loutchansky's Israeli passport.
- The defendants accept that they did not know of the contents of any of these documents at the time they took the decision to publish their articles, but they maintain that they ought nevertheless to be allowed to rely on them.
- It appears to me that if the judge was disposed to find that the defendants should not have published the articles when they did, whether because they should have conducted more diligent inquiries, or because they should have made greater efforts to obtain Mr Loutchansky's side of the story, or for whatever other reason, that must be the end of the matter. It was at the moment of publication that the defendants had to decide whether, given the information available to them then and the extent of the inquiries they had then made, they could properly consider they were under a duty to tell the public what they wrote about Mr Loutchansky in their articles. They would of course have had to consider whether their sources would have appeared to be reliable to reasonable and responsible journalists (such, indeed, as they claim to be): see paragraphs 29, 34 and 36 above.
- The court has to balance the powerful interests of the media in the right to freedom of expression against the interests of an individual who complains that he has been wrongfully defamed. Nobody who has lived in this country for the last 50 years, as have most English judges, could possibly be unaware of the great services rendered to the public by skilled and fearless investigative journalists in uncovering fraud and corruption and incompetence, in high places as well as in low. In recent years our higher courts have repeatedly said how important it is that the law should throw its full weight behind the media's right to freedom of expression which is now articulated in a codified form in Article 10(1) of the European Convention of Human Rights ("ECHR").
- The House of Lords has ruled in Reynolds, however, that the media do not have an unfettered right to publish what they believe to be in the public interest. Some discipline has to be introduced, in order to give appropriate effect to the interests recognised as legitimate by ECHR Article 10(2). This discipline involves the court examining the occasion of a publication, and not the circumstances as they might have appeared to the publishers weeks or months later if they had waited to make further inquiries, or waited to see if further facts came to light. If they were to be taken to have that additional opportunity, they would by the same token have more time to seek out the complainant and obtain his version of events. It would then be likely that what they then published would be different from what they in fact published, and it is what they in fact published which is the subject of Mr Loutchansky's complaint.
- In these circumstances it appears to me that the application of the "duty-interest" test as articulated by the House of Lords in Reynolds would work no injustice when applied to the facts of the present dispute, and, following the House of Lords, that there would be no violation of ECHR Article 10 if the defendants are not permitted to rely on the proposed amendment in support of their plea of qualified privilege.
- I would add by way of completeness that we were reminded by counsel of the judgments of this court in Cohen v Daily Telegraph Ltd  1 WLR 116. These judgments show how the rules about the matters which may be relied upon in support of the defences of justification and fair comment may differ, in the sense that further facts may be pleaded where the defence is justification, whereas only facts existing at the time of the comment may be pleaded where the defence is fair comment. The present appeal provides a good opportunity for this court to make an authoritative statement of the comparable position in relation to a defence of qualified privilege.
- These are the reasons why I agreed on 12th March 2001 that this appeal should be dismissed.
SIR MARTIN NOURSE:
- I agree.
- A publication of an untrue defamatory statement is only protected by the defence of qualified privilege where the defendant is under a duty, legal or moral, to publish it to a person or persons having a corresponding interest in receiving it. The duty must exist at the time of publication and the defendant must have an adequate knowledge of the facts that give rise to it.
- This latter requirement, which is most clearly expressed in the judgment of Fox LJ in Blackshaw v Lord  QB 1, 42G, is part and parcel of the basic principle that the defendant must not only be under a duty to publish the statement but must honestly believe that he is. His belief must be judged at the time of publication and it can only be judged by reference to facts then known to him. It cannot be judged or justified by reference to facts of which he is unaware.
- In paragraph 50 of her judgment in Saad Al-Fagih v HH Saudi Research and Marketing (UK) Limited (28 July 2000 - unreported) Smith J said in relation to the ten matters or factors referred to by Lord Nicholls of Birkenhead in Reynolds v Times Newspapers Limited  3 WLR 1010, 1027B-F:
"Some factors relate to the quality, status and importance of the material. Others relate to the conduct and decisions of the publisher or journalist concerned. The factors are to be construed objectively in the light of the matters known to the publisher or journalist at the time. Insofar as a journalist's conduct and his decision to publish come under scrutiny, he or she should not be judged with the benefit of hindsight."
- I entirely agree with those observations. If a defendant acts on the basis of facts which he honestly and reasonably believes to be true, but which are later found to have been, through no fault of his own, untrue, he will not be deprived of his defence. Equally, facts which are unknown to him at the time of publication cannot have any bearing on the question whether he is under the requisite duty at that time.
- It was for these reasons, as well as for those more fully explained by Lord Justice Brooke and by Mr Justice Gray at first instance, that I too was of the opinion that the appeal should be dismissed.
LORD JUSTICE THORPE:
- I have had the advantage of reading in draft the judgments of my Lords and I agree that this appeal should be dismissed for the reasons which they have given.
- The Defendants appeal be dismissed and the order of Mr Justice Gray dated 12th January 2001 be affirmed.
- The Defendants application for permission to present a petition of Appeal to the House of Lords refused.
- The Claimant's costs of this appeal to be paid by the defendants, subject to a detailed assessment. The sum of £10,000 to be paid on account within four taken days of any successful Judgment in favour of the Claimant.
(Order does not form part of approved Judgment)
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