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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC QB 180
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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Monday, 17th January 2000
Before: SIR OLIVER POPPLEWELL
1997 G No 935
1997 G No 963
(1) YORKSHIRE POST NEWSPAPER
MR G CARMAN QC and MR M WARBY (instructed by Messrs
Farrer & Co) appeared on behalf of the Plaintiff.
MR T SHIELDS QC and MR R ELLIOTT (instructed by Messrs Berrymans Lace Mawer) appeared on behalf of Brian Porch.
MR P MOLONEY QC and MS O CHILDS (instructed by Messrs Dibb Lupton Alsop) appeared on behalf of Yorkshire Post Newspaper and Sheila Holmes.
1. Transcript of the Palantype notes of SELLERS LEGAL SERVICES High Holborn House, 52-54 High Holborn, London WC1V 6RL
J U D G M E N T
Monday, 17th January, 2000
SIR OLIVER POPPLEWELL:
1. The claimants are GKR Karate Limited who promote and teach go kan ryu karate. They started operations in 1996 in the United Kingdom. They operate in, among other places, the Leeds area. The first defendants are a well-known newspaper who publish the Leeds Weekly News, which is a weekly publication, distributed free to some 158,000 houses and offices in the Leeds area. The second defendant, Mr Porch, is the General Administrator of the English Karate Governing Body, but is not directly involved in the issue with which I am now dealing. The third defendant, Mrs Holmes, is the author of an article which appeared in the issue of LWN on the 14th of August 1997.
2. The claimants claim damages for libel against the three defendants in the current action arising out of the article. The first and third defendants plead justification, fair comment and qualified privilege. The second defendant pleads justification, fair comment and qualified privilege. The second defendant is also a defendant in a conjoint action where the claimants claim damages for libel arising out of substantially the same sort of allegations. In those proceedings, Mr Porch pleads justification, fair comment and qualified privilege. The claimant alleges malice against Mr Porch in both proceedings. The hearing as to justification is likely, of itself, to occupy some five or six weeks. At a pre-trial review, it was submitted that the question of qualified privilege, in so far as it affected the first and third defendants in the instant case, should be dealt with as a preliminary and discrete issue. That was on the basis that if they were successful in their plea, and as to malice, that would be a complete defence to the action. They would not then be required to spend a considerable amount of time and costs on the issue which, on that hypothesis, would not arise. I acceded to that application and so ruled. On January 11th the Court of Appeal per Lord Justice May and Lord Justice Tuckey dismissed an appeal by the claimants against that decision. Accordingly a jury has been sworn and the issue of qualified privilege has proceeded, with evidence being called and submissions of law being made. There being disputed questions of fact, in accordance with the principles of law the jury were invited to give answers to two questions, which they did. I shall refer to those questions and answers in due course.
3. The article which gives rise to this claim reads as follows. It is on the front page. The headline reads, "GIVE 'EM THE CHOP", and a sub-headline reads, "Doorstep salesmen flog dodgy karate lessons." They were the work of a subeditor. There's then a caption, "LWN exclusive by Sheila Holmes". It reads as follows:
"Leeds families were warned this week not to buy karate club memberships from doorstep salesmen. These clubs are not registered with the sport's governing body and so there are no checks on the standard of instruction nor on the instructors themselves. Investigations are taking place in other UK cities after complaints about these clubs and the operation has now been reported in Leeds with residents in the south and west of the city already receiving visits from these doorstep callers. According to Mr Brian Porch, general administrator of the English Karate Association, this is simply a "money-making" operation. "We have had lots of calls about this set-up. They are just taking people's money and then they disappear. The average person learning karate pays about £2 for a two-hour lesson. These people are charging £5 for one hour. Instructors are recruited from jobcentres or newspaper adverts and then they go round knocking on doors - particularly targeting homes with children. They are given basic karate lessons, told to find a hall and then teach those who join." Then there is a heading, "Qualified." The quotation continues, "In contrast, all our instructors are fully qualified, have first aid training, and their backgrounds are checked to see if they have a criminal record."
4. Another problem was that they claim to have full insurance cover, but this was, "Very dubious," said Mr Porch. Mrs Pauline Green of Longroyd Terrace, Beeston, paid out £20 to cover registration and insurance for her 11-year old daughter Jessica Croft to join classes at St Francis's School. She said "Jessica has wanted to do karate for a long time but I've been too busy to sort anything out. Because they came knocking on the door, it was so much easier. I became suspicious when I couldn't get through to the telephone number they gave me. It was only when I spoke to a local karate instructor that I found they are not registered. If anything happened to my daughter, I probably would not have any comeback. I want to warn others not to get involved. There are too many people in this area who can't afford to waste this kind of money." Added Mr Porch, "These people are giving the sport a bad name. The UK are world karate champions and have a good reputation to maintain, but they are just ripping people off."
SHORT SUMMARY OF THE FACTS
5. Mrs Holmes and one other are the journalist on the Leeds Weekly News. Copies of the edition of the 14th August and another edition were before the Court. In broad terms, it is fair to describe it as a community paper. Mrs Holmes works from a telephone. She is not an investigative journalist in the sense that is commonly used but receives information about a whole lot of events and activities in the Leeds area which she simply reports. It is rare for her to go and interview people or take statements from them and in the instant case she simply conducted her inquiries by telephone.
6. Somewhere in the week of 4th or 5th August, a Mrs Green rang the LWN and was put through to Mrs Holmes. Mrs Holmes made a shorthand record of the conversation which has been transcribed for the benefit of the Court. Mrs Green made reference to the Chief Instructor at South Leeds Sports Centre, a Mr Burnand, and gave Mrs Holmes his number. Mrs Holmes rang Mr Burnand and also has a shorthand note of that conversation. Mr Burnand told Mrs Holmes, among other things, that the governing body of karate was the English Karate Governing Body, EKGB, referred to in the article as The English Karate Association; that it was the only body recognised by the Sports Council and the only one in which "You can officially represent your country within Europe and the world". He gave Mrs Holmes the name of the General Administrator, Mr Brian Porch, and the number of the governing body office.
7. Mrs Holmes rang Mr Porch. She took down what he said in shorthand. Those notes have unfortunately disappeared but she gave evidence that what appears in quotations ascribed to Mr Porch were his ipsissima verba.
8. She thinks she may have rung Mrs Green again. She rang GKR, who had a paging service. She left a message with them to ring her, giving her number and who she was and where she came from. She had no reply from GKR. The jury found as a fact that she did make that call. She also thought it was possible that she made a second call to GKR. The jury rejected that possibility. The only other enquiry she made was to the Trading Standards Office in Leeds to ask them if they had any complaints. She was told no.
THE RULE OF QUALIFIED PRIVILEGE
9. The principles have been most recently set out in the decision of the Court of Appeal Reynolds v. Times Newspapers Ltd and others (1998), 3 W.L.R 862 and H.L. (1999) 3 WLR 1010. While the House of Lords disapproved of the Court of Appeal view that the circumstantial test was a separate test, they effectively endorsed the decision of the Court of Appeal. Mr Carman QC drew my attention to cases which pre-dated Reynolds, which were not criticised in that decision and accordingly I turn to them now. He submits that in the present case this is a claim to protection of privilege in a mass publication, which has always been a difficult privilege to establish as there is no general media privilege. The 9th Edition of Gatley on Libel at paragraph 14.81 reads as follows:
"Since the fundamental principle is that a statement is protected by privilege only if the publication of it is to persons who have a proper interest or duty in the matter with which it is concerned, the protection is rarely available for publication in the mass media for the public as a whole will not have the relevant interest or duty."
10. The author contrasts that position with that which obtains when there is a privileged report or where the matter is governed by statute namely, the Defamation Act 1952 and the Defamation Act 1996, which restrict privilege in respect of reports of sporting body statements. Mr Carman submitted that there were no decided cases which granted privilege to such publication. He drew my attention to the decision of Blackshaw v. Lord 1984 QB 1, where Lord Justice Stephenson said: at page 25:
"The common law privilege subsists and is not limited or abridged by the statute: section 7(4) of the Defamation Act 1952 which I have read. But I approach with caution", said Lord Justice Stephenson, "the application of common law privilege to an occasion, or more correctly a publication, which tries and fails to come within statutory privilege and find no very clear guidance in such authorities as there are on the circumstances in which a newspaper report has the necessary qualification for the protection of the common law. I make that approach bearing in mind Lord Denning MR's observation in Boston v- Bagshaw 1966, 1 W.L.R 1126, 1132, that the case of Chapman v- Ellesmere 1932 2 KB 431, "made it very difficult for a newspaper to claim privilege" and that sections 7 and 9(2) of the Defamation Act 1952 gave a privilege to newspapers for many matters of public concern."
11. At page 26, Lord Justice Stephenson said this:
"The subject matter must be of public interest; its publication must be in the public interest. The nature of the matter published and its source, and the position or the status of the publisher distributing the information, must be such as to create a duty to publish the information to the intended recipients, in this case the readers of the "Daily Telegraph." Where damaging facts have been ascertained to be true or been made the subject of a report, there may be a duty to report them (see, e.g., Cox v. Feeney, 4 5 & F 13; Perera v. Peiris  AC 1 and Dunford Publicity Studios Ltd v. News Media Ownership Ltd  NZLR 961), provided the public interest is wide enough: Chapman v. Ellesmere  2 KB 431. But where damaging allegations or charges have been made and are still under investigation (Purcell v. Sowler 2 CPD 215) or have been authoritatively refuted (Adam v. Ward  AC 309), there can be no duty to report them to the public."
12. At page 27 Lord Justice Stephenson said:
"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."
13. Mr Carman QC accepts that although Blackshaw and other case law were cited with approval in Reynolds - see Lord Nicholls at 1019, Lord Cook at 1047C, and Lord Hobhouse at 1060D - they no longer have the force that they did. They have to be looked at in the light of the conclusion of the House of Lords, that the common law test - whether there had been a duty to publish the material for the intended recipients and whether they had an interest in receiving it - requires the Court to take into account all the circumstances of publication including the nature, status, and source of the material.
14. In that case, what might appear from previous authorities to be a conclusion that in this case there could be no privilege, has, in my judgment, been overtaken by the decision in Reynolds. In relation to that Lord Nicholls, in dealing with the defendants' claim for generic protection said at 1019D:
"In Blackshaw v. Lord  Q.B. 1 at page 6 the Court of Appeal rejected a claim for generic protection for a widely stated category "fair information on a matter of public interest". A claim to privilege must be more precisely focused. In order to be privileged publication must be in the public interest. Whether a publication is in the public interest or in the conventional phraseology, whether there is a duty to publish to the intended recipients, there the readers of the "Daily Telegraph", depends upon the circumstances, including the nature of the matter published and its source or status."
15. Mr Carman has submitted what is essentially a floodgate argument, that if I allowed this application of qualified privilege, that would be akin simply to granting privilege for information on the subject of public interest provided it came only from a source which a journalist believed to be reliable. I reject that argument. It seems to me in the light of the decision in Reynolds, that the Court should proceed on a case by case basis, seeking to apply the principles laid down in that case to the particulars facts of each case. As the particular facts of each case vary immensely a decision in one case may not have any bearing on a decision of another case. It is important to remember that in the Reynolds case there had been a failure by the newspaper to mention Mr Reynolds's own explanation to the Dáil. There was no good reason for omitting from a hard hitting article all mention of Mr Reynolds's explanation. Therefore the article could not be a fair and accurate report of proceedings. It would be misleading as a report and an article which fails to give the gist of an explanation already given in this case to the Dáil, faces an uphill task in claiming privilege if the allegation proved to be false and the unreported explanation proved to be true.
16. Lord Nicholls at 1028 said:
"These serious allegations by the newspaper presented as statements of fact but shorn of all mention of Mr Reynolds's considered explanation were not information the public had a right to know."
17. It is to be observed that there was a plea of justification which failed. There was then a ruling upon qualified privilege by the judge, who rejected the claim.
18. In the instant case, although justification is in issue in the case, it has no bearing on my decision because it has been left open for subsequent evidence on the subject, I have already ruled that no evidence as to justification should be led on the issue of qualified privilege.
19. The House of Lords in Reynolds had to balance the rights and duties of the free press against the protection of an individual's or body's reputation. Lord Nicholls said at 1016E:
"The defence of honest comment on the matter of public interest, then, does not cover defamatory statements of fact. But there are circumstances, in the famous words of Baron Parke in Toogood v. Spyray (1834) 1 C M & R 181 193, When the "common convenience of welfare of society" call for frank communication on questions of fact. In Davies v. Snead 1870 LR (5) Q.B. 608 611, Mr. Justice Blackburn 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. There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else, and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privilege."
20. He went on at page 1017 at letter C:
"The courts have always emphasised that the categories established by the authorities are not exhaustive. The list is not closed. The established categories are no more than applications in particular circumstances of the underlying principle of public policy. The underlying principle is conventionally stated in words to the effect there must exist between the maker of the statement and the recipient, some duty or interest in the making of a communication. Lord Atkinson's dictum in Adam v. Ward 1917 A.C. 309 334 is much quoted, "A privileged occasion ........ is an occasion where the person who makes a communication has an interest or a duty; legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential" (Lord Atkinson).
21. Lord Nicholls went on:
"The requirement that both a maker of the statement and the recipient must have an interest or duty, draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice. In determining whether an occasion is regarded as privileged, the court has regard to all the circumstances, see for example the statement of Lord Buckmaster, Lord Chancellor in London Association for the Protection of Trade v. Greenlands Limited 1916 (2) A.C. 15 to page 23 ("Every circumstance associated with the origin of publication of the defamatory statement.") Circumstances," said Lord Nicholls, "must be viewed with today's eyes. The circumstances in which the public interest requires a communication to be protected in the absence of malice depends on current social conditions. The requirements at the close of the 20th century may not be the same as those of earlier centuries or earlier decades of this century."
22. At page 1020 Lord Nicholls said this, "In its valuable and forward looking analysis of the common law the Court of Appeal in the present case highlighted 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". He then went on in that passage to say that what is described as a circumstantial test is not a separate test.
23. At 1024 letter F he said, "As highlighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends on its quality as well as its subject matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin.
24. Finally, and most particularly, Lord Nicholls says, at page 1027, letter B:
"The elasticity of the common law principle enables an interference with 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 information and the extent to which the subject matter is 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 the 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.
25. This 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...." "Further, it should always be remembered 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 the 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 the publication."
26. It is clear, as Lord Steyn said in his dissenting judgment, there is a new landscape. I take the general principles established by Reynolds, as helpfully summarised by Mr Moloney QC.
27. 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.
28. 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.
APPLICATION OF THE GENERAL PRINCIPLES TO THE FACTS IN THE INSTANT CASE
29. The burden of proof on the balance of probabilities lies on the defendant. General principles are quite often easy to state while their application to a particular case is often very much more difficult. Mr Carman submits rightly that the allegations are grave, including allegations of criminal behaviour, such as "They are just taking people's money and then they disappear", and "They are just ripping people off". In the light of that, says Mr Carman, the information published was not of an appropriate nature, value, or quality, the sources were not and did not appear reliable, and the inquiries made by Mrs Holmes were wholly inadequate if she were going to make serious allegations.
30. I accept Mr Carman's submission that the standard to be applied is what a reasonable and responsible journalist would do. The first question which it seems to me necessary to decide was whether it was the paper's social or moral duty to communicate concerns about the karate selling and whether it was in the reciprocal interest of the public to receive it. In this case, this was not the public at large. The Leeds Weekly News was distributed free to about 158,000 households and some offices, which means that the readership was somewhere in the region of 400,000. The Leeds Weekly News is essentially a community paper in that it sets out details of various activities in the Leeds area, some news about the Leeds area, and a very great number of advertisements, again limited to the Leeds area. This was not a publication to the world at large, but limited, albeit to quite a substantial number to those who lived in the area and to whom the issue of karate selling in the area would be of immediate concern. Thus, in answer to the question, "Did the public at Leeds have a legitimate interest in receiving the information, and were the defendants under a social and moral duty to communicate to the public in Leeds the particular information contained in this article, on this particular occasion?" the answer must be yes.
31. That is, however, not an end to the issue. The fundamental question is one of public interest. The court has to assess whether it is in the public interest for a newspaper to publish information as it did and whether the interest in protecting reputation from false defamatory attacks is outweighed by the interests of the free flow of information, even if that information is defamatory and false. In carrying out the balancing exercise the court has to look at every circumstance associated with the origin and publication of the defamatory matter.
32. I turn, therefore, to the criticisms which Mr Carman makes. Given the serious allegations contained in the article, which included allegations of dishonesty, Mr Carman submits that Mrs Holmes fell far short of the standards of responsible journalism. He makes not only a general criticism of her competence but specific criticism as follows:
(1) She made no or no adequate investigation before publication and there was no or no proper supervision of her by the Yorkshire Post.
(2) She presented a number of allegations as fact.
(3) She failed to give GKR a reasonable opportunity to respond or to mention her attempt to contact GKR.
(4) She failed to mention she had made a enquiry to Leeds Trading Office or to include in the article their reply. (5) She omitted to put into the article what she was told by Mrs Green, that GKR were not breaking the law, and
(6) Part of the quotation of what Mrs Green is alleged to have said was inaccurate.
(7) The conversation with Mrs Furlong and Mrs Radcliffe subsequent to the publication of the article showed that Mrs Holmes had a measured indifference to accuracy and truth.
33. In support of his submission that Mrs Holmes was less than competent he pointed to the fact that although she made a note of her conversation with Mrs Green and Mr Burnand, the note she made of her conversation with Mr Porch have gone missing. She has no note of a second call to Mrs Green, if it occurred, or her call to GKR. Nor subsequent to the publication of the article of two telephone calls from Mrs Furlong and Mrs Radcliffe, who gave evidence before me that they had telephoned Mrs Holmes; a conversation of which she had no recollection. Nor did she record her conversation with a Trading Standards Officer in Leeds. The specific criticisms:
(1) No or no adequate investigation by Mrs Holmes or supervision by the Yorkshire Post. At the forefront of Mr Carman's submission is the failure of Mrs Holmes to conduct a proper investigation. He points out that although the LWN concerns itself with flower shows and the like, this was a very serious allegation of a criminal offence and quite different standards need to be applied in so reporting. He criticises the fact that Mrs Holmes never saw either Mrs Green or Mr Burnand or Mr Porch and conducted her inquiries solely by telephone. The facts can be shortly stated and are not substantially in dispute. Mrs Green rang up and complained about the claimant's cold calling on her. She came from one of the poorer areas of Leeds and she had paid a registration fee of £20 to cover registration and insurance. When she got in touch with Mr Burnand, who was the Chief Instructor of South Leeds Sports Centre, she was told that GKR was not registered to anybody, that they were operating in various parts of the country, that there had been complaints elsewhere to the Trading Standards Officer, and, as Mrs Green said, there were too many people in South Leeds that can't afford to waste that kind of money. She was told that the people teaching had no qualifications and that GKR were charging £80 for four months, where the Chief Instructor of training said it was £15 in South Leeds. She gave Mrs Holmes not only her own number, but the number of Mr Burnand who she said was a Chief Instructor at Belle Isle, South Leeds, which was registered with the EKGB. The next thing Mrs Holmes did was to ring Mr Burnand. He told her that GKR were operating in Liverpool, Manchester and Kent. They were not recognised by the governing body of karate, which was the EKGB, which was the only body recognised by the Sports Council. It was also the only one in which "you can officially represent your country within Europe and the world." He added that the governing body abhorred the methods of GKR, and added Mr Burnand, "Throughout the country there have been numerous complaints about them. They have also been on the TV and they were selling karate in the same way as double-glazing." He expressed doubts about the qualifications of their instructors and about their insurance. He said he was a chief instructor and he had been training for 33 years and that GKR's grades would not be recognised by anybody else and they were a complete waste of money and their methods were abhorred. He explained he was Chairman of a particular karate association, and was concerned people were getting ripped off and would be put off karate; he gave Mrs Holmes the name of the governing body of the sport, together with the name of the general administrator, Brian Porch, and its telephone number.
34. Mrs Holmes expressed the view that she had no reason to doubt what she was told by Mrs Green, which was confirmed by what Mr Burnand had told her. He was an expert on karate and he was telling her as far as she was concerned the truth.
35. She then rang Mr Porch and had a conversation with him. As I have indicated, the notes of that conversation are no longer in existence. The best that Mrs Holmes can do is repeat what is in the article as her recollection of what she was told by Mr Porch. She said that Mr Porch had confirmed what Mr Burnand had told her and what Mrs Green had told her, and she said she also believed she spoke to Mrs Green again to fill in one or two gaps. She now has no particular recollection of that second conversation with Mrs Green. It matters not.
36. As far as Mr Porch is concerned, she said Mr Porch was the head man of the board and that she had no reason to doubt the truth of what he was saying or his expertise. It was not her practice to go and take statements face to face from witnesses and she normally conducted the interviews by telephone. It did not occur to her that the information she received was other than reliable or honest, and that she had checked it as far as it was reasonable possible.
37. Mr Carman pointed out that whereas normally Mrs Holmes was engaged in recording details of flower shows and so on, this was an allegation of a criminal offence. Mrs Holmes said it was not normally the practice of LWN to report criminal cases. The reports of criminal cases that fill our newspapers were usually to be found in the Yorkshire Evening Post; that there had been a decision made that LWN should not deal with those cases and, said Mrs Holmes, in the instant case this was not essentially a crime story but a warning to the community about these salesmen. She accepted that she knew no more about Mrs Green than that she had rung up to complain. She knew no more about Mr Burnand than that he was a chief instructor who had been involved in Karate for 33 years and she knew no more about Mr Porch other than he was a general administrator for the English Board, which was responsible for the sport in the country. It did not occur to her to ask whether Mr Porch had ever seen the insurance documents or whether he had ever reported the allegation that the GKR were taking people's money and disappearing, to the police, nor did she see any reason why she should interview Mr Porch or Mr Burnand face to face. It was suggested to her that if she were unable to get into contact with GKR she could have contacted the GKR instructor at her nearby school. She had been told by Mrs Green that there was a class to be held at St Francis' School, where there would no doubt have been an instructor. He could have given her information about GKR and told her from whom she could get information on GKR's behalf. St Francis's School was no very great distance from the newspaper office. She said she saw no purpose in going to St Francis's School because she knew nothing about karate and she had been given the number of GKR already and therefore it was unnecessary to get that number again from somebody at St Francis's School. Mr Carman pointed out she was uncritically and solely relying, in making these very grave allegations, on somebody else's job title, namely Mr Porch's as a general administrator. She knew nothing about his background, how long he had been a general administrator, whether he knew anything about karate or the source of the information. I wholly reject this submission. It seems to me that Mrs Holmes was perfectly entitled, without seeing or coming face to face with Mrs Green, Mr Burnand or Mr Porch, to rely on the positions they held and on the material which they provided. Quite clearly, it would not have been enough to rely simply on Mrs Green, nor probably on Mr Burnand, but it seems to me that the general administrator of the governing body of a particular sport is particularly well positioned to give information on behalf of the sport without being exposed to a detailed examination of the source of the information. While the administrator of the EKGB may not equate in importance to the Secretary of the RFU or the English Cricket Board or the MCC it seems to me to be perfectly reasonable for a journalist to rely on the information by the recognised spokesman for the governing body of the sport recognised by the Sports Council. In my judgment, no further inquiries were required.
38. The other aspect of this particular submission is that it was incumbent on the Yorkshire Post properly to supervise Mrs Holmes. Mrs Holmes is a journalist of very many years experience, having started with the Brighouse Echo, then with the Halifax Daily Courier for a total of five or six years, and some 30 years ago she started work for the Yorkshire Daily Post as a general reporter. She took time off to have her children and worked then for the Leeds Weekly News continuously for 18 years. In the years and months before the publication of this particular article, her contributions were supervised by somebody on the news desk and subsequent to the article she said the Evening Post newsdesk took more of a hand than they had previously. Based on this evidence, Mr Carman submitted that the Yorkshire Post were at fault in failing properly to supervise Mrs Holmes, in allowing this story to go out without further checks being made. This submission, in my view, adds nothing to the argument. If I take the view that Mrs Holmes carried out the necessary investigation, the involvement of the news desk is irrelevant. If she didn't, then the defence of qualified privilege can go.
(2) She presented what were essentially allegations as fact. This is number 9 of Lord Nicholls' factors: the claimants rely on the allegations, "They are just taking people's money and they disappear. They are just ripping people off." These are quotes from what Mr Porch said. It's not always easy to distinguish between what is essentially an allegation or comment and what is presented as a fact. Mr Carman asked Mrs Holmes, "You do appreciate, don't you, that what you publish are really concluded facts as opposed to mere allegations. Do you understand?" Answer: "Yes." "Do you realise you were doing that?" Answer: "I don't know." Question: "Just look back. They are taking people's money and then they disappear. That is a statement, as if it is something that has actually happened, isn't it, "They are taking money and disappearing?" Answer: "Yes." "That's a statement, it's a fact, isn't it? So sorry, that statement is a fact, isn't it?" Answer: "Yes." "It's a statement of fact, they are ripping people off?" "Yes." It seems to me, reading the article as a whole, this was reporting complaints from a number of disaffected people about the way the complainant was behaving. However, the phrase that "they are just ripping people off and taking people's money" is more closely akin to a concluded view of fact. Insofar as it is no part of responsible journalism to present allegations as if they were fact; this is a matter to be put on the other side of the balance.
(3) Failed to give GKR a reasonable opportunity to respond or to mention the attempt to contact GKR. Although the NUJ code of conduct does not specifically refer to the duty to give someone the opportunity to respond before publication Mrs Holmes accepts that it is clearly right that a responsible journalist would before printing a story, certainly of this sort, seek to obtain the views of GKR. Mrs Holmes said she did on one occasion and possibly on a second occasion. The jury found that she did indeed attempt to speak to GKR on one occasion, but rejected the suggestion that possibly it occurred on a second occasion. Mrs Holmes' evidence was that she rang the number which she had been given by Mrs Green, a paging service. She identified herself and asked them to get in touch with her and left her number. There is evidence from Mr Martin, who is the southern zone director of the claimants that at the material time there were two regional managers in charge of Leeds. In 1996 Hutchison Telecom were responsible for the paging service. GKR moved to British Telecom before the end of 1996 and moved back to Hutchison at the end of 1997. If the pager was rung, it was answered by an operator: "GKR Karate, can I help you?" He or she would then say, "I'm sorry, they are not in the office, I'll take a message for you." If all went well, they would notify the regional manager, who, if the system worked would subsequently get in touch with the individual to whom the caller wanted to speak. A number of people would sometimes call and, finding that the person to which they wanted to speak was not available, would not leave a message.
39. It is quite clear from the various documents in the case, and from Mr Martin's own evidence, that the operation of a BT paging service of this kind left a good deal to be desired. Mr Martin spoke of his conducting a general survey and finding out that something like four per cent of the messages were going astray.
40. It is impossible to determine whether the call from Mrs Holmes was among those that simply went astray or whether the claimants simply ignored it. The claimants knew certainly from November 1997 that Mrs Holmes had allegedly made the call, but had been unable to trace what happened. It is Mr Carman's submission that simply to make one call was wholly insufficient, and drew attention to the following extract of Mrs Holmes' evidence. "Question: However damaging it is to a company, do you think you can discharge your duty of contacting them and asking them their side of the story if you make one phone call, leave a message, and if you don't get an answer - is that it? Answer: No. Well, help my Lord and the jury please, what your position is on this? Answer: I would think I would probably, I would have probably rung twice anyway. Certainly twice. Question: Are you saying you did? Answer - I don't know, I don't know, I can't honestly say."
41. In the light of the jury's finding that she did not possibly make a second phone call, Mr Carman submits with some force on Mrs Holmes' own evidence she failed to give GKR a reasonable opportunity to respond. He further points out there is nothing in the article to suggest that GKR had been contacted and that they had not responded. The latter point seems to me to be without substance, indeed it might be thought to say that GKR had been invited to respond and failed to do so might be more damaging than the absence of any reference to it.
42. It is quite clear from Lord Nicholls' speech, see factor 7, that this is a factor that the judge should take into account in the balancing exercise, though the approach will not always be necessary in the balancing exercise. In Reynolds, an explanation had been given which the newspaper chose not to report. However, in the instant case, it seems to me that criticism of Mrs Holmes on this aspect of the case, in the light of her evidence, is a matter to be put in the balance on the claimant's behalf.
(4) Failure to mention the inquiry to the Leeds trading officer or their reply. In the light of the complaint by Mrs Green, Mrs Holmes rang up the trading office in Leeds to ask whether there had been any complaints and was told that there were not. She failed to mention either that made that enquiry or their reply in the article. The article refers to "the investigations have taken place in other UK cities after complaints about these clubs and the operation has now been reported in Leeds." The phrase 'operation' as I understand it means the door-to-door canvassing and does not refer to investigation. Mrs Holmes' explanation is that didn't she didn't make a record of the call or the answer. She was asked "If they had said there had been no complaints or they had no complaints to make about it, would you not have made a note of it and published it?" Answer, "It would depend on the space available for a story as well." She was asked, "Why did you publish investigations that were taking place in other places but in Leeds there isn't a complaint that is being investigated?" Answer, "I can't answer that now." Again, I think that is a legitimate criticism of Mrs Holmes here which again has to be put in the balance.
(5) The omission of the information from Mrs Green that GKR were not breaking the law. According to Mrs Holmes's note Mr Green told Mrs Holmes that the claimants were not breaking the law. It looks very much from the notes as though that opinion was not that of Mrs Green but of Mr Burnand, though in one sense that matters not. There is nothing in the article about that and again it is a legitimate criticism also to be put in the balance.
(6) Inaccurate quotation of Mrs Green. Mrs Green is quoted as ipsissima verba in the article. There is nothing in Mrs Holmes' note about, "But I've been too busy to sort it out." The absence of that phrase from the note seems to be quite irrelevant. More importantly the phrase, "I became suspicious but I couldn't get through to the telephone they gave me and I want to warn others not to get involved" are not in the original note. Mrs Holmes's belief is that she spoke to Mrs Green on the second occasion and that's where the information probably came from. I do not believe the absence of the phrase, "I want to warn others not to get involved" is of any particular significance but the reference to the telephone number is of significance. Again, it seems to me possibly a matter which I can properly put in the balance against Mrs Holmes.
(7) The conversation with Mrs Furlong and Mrs Radcliffe showed that Mrs Holmes had a measured indifference to accuracy and truth. Mrs Furlong and Mrs Radcliffe were satisfied customers of GKR. Mrs Furlong heard of the article and on 28th August rang Mrs Holmes. Mrs Holmes has no recollection of the conversation. Mrs Furlong's evidence was that she asked if Mrs Holmes had been to the club, and had got the answer no, or seen any of the insurance, and got the answer no. She asked Mrs Holmes if she had spoken to GKR and Mrs Holmes said she had left the message, and there was some discussion between Mrs Furlong and Mrs Holmes about the charges. Mrs Radcliffe, on Mrs Furlong's suggestion, rang Mrs Holmes on the 9th September and she said she was told there was no insurance, that instructors came from the Job Centre, they were not licensed and not recognised and, according to Mrs Radcliffe, Mrs Holmes advised her to go to another club. Given that this conversation was some three weeks after the article and given that Mrs Radcliffe's recollection of the conversation may not be precisely accurate, I find the suggestion of indifference to accuracy and truth unsubstantiated.
43. As I've indicated, at the forefront of Mr Carman's submission was the failure of Mrs Holmes properly to pursue investigations and in particular to fail to enquire from Mr Burnand or Mr Porch the source of their information, whether they checked with GKR, whether they had seen any documents relating to insurance, whether they had tested the complaints that had been made, and additionally to find out from Mr Porch precisely what his position, experience, and expertise were. Mr Carman said there was no particular urgency about the publication of this article.
44. Insofar as it's necessary for me to make a finding, I found Mrs Holmes to be an honest, sensible and responsible person on whose evidence I could rely and who was naturally concerned by the dangers, particularly to children, resulting from this organisation. I reject the view that she was either indifferent to accuracy or truth. She based her article on what she believed, honestly believed, was reliable evidence. I've read and reread all the speeches in Reynolds. I've reread the transcript again. I've listened with care to the submissions made orally and read the written submissions of counsel. I now have to do the balancing exercise, looking at all the circumstances, and most especially at the specific criticisms to which I have referred. In conclusion, I'm clearly of the view that the criticisms to which I've referred, neither individually or cumulatively, outweigh the interest in the free flow of information in this case. Accordingly, I rule that qualified privilege is made out.