Curistan v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Laws |
| Judgment Date | 30 April 2008 |
| Neutral Citation | [2008] EWCA Civ 432 |
| Docket Number | Case No: A2/2007/0979 & 0989 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2008 |
[2008] EWCA Civ 432
The Lord Chief Justice of England & Wales
Lord Justice Laws and
Lady Justice Arden
Case No: A2/2007/0979 & 0989
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE GRAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Parkes QC and Matthew Nicklin (instructed by Messrs Schillings) for the Appellant/Respondent
Victoria Sharp QC and Alexandra Marzec (instructed by Times Newspapers Limited) for the Respondent/Appellant
Approved Judgment
Hearing dates : 25–26 February 2008
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Introduction
This judgment concerns appeals against the determination by Gray J ( [2008] 1 WLR 126; [2007] 4 All ER 486) of two preliminary issues in proceedings for defamation brought by Mr Peter Curistan, a chartered accountant and well-known businessman in Northern Ireland. I have set the preliminary issues out in [10] below. Mr Curistan contends that an article published by the defendant (whom I shall call “The Sunday Times”), which was partly based on statements made in Parliament, was defamatory of him. The essential issues concern (1) the availability of qualified privilege for those statements and (2) the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the newspaper's own investigative findings. The first issue is largely fact-specific but the second issue involves a novel challenge to the so-called “repetition rule” which generally applies to reported speech in defamation proceedings.
The repetition rule has the effect that “[f]or the purpose of the law of libel a hearsay statement is the same as a direct statement…” (per Lord Devlin in Lewis v Daily Telegraph [1964] AC 234, 284). The purpose of the rule is to protect the individual's right to his reputation: “repeating someone else's libellous statement is just as bad as making the statement directly” (per Lord Reid in Lewis at 260). In Stern v Piper [1997] QB 123, this court applied the rule to the situation where the defendant contended that it had simply made a statement that an allegation had been made. Thus the policy of the rule appears potentially to apply in all circumstances and irrespective of whether the meaning of a statement is that the publisher is only reporting that a statement has been made without adopting or endorsing it. But an important inroad was made in Al-Fagih v H.H Saudi Research Marketing (United Kingdom) Ltd [2002] EMLR 13, where this court declined to apply the repetition rule where statements that allegations had been made were made on a privileged occasion. The first issue in this case is whether any part of the article is entitled to reporting privilege but the second and important issue is whether the judge was correct to accept the submission that he had to find a single meaning for the whole article, including any privileged parts, and in so doing to apply the repetition rule to the allegations which he found were entitled to privilege. Privilege and meaning are two key elements of the law of defamation. They ultimately concern the freedom of expression of the media as well as the right of the individual to protection for his reputation. Moreover, in these proceedings, that freedom and right are invoked in the context of a statement made in Parliament. The right to freedom of expression assumes a special importance in the context of statements in Parliament because they concern political matters.
I shall need to start by outlining the background and the judgment of the judge. The principal issues and contentions on these issues on these appeals are formulated in [16] to [20] below. A summary of my conclusions will be found at [21] and [22] below, and I amplify these at [24] to [76] below.
Background
Mr Curistan commenced these proceedings following the publication of an article, under the headline “'IRA' developer in row over accounts”, by The Sunday Times in its Belfast edition on 19 February 2006 and reproduction of that article on its website. (The English edition of The Sunday Times carried only a shortened version of the same article). The article in question, with paragraph numbers added, is set out in the Part A of the Appendix to this judgment. I have added details of the accompanying photograph, which was not published on the website, but little turns on it so far as these appeals are concerned.
The critical structural feature of the article, which has led to the issues arising on these appeals, is that it is a hybrid report containing both statements made by The Sunday Times, and statements said to be covered by qualified privilege. This is because The Sunday Times referred in its article to certain statements made by Mr Robinson MP in the House of Commons some days earlier on 8 February 2006. These passages are italicised in the Appendix. I will call them “the privileged passages”, although the availability of privilege is one of the issues raised by these appeals. (“The non-privileged passages” are therefore the passages in the article apart from the privileged passages). The existence of the privilege, however, for fair and accurate reports of what is said in Parliament is long-standing, and not in doubt. Although an article reporting something said on a privileged occasion is common in practice, there is surprisingly little authority, so far as counsel's researches go, in which the impact of the commingling of privileged material with a substantial amount of non-privileged material on the liability of the newspaper or broadcaster for defamation has been considered. The principal authority is the decision of the House of Lords in Dingle v Associated Newspapers Ltd [1964] AC 371. Even then, the issues directly before the House concerned only the correct approach to damages.
The Sunday Times' case is that the privileged passages are a fair and accurate report of some of the statements made by Mr Robinson on that occasion. The significant parts of the statements made by Mr Robinson are set out in Part B of the Appendix to this judgment. If The Sunday Times can make out its defence, the privileged passages will be the subject of qualified privilege by virtue of s 15 of the Defamation Act 1996 (“the DA 1996”), read with Sch. 1, Pt 1, para.1 thereto. I refer to this privilege below as “reporting privilege”. Section 15 of the DA 1996 and Sch. 1, Pt 1, para.1 thereto provide:
“15 Reports, &c. protected by qualified privilege
(1) The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows.
(2) In defamation proceedings in respect of the publication of a report or other statement mentioned in Part II of that Schedule, there is no defence under this section if the plaintiff shows that the defendant—
(a) was requested by him to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction, and
(b) refused or neglected to do so.
For this purpose “in a suitable manner” means in the same manner as the publication complained of or in a manner that is adequate and reasonable in the circumstances.
(3) This section does not apply to the publication to the public, or a section of the public, of matter which is not of public concern and the publication of which is not for the public benefit.
(4) Nothing in this section shall be construed—
(a) as protecting the publication of matter the publication of which is prohibited by law, or
(b) as limiting or abridging any privilege subsisting apart from this section.
SCHEDULE 1
QUALIFIED PRIVILEGE
PART I
STATEMENTS HAVING QUALIFIED PRIVILEGE WITHOUT EXPLANATION OR CONTRADICTION
1. A fair and accurate report of proceedings in public of a legislature anywhere in the world.”
These proceedings
Pursuant to agreement between the parties, the judge has ordered that these proceedings be tried by a judge sitting without a jury. It is not necessary to do more than indicate the general nature of the issues raised by the pleadings. The essential allegation in the particulars of claim is that The Sunday Times' article heavily embroidered the allegations made by Mr Robinson in Parliament. It is said that Mr Robinson did not use the word “financial malpractice” and did not accuse Mr Curistan of money laundering. Mr Curistan's case was that The Sunday Times made use, for example, of the qualifications to the accounts of Mr Curistan's companies in order to give force to its distorted report of Mr Robinson's allegations when the real position was that the qualifications to his company's accounts were immaterial. In addition, the reference in the article to the due diligence report (Appendix, Part A, (ix) to (xi)) suggested that the exercise had been prompted by doubts as to the legitimacy of his business interests. In fact, it was an essential ingredient of the process of appointment of a developer for the Laganside development. The Sunday Times also attempted to buttress Mr Robinson's allegations by using the standard response of the auditors of Mr Curistan's accounts that they would not comment on the client's affairs. In short, The Sunday Times had attempted to cast “a pall of sleaze over” Mr Curistan's business operations.
There are two principal defences. First, The Sunday Times contends that the article was protected by qualified privilege insofar as it reported allegations made in Parliament. Secondly, it seeks to justify the article on the basis, so far as relevant to this...
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