Loutchansky v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,MR JUSTICE WILSON,LORD JUSTICE BROOKE,SIR MARTIN NOURSE,LORD JUSTICE THORPE |
| Judgment Date | 03 April 2001 |
| Neutral Citation | [2001] EWCA Civ 536,[2001] EWCA Civ 92 |
| Docket Number | Case No: A2/2001/0305 QBENI |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 2001 |
[2001] EWCA Civ 536
Lord Justice Thorpe
Lord Justice Brooke and
Sir Martin Nourse
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
Richard Spearman Qc & Richard Parkes (instructed by Reynolds Porter Chamberlain for the Appellants)
Desmond Browne Qc & Hugh Tomlinson (instructed by Olswang for the Respondents)
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 [1999] 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) [2000] 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 [1984] 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 [1949] AC 1, 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 [1997] 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...
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