Reynolds v Times Newspapers Ltd
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD COOKE OF THORNDON,LORD HOPE OF CRAIGHEAD,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 28 October 1999 |
| Judgment citation (vLex) | [1999] UKHL J1028-4 |
| Court | House of Lords |
| Date | 28 October 1999 |
and Others
[1999] UKHL J1028-4
Lord Nicholls of Birkenhead
Lord Steyn
Lord Cooke of Thorndon
Lord Hope of Craighead
Lord Hobhouse of Wood-borough
HOUSE OF LORDS
My Lords,
This appeal concerns the interaction between two fundamental rights: freedom of expression and protection of reputation. The context is newspaper discussion of a matter of political importance. Stated in its simplest form, the newspaper's contention is that a libellous statement of fact made in the course of political discussion is free from liability if published in good faith. Liability arises only if the writer knew the statement was not true or if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive. Mr. Reynolds' contention, on the other hand, is that liability may also arise if, having regard to the source of the information and all the circumstances, it was not in the public interest for the newspaper to have published the information as it did. Under the newspaper's contention the safeguard for those who are defamed is exclusively subjective: the state of mind of the journalist. Under Mr. Reynolds' formulation, there is also an objective element of protection.
The events giving rise to these proceedings took place during a political crisis in Dublin in November 1994. The crisis culminated in the resignation of Mr. Reynolds as Taoiseach (prime minister) of Ireland and leader of the Fianna Fáil party. The reasons for Mr. Reynolds' resignation were of public significance and interest in the United Kingdom because of his personal identification with the Northern Ireland peace process. Mr. Reynolds was one of the chief architects of that process. He announced his resignation in the Dáil (the House of Representatives) of the Irish Parliament on Thursday, 17 November 1994. On the following Sunday, 20 November, the 'Sunday Times' published in its British mainland edition an article entitled 'Goodbye gombeen man.' The article was the lead item in its world news section and occupied most of one page. The article was sub-headed 'Why a fib too far proved fatal for the political career of Ireland's peacemaker and Mr. Fixit'. On the same day the Irish edition of the 'Sunday Times' contained a three page article headed 'House of Cards' concerning the fall of the Government. This article differed in a number of respects from the British mainland edition.
Mr. Reynolds took strong exception to the article in the British mainland edition. In the libel proceedings which followed, Mr. Reynolds pleaded that the sting of the article was that he had deliberately and dishonestly misled the Dáil on Tuesday, 15 November 1994 by suppressing vital information. Further, that he had deliberately and dishonestly misled his coalition cabinet colleagues, especially Mr. Spring, the Tanaiste (deputy prime minister) and minister for foreign affairs, by withholding this information and had lied to them about when the information had come into his possession. The author of the article was Mr. Ruddock, the newspaper's Irish editor. Times Newspapers Ltd. was the publisher of the newspaper, and Mr. Witherow was the editor. They were defendants in the proceedings. The background facts are further elaborated in the judgment of the Court of Appeal, reported at [1998] 3 W.L.R. 862, 869-873. It was common ground before your Lordships that by instituting and prosecuting his libel action Mr. Reynolds had waived his immunity under the Irish constitution in respect of proceedings in the Dáil. His ability to do so was not questioned in your Lordships' House.
The action was tried by French J. and a jury between 14 October and 19 November 1996. The issues at the trial were: the meaning of the article, qualified privilege at common law, justification, malice and damages. During the trial the defendants abandoned pleaded defences that the words were fair comment on a matter of public interest and that they were a fair and accurate report of proceedings in public of the Irish legislature.
The jury verdict took the form of answers to questions. The jury decided that the defamatory allegation of which Mr. Reynolds complained was not true. So the defence of justification failed. The jury decided that Mr. Ruddock was not acting maliciously in writing and publishing the words complained of, nor was Mr. Witherow. So, if the occasion was privileged, and that was a question for the judge, the defence of qualified privilege would succeed. Despite their rejection of the defence of justification, the jury awarded Mr. Reynolds no damages. The judge substituted an award of one penny. In the light of this nil award, costs were the only remaining issue. On this the defence of qualified privilege was still a live question. If this defence was available to the defendants, they had a complete defence to the action, and the judge would have ordered Mr. Reynolds to pay the defendants' costs of the action. The judge then heard submissions on the question of qualified privilege. The defendants unsuccessfully contended for a wide qualified privilege at common law for 'political speech'. The judge ruled that publication of the article was not privileged.
Mr. Reynolds appealed, contending that the judge had misdirected the jury in certain respects. The defendants cross-appealed against the judge's decision on the qualified privilege point. The Court of Appeal, comprising Lord Bingham of Cornhill C.J., Hirst L.J. and Robert Walker L.J., allowed Mr. Reynolds' appeal. They concluded, with regret because of the consequences for the parties, that the misdirections identified by the court were, cumulatively, such as to deny Mr. Reynolds a fair trial of his claim. They set aside the verdict, finding and judgment of the court below and ordered a new trial. The Court of Appeal also considered whether the defendants would be able to rely on qualified privilege at the retrial. The court held they would not. Your Lordships' House gave leave to the defendants to appeal against this ruling, since it raised an issue of public importance. That is the issue now before your Lordships.
Defamation and truth
The defence of qualified privilege must be seen in its overall setting in the law of defamation. Historically the common law has set much store by protection of reputation. Publication of a statement adversely affecting a person's reputation is actionable. The plaintiff is not required to prove that the words are false. Nor, in the case of publication in a written or permanent form, is he required to prove he has been damaged. But, as Littledale J. said in McPherson v. Daniels (1829) 10 B. & C. 263, 272, 'the law will not permit a man to recover damages in respect of an injury to a character which he does not or ought not to possess'. Truth is a complete defence. If the defendant proves the substantial truth of the words complained of, he thereby establishes the defence of justification. With the minor exception of proceedings to which the Rehabilitation of Offenders Act 1974 applies, this defence is of universal application in civil proceedings. It avails a defendant even if he was acting spitefully.
The common law has long recognised the 'chilling' effect of this rigorous, reputation protective principle. There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority.
Honest comment on a matter of public interest
One established exception is the defence of comment on a matter of public interest. This defence is available to everyone, and is of particular importance to the media. The freedom of expression protected by this defence has long been regarded by the common law as a basic right, long before the emergence of human rights conventions. In 1863 Crompton J. observed in Campbell v. Spottiswoode (1863) 3 B. & S. 769, 779, that 'it is the right of all the Queen's subjects to discuss public matters'. The defence is wide in its scope. Public interest has never been defined, but in London Artists Ltd. v. Littler [1969] 2 Q.B. 375, 391, Lord Denning M.R. rightly said that it is not to be confined within narrow limits. He continued:
'Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.'
Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair-minded person could honestly express the opinion in question. Judges have emphasised the latitude to be applied in interpreting this standard. So much so, that the time has come to recognise that in this context the epithet 'fair' is now meaningless and misleading. Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective. But the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury. The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it: see Diplock J. in Silkin v. Beaverbrook Newspapers Ltd. [1958] 1 W.L.R. 743, 747.
It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought...
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