Turkington and Others (Practising as McCartan Turkington Breen) v Times Newspapers Ltd

On 24 January 1995 The Times published an article relating to the subject of a press conference which had been held the day before. The press conference had been organised by an informal Committee formed to secure the release and vindication of Private Lee Clegg, who had been convicted of serious criminal offences allegedly committed while he had been serving as a private soldier in the Parachute Regiment in Northern Ireland. He had been sentenced to life imprisonment and to a concurrent term of 4 years'. The Times article made critical reference to the plaintiffs in these proceedings, a firm of solicitors practising in Belfast ("the solicitors") who had represented Mr. Clegg at his trial and on his unsuccessful appeal to the Court of Appeal in Northern Ireland. In these proceedings the solicitors sued Times Newspapers Limited as publishers of The Times ("the newspaper"), claiming damages for libel. They succeeded before Girvan J. and a jury, and again on the newspaper's appeal to the Court of Appeal. Although other issues were canvassed before the trial judge and the Court of Appeal, the newspaper's appeal to this House raises only the question whether the judge and the Court of Appeal were right to rule, as they did, that the newspaper was not in all the circumstances entitled to rely on the defence of qualified privilege afforded by section 7 of and paragraph 9 of the Schedule to the Defamation Act 1955 of Northern Ireland. This question has been sub-divided into two issues for decision, which are set out below.

The Facts

The lucid and comprehensive judgment of the Court of Appeal delivered by Carswell LCJ ( [1998] N.I. 358) gives a full account of the facts giving rise to this appeal as understood by that court. I give only the barest summary needed to understand the issue.

The membership of the Clegg Committee included some former senior officers in the Parachute Regiment; Mr. McKay, Mr. Clegg's English solicitor who had by this time taken over his representation; a clerical supporter of Mr. Clegg; and Lord St. Oswald. They decided to hold a press conference to drum up support for Mr. Clegg at Lord St. Oswald's home in Yorkshire on 23 January 1995. Representatives of the press were invited to attend. One of those who did attend was Mr. Wilkinson, the northern correspondent of The Times, who was despatched by his newsdesk to cover the conference and in due course wrote (with others) the article complained of. Among others who attended was a Mr. Barker, a former member of the Parachute Regiment, who was not a journalist: he read of the forthcoming press conference in his local paper, spoke on the telephone to Lord St. Oswald, and attended at the press conference without any objection being taken to his presence. It is not entirely clear on the evidence how many people attended the press conference. It would seem that there were about thirty journalists and a number of others, but the numbers may have been greater. No check was made on the identity or credentials of those attending the meeting, and no one was turned away. A press release was made available to all those attending but was not read aloud during the proceedings, although brief reference was made to it orally by one of the speakers. Copies of a petition in support of Mr. Clegg were given out for signature by those who wished to sign. When the press conference began, statements were made by members of the Committee, including Mr. McKay, some of whose observations were critical of the solicitors, although he modified these to some extent on being pressed. Those attending were invited to ask questions or make statements. A number of questions were asked, including several by Mr. Barker, and observations were made. After the questions were over, a number of journalists, including Mr. Wilkinson, approached the top table to speak to members of the Committee individually and Mr. Wilkinson took the opportunity to put some further questions to Mr. McKay concerning criticisms of the solicitors made in the press release.

The Legislation

A measure of statutory protection has been granted to newspaper reports of proceedings of public meetings for over a century. Section 2 of the Newspaper Libel and Registration Act 1881 provided:

"Any report published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate, and published without malice, and if the publication of the matter complained of was for the public benefit; provided always, that the protection intended to be afforded by this section shall not be available as a defence in any proceeding, if the plaintiff or prosecutor can show that the defendant has refused to insert in the newspaper in which the report containing the matter complained of appeared a reasonable letter or statement of explanation or contradiction by or on behalf of such plaintiff or prosecutor."

This provision was replaced by a more elaborate provision in section 4 of the Law of Libel Amendment Act 1888, which so far as relevant provided:

"A fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, … shall be privileged, unless it shall be proved that such report or publication was published or made maliciously: Provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter: Provided also, that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the newspaper in which the report or other publication complained of appeared a reasonable letter or statement by way of contradiction or explanation of such report or other publication, and has refused or neglected to insert the same: Provided further, that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit.

"For the purposes of this section 'public meeting' shall mean any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted."

To give effect to the Report of the Committee on the Law of Defamation (Cmd. 7536) chaired by Lord Porter, the Defamation Act of 1952 was enacted: this Act did not (save for one section) extend to Northern Ireland, but was followed in Northern Ireland by the Act of 1955, which governs this case and which was in terms indistinguishable for present purposes from the English Act. It repealed section 4 of the 1888 Act. Section 7 of the 1955 Act, corresponding to section 7 of the 1952 Act, provided:

"(1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule shall be privileged unless the publication is proved to be made with malice.

(2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances.

(3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any 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 as limiting or abridging any privilege subsisting (otherwise than by virtue of section four of the Law of Libel Amendment Act, 1888) immediately before the commencement of this Act …"

The Schedule referred to was in two parts. Part I listed newspaper statements privileged without explanation or contradiction. These were reports of proceedings in certain legislatures, international organisations and courts, Commonwealth courts, courts martial and official public inquiries, and certain official documents. Part II listed statements privileged subject to explanation or contradiction. Paragraph 9, the provision at the heart of this appeal, extended such privilege (subject to section 7) to:

"A fair and accurate report of the proceedings at any public meeting held in the United Kingdom, that is to say, a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission to the meeting is general or restricted."

The other paragraphs in Part II extended the same privilege to the findings and decisions of certain learned, professional, commercial and sporting bodies; to reports of proceedings at certain specified meetings and sittings provided they were not meetings or sittings "admission to which is denied to representatives of newspapers and other members of the public"; to reports of proceedings at general meetings of certain...