Watts v Times Newspapers Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,LORD JUSTICE HENRY,SIR RALPH GIBSON |
| Judgment Date | 28 July 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0728-15 |
| Docket Number | QBENF/94/0324/C |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 1995 |
[1995] EWCA Civ J0728-15
(Mr Justice Morison)
Before: Lord Justice Hirst Lord Justice Henry and Sir Ralph Gibson
QBENF/94/0324/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR ANDREW CALDECOTT QC (instructed by Messrs Richard CM Sykes, London SW1) appeared on behalf of THE PLAINTIFF
MR CHARLES GRAY QC and MR MARCEL BARCA (instructed by Messrs Theodore Goddard, London EC1) appeared on behalf of THE DEFENDANTS
MR DESMOND BROWNE QC and MISS SOPHIA ROPER (instructed by Messrs Schilling & Lom, London W1) appeared on behalf of THE THIRD PARTY
Friday 28 July 1995
The court has heard successively two appeals in this action in which the plaintiff, Mr Nigel Watts, who is an author and who is hereinafter invariably referred to as "the plaintiff", claims damages for libel in respect of three publications in the Sunday Times against its publishers Times Newspapers Ltd (TNL), its then editor Mr Andrew Neil (the second defendant) and in respect of one of the three publications Mr Richard Palmer (the third defendant). The publications are:
(1) A diary item in the Sunday Times dated 16 April 1992 which referred to "An Extraordinary Series of Coincidences" between the plaintiff's novel "The Life Game" and an autobiographical novel by Ann Hemming entitled "To Hell or to Connaught". "The Life Game" had previously been awarded the Betty Trask Literary Award.
(2) A longer article of which the third defendant was the author, published in the Sunday Times on 3 May 1992, which developed the theme of the diary entry under the heading "Fiction prize winner is accused of plagiarism". Unfortunately this article was accompanied by a photograph of a different Mr Nigel Watts who is a property developer and who is hereinafter invariably referred to as "Mr Watts". It is from this mistake that all the subsequent trouble has stemmed.
(3) The critical publication so far as the present proceedings are concerned, namely an apology published in the Sunday Times dated 14 June 1992 in the following terms:
"Nigel Watts
Our article (May 3) about the remarkable similarities between Mr Nigel Watts' novel 'The Life Game' and an unpublished novel by Ann Henning was accompanied by a photograph of a different Nigel Watts (above), a property consultant of Tunbridge Wells, Kent, thus suggesting that he had plagiarised the novel and dishonestly won the Betty Trask Literary Award. We accept that this is without foundation and apologise to him and his family for any distress or embarrassment this error may have caused."
On 17 May 1992, in between publications Nos. 2 and 3, the defendants published a letter from the plaintiff denying plagiarism and describing in detail the significant dates of the first draft and of the subsequent composition of his own novel.
Following publication No. 2 Mr Nigel Watts, through his solicitors Messrs Schilling and Lom (hereinafter called "S & L"), complained by letter dated 11 June 1992 that he had been defamed thereby and required publication of an apology in terms to be agreed as part of an overall settlement of his claim, including also a payment of agreed damages and costs. On 12 June TNL replied and offered a draft apology in the following terms:
"Nigel Watts
Our article (May 3) about the remarkable similarities between Nigel Watts' novel 'The Life Game' and Ann Henning's unpublished novel 'To Hell or to Connaught' was accompanied by a photograph of Nigel Watts, the property developer. We apologise to that Nigel Watts and his family for any distress or embarrassment this error may have caused."
This first draft was rejected by S & L who submitted a redraft, inserting after the first sentence the words "The article together with the photograph alleged that Mr Watts had plagiarised the novel and as a result had dishonestly won the Betty Trask Literary Award." TNL accepted this insertion, subject to the slight syntactical amendment as shown in the final published version.
The plaintiff's present proceedings were begun by a writ issued on 29 September 1992. By their defence the Sunday Times contend inter alia that the apology is protected by qualified privilege. This was considered as a preliminary issue by Morison J who, on 21 December 1993, ruled against the defendants and held that the apology was not so protected. This forms the subject matter of the first appeal which is brought by the defendants with the leave of Morison J himself.
Meanwhile, by a Third Party Notice dated 2 December 1992, the defendants joined S & L as third parties, claiming from them contribution on the ground that S & L were jointly and severally liable for the publication of the apology, having regard to the part they had played in drafting it. By summons dated 14 January 1993 S & L applied for an order that the third party proceedings should be dismissed pursuant to Order 18, r19(1) and/or under the inherent jurisdiction of the court. This application came before Tucker J on 18 March 1993 and was dismissed. This forms the subject matter of the second appeal which is bought by S & L with the leave of the single Lord Justice.
The grounds of S & L's appeal, so far as presently relevant, are that they were not responsible for the publication of the apology and therefore not joint tortfeasors and that their publication was in any event protected by qualified privilege.
Since qualified privilege is raised in both appeals it is convenient to consider it comprehensively. I shall defer until later in the judgment consideration of the joint tortfeasor issue.
The defendants' plea of qualified privilege in paragraph 11 of their defence is in the following terms:
"(1) The second publication was accompanied by a photograph of an individual described as the plaintiff. In fact, the photograph was of another individual, also called Nigel Watts (Mr Watts). On 5 May 1992 a letter of apology was sent to Mr Watts by the Deputy Picture Editor of the Sunday Times.
(2) On Thursday 11 June 1992 Schilling and Lom, a firm of solicitors acting on the instructions of Mr Watts, faxed a letter before action to the second defendants seeking inter alia the publication of an apology and damages for libel.
(3) The following day 12 June the defendants' in-house solicitor, Patricia Burge, faxed a letter to Schilling and Lom offering to publish an apology in the following terms."
That is then also quoted.
"Ms Burge's letter also made it clear that if the apology was to appear in the following Sunday's newspaper the final wording of the apology would have to be agreed by close of business that very day.
(4) Schilling and Lom duly responded with a faxed letter accompanied by a redrafted apology in the following terms."
That is then also quoted.
"(5) In response Ms Burge sent a further fax to Schilling and Lom that afternoon containing a slightly shorter version of their redrafted apology. When no reply was received a further fax was sent to sent to Schilling and Lom at 4.45 p.m. that afternoon. Schilling and Lom responded by a telephone call, the substance of which was confirmed by fax, agreeing to the publication of Ms Burge's revised version of Schilling and Lom's redrafted apology.
(6) The defendant's revised version of Schilling and Lom's redrafted apology was duly published in that Sunday's edition of the newspaper, the third publication. As is apparent from its terms the third publication comprises an apology couched substantially in the specific terms required by Schilling and Lom as a prerequisite of any settlement of Mr Watts' claim. In the event no proceeding were issued by Mr Watts. Moreover the defendants were able to dispose of the matter on payment of a modest sum in damages and costs.
(7) In the premises the defendants published the said apology in good faith and in pursuance of their legal and/or social and/or moral duty to apologise to Mr Watts, the readers of the Sunday Times having a corresponding interest in reading such an apology."
S & L, who have of course not pleaded to the Third Party Notice, allege that a solicitor acting to vindicate his client's reputation from public attack is, like his client, protected by qualified privilege.
The general principle on which common law qualified privilege is founded is the public interest frequently expressed as "The common convenience and welfare of society" or "The general interest of society" ( MacIntosh v Dunn [1908] AC 390). The first classic exposition of this doctrine is to be found in the judgment of Parke B in Toogood v Spyring [1834] 1 CM & R 181 at page 193. Baron Parke held that a defamatory publication will be protected by common law privilege in cases where:
"…. the occasion of the publication affords a defence in the absence of express malice. 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 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 fairly warranted by any reasonable occasion of exigency and...
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