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This case is referred to in many cases of defamtion.
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ALBERT REYNOLDS (Respondent) v (1) TIMES NEWSPAPERS LTD (2) ALAN RUDDOCK (3) JOHN WITHEROW (Appellants) (1999)
HL (Lord Nicholls of Birkenhead, Lord Steyn, Lord Cooke of Thorndon, Lord Hope of Craighead, Lord Hobhouse of Woodborough) 28/10/99
DEFAMATION - CIVIL PROCEDURE - COSTS - HUMAN RIGHTS - MEDIA AND ENTERTAINMENT
LIBEL : PUBLISHING : NEWSPAPERS : ARTICLES : PUBLICATION OF MISSTATEMENTS : DEFENCE : PROOF OF ACTUAL MALICE : QUALIFIED PRIVILEGE : NEW CATEGORY : PRIVILEGE DERIVED FROM SUBJECT MATTER : GENERIC PRIVILEGE : GOVERNMENT AND POLITICAL MATTERS : POLITICAL SPEECH : POLITICAL INFORMATION : DUTY TEST : INTEREST TEST : CIRCUMSTANTIAL TEST : PRESS FREEDOM : FREEDOM OF SPEECH : PROTECTION OF REPUTATION : JUDGE'S DIRECTION : MISDIRECTION TO JURY : FAIR TRIAL : PROPER BALANCE : COSTS : CIVIL LIBERTIES : PUBLIC INTEREST : IRELAND
"Political information" was not to be adopted as a new "subject-matter" category of qualified privilege. In deciding whether an occasion was privileged there was no "circumstantial test" separate from, and additional to, the conventional duty-interest questions which required the court to consider, among other matters, the nature, status and source of the material published and the circumstances of the publication.
Defendants' appeal against that part of the decision of the Court of Appeal which held that: (i) the defence of qualified privilege was not available in respect of the publication of political information; and (ii) the existing tests were still to be applied, including the circumstantial test as to whether the nature, status and source of the material published, and the circumstances of the publication, were such that, in the public interest, the publication should be protected by privilege in the absence of proof of actual malice. The plaintiff, the former Taioseach and leader of Fianna Fail, complained of an article published in the mainland edition of the Sunday Times in November 1994 about the political crisis in Ireland and the political circumstances leading to the plaintiff's resignation from both offices. The meaning complained of was that the plaintiff had deliberately and dishonestly misled the Irish Dail and colleagues within the coalition government.
The action was tried by French J and a jury in late 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 decided that the defamatory allegation of which the plaintiff complained was not true, so the defence of justification failed. The jury decided that the second defendant was not acting maliciously in writing and publishing the words complained of, nor was the third defendant. Thus, if the occasion was privileged, which was a question for the judge, the defence of qualified privilege would succeed. Despite their rejection of the defence of justification, the jury awarded the plaintiff 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 the plaintiff 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. The plaintiff 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 allowed the plaintiff's appeal. It concluded that the misdirections identified by the court were, cumulatively, such as to deny the plaintiff a fair trial of his claim. It 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, and held they would not. Leave was given to the defendants to appeal against this ruling, since it raised an issue of public importance. On this appeal the defendants therefore argued for an incremental development of the common law by the creation of a new category of occasion when privilege derived from the subject matter alone, namely "political information", ie information, opinion and arguments concerning government and political matters which affected the people of the United Kingdom.
HELD (Lords Steyn and Hope dissenting): (1) The established common law approach to misstatements of fact remained essentially sound. The common law should not develop "political information" as a new "subject-matter" category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances.
That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enabled interference with freedom of speech to be confined to what was necessary in the circumstances of the case.
That elasticity enabled the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern. Per Lord Nicholls, the matters to be taken into account included (the list was not exhaustive): (i) the seriousness of the allegation; (ii) the nature of the information and the extent to which it was of public concern; (iii) the source of the information; (iv) the steps taken to verify the information; (v) the status of the information; (vi) the urgency of the matter; (vii) whether comment was sought from the defendant; (viii) whether the article contained the gist of the plaintiff's side of the story; (ix) the tone of the article; and (x) the circumstances of the publication, including timing.
Above all, the court was to have particular regard to the importance of freedom of expression. The court should be slow to conclude that a publication was not in the public interest, especially when the information was in the field of political discussion. Doubts should be resolved in favour of publication. (2) As to the supposed circumstantial test, the Court of Appeal had highlighted that, in deciding whether an occasion was privileged, the court should consider, among other matters, the nature, status and source of the material published and the circumstances of the publication. In stressing the importance of these particular factors, the court treated them as matters going to a question separate from, and additional to, the conventional duty-interest questions. This formulation of three questions gave rise to conceptual and practical difficulties and was better avoided.
There was no separate or additional question. These factors were to be taken into account in determining whether the duty-interest test was satisfied or, put in a simpler and more direct way, whether the public was entitled to know the particular information. The duty-interest test, or the right to know test, could not be carried out in isolation from these factors and without regard to them. A claim to privilege stood or fell according to whether the claim passed or failed that test. There was no further requirement.
Appeal dismissed.
Lord Lester QC, James Price QC and Pushpinder Saini instructed by Theodore Goddard for the appellants. Andrew Caldecott QC and Benjamin Hinchcliff instructed by Crockers Oswald Hickson for the repondent.
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