West Law Report

BLACKWELL v NEWS GROUP NEWSPAPERS LTD & OTHERS

Posted in Libel, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 17/01/2008

Queen’s Bench Division
Eady J
December 12, 2007

Football – Libel – Malice – Public policy – Qualified privilege – Comments not response to attack – Public policy reasons to afford privilege

FACTS

The third defendant (K) applied for summary judgment under the Defamation Act 1996 s. 8 in respect of libel proceedings brought by the claimant (B). In the alternative K applied for summary judgment under CPR Pt 24 in respect of the issues of qualified privilege and malice with a view to limiting the scope of the trial.

K was the chairman and B had been the manager of a football club (L). B’s employment was terminated and a statement was released by L to the effect that K and B had agreed that they would not make any further public statements relating to B’s time at L and his dismissal. The following year, at a point at which L were close to being relegated, a newspaper article appeared in which B was quoted as saying that he was a good manager and that if he had remained as manager of L the club would not be in the position it was. Three days later an article appeared in the same newspaper in which K was quoted as saying that B made excuses; that B’s managerial incompetence would have resulted in L’s relegation at an earlier stage of the season; and that he lost control of the dressing room. B brought proceedings against K on the basis of that article. K submitted that

  1. (1) his comments constituted a “reply to attack” and were protected as a form of privilege at common law;
  2. (2) K had a legitimate interest to make the allegations he did and a corresponding interest in the readers of the newspaper to see what he had to say;
  3. (3) alternatively, if and insofar there were defamatory allegations about B contained in the article, they were plainly to be characterised as comments.

ISSUES

(1) Whether K’s comments constituted a “reply to attack” and were protected as a form of privilege at common law.

(2) Whether K had a legitimate interest to make the allegations he did and a corresponding interest in the readers of the newspaper to see what he had to say.

(3) Whether alternatively, if and insofar there were defamatory allegations about B contained in the article, they were plainly to be characterised as comments.

HELD (judgment accordingly)

(1) What K said could not be characterised as responding to an attack. He was simply criticising those he thought had contributed to L’s problems.

(2) When the readership ran into millions, as was the case of the newspaper in which K’s comments were published, there must be some cogent reason of public policy that defamatory remarks needed to be accorded a cloak of privilege. If K wished to attribute or spread the responsibility for L’s difficulties, that was his entitlement, but public policy did not require that he should be allowed to attack whomsoever he pleased to millions of people under cover of privilege. There was no duty on his part to do so; nor a legitimate common and corresponding interest in the subject matter as between him and the readers. If the jury were to hold that B had been defamed, K must rely on alternative defences.

(3) The allegation of losing control of the dressing room was one which was capable of being categorised as an assertion of fact. A jury would not be perverse if it so held. It could be characterised as comment also, since “losing control” might be a matter of opinion and degree. The court was not prepared to rule that the words were bound to be classified as comment only or that the defence of honest comment was bound to succeed. There would be at least some tasks for a jury to perform. B was entitled to judgment on that issue.

(4) K was entitled to judgment on the issue of malice. There was no sufficient factual basis on which a jury could draw the inferences that K’s motive was to give vent to a personal spite towards B; that K had the improper motive of falsely blaming B for L’s misfortunes; and that K could not have an honest and reasonable belief in what he caused to be published. If the jury were to do so, such a conclusion would be perverse.

Jonathan Crystal (instructed by Hextalls) for the claimant. Mark Warby QC and Jacob Dean (instructed by Carter-Ruck) for the third defendant.

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