West Law Report

Privilege survives addition of extra material

Posted in Defamation Act, Privilege (Defamation), Times Law Report by mrkooenglish on May 10, 2008

From The TimesMay 6, 2008

Privilege survives addition of extra material
Court of Appeal

Published May 6, 2008

Curistan v Times Newspapers Ltd

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Laws and Lady Justice Arden Judgment

April 30, 2008

The privilege which attached to a fair and accurate report of parliamentary proceedings was not necessarily lost because of the addition of extraneous nonprivileged material in the same article.

The meaning of the nonprivileged passages in such an article was to be ascertained on the basis that the privileged passages merely provided the context in which the other statements were made and the repetition rule, under which in libel law a hearsay statement was the same as a direct statement, had no application to the privileged passages.

The Court of Appeal so held in a reserved judgment dismissing an appeal by the claimant, Peter Curistan, and allowing a cross-appeal by Times Newspapers Ltd against the decision of Mr Justice Gray (The Times May 10, 2007; [2008] 1 WLR 126) on the trial of preliminary issues in a libel claim.

The claim was brought following publication of an article in The Sunday Times on February 19, 2006, reporting a speech by Mr Peter Robinson, MP, in Parliament alongside other material.

The judge held, inter alia, that, when ascertaining the meaning of a newspaper article where part but not all of the article was protected by privilege, the court should consider the article as a whole, and that when considering whether the qualified privilege, which by section 15(1) of, and Schedule 1 to the Defamation Act 1996 attached to a fair and accurate report of parliamentary proceedings, was lost because of the addition of extraneous nonprivileged material in the same article the court had to decide whether the extraneous material had the effect of rendering the article as a whole substantially lacking in the qualities of fairness and accuracy on which the privilege depended.

Mr Richard Parkes, QC and Mr Matthew Nicklin for Mr Curistan; Ms Victoria Sharp, QC and Ms Alexandra Marzec for Times Newspapers.

LADY JUSTICE ARDEN said the essential issues were the availability of qualified privilege for statements in Parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the newspaper’s own investigative findings.

The first issue was largely fact-specific but the second issue involved a novel challenge to the so-called repetition rule which generally applied to reported speech in defamation proceedings.

Section 15 of the 1996 Act constituted a mandatory rule of law that fair and accurate reports to which it applied and which satisfied the conditions set out in that section were entitled to qualified privilege.

One of the requirements of a fair and accurate report was that the quality of fairness must not be lost by intermingling extraneous material with the material for which privilege was claimed.

The maker of a report would be liable in defamation for allegations entitled to reporting privilege if he adopted them as his own. The judge correctly applied those principles to the privileged passages and correctly concluded that they were entitled to qualified privilege.

In the case of an article consisting in part only of passages entitled to reporting privilege, the meaning of the nonprivileged passages was to be ascertained on the basis that the privileged passages merely provided the context in which the statements in the nonprivileged passages were made, and the repetition rule, under which for the purpose of libel law a hearsay statement was the same as a direct statement, had no application to the privileged passages.

The Lord Chief Justice and Lord Justice Laws gave concurring judgments.

Solicitors: Schillings; Mr Alastair Brett, Wapping.

WARREN v RANDOM HOUSE GROUP LTD

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

Last Updated: 12:01am GMT 03/01/2008

Queen’s Bench Division
Gray J
December 5, 2007

Libel – Offer of amends – Permission to amend – Effect on assessment of damages – Burstein particulars – s. 2 Defamation Act 1996 – s. 3(6) Defamation Act 1996

FACTS

The defendant publisher (R) applied for permission to amend its defence in libel proceedings with the claimant boxing promoter (W). W applied to strike out certain particulars of R’s defence.

R had published a book that contained three alleged defamatory passages about W. With regards to the first of the passages, W claimed that the natural and ordinary meaning of it was that W had dishonestly conned a boxer into accepting a pitiful fee for a fight by lying to him about how much he could be paid. Another passage related to a purported failure by W to vary the agreement with the boxer when it emerged that an American company was to televise the fight on American television.

R had advanced pleas of justification in respect of that passage and made an offer of amends pursuant to the Defamation Act 1996 s. 2. W had accepted that offer. Thereafter R was refused permission to substitute a plea of justification for its offer of amends. R subsequently sought to amend its defence so as to adduce evidence of various particulars of purported fact on the basis that they were directly relevant to the contextual background to the publication complained of. In particular R contended that the amendments in question were justified in accordance with the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 as the offer of amends had been made by it on a mistaken basis and it learned, after the making of the offer of amends, that the allegation complained of by W was true.

ISSUE

Whether the amendments in question were justified in accordance with the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 as the offer of amends had been made by it on a mistaken basis and it learned, after the making of the offer of amends, that the allegation complained of by W was true.

HELD (judgment accordingly)

(1) It was impossible to lay down rules as to what was to be permitted to be adduced as being directly relevant to the contextual background to a publication complained of, Burstein applied. It was for a judge to decide in the exercise of his case management powers on a case by case basis.

In performing that function a judge had to have regard

  1. to the need to be fair to both parties,
  2. to the need to ensure that damages were not assessed on a false basis and
  3. to the overriding requirement of proportionality.

In the ordinary way Burstein particulars would be relied upon by a defendant who was contesting liability and seeking to mitigate the damages payable to a claimant, as such it was important not to lose sight of the fact that in the instant case R had offered amends to W and had apologised to him in respect of the allegation complained of. Accordingly there was no contest as to liability in respect of that allegation.

That did not of itself mean that R was debarred from relying on Burstein particulars for the purpose of the judicial assessment of damages under s. 3(6) of the Act but the latitude to be afforded to R in regard to the Burstein particulars could not be wider on such an assessment than it would have been if R was seeking to reduce damages in the context of a denial of liability. The amendments sought by R in so far as they related to an assertion that W had allegedly made illegitimate and dishonest deductions from the boxer’s purse were impermissible and fell to be struck out. The admission of such allegations amounted to an attempt by an indirect route to enter what in effect was a plea of justification in a case where R had elected to follow the offers of amends and had participated in a public apology to W. Moreover to permit those amendments would result in a prolonged contest as to the rights and wrongs of W’s actions that would be disproportionate to a proper assessment of damages.

(2) However, it was appropriate to allow R to amend its defence in so far as those amendments related to a purported failure by W to vary the agreement with the boxer when it emerged that an American company was to televise the fight on American television. If damages were to be assessed in ignorance of the fact that the American company had acquired the rights to televise the fight after the boxer’s purse had been agreed the judge carrying out that assessment would be doing so without the necessary facts and there was a risk of damages being assessed on a false basis.

(3) J’s claim for false imprisonment was in tort. Accordingly, the Private International Law (Miscellaneous Provisions) Act 1995 s. 11(1) rendered Iraqi law the applicable law. There were insufficient grounds for displacing, under s. 12 of the Act, Iraqi law as the applicable law.

Adrienne Page QC and William Bennett (instructed by Carter-Ruck) for the claimant. Desmond Browne QC and Matthew Nicklin (instructed by Simons Muirhead & Burton) for the defendant.