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.

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