Mr Justice Tugendhat handed down judgment today after the trial of preliminary issues of privilege and malice in the libel action, Qadir v Associated Newspapers Limited, heard on 26-27 July 2012 ([2012] EWHC 2606 (QB)). Novel issues concerning the media’s reporting of litigation and of court hearings, along with malice, were determined in what will be considered to be a landmark judgment. It is anticipated that the new Defamation Act will significantly broaden the scope of statutory privilege defences so this decision is likely to be of considerable importance in the future.

Background

The first article was published in the Mail on Sunday and online on 8th May 2011 entitled, “Bank of Scotland Director ‘drove us out with dogs’ (“the First Article”)”; a second was also published by the Mail on Sunday and online on 19th June 2011 entitled, “Top banker named in mortgage fraud case” (“the Second Article”). The First Article was stated to be a report of the contents of Particulars of Claim in a claim in which the Claimant was a defendant; the Second Article related to allegations made in a plea of mitigation in a criminal sentencing Hearing in which the Claimant was referred to. The allegations in respect of both related to serious criminal misconduct and fraud.

ANL relied upon defences of qualified privilege (under section 15 of the Defamation Act 1996 and at common law) and justification in respect of the First Article; in addition to those defences it relied upon the defence of absolute privilege in respect of the Second Article (the justification defence is limited to the brief reference within the Second Article to the First Article). The Judge was invited to consider the various differing forms of the Article in hard copy and online form.

First Article

ANL obtained a copy of the Particulars of Claim (“the Particulars”) on which it based the First Article shortly after 30 March 2011. The Particulars were available from the point at which Mr Qadir, the Claimant, acknowledged service of them in which he indicated that he intended to defend the entire Claim. His Defence, in which the allegations were denied, was available from the Court on 1 April 2011. The Article was published, five weeks after that, on 8 May. No steps were taken by, or on behalf of, ANL to obtain a copy of the Defence prior to publication of the First Article. However, ANL did make efforts to contact the Claimant by telephone prior to publication with whom it did not speak. It did not use the address which it had for the Claimant in its efforts to contact him. In any event, the First Article published that the Claimant had “declined to comment”, made no reference to the Acknowledgement of Service n its gist which was that there was to be a Defence. The First Article continued to be published on MailOnline until 8 September 2011 without amendment.

Second Article

Shortly after publication of the First Article, ANL became aware of further allegations regarding Mr Qadir made in a criminal sentencing hearing relating to “Britain’s biggest mortgage fraud” which took place on 14 June 2011 at the Southwark Crown Court before HHJ Beddoe. The Claimant was not involved in that action. No journalist attended that Hearing on behalf of ANL which instead became of the details of the allegations through a report published in FT Advisor. On 17 June 2011, in the course of preparing the Second Article, ANL became aware that a Defence had been filed in the claim which it reported on in its First Article. However, the First Article was not amended. The Second Article was then published on 18 June 2011.

Judgment

(a)  The First Article

ANL’s reliance on qualified privilege defences meant that the Court was required to consider for the first time the limits of the reporting of Court documents and the concept of malice in this regard. The Court was required to decide whether the words complained of were a fair and accurate “extract” of the Particulars of Claim and, if so, was the publication by ANL “the publication of matter which of public concern and for the public benefit” pursuant to section 15(3) of the Defamation Act 1996.

The Judge started by establishing the legislative purpose for public access to Court documents under CPR r 5.4C. In summary, it was to protect the parties’ privacy until either (a) it became clear that the claim was not admitted; (b) the Court makes an Order. It was only at these stages that the court may need to administer justice meaning that the principle of open justice was engaged. Prior to then, the Court’s function were merely administrative (except in limited circumstances) ([27] to [41]).

The Judge found that the words “extract” should be construed in the wider sense as encompassing a summary or outline (para 48) (in this regard, note that the wording to the proposed privilege defences in the proposed Defamation Act refer to reports of “copies, extracts or summaries”). He then found, that despite there being differences between the First Article and the document being reported on, those difference alone were not sufficient so as to mean that the words complained of were not a “fair and accurate extract from the Particulars of Claim” (other than the extraneous material and the statement that the Claimant had “declined to comment” which the Judge stated was not correct) ([71] to [76]).

The Judge stated that the main issue to be determined in relation to the First Article was: Was the publication of the words complained of of public concern and for the public benefit? Mark Warby QC, for ANL, argued that all statements of case made available for public inspection by law were inherently matters of public concern and the principle of open justice implied that their publication was for the public benefit (para 80). He submitted that this would not be the case in circumstances where the words had been authoritatively refuted ([83]). William Bennett, for Mr Qadir, argued that there was no such presumption submitting that: “There is no public benefit in non-parties to litigation being free to publish to all the world the defamatory allegations of a person with a grievance, merely because that person has chosen to put those allegations in a claim form or particulars of claim” (para 89).  The Judge found that: “… as a general rule (… to which there may be exceptions) it will not be for the public benefit to publish any defamatory allegations made in a Claim Form or Particulars of Claim available to the public from the court under CPR r 5.4C without at the same time publishing the fact that the defendant has denied, or is disputing, the allegations, as the case may be”, highlighting that the Court should consider a balancing act of the parties’ rights (and obligations) under Articles 8 and 10 under the Human Rights Act 1998 ([100]). He therefore found that ANL’s statutory qualified privilege defence failed, stating: “In the present case I see no public interest in ANL publishing a defamatory extract from the Penthouse Particulars of Claim which omitted a statement that a claim is disputed”. He criticised ANL’s assertion that the Claimant had declined to comment, noting that “there can be no public benefit in publishing that misinformation” which he described to as “not the product of responsible journalism” ([102] to [103]). The common law privilege defence accordingly failed for predominantly the same reasons ([113]).

It was therefore unnecessary for the Judge to determine the parties’ respective Applications in respect of the malice plea (the Claimant’s to enlarge it and the Defendant’s to also strike out the existing plea). However, the Judge went on, in any event, to find in the Claimant’s favour on its Application and against the Defendant in respect of its ([213]). He found, after a careful analysis of the authorities, that malice would be established if the Claimant could prove that ANL knew that the Claim was disputed but knowingly published the false statement that it was not disputed or knew that the form in which it reported the extract from the Particulars of Claim was misleading or unfair. On the facts, the Judge decided that the publication prior to ANL acquiring actual knowledge of the Defence on 17th June would not have been malicious, albeit he did criticise ANL’s conduct ([218] to [222]). However, he rejected the journalist’s assertion that as MailOnline was a distinct entity within ANL that he was not obliged to ensure that the article was updated when he became aware of the Defence to the Claim on 17 June 2011. He went on: “For whatever reason, he did not care whether MailOnline continued to publish the first Article in a form which, through want of responsible journalism, continued to state falsely that Mr Qadir had made no comment on the allegations in the Penthouse claim. The plea of malice succeeds on this point for the period from 17 June. This is a very serious finding to make” (para [230] to [231]).

(b) The Second Article

It was common ground in the dispute that the Second Article did not report the wording of the interventions from the Judge in the sentencing Hearing which either rejected or, at least, took issue with assertions made ([165]). The dispute therefore centred on whether the Article was nevertheless fair and accurate.

In respect of one instance, the journalist who prepared the Second Article stated that one of the Judge’s interventions was reported in essence as the following words were included: “It is understand that Qadir made no lending decisions at either bank linked to the Dunlop Haywards case”. However, Mr Justice Tugendhat was unimpressed with this stating the words were not attributed to the Judge and did not purport to be part of a report of the proceedings ([167], [174] to [176]). He rejected both the qualified and common law privilege defences stating in respect of the former that even if he was not correct that the report was not fair and accurate it was “not of public concern or for the public benefit for ANL to continue to publish Mr Khamisa’s allegations while omitting to publish the judge’s remarks” ([169]). He did not need to consider whether the publication of the Second Article continued to be “contemporaneous” as the absolute privilege defence failed for others reasons but he did, in any event, find that once “contemporaneously” published then it would remain so in respect of later online publications ([162]).

Again whilst not necessary to do so, Mr Justice Tugendhat went on to consider the Claimant’s case on malice in respect of the Second Article. The Claimant’s case on malice was premised on the belief that Second Article was based on two articles published elsewhere but which the journalist had intentionally omitted in order to “deliberately and knowledge publish a false report of the court hearing which was unfair to the Claimant” ([235]). He accepted the journalist’s evidence that he had not read one of the two articles prior to publication ([243]). However, the Judge also stated that the journalist’s “explanation of why he did not report the Judge’s statement that ‘Mr Qadir did not lend any money’ [was] not credible [as] there [was] nothing in the information before him at the time he wrote the article to suggest that the Judge rejected Mr Khamisa’s submission only on grounds of relevance” ([246]). The combination of failing to correct the First Article and unfairness in the Second Article led Mr Justice Tugendhat to conclude that the journalist was also malicious in respect of the Second Article ([251]).

Comment

A number of novel points arise from the judgment. It is rare for findings of malice to be made against newspapers. This is particularly so in the context of the reports being of a Court document and a Court Hearing, respectively, in respect of which statutory qualified privilege typically affords broad protection. The broad protection provided no doubt explains the limited case law on a number of issues that arose in this case. Indeed, malice in the context of the reporting of Court documents has never previously been considered by the Court.

When considering this issue Mr Justice Tugendhat commented

“… unfortunately the press are as susceptible as any other institution, to the failing of not admitting that they have done wrong. … And there is a particular mischief in this institutional failing in the case of the press. It derives from the fact that, with some honourable exceptions, journalists are less inclined to pursue this failing when it is demonstrated by fellow news publishers and journalists than when it is demonstrated by other institutions or individuals. So the press may get away with refusing to admit they have done wrong, when others would not get away with it. Those whose reputations have been wrongly damaged in such circumstances are left with the daunting prospect of suing for libel, as Mr Qadir has in this case. And the public interest is damaged by misinformation as to the reputation of those who might otherwise be thought fit to carry out duties of benefit to the public” [231]

For journalists, the judgment merits close attention as it has been common practice for journalists to ascertain comment in respect of allegations made in Court documents instead of finding out the position at Court. If journalists fail to do so they risk losing the protection of section 15 of the Defamation Act 1996.

The justification defence which relates to the allegations made in the First Article will now need to be determined alongside the assessment of damages in respect of the Second and, potentially, first Article. The Court has indicated that the justification defence should be determined at the same time as the case to which it relates.

Callum Galbraith is a solicitor at Hamlins LLP and assisted partner Chris Hutchings, instructed by Mr Qadir in this case.