Former banker Irfan Qadir has been awarded substantial damages at the conclusion of his long-running libel action against Associated Newspapers, publisher of the Mail on Sunday, following the publication of two defamatory articles in May and June 2011. It also apologised in Court in respect of the articles. A Statement in Open Court [pdf]was read before Mr Justice Tugendhat on 31 January 2013.
The win follows the Judgment of Mr Justice Tugendhat of October 2012 handed following the trial of preliminary issues of privilege and malice in the libel action, Qadir v Associated Newspapers Limited, heard on 26-27 July 2012 ( EWHC 2606 (QB)). In that Judgment, the Judge attacked the “institutional failing” of the press in refusing to apologise leading to the “daunting prospect” for Claimants of needing to sue for libel. 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. Both the Trial Judge and the single Lord Justice of the Court of Appeal refused permission to appeal and that decision therefore stands. As the new Defamation Act will significantly broaden the scope of statutory privilege defences the decision is likely to be of considerable importance in the future.
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).
Judgment of Mr Justice Tugendhat
(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.
Finding for ANL on the first question, the Judge on the question of “public concern” and “public benefit” 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”. He highlighted 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 (). 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” ( to ). The common law privilege defence accordingly failed for predominantly the same reasons ().
The Judge went on to also find that ANL had also been malicious when the MailOnline article was not updated at a later stage stating: “For whatever reason, [the journalist] 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” ( to ).
(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 (). The dispute therefore centred on whether the Article was nevertheless fair and accurate.
The Judge 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 [the Defendant’s barrister] while omitting to publish the judge’s remarks” (). He also found the combination of the journalist’s failure 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 ().