Full case report

Qadir v Associated Newspapers Ltd

Reference [2012] EWHC 2606 (QB); [2013] EMLR 15
Court Queen's Bench Division

Judge Tugendhat J

Date of Judgment 5 Oct 2012


Summary

Defamation – qualified privilege – s 15 Defamation Act 1996 – Schedule to 1996 Act – document on public register – Particulars of Claim – extract – fair and accurate – of public concern – publication for public benefit – malice – recklessness – indifference –  common law qualified privilege – court reporting – contemporaneous – s14 Defamation Act 1996 – absolute privilege


Facts

C, a former Director of  the Bank of Scotland, brought a defamation claim in respect of two separate articles that had appeared in the Mail on Sunday (MoS).

The first article, published on 8 May 2011, was entitled “Bank of Scotland Director ‘drove us out with dogs’”. It reported on allegations made about C that had been included in PoC filed at court in a case brought against C by three businessmen, Messrs. Young, Carew and Mody. That case concerns a contractual dispute relating to the company that owned ‘The Penthouse’ nightclub in London’s Leicester Square, and is ongoing (the ‘Penthouse litigation’).

Whilst the first article repeated the defamatory allegations made about C by the businessmen in the documents filed at court, (which were broadly that he had threatened and intimidated the businessmen, as well as engaged in other criminal behaviour), it made no mention of the fact that he had filed a Defence in the claim, which was, in fact, available on the court file prior to the date the first article was published. It was accepted in evidence that D was aware of the existence of the Defence from 17 June 2011 onwards, and received a hard copy of it on 23 June 2011.

The first article also said that C had ‘declined to comment’ on the allegations.

The second article, published on 19 June 2011, bore the headline “Top banker named in mortgage fraud case, Ex-BoS boss linked to pair sentenced to 20 years’ jail”. That article reported on a sentencing hearing concerning two individuals, Ian McGarry and Saghir Afzal, who were being sentenced in relation to their involvement in a serious mortgage fraud.

During the course of the sentencing hearing, Mohammed Khamisa QC, appearing for McGarry, contended that C had been ‘intimately involved’ in the mortgage fraud. Almost immediately after those allegations were aired, the sentencing judge, HHJ Beddoe, intervened in Mr Khamisa’s submissions, making it clear that he was not in a position to be able to determine the complicity of any third parties to the mortgage fraud. HHJ Beddoe also specifically noted that: “Irfan Qadir did not lend any of the money, from the evidence I have heard, advanced by any of the financial institutions” [that were the subject of the mortgage fraud].

There was no-one from the D present at the sentencing hearing itself, nor did it have a transcript of the actual hearing at the time the second article was published. The D’s evidence was that it had based its report on an article that had appeared in the FTAdvisor.

Whilst the second article reported the allegations against C, it made no mention of HHJ Beddoe’s interventions. In addition, it was not until approx. 2 July 2011 that the online version of the second article was amended to include statements from C’s lawyers, questioning the legitimacy and accuracy of the allegations against him.

The second article also made reference to the Penthouse litigation.

C contended that the second article meant that he was, or there were at least reasonable grounds to suspect that he was, a central figure in a criminal conspiracy to defraud the banks, that he ought to be found guilty, and that he had form for criminal activity.

C wrote to D demanding removal of the articles from the online archive on 18 July 2011. This was eventually done on 9 September 2011.

D pleaded various defences. For the first article: statutory qualified privilege (under s15 Defamation Act 1996 (‘s15’)); common law qualified privilege, and justification. For the second: absolute privilege (under s14 Defamation Act 1996 (‘s14’)); statutory qualified privilege and justification.

C pleaded malice in reply.

A trial on the preliminary issue of D’s privilege defences was ordere


Issue

(1) In respect of the first article:

(a) Could D rely on a defence of statutory qualified privilege? This required the determination of the following questions:

(i) Were all of the words complained of within the definition of “an extract” from the PoC in the Penthouse action (it was not suggested that they were a copy)?

(ii) If so, were they a fair and accurate extract?

(iii) If so, were the words complained of matter of public concern and the publication of which was for the public benefit, as provided by s.15(3)?

(b) Could D rely on a defence of common law qualified privilege?

(2) In respect of the second article:

(a) Could D rely on s14 absolute privilege in respect of this article?

(b) If not, could it rely on a defence of statutory qualified privilege under s15?

(c) Was there a privilege defence in respect of the reference back to the first article?

(3) Did D act maliciously in publishing the articles?


Held

(1) The first article:

(a) Statutory qualified privilege under s15:

(i) The words complained of did constitute an ‘extract’. Simply because they were not word for word citations from the PoC did not strip them of the ability to be defined as such.

(ii) Fairness and accuracy- whilst not a verbatim copy of the PoC, the article was still fair; the slight differences between the two were not such that they renderered an otherwise fair piece unfair.

(iii) ‘Of public concern’ and ‘for the public benefit’- s15 reflects the need to have regard to the public interest in both: freedom of expression; and an individual’s right to not have his reputation interfered with unless it is legitimate and proportionate to do so.

It is not generally for the public’s benefit to publish any defamatory allegations made in a claim form or PoC, without at the same time publishing the fact that a defendant has disputed/denied the allegations, if that is the case (as it was here) [101].

Further, by stating that C had declined to comment, the article suggested that C was not disputing the very serious allegations that had been published about him. There could be no public benefit in publishing that misinformation [102].

(b) Common law qualified privilege- this type of privilege (as set out in Tsikata v Newspaper Publishing Ltd [1997] 1 All ER 655) does not apply to the information that C had declined to comment. There was no public interest in the publication of that false information, and it was not the product of responsible journalism.

(2) The second article:

(a) Once published contemporaneously the continued publication of the article should be treated as contemporaneous. The  central question was whether it was a ‘fair and accurate’ report. It was not. [169]. C’s lawyer’s additional comments inserted into the online publication on 2 July 2011 made no difference. “The statement by the judge was part of the proceedings (unlike the statement from Mr Qadir’s lawyer) and carried significantly greater weight than any statement from a lawyer. The omission seriously unbalanced the report, to the extent that the privilege, whether absolute or qualified, cannot be relied upon by ANL.” [172].

(b) Statutory qualified privilege would have failed for the same reason. Further, it was not ‘of public concern or for the public benefit’ for Mr Khamisa’s allegations to be published, whilst omitting to publish the judge’s remarks.

(c) The reference back to the first article, and the Penthouse litigation, was not privileged as it was plainly not an ‘extract’ from the PoC. Further, until the insertion of quotes from C’s lawyers some 2 weeks after first publication this part of the second article did not contain sufficient of C’s side of the story to meet the public concern and public benefit tests.

(3) Malice

(a) Re the first article: C needed to establish recklessness as to the existence of the Defence, not merely irresponsibility as to it. At the time of publication this was not borne out but, as of 17 June 2011, once D knew the Defence existed, it was wrong of it not to correct the online version of the article to make it clear C denied the allegations against him.

(b) Re the second article: malice was made out from the date of initial publication. In omitting to report on HHJ Beddoe’s interventions in Mr Khamisa’s submissions, specifically the statement that “Mr Qadir did not lend any money”,


Comment

A very thorough judgment offered by Tugendhat J in this preliminary trial of D’s privilege defences. Two specific points to note are as follows:

(1) In order for a report based on court papers available to the public to be able to benefit from statutory qualified privilege it needs to fairly represent both sides of the story (to the extent both are available). It is not enough to simply republish defamatory allegations contained within PoC and not make reference to denials (or otherwise) contained within a Defence. In addition, as here, if a publisher knows of the existence of a Defence and still fails to report on it, there is the possibility that it will be found to have acted maliciously in having published that report (as was the case here).

(2) Similarly, publishers cannot print a selective un-balanced report of court proceedings, and still expect to benefit from absolute and/or qualified privilege. In order to be able to rely on either of those defences any report must fairly represent what a member of the public would have heard had they been at court themselves. To the extent it does not, a publisher will be prevented from relying on those defences.

The judgment also offers a useful exposition on what is required to establish malice on the part of a newspaper publisher. The Judge made clear, in the context of the issue of malice in respect of the first article, that all that was required was recklessness on D’s part (here it was as to the existence of the Defence). C did not have to go so far as to establish that D had a specific intention to harm C.

Mention should also be made of Tugendhat J’s comments at [112], questioning whether there was still a need for any common law form of qualified privilege, as upheld in Tskikata, given that that case was decided well before the HL decision in Reynolds.


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Instructing Solicitors

C: Hamlins LLP, D: Taylor Wessing LLP