Reference:  EMLR 1062
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 9 Jul 2001
Summary: Defamation - Libel - Republication - Qualified Privilege - Reynolds - Reply to attack - Fair Comment - Freedom of Expression - Article 10 - European Convention on Human Rights
Instructing Solicitors: Olswang for the Defendant
The Claimant had successfully sued the Guardian for libel. The day after he had won the first case, the Guardian wrote a further article which the Claimant thought suggested that the original allegations had been true but that the newspaper had lost because the libel laws were unfair and prevented the truth from emerging. The Claimant commenced a second action. The Defendant pleaded fair comment and later applied to add a plea of qualified privilege on the basis either (i) Reynolds or (ii) reply to attack based on allegations made against the Defendant’s journalists at the trial of the first action.
(1) Whether there was a viable plea of qualified privilege on either basis; (2) Whether permission to amend would be granted.
(1) The defendant had not prospect of establishing a Reynolds type qualified privilege because it was not under a duty to publish the article it had. A defendant who wished to repeat a libel must be prepared to defend it afresh and risk a further, no doubt higher, award of damages. Neither did the case did not fall the parameters of the reply to attack privilege. (2) Permission to amend refused.
The judge’s decision that the “Reynolds” defence is tailored for circumstances different from those that arose here raises the question: what are the outer limits of the applicability of the “Reynolds” defence? Is it necessary for the newspaper to have conducted an investigation? If so, how does one explain the Al-Fagih case, where privilege for “reportage” was upheld? If not, what criteria do bring it into play? The case is, however, a warning to those who might be tempted to have a go at a victorious claimant. Magnanimity in defeat is usually a safer course.