English & Another v Hastie & Another
Court: Queen's Bench Division
Judge: Gray J
Date of judgment: 31 Jan 2002
Defamation - Libel - Qualified privilege - Reynolds privilege - Jury trial - Reportage - s.15 & Schedule 1 Part 2 Defamation Act 1996
Instructing Solicitors: Simkins Partnership for the Claimants
The Claimants were established members of the London insurance market who had both worked for a reinsurance company, Trenwick. The Defendants were the editor and publisher of The Insurance Insider, a monthly subscription magazine published mainly to the insurance community in London. The article reported a dispute between Trenwick and another insurance company, Fairmont. A claim form had been issued and the article detailed allegations made by the owner of Fairmont. The jury found that the article was defamatory of the Claimants. The Defendants claimed that the publication was protected by qualified privilege because the proceedings and allegations made in them were matters of interest to the insurance community. They had received anonymously copies of papers relating to Fairmont’s action which they contended contained credible information that they had a duty to report. The Defendants maintained that they were merely reporting the allegations of Fairmont without adopting them.
Whether neutral reporting of allegations made in the course of the dispute between Fairmont and Trenwick could attract a Reynolds type qualified privilege similar to that recognised by the Court of Appeal in Al Fagih v HH Saudi Research & Marketing Limited.
(1) The Al-Fagih decision did not recognise a free-standing defence of "neutral reportage", particularly where (as in this case) to recognise such a defence would be to grant a privilege wider than that which Parliament had decided should be given reports of documents such a writs under s.15 Defamation Act 1996.
(2) After considering the jury’s findings of fact and the factors identified by Lord Nicholls in Reynolds, the judge was satisfied that the publication of the article was not protected by qualified privilege. The allegations were serious and although they constituted matters of some public concern, it had been incumbent on the Defendants to proceed with caution. The allegations came from someone with an axe to grind and represented only one side of the story. The Defendants had published with no real attempt to verify the allegations or to seek the Claimants’ comments.
This is one of the few Reynolds cases to be tried by a jury. Interestingly, although the jury were asked whether the words complained of were defamatory, they were not asked to articulate the meaning they found them to bear. The Judge was content to proceed on the basis that the shades of meaning the article was capable of bearing were all serious and, in the analysis he had to perform for the decision on qualified privilege, the precise meaning found was not going to be determinative. In fact, the jury disbelieved the journalist as to the extent of the research he had carried out. Although not fatal to a Reynolds defence, such adverse findings by the jury are not usually consistent with a finding that the journalist acted responsibly.