Galloway v Telegraph Group Ltd (CA)
Reference:  EWCA Civ 17;  EMLR 221;  HRLR 13; The Times 6 February 2006; The Independent 26 January 2006
Court: Court of Appeal
Judge: Sir Anthony Clarke MR; Chadwick & Laws LJJ
Date of judgment: 25 Jan 2006
Summary: Libel – Qualified privilege – Reynolds privilege – Reportage – Adoption – Public interest – Fair comment on privileged report – Damages
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James Price QC - Leading Counsel (Defendant)
Instructing Solicitors: Davenport Lyons for the Claimant; Dechert for the Defendant
The Daily Telegraph published articles in April 2003 setting out documents which had been found in the Iraqi Foreign Ministry after the fall of Baghdad. The documents suggested that the Iraqi regime had been making payments to the Claimant. The documents were published in full together with articles and comment by the Defendant. The Claimant complained that the articles suggested that he had been taking large sums of money personally from Saddam Hussein’s regime and that the allegations made in the newspaper went beyond what was alleged in the documents. The Defendant contended that it did not suggest that the allegations in the documents were true, and relied upon Reynolds qualified privilege defence. Further, the Defendant defended the publication of its conclusions on what the documents appeared to say as fair comment on a privileged report. The Judge rejected both defences finding that the newspaper had adopted allegations of fact against the Claimant and awarded £150,000. The Defendant appealed.
(1) Whether the articles complained of were protected by Reynolds privilege;
(2) Whether the articles were protected by fair comment;
(3) Whether damages of £150,000 were excessive in view of the Defendant’s contention that the publication of the documents alone would have attracted privilege.
Dismissing the appeal:
(1) the Judge had been right to conclude that, weighing the factors identified by Lord Nicholls in Reynolds, the articles were not protected by privilege. The Judge was right to conclude that the newspaper had adopted and embellished the allegations contained in the documents. It was for the Judge and not the Court of Appeal to weigh the Reynolds factors.
(2) The articles made defamatory allegations of fact, not comment, and could not therefore be defended as fair comment.
(3) The newspaper could have published the documents it had discovered under privilege, but the Judge had been correct to award damages on the basis of the articles as a whole, including the documents.
The decision leaves unexplored and unresolved the interrelation between Reynolds privilege and fair comment, in particular the width of protection offered to conclusionary comment under fair comment defences and how this is affected if the privileged occasion relied upon is of the Reynolds species. There exists an inherent conflict between the consideration of tone, in Lord Nicholls’ Reynolds criteria, and the breadth of the common law protection of fair comment. If adoption of allegations and tone are factors taken against the newspaper in the Reynolds balance, does this leave a newspaper’s ability and freedom to comment on a Reynolds privileged occasion necessarily impaired?