Reference:  EWHC 2786 (QB);  EMLR 115
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 2 Dec 2004
Summary: Libel – Qualified Privilege – Reynolds – Reportage – Adoption – Public Interest – Fair Comment on Privilege Report – Damages
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Instructing Solicitors: Dechert for the Defendant
The Daily Telegraph published articles in April 2003 setting out documents which had been found by one of its journalists in the Iraqi Foreign Ministry after the fall of Baghdad. The documents had suggested that the Iraqi regime had been making payments to the Claimant. The documents were published in full together with articles and comments 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. He alleged that the Daily Telegraph had adopted the allegations made in the documents. The Defendants did not suggest that the allegations in the documents were true and relied upon a Reynolds qualified privilege defence. Further, the Defendant defended the leading articles and headlines as fair comment on twin grounds (i) fair comment on the privileged report; and (ii) fair comment on the documents.
(1) Whether the Defendant’s articles were protected by Reynolds privilege; (2) whether any part of the articles and headlines were protected by fair comment; (3) damages.
(1) The Defendant had no duty to publish the articles in the manner in which they had done so. The articles suggested that the Claimant had been taking the money personally and this had not been put to him by the Defendant prior to publication. The Defendant’s reporting was not “neutral reportage”. The Defendant had a duty to attempt to verify the contents of the documents. The defence of privilege had not been made out. (2) The defence of fair comment on a privilege report failed because the underlying report was not privileged. The fair comment defence based on the documents failed because the Defendant had not proved as true the basis for the comment. (3) Applying the presumption of falsity, damages of £150,000.
The key reasons Eady J found against the defendant on qualified privilege were that it had gone beyond reporting the allegations in the Baghdad documents, had gone over the top in accusing the claimant of being ‘in the pay of Saddam’, and had failed to put this more serious charge to him before publication. His award of £150,000 compensatory damages was based mainly on the seriousness of the libel (‘near the top of the bracket’) and aggravating features in the post-publication conduct of the defendant, particularly at trial. On liability, the issue is whether the Judge has been too stringent in his application of Reynolds, particularly in the light of Selistö. In terms of damages, the award is strikingly high, particularly for a claimant who is a politician.