GKR Karate v Yorkshire Post Ltd
Reference:  1 WLR 2571;  2 All ER 931;  EMLR 396
Court: Court of Appeal
Judge: May & Tuckey LJJ
Date of judgment: 11 Jan 2000
Summary: Defamation - libel - qualified privilege - Reynolds - preliminary issues - correct approach to assessment of privilege and malice
Instructing Solicitors: Farrer & Co for the Claimant
The Claimant sued for libel over an article accusing it of endangering children at its karate classes, and using high-pressure sales techniques to attract them. The Defendants pleaded defences of Reynolds qualified privilege, fair comment and justification. The judge ordered that privilege and malice should be tried as preliminary issues. The Claimant appealed, contending that the judge was wrong to make an order with the effect of excluding from the jury’s consideration evidence as to the truth or falsity of the article, the reliability of the Defendants’ source, and what could have been discovered if further inquiry had been made.
Whether the judge’s order was wrong in principle.
(1) The judge was entitled to make the order, and was right to do so. Trial of privilege and malice as preliminary issues served the overriding objective by offering the prospect of substantial savings in time and expense.
(2) The existence or otherwise of privilege was to be determined in the light of all the circumstances prevailing at the time of publication, in so far as those were known to the Defendant. Evidence as to what could have been discovered had further or other inquiries been made was irrelevant. So was evidence as to the objective reliability of the Defendants’ source, and the actual truth or falsity of the allegations. The relevant question was whether the Defendants behaved as reasonable and responsible journalists in the light of what was known to them at the time of publication.
The appeal came on shortly before the trial. The Court of Appeal decision established for the first time that privilege is to be assessed purely by reference to what the journalist knew at the time, and not by reference to the true underlying facts. The same principle was later applied, in a different context, against the Defendant in Loutchansky v Times Newspapers, where it was held that a publisher may not rely in support of a Reynolds defence on after-acquired knowledge.