MacIntyre v Phillips

Reference: [2002] EWCA Civ 1087; [2003] EMLR 194

Court: Court of Appeal

Judge: Brooke & Dyson LJJ & Wall J

Date of judgment: 24 Jul 2002

Summary: Defamation - Libel - qualified privilege - similar fact evidence - preliminary issue - rule of practice that qualified privilege be tried first

Appearances: Jacob Dean (Defendant) 

Instructing Solicitors: Goodman Derrick for the Claimant


The Claimant, an undercover TV journalist, sued the Defendant whose police officers had made various allegations concerning the quality of the Claimant’s journalism. The Defendant defended the allegations as true and/or as protected by a Reynolds type qualified privilege.


Whether qualified privilege should be tried as a preliminary issue.


The judge was entitled to hold that qualified privilege was not appropriate for resolution as a preliminary issue in this case.


Despite the observation of the Court of Appeal in Loutchansky v Times Newspapers that privilege will ordinarily be tried as a preliminary issue (without “trudging expensively through the mire of justification”), this has in fact happened only once.