BBC loses Qualified Privilege Defence

Reynolds protection denied for local news item on hospital waiting list allegations

Mr Justice Gray ruled today that a BBC broadcast which accused a senior hospital manager, Mrs Marion Henry, of systematically falsifying waiting list figures, was not protected by qualified privilege, either at common law or under statute.


In April 2004 the BBC West early evening news bulletin Points West broadcast a report concerning the outcome of an inquiry into allegations that the waiting list figures at a local hospital, Weston General, had been systematically falsified. The broadcast contained part of a press conference given by a former employee of the hospital in which she named Marion Henry, the Claimant in this action, as one of the managers who had given instructions to junior members of staff to falsify waiting lists and had subsequently covered up the fraud.


The BBC relied on an amalgam of various species of qualified privilege; traditional common law (duty/interest and reply to attack), Reynolds privilege and statutory privilege (fair and accurate report of governmental information and of a public meeting). Gray J had previously ordered that the issue of qualified privilege was to be tried separately from and prior to the BBC’s defence of justification.


The Judge found that the broadcast was not protected by statutory privilege, as the publication of the Claimant’s name was not of public concern and not for the public benefit, and because the BBC had refused, when asked, to publish a reasonable statement by way of explanation and contradiction.


Whilst accepting the BBC’s submission that the ‘reply to attack’ nature of the statement made at the press conference could legitimately be taken into account as an eleventh Reynolds criterion, when stepping back and taking into account the whole of the broadcast, and the circumstances of publication, the Judge ruled that the publication of the broadcast was not in the public interest and the public did not have a right to know the allegations made against the Claimant in the press conference. The Reynolds defence therefore failed.


Issues of costs and the question of permission to appeal have been reserved until after the trial of the BBC’s justification defence, due to begin on 16 January 2006.


Click here for the 5RB case report and judgment.


5RB’s Jacob Dean (instructed by Carter-Ruck) was junior counsel for the Claimant.