Privilege and Malice - Qadir v Associated Newspapers Limited
The claimant, a former Bank of Scotland Director, brought the action in respect of two articles published in the Mail on Sunday and the Mail Online in May and June 2011. The articles contained various allegations of criminal and violent behaviour on the part of the claimant.
The first article reported allegations, extracted from the particulars of claim in a case against the claimant, that the "bailed-out bank boss" had used "terror tactics" to force three former owners of a club and restaurant in Leicester Square to sign over their shares. Associated Newspapers argued that the article was covered by qualified privilege under s.15 and Schedule 1 of the Defamation Act 1996 (the "Act"), on the basis that it was an extract from a document made available by a court.
In relation to the second article, which reported allegations made by a defence barrister in the sentencing hearing of an unrelated case that the claimant had been "intimately involved" in "Britain's biggest mortgage fraud", the publisher claimed both absolute privilege under s.14 of the Act in relation to the contemporaneous reporting of the court proceedings, and qualified privilege under s.15 of the Act.
In a judgment handed down on 5 October 2012, Mr Justice Tugendhat considered the preliminary issues of privilege and malice, and found that the defences of statutory and common law privilege had failed. Although, in relation to the first article, he found that the newspaper had published a fair and accurate extract from the particulars of claim, it had failed to report that the claimant disputed the claim, or report on the contents of his defence. The newspaper had also misleadingly published that the claimant had refused to comment. Tugendhat J stated that, as a general rule, there would be no public benefit for newspapers to publish defamatory allegations made in a claim form without publishing the fact that the defendant denied or disputed the allegations. There would also be no public benefit in publishing false information.
In respect of the second article, Tugendhat J found that the newspaper had failed to include comments from the trial judge reprimanding the barrister for the remarks he had made about the claimant, and confirming that he had seen no evidence that the claimant had been complicit with any of the conspirators in the fraud. In the circumstances, the article did not amount to a fair and accurate report of the proceedings, and the words complained of were neither related to a matter of public concern nor was the publication for the public benefit. The defences of absolute and qualified privilege therefore failed.
Furthermore, as there had been no attempt by the newspaper to balance the two articles, either by reporting the fact that the claimant disputed the claim in the first article, or by reporting the sentencing judge's censure of the defence barrister in the second article, Tugendhat J found that a claim of malice was properly made out against Associated Newspapers in relation to both articles.
The extensive protection offered by qualified privilege makes a finding of malice against a newspaper a very rare occurrence. The parties and the trial judge agreed that it was a novel development for the Court to be asked to determine what constitutes malice where a defendant is reliant on the statutory defence of qualified privilege in relation to an extract from the contents of a document which the court is required to make available to a non-party to an action.
Whilst the claimant's lawyers celebrate the outcome as a confirmation of the "importance of responsible journalism", a statement by Associated Newspapers notes that the decision could "have disturbing implications for journalists reporting legal actions on the basis of court documents". Associated Newspapers have sought leave to appeal.