Watts v Times Newspapers Ltd (Schilling & Lom, Third Parties) (Schilling & Lom (Third Party))

Qualified privilege depends on the separate origin and circumstances of each participant's communication. An occasion is not indivisible merely because parties contribute to the same publication.

A person falsely accused in a newspaper may, acting in good faith, seek a published refutation addressed to the same readership. That protection extends to the person's solicitor. It does not automatically extend to the newspaper which made the original error. A publisher cannot establish privilege for a defamatory apology merely through a derivative right of reply, a general duty to correct, or a modest commercial interest where an innocuous correction would suffice.

The Sunday Times published an article about alleged plagiarism by the author Nigel Watts, but used the photograph of a different Nigel Watts, a property consultant. After correspondence with the property consultant's solicitors, Schilling & Lom, the newspaper published an apology which stated that the photograph suggested that he had plagiarised the novel and dishonestly won a literary award.

The author sued the newspaper, its editor and the journalist for libel in the apology. Morison J determined as a preliminary issue that the newspaper defendants could not rely on qualified privilege. They appealed.

The defendants had also brought third-party proceedings against Schilling & Lom, alleging contribution as joint tortfeasors because the firm had sought the wording of the apology. Tucker J refused to strike out those proceedings. Schilling & Lom appealed. The central issue was whether qualified privilege applied respectively to the newspaper defendants and to the solicitors acting for the wrongly identified person.

1. The defendants' appeal was dismissed and Schilling & Lom's appeal was allowed. Hirst LJ gave the leading judgment, with which Henry LJ and Sir Ralph Gibson agreed. The newspaper defendants had no qualified privilege for the defamatory words in their apology. Schilling & Lom had a complete qualified-privilege defence, and the third-party proceedings against them were struck out.

2. The court held that qualified privilege must be assessed separately for each person involved in the publication. The relevant occasion comprises the origin and circumstances of that person's communication. The fact that the solicitors and the newspaper contributed to one published apology did not make the occasion indivisible.

3. The wrongly identified person was the victim of the newspaper's libel. Applying Adam v Ward [1917] AC 309, he could seek a public refutation from the readership to whom the libel had been published. His solicitors stood in his place. Their requested wording was connected with the accusation and was therefore within the latitude available on that privileged occasion. Sir Ralph Gibson added that the newspaper could have made clear that its exoneration of the wrongly identified person neither repeated nor asserted anything against the author.

4. By contrast, the newspaper defendants were not rebutting an attack on themselves. Their derivative-privilege argument therefore failed. No independent duty required them to repeat the allegation against the author: an innocuous correction would have removed the false association. Their limited commercial interest in compromising threatened litigation lacked reciprocity with readers, arose from their own wrong, and was outweighed by the injury caused to the author.

5. The court also held that the wrongly identified person and Schilling & Lom had participated in procuring publication and were therefore joint tortfeasors in principle. That did not defeat their separate privilege. The court emphasised the availability of a judicially approved statement in open court under the relevant rules, and approached any proposed new common-law privilege for newspapers beyond the defined statutory categories in Defamation Act 1952 with caution.

• Court of Appeal (Civil Division): dismissed the newspaper defendants' appeal from the qualified-privilege ruling and allowed Schilling & Lom's appeal, striking out the third-party proceedings.
• Queen's Bench Division (Morison J): on 21 December 1993, determined the preliminary issue against the newspaper defendants, holding that the apology was not protected by qualified privilege.
• High Court (Tucker J): on 18 March 1993, refused Schilling & Lom's application to strike out the third-party proceedings.