Stern v Piper

A publisher cannot justify a defamatory republication by proving only that another person made the allegation. The publisher must prove the truth of the defamatory substance. This repetition rule applies to a newspaper's report of allegations in an affirmation that has not been aired in open court.

A report may convey no more than the fact that civil or criminal proceedings have been commenced. Reports of public judicial pronouncements may also fall within a narrow category. Those qualifications do not extend to one-sided reports of allegations contained in private court documents. The absence of privilege does not itself prevent justification, but it does not relax the repetition rule.

The Mail on Sunday published an article stating that William Stern had failed to honour debts exceeding £3 million. It referred to High Court proceedings and repeated allegations made by Seymour Gorman in an affirmation filed in those proceedings, including allegations of dishonesty and perjury.

Stern brought a libel claim. The defendants pleaded justification by relying on the fact that the Chancery proceedings and Mr Gorman's affirmation existed. Master Murray refused Stern's application to strike out that plea. Drake J upheld the refusal.

The appeal concerned whether the plea could justify the article without proving the truth of the defamatory allegations which it repeated.

1. Appeal allowed unanimously. Hirst LJ, with whom Simon Brown LJ and Sir Ralph Gibson agreed, held that paragraphs 4 and 5 of the defence should be struck out. The defendants could not justify the article merely by proving that Mr Gorman had made the allegations in his affirmation.

2. The repetition rule treated a hearsay allegation as equivalent, for the purposes of justification, to a direct assertion. The rule was supported by Truth (NZ) Ltd v Phillip Holloway (1960) 1 WLR 997 and Lewis v Daily Telegraph Ltd [1964] AC 234. The article republished allegations of dishonesty, perjury and default. It therefore required proof of their truth, rather than proof that they had been sworn in an affirmation.

3. Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413 did not assist the defendants. A report that proceedings have been issued may convey only that public act, and does not create a hearsay problem. Waters v Sunday Pictorial Newspapers Ltd (1961) 1 WLR 967 was confined to substantially similar facts, namely reports of public judicial pronouncements. It was at the outer edge of the exception and did not permit publication of allegations from an affirmation not brought into open court.

4. The court accepted that justification can sometimes succeed although privilege is unavailable. But the public-policy basis for privilege is the reporting of proceedings held in public. It did not support dissemination of a one-sided private court document. The fact that the newspaper did not assert the truth of the allegations might mitigate damages; it could not found a defence of justification.

The defendants were ordered to pay Stern's costs before Master Murray, Drake J and the Court of Appeal. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Allowed Stern's appeal, struck out the impugned paragraphs of the justification plea, and reversed Drake J and Master Murray.

• High Court, Queen's Bench Division (Drake J): On 15 March 1995 upheld Master Murray's refusal to strike out the plea of justification.

• Master Murray: On 18 January 1995 refused Stern's application to strike out the plea of justification.