Kojo Tsikata v Newspaper Publishing Plc

Statutory qualified privilege for a fair and accurate report of a public inquiry is construed purposively. The inquiry’s final report may form part of proceedings in public even where it was submitted to a government officer and later published by that officer. Publication need not be contemporary or a news item.

Fairness and accuracy are assessed by reference to the proceedings reported. Later developments may matter under the Defamation Act 1952 section 7(3), but do not automatically defeat privilege. Whether publication concerns a matter of public concern and is for the public benefit is fact-sensitive. Related subsequent facts may also attract common-law qualified privilege, subject to malice.

An article in the Independent about Ghana’s forthcoming election stated that a special inquiry had recommended prosecuting Captain Kojo Tsikata as the mastermind of the kidnapping and killing of three High Court judges, and that five other people had been prosecuted and executed. Tsikata sued the publishers for defamation.

The publishers admitted the pleaded meaning and relied on statutory privilege under paragraph 5 of Part I of the Schedule to the Defamation Act 1952 and on common-law privilege. A preliminary issue was tried by Jonathan Sumption QC, sitting as a Deputy High Court Judge. He held that the first two sentences were statutorily privileged and the third was privileged at common law. Tsikata appealed, challenging the characterisation, fairness, public benefit and common-law basis of the publication.

Appeal dismissed. Neill LJ delivered the leading judgment; Ward LJ agreed, and Thorpe LJ stated complete agreement with it. The order was dismissal with costs, and leave to appeal to the House of Lords was refused.

1. Statutory privilege. Section 7(1) of the Defamation Act 1952 and paragraph 5 of Part I of its Schedule were to be construed purposively. The proceedings of a public inquiry could include its final report or findings once made public, even where the inquiry had submitted the report to a government officer and that officer had published it. Paragraph 5 imposed no requirement of contemporary publication or publication as a news item. The first two sentences, read together, were capable of being a report. The final sentence concerned subsequent events and was not within paragraph 5.
2. Fairness and section 7(3). Fairness and accuracy were measured by reference to the proceedings reported, not by requiring inclusion of the Attorney General’s comments or later events. Ward LJ explained that a selective summary may be fair if it conveys the overall impression of the proceedings, applying the approach in Cook v Alexander [1974] QB 279. Whether the matter was of public concern and publication was for the public benefit was fact-sensitive. The gravity and public character of the inquiry, its relevance to government and elections, and Tsikata’s continuing public position made the publication beneficial despite omitted qualifications. Thorpe LJ additionally considered that only authoritative refutation would remove privilege otherwise attaching to such a report; the later events did not meet that threshold.
3. Common-law privilege. The third sentence was closely connected with the matters reported and, if defamatory, was prima facie protected by common-law qualified privilege. Perera v Peiris [1949] AC 1 provided guidance on the scope of that protection. The defence remained liable to defeat by proof of malice.

• Court of Appeal (Civil Division): Appeal dismissed with costs. Leave to appeal to the House of Lords was refused.
• High Court of Justice, Queen’s Bench Division: Jonathan Sumption QC, sitting as a Deputy Judge, determined the preliminary issue in favour of qualified privilege. The first two sentences were protected by statutory privilege and the third by common-law privilege.