Reynolds v Times Newspapers Ltd

Qualified privilege for publication to the public depends on the circumstances of the particular occasion. In modern conditions, the media’s duty to inform and the public’s interest in receiving information about matters of public interest may readily be established. They do not, however, create a general privilege for political speech or for honestly believed but false defamatory facts.

The court must also ask whether the nature, status and source of the material, and the circumstances of publication, justify protection in the public interest absent express malice. A trial judge’s summing-up must fairly identify the issues, evidence and competing cases. Material misdirections, assessed cumulatively, justify a new trial where they occasion a substantial wrong or miscarriage.

Albert Reynolds, formerly Taoiseach of Ireland, sued Times Newspapers Ltd and others over a Sunday Times article alleging that he had dishonestly misled the Dáil and his coalition colleagues during the political crisis preceding his resignation.

A jury found the allegation untrue, found no malice, and awarded no damages. The High Court entered judgment for Reynolds for 1p and made a costs order. Reynolds appealed, seeking a new trial on grounds concerning the summing-up. The defendants cross-appealed on common-law qualified privilege and costs. The central questions were whether the summing-up occasioned a substantial miscarriage and whether publication concerning political events attracted qualified privilege.

1. Appeal and retrial. The appeal was allowed. The verdict, findings and judgment below were set aside and the action was ordered to be retried. Under RSC Order 59 rule 11(2), the question was whether the identified misdirections, singly or cumulatively, occasioned a substantial wrong or miscarriage. They did, because they denied Reynolds a fair trial of his claim.
2. Summing-up. A judge should give a bespoke and succinct account of the governing law, identify the material factual issues, and summarise the significant admissible evidence fairly and by reference to the issues. Here the judge misstated the central chronology and issue concerning when Reynolds knew of the Duggan case and its significance; inaccurately presented his case; confused documents and their relevance; inadequately directed the jury on malice; and gave an inadequate direction on damages. The errors were materially prejudicial in combination.
3. Qualified privilege. The court rejected a general privilege for political speech. The governing inquiry requires the judge to ask: whether the publisher owed a legal, moral or social duty to publish; whether the recipients had an interest to receive the material; and whether the nature, status and source of the material and the circumstances of publication made protection in the public interest appropriate absent express malice.
4. The duty and interest tests were generally satisfied because the collapse of the Irish Government was a matter of public interest in Great Britain. The circumstantial test was not satisfied. The article relied on an unidentified and politically opposed source, omitted Reynolds’s account, failed to seek his response, and presented him inconsistently as both a victim of circumstances and a devious liar. Publication was therefore not protected on the facts found.
5. Damages and costs. A successful libel claimant must receive some damages, even the smallest coin, because actionable libel necessarily imports damage. The defendants were ordered to pay the appeal costs. The costs of the first trial were to await the retrial or further order, and the judge’s order concerning the qualified-privilege argument stood. Leave to appeal was refused, but the retrial was stayed pending any prompt petition to the House of Lords.

• Court of Appeal: Allowed Reynolds’s appeal, set aside the verdict and judgment, ordered a retrial, refused leave to appeal, and directed that the retrial await any prompt petition to the House of Lords.
• High Court, Queen’s Bench Division: After a jury verdict finding the allegation untrue but awarding no damages, French J entered judgment for Reynolds for 1p, ordered the defendants’ costs from the date of payment into court, and rejected the defendants’ common-law qualified-privilege argument.