Gaddafi v Telegraph Group Ltd

At the interlocutory stage of a libel action, a defence should be struck out only if it is plainly and obviously incapable of succeeding. Qualified privilege continues to require consideration of three matters: whether the publisher owed a duty to publish, whether the recipients had a corresponding interest, and whether the nature, status and source of the material and the circumstances of publication made protection proper in the public interest. The modern approach makes the duty and interest tests more readily satisfied, but retains the circumstantial test. Particulars of justification may include relevant background, but the trial must remain focused on matters necessary for a fair determination. Journalistic source protection may justify permitting amended particulars without revealing confidential sources where disclosure is not necessary in the interests of justice. Fair comment should not remain as an unnecessary additional issue where its factual basis is already covered by justification.

Saif Al Islam Gaddafi sued Telegraph Group Ltd over two Sunday Telegraph articles alleging involvement in an international money-laundering and counterfeit-currency scheme and suggesting that he had attempted to lure the journalist to Libya for violent retaliation.

Butterfield J struck out parts of the pleaded meanings and particulars of justification, struck out the qualified-privilege defence to the first article, and permitted a plea of fair comment concerning the second article. The newspaper appealed, and the plaintiff cross-appealed against the refusal to strike out further material. The principal issues were whether the amended qualified-privilege plea was arguable after Reynolds v Times Newspapers Ltd [1998] 3 All ER 961, which background matters could properly be left for the jury, and whether the second article was capable of constituting fair comment.

1. Disposition. The appeal and cross-appeal were allowed in part, to the extent stated in the judgment. The appellants were awarded 50 per cent of the costs in the appeal and below.
2. Qualified privilege. The three-part approach in Reynolds v Times Newspapers Ltd [1998] 3 All ER 961 governed the application. The duty and interest tests were arguably satisfied if the pleaded case that the plaintiff was a prominent member of the Libyan regime were proved. The circumstantial test required attention to the nature, status and source of the information and the circumstances of publication. The pleaded facts, including information from two unidentified Western government security sources, were sufficient to make the defence arguable. The particulars could therefore be amended without identifying the sources.
3. Justification and background. The meanings alleging involvement in sanctions-busting and association with the Libyan regime were sufficiently arguable. Relevant examples of terrorism, repression and threats against opponents could remain where they materially illuminated the pleaded meanings. Remote allegations and matters adding disproportionate collateral issues were struck out under the principles in Polly Peck v Trelford [1986] QB 1000.
4. Source protection. The court relied on the common-law and statutory protection of journalistic sources, including section 10 of the Contempt of Court Act 1981, and the principles recognised in British Steel Corporation v Granada Television [1982] AC 1096, Secretary of State for Defence v Guardian Newspapers Ltd [1985] 1 AC 339 and Goodwin v United Kingdom 22 EHRR 123.
5. Fair comment. The second article was difficult to characterise as comment. In any event, if the pleaded facts were proved, the justification defence would make fair comment superfluous. The plea was struck out.

• Court of Appeal (Civil Division): [1998] EWCA Civ 1626. Appeal and cross-appeal allowed in part.
• High Court of Justice, Queen's Bench Division: Butterfield J struck out parts of the pleaded meanings and justification particulars, struck out qualified privilege in relation to the first article, and allowed fair comment concerning the second article to remain.