GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd

Qualified privilege in a defamation claim is determined from all the circumstances existing at the time of publication. The court asks whether the public was entitled to know the particular information. It need not determine the publication’s truth or consider information which later inquiries or a trial might reveal.

A source’s reliability is assessed objectively as it should have appeared to the publisher at that time, having regard to the inquiries actually made. Express malice concerns the publisher’s subjective state of mind at publication. A failure to inquire may evidence recklessness, but the hypothetical results of further inquiries cannot.

The court may order these issues to be tried before justification and may control otherwise admissible evidence where that course is fair and proportionate.

The claimant brought libel proceedings over a newspaper article criticising its karate-teaching business. The newspaper publisher and journalist pleaded justification, fair comment and qualified privilege. The claimant alleged express malice, including reckless indifference to truth.

At a pre-trial review, Sir Oliver Popplewell ordered that qualified privilege and, if necessary, express malice should be tried before justification. The proposed preliminary trial was expected to take about three days, while a trial including justification might take four to six weeks. The claimant appealed, contending that privilege and malice could not fairly be separated from the truth of the publication, the source’s actual reliability and the information which further inquiries might have revealed.

The central issue was whether the preliminary issues could fairly and lawfully be determined by reference to the circumstances and states of mind existing at publication, without first trying justification.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. May L.J. gave the substantive judgment and Tuckey L.J. agreed. The order for qualified privilege and, if necessary, express malice to be tried before justification was fair, sensible and economic.
2. Case management. Per May L.J., Rule 3.1(1) of the Civil Procedure Rules 1998 authorised separate trials and other case-management measures furthering the overriding objective. Libel proceedings, which had historically been lengthy and expensive, were particularly suitable for effective case management. Part 32 also permitted the court to control the issues on which evidence was required, exclude otherwise admissible evidence and limit cross-examination. Parties therefore had no absolute right to adduce every item of admissible and arguably relevant evidence. Evidence could be excluded where its cost or duration was disproportionate, provided that exclusion remained just and fair.
3. Qualified privilege. Applying Reynolds v Times Newspaper Limited [1999] 3 WLR 1010, the governing question was whether, in all the circumstances, the public was entitled to know the particular information. Those circumstances were the circumstances at the time of publication. Neither the publication’s subsequently determined truth nor information which further inquiries might have disclosed was necessary or relevant. The source’s reliability was relevant, but it had to be assessed objectively by reference to how the source should have appeared to the publisher at the time and to the inquiries then made. A later trial of the source’s actual reliability was irrelevant.
4. Express malice. Applying Horrocks v Lowe [1975] AC 135, malice depended upon the publisher’s subjective state of mind when publishing. Reckless indifference could be inferred from what the publisher did, said or knew. Failure to make proper inquiries could contribute to that inference, but the response which hypothetical further inquiries might have produced could not. The later resolution of truth or falsity was also immaterial.
5. The respondents received their costs of the appeal whatever the trial’s outcome, subject to the appellants’ liberty to apply after trial. Permission to appeal to the House of Lords was refused.

1. Court of Appeal: By its judgment reported at [2000] 1 WLR 2571, the court unanimously dismissed the claimant’s appeal and upheld the order for qualified privilege and, if necessary, express malice to be tried before justification.
2. High Court, Queen’s Bench Division: Sir Oliver Popplewell ordered at a pre-trial review that qualified privilege and, if necessary, express malice should be determined as preliminary issues. He refused permission to appeal. Laws L.J. subsequently granted permission.