Loutchansky v Times Newspapers Ltd

Qualified privilege for an untrue defamatory publication to the world at large depends on the duty-interest test, not on public interest alone. The publisher must have a legal or moral duty to communicate the particular information to recipients with a corresponding interest. The question is assessed objectively by reference to the circumstances and information available when publication was decided. Later-acquired facts, later investigations and hindsight cannot establish or strengthen that duty. The court must balance freedom of expression with protection of reputation, considering matters such as seriousness, source, verification, urgency, comment, tone and timing. There is no free-standing public right to know untrue defamatory matter where the publisher made insufficient inquiry.

The defendants appealed from Gray J’s refusal of permission to amend their defence in a libel action brought over two articles in The Times. The proposed amendments relied on reports, opinions and affidavits from governmental and police bodies in several countries. The defendants accepted that they had not known the contents of those materials when the articles were published.

The central issue was whether post-publication material, unknown to the defendants at the time, could support their case that the publications were made on an occasion of qualified privilege.

Brooke LJ gave the leading judgment. Nourse LJ agreed with the reasoning, and Thorpe LJ agreed with both judgments. The appeal was dismissed and the order refusing permission to add the proposed particulars was affirmed.

1. Qualified privilege for an untrue defamatory publication depends on the publisher having a legal or moral duty to publish the particular information to persons with a corresponding interest in receiving it. For publication to the world at large, general public interest is insufficient without that duty-interest relationship. The approach in Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 was applied.
2. The question must be determined by all the circumstances of the publication, assessed objectively at the time of publication. Relevant matters include the seriousness of the allegation, the nature and public importance of the information, the source, verification, urgency, whether comment was sought, the claimant’s side of the story, tone and timing. The reliability of a source is judged by how it should have appeared to a reasonable and responsible journalist at the time.
3. Facts unknown to the publisher when the decision to publish was made cannot support the requisite duty. Later investigations, after-acquired documents, subsequent proof of reliability and speculation about what further inquiries might have disclosed cannot retrospectively strengthen a plea of qualified privilege. If the publication was unjustified on the information then available, the issue is concluded.
4. Freedom of expression under Article 10 of the European Convention on Human Rights is important but not absolute. It carries duties and responsibilities and must be balanced against protection of reputation under Article 10(2). A general public right to know cannot displace the duty-interest analysis.
5. By way of completeness, the rules governing the facts that may be pleaded in justification and fair comment differ: further facts may be pleaded for justification, whereas fair comment is confined to facts existing at the time of the comment. The present appeal supplied an opportunity to state the comparable rule for qualified privilege.

The defendants’ proposed material was relevant only to strengthen their case on duty and was all unknown at publication. The amendment was therefore rightly refused. Permission to petition the House of Lords was refused. The claimant was awarded the costs of the appeal, subject to detailed assessment, with £10,000 payable on account under the order.

1. Court of Appeal (Civil Division): the defendants’ appeal was dismissed and the order of Gray J was affirmed. Permission to petition the House of Lords was refused.
2. Queen’s Bench Division: Gray J refused permission to amend the defence to add matters unknown to the defendants when the publications were made.