Miller v Associated Newspapers Ltd

Qualified privilege for publication to the general public requires an objective social or moral duty to publish the words at the time of publication. Public interest in the subject matter does not create a duty to publish every allegation, opinion or partial account. Particular caution is required where information concerns an unresolved investigation, especially a confidential interim report or work in progress. On a summary application, pleaded facts are assessed in the defendant’s favour, but the defence may be struck out where no factual dispute could make it viable.

The claimant, a senior Metropolitan Police officer, brought libel proceedings concerning newspaper articles criticising the police investigation into allegations made against Neil and Mrs Hamilton. The articles allegedly accused the claimant of incompetence and of wasting public money in that investigation and an earlier rape inquiry.

The defendant relied on justification and qualified privilege. The claimant applied under CPR 3.4 and Part 24 to strike out the defences. Following amendments, justification was accepted as capable of being argued at trial, but the claimant maintained that qualified privilege had no realistic prospect of success. The central issue was whether the pleaded circumstances established a social or moral duty to publish the allegations to the public.

1. Outcome. The qualified-privilege defence was struck out. The amended justification defence remained for trial. The claimant received costs, subject to detailed assessment, with an interim payment of £15,000. Permission to appeal was refused.
2. The court applied Reynolds v Times Newspapers Limited [2001] 2 A.C. 127 and McCarten Turkington Breen v Times Newspapers Limited [2001] 2 A.C. 277. The objective question was whether the defendant had a social or moral duty to publish to the general public, or whether the public had a right to receive the material, irrespective of its truth or falsity.
3. A summary application must not become a mini-trial. Factual disputes are assumed in the defendant’s favour where appropriate. The court may nevertheless strike out a defence where, even on those assumptions, it has no realistic prospect of success and no factual dispute could affect the legal conclusion.
4. Public interest in police investigations did not establish a duty to publish the particular allegations. A reliable source does not confer a duty to publish everything the source says, still less the source’s personal opinions or speculation. The relevant status was that of the information said to justify publication. A confidential, incomplete interim report, amounting to work in progress, did not have the status of a completed authoritative inquiry. There was no urgency requiring publication before the investigation had concluded or the material could be checked for fairness and accuracy.
5. The absence of an approach to the claimant, minimal verification, attribution of blame while the investigation and disciplinary proceedings remained unresolved, the sensational tone, and inclusion of material not derived from the interim report all materially weakened the defence. Although fairness and accuracy might ordinarily be jury issues, a trial was unnecessary because the pleaded facts could not establish the necessary duty.
6. The flexibility of the law concerned its application to varying facts, not uncertainty in the governing principles. General assertions about the media’s public-watchdog role did not justify leaving an untenable plea in contention.

First-instance decision in the High Court. Permission to appeal was refused.