Jameel & Anor v The Wall Street Journal Europe Sprl

Evidence offered to support a qualified-privilege defence must bear on a live issue in the case. Material showing only a speculative possibility that a claimant was connected with an organisation associated with wrongdoing is irrelevant, particularly where it was not part of the published article or the information received by the journalist. Evidence cannot be introduced retrospectively to bolster the credibility of unidentified sources. Even where material has some relevance, the court may exclude it as a matter of case management where its marginal value is outweighed by surprise, prejudice, unfairness and the need for an adjournment.

The claimants brought defamation proceedings concerning an article published by the defendant. The defendant relied on qualified privilege under the principles in Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127. During the trial, the defendant sought to introduce evidence concerning the hosting of the claimants’ website by Infocom, a Texas company whose premises had been raided by the FBI and which had hosted other websites mentioned in the article. The application was made on the seventh day of the trial and was opposed as irrelevant, late and prejudicial. The issue was whether the evidence should be admitted.

1. The application to introduce the Infocom evidence was rejected. The evidence was irrelevant because it was directed only to the speculative possibility that the claimants might have been on a list described in the article. The defendant expressly disclaimed reliance on it to establish any defamatory meaning or to justify such a meaning.

2. For a qualified-privilege defence, a defendant may introduce evidence of what its journalists were told before publication and why the public was said to have a right to receive the information. That did not make the Infocom material admissible. Infocom was not mentioned in the article, and none of the defendant’s sources was said to have referred to it. The proposed evidence would therefore have impermissibly sought to strengthen retrospectively the credibility of what the unidentified sources had told the journalist.

3. The evidence was also refused in the exercise of the court’s case-management discretion. Its significance was marginal, while its admission during the trial would have created a substantial risk of prejudice and unfairness. The claimants could not properly investigate or answer the material without an adjournment, with the consequent possibility that the jury would have to be discharged.

4. The claimants’ use of banking evidence to challenge the alleged monitoring was consistent with the permission previously granted by the Court of Appeal. The defendant’s contrary argument, raised late in the proceedings, was misconceived. The application was accordingly refused on both relevance and case-management grounds.

The judgment records that the claimants had previously been permitted at first instance and in the Court of Appeal to introduce evidence concerning the alleged monitoring and the falsity of the defamatory allegations. No citation for those earlier decisions is stated. This judgment determined the later application concerning Infocom evidence during the trial.