Jameel v Times Newspapers Ltd.

Statutory qualified privilege should not be struck out at a preliminary stage where parts of a publication are arguably protected, even if its practical benefit may be limited. Statutory privilege may be pleaded alongside common-law and Reynolds-type privilege. Questions of fairness and accuracy are ordinarily matters for trial or a preliminary issue.

A plea of justification based on a level (iii) meaning requires sufficient grounds for the alleged inquiry. An unidentified manuscript list, without reliable authorship, date, purpose or evidence connecting it to later terrorist activity, may fall well short of that threshold.

This was a pre-trial review in a libel action brought by Yousef Jameel against Times Newspapers Limited concerning an article headed “Car Tycoon ‘linked’ to Bin Laden”. The court considered statutory qualified privilege, justification, factual issues relating to Reynolds privilege, witness evidence, hearsay notices and the ordering of a preliminary issue.

The central questions included whether portions of the article could attract statutory privilege under the Defamation Act 1996, and whether the pleaded material established sufficient grounds for the inquiry alleged in justification.

1. Statutory qualified privilege. The defendant could rely in principle on an amalgam of statutory, common-law and Reynolds-type privilege. Under section 15 and Part 1 of Schedule 1 to the Defamation Act 1996, some passages were at least arguably protected as fair and accurate reports or extracts. Questions of fairness and accuracy were appropriately left for trial or a preliminary issue.
2. The defendant was not entitled to claim statutory privilege for passages identifying the claimant as a wealthy donor on the Golden Chain list, or for passages stating the basis on which he was joined as a defendant in the Burnett proceedings. Those matters were not shown to be reports of public proceedings or public documents within the statutory provisions. Nevertheless, section 15(4) supported retaining the statutory privilege plea, particularly because the privilege issue would be determined by a judge alone and the case-management disadvantage was correspondingly reduced.
3. Justification. The pleaded meaning was that there were sufficient grounds to inquire whether the claimant had been associated through funding with Osama Bin Laden and Al Qaeda, or had helped fund the training of the 11 September terrorists. The Golden Chain document was the only material relied upon for that contention. Its unknown authorship, uncertain date and purpose, absence of evidence of donations, and lack of a demonstrated connection with Al Qaeda or the later atrocities meant that it fell well short of establishing sufficient grounds for such an inquiry. The defence of justification was struck out.
4. The principal factual issue for the Reynolds privilege claim concerned the journalist’s pleaded intention and belief. The privilege issue was directed to be tried by a judge alone, preferably as a preliminary issue. The court also gave directions concerning possible cross-examination of Mr Elsner and formal admissions relating to the circumstances in which documents were discovered and their contents.