Roberts & Anor v Gable & Ors

Permission to appeal may be granted where a developing area of law raises a possible doubt that would usefully be resolved by the appellate court, even where the provisional merits assessment is unfavourable. The Court considered the scope of reportage as a form of qualified privilege in libel. Reporting allegations made in a public-interest dispute without adopting them may attract protection. However, the significance of verification where allegations involve serious criminality, particularly with ramifications beyond the dispute, required clarification. Applying the approach in Al Fagih v Saudi Research and Marketing (UK) Ltd [2002] EMLR 215, the decision below appeared likely to be correct. The Court granted permission without finally determining the scope of the defence or the merits.

The appellants, members of the BNP, brought a libel action arising from an article in Searchlight reporting allegations made by supporters of one faction during an internal political dispute. The allegations included theft and other criminal conduct. On a preliminary issue, Eady J held that the newspaper could rely on qualified privilege because it reported a matter of public interest without adopting the allegations. Sedley LJ refused permission to appeal. The Court of Appeal considered whether the scope of reportage, particularly where the allegations involved serious criminality, raised an arguable issue requiring appellate resolution.

1. Permission granted. Carnwath LJ, with whom Waller LJ agreed, granted permission to appeal. The Court had sympathy with the view that the decision below was correct and offered little encouragement as to the appellants’ prospects. That provisional view did not prevent permission where the law was developing and a possible issue required clarification.
2. The preliminary issue concerned whether a newspaper could rely on qualified privilege by reporting a matter of public interest, namely a feud within a political party, while making clear that it did not adopt the allegations. Eady J had allowed the defence.
3. The only Court of Appeal authority directly addressing the issue was Al Fagih v Saudi Research and Marketing (UK) Ltd [2002] EMLR 215. Simon Brown LJ had set out principles governing reportage. That approach followed the House of Lords’ approach to responsible reporting in Reynolds v Time Newspapers Limited [2001] 2 AC 127, although Reynolds did not specifically concern reportage. Applying Simon Brown LJ’s approach, Carnwath LJ considered that Eady J was probably correct.
4. However, Latham LJ’s qualification concerning verification where allegations involved criminality with ramifications beyond the dispute had an uncertain scope. It had not been material to the decision in Al Fagih, and Mantell LJ had dissented from the majority. The Court therefore identified a possible doubt as to how far reportage extended where the reported allegations involved high-level criminality.
5. The appeal was not finally decided. The order was: application granted. The Court noted that a similar appeal might be brought together with this case if permission were granted.

• Court of Appeal (Civil Division) [2006] EWCA Civ 1585: permission to appeal granted.
• High Court of Justice, Queen’s Bench Division: Eady J allowed the qualified privilege defence on a preliminary issue.
• Earlier permission application: Sedley LJ refused permission to appeal.