Crossley & Anor v Newsquest (Midlands South) Ltd

Reports of public court proceedings attract absolute privilege under Defamation Act 1996, section 14, where they are fair, accurate and contemporaneous. Earlier proceedings may be included where reasonably necessary to explain the hearing being reported. A report remains fair and accurate despite the compression and selectivity inherent in newspaper reporting.

Malice requires more than a bare allegation, emotive language, or omissions arising from editorial selection. Where no properly supported allegation could enable a jury to find malice, the issue should be disposed of summarily. An honestly held opinion is not defeated by motive. Information aired in open court will ordinarily lose any reasonable expectation of privacy or confidentiality.

The appellants brought libel proceedings against the publisher of the Worcester News concerning an article reporting the outcome of long-running proceedings about a sewage-treatment system on neighbouring land. The Master struck out the claim or granted summary judgment, refused amendments alleging privacy and breach of confidence, and declined costs-capping.

The appeal challenged the findings on reporting privilege, malice, justification, abuse of process, privacy, confidentiality, procedural fairness and costs. The central issues were whether the article was protected by absolute or qualified privilege, whether malice had a realistic prospect of being established, and whether the proposed additional causes of action were viable.

The appeal was dismissed. The Master had made no error of law and was entitled to grant the respondent relief.

1. Reporting privilege. The hearings in the county court took place in open court and were reportable. Under section 14 of the Defamation Act 1996, the report published three days after the hearing was contemporaneous. Absolute privilege extended to earlier hearings where their inclusion was reasonably necessary to provide context and enable readers to understand the later hearing. The court rejected an artificial distinction between privileged reporting of the later hearing and only qualifiedly privileged references to the earlier proceedings.
2. The report was fair and accurate. Newspapers must compress lengthy proceedings and select material. The article had to be read as a whole, including its headline and photograph caption. The caption was a rough summary of the nuisance allegations and findings, rather than an assertion that the appellants had deliberately dumped raw sewage.
3. Malice and fair comment. A plea of malice should be excluded where no allegation or evidence could support a finding by a properly directed jury. Allegations equally consistent with absence of malice are insufficient. Emotive wording and editorial omissions ordinarily provide no adequate basis for inferring recklessness or improper motive. The defence of fair comment could not realistically be defeated because there was no reason to doubt that the attributed opinions were honestly held.
4. Other grounds. The Master was entitled to conclude that justification was bound to succeed. The abuse-of-process conclusion was also open to him: the doctrine can extend beyond issue estoppel and res judicata to collateral attempts to reopen matters already determined, even where the publisher was not a party to the earlier proceedings. That conclusion was unnecessary to the result.
5. Privacy and confidence. Information about financial affairs may ordinarily attract privacy, but information disclosed in open court will generally cease to carry a reasonable expectation of privacy or confidentiality. CPR 39.2(3)(c) gives the court a discretion to sit in private; it does not require a private hearing. No such application had been made.
6. The complaints about counsel, late authorities and costs disclosed no procedural unfairness or basis to interfere with the Master’s discretionary orders.

High Court (Queen's Bench Division): The appeal from the Master’s order dated 15 November 2007 was dismissed. The court upheld the striking out or summary judgment, refusal of the proposed privacy and confidence amendments, and the costs decisions.