Qadir v Associated Newspapers Ltd

For statutory qualified privilege under the Defamation Act 1996, an extract from a court document may be a summary rather than a verbatim copy. Fairness and accuracy are assessed against the source document. Separately, publication of defamatory allegations from a claim form or particulars of claim will generally lack public benefit unless it states that the allegations are denied or disputed. A report of court proceedings may be selective, but omitting a material judicial response can make it unfair and inaccurate. Privilege does not protect misleading additions or a false statement that the claimant declined comment. Malice requires misuse of the occasion; carelessness alone is insufficient, but knowingly continuing a false online publication may be malicious.

The claimant brought a libel action concerning two Mail on Sunday and Mail Online articles. The first reported allegations in particulars of claim issued in separate litigation concerning a nightclub. The second reported a sentencing hearing involving a mortgage fraud and repeated allegations from the first article. The defendant relied on statutory and common-law qualified privilege, absolute privilege for the court report, justification and absence of malice. The Master directed a preliminary trial of privilege and malice. The truth of the allegations was not tried. The principal issues were whether the publications were fair and accurate, whether publication was of public concern and for the public benefit, whether online publication remained contemporaneous, and whether the defendant acted maliciously.

1. First article. An extract under the Defamation Act 1996 need not be verbatim. Fairness and accuracy are assessed by comparing the publication with the source document. Extraneous material and matters outside the document are principally relevant to public benefit and malice. The court applied the approach in Curistan v Times Newspapers Ltd [2008] EWCA Civ 432 and distinguished the statutory context discussed in Stern v Piper [1997] QB 123.
2. Public benefit. The test under section 15(3) is objective and requires a fact-sensitive balance between freedom of expression and reputation. As a general rule, defamatory allegations taken from particulars of claim made available under CPR r 5.4C should not be published without stating that the defendant disputes or denies them. The first article omitted that fact and falsely stated that the claimant had declined comment. Qualified privilege therefore failed under section 15(3), and also at common law.
3. Second article. A court report need not be complete or verbatim, but it must be fair and accurate in relation to the claimant’s reputation. The omission of the sentencing judge’s material intervention, which contradicted or materially qualified counsel’s allegations about the claimant, seriously unbalanced the report. A later denial by the claimant’s solicitor did not cure the omission. Absolute and qualified privilege consequently failed. The reference back to the first article was not an extract from a court document, and no Reynolds privilege was relied upon.
4. Malice. Malice involves misuse of the privileged occasion for a dominant improper purpose. The traditional duty-and-interest test in Horrocks v Lowe [1975] AC 135 was not directly applicable to statutory privileges. Carelessness did not establish malice, but continuing the online first article after learning that a defence had been filed was reckless. The omission of the judge’s corrective statement in the second article was deliberate and malicious. These findings were alternative because the privilege defences had already failed.

The Master directed a trial of the preliminary issues on 2 April 2012. No appellate history is stated.