Ismail & Anor v News Group Newspapers Ltd

Reports based on pleadings and other documents available for public inspection may attract privilege where they are fair and accurate. Minor errors or a permissible tabloid gloss will not necessarily defeat the defence. An allegation may also be defended by justification or fair comment where it is substantially accurate or properly supported by the underlying public documents. The court may grant summary judgment where every allegedly defamatory statement is capable of a complete defence.

Mr and Mrs Ismail brought proceedings against the publisher of an article in The Sun and on its website concerning their claim against the UK Border Agency. The claim was initially framed in defamation, breach of confidence and misuse of private information, but the latter causes of action and a plea of malice were withdrawn before Master Kay QC. The remaining claim alleged that the article inaccurately and improperly reported matters contained in publicly inspectable pleadings.

The defendant applied for summary judgment under CPR Part 24, alternatively to strike out the particulars of claim under CPR 3.4. The central issues were whether the article was defamatory and whether its contents could be defended by privilege, justification or fair comment.

1. The claim was confined to defamation because the claimants had formally withdrawn the claims for misuse of private information and breach of confidence, together with the plea of malice. They could not resile from those concessions.
2. The article was based on the claim form and particulars of claim in the UKBA case, which were available for public inspection under CPR 5.4(c)(1)(a). English law allows substantial latitude in reporting court proceedings, reinforced by the jurisprudence under Article 10 of the European Convention on Human Rights and Fundamental Freedoms.
3. Under section 15 and Schedule 1, Part 1 of the Defamation Act 1996, privilege attached to a fair and accurate copy of, or extract from, a document required by law to be open to public inspection. Minor errors did not defeat the defence.
4. The headline and presentation introduced a punchy tabloid gloss, particularly by suggesting that the claimants were demanding money so that they could take their children on holiday. That gloss remained within the permitted leeway because the underlying reference to holidays appeared in the publicly available pleading.
5. The allegation that the claimants were suing the UK Border Agency for discrimination was essentially true. The allegation that they were a burden on public funds was capable of defence by fair comment or justification, having regard to the lack of merit in the UKBA claim and the public expenditure involved in that litigation.
6. Overall, no allegation in the article was incapable of being defended on the basis of the pleaded UKBA case, whether by justification or fair comment. Summary judgment was therefore granted to the defendant in accordance with CPR Part 24.