Dr Ashti Hawrami v Journalism Development Network Inc & Ors

In a defamation claim involving a report of court proceedings, statutory qualified privilege under Defamation Act 1996, section 15 and Schedule 1, is a freestanding issue which may need determination before meaning. Privileged words are removed from the meaning analysis, except as context. It is immaterial for this purpose whether those words are themselves defamatory.

A report may be selective and need not be verbatim, but must fairly and accurately convey the impression received by a reasonable spectator. Privilege may be lost where substantial or material misstatement, or intermingling of extraneous material, produces a critically different report. Distinct privileged and non-privileged material may remain separately protected.

The claimant brought a defamation claim concerning an article about the rise and fall of a US oil executive. The article referred to the claimant, a former Minister of Natural Resources of the Kurdistan Regional Government, and purported to report evidence and findings from the Excalibur Litigation, in which the claimant was not a party.

The defendants relied on qualified privilege for a fair and accurate report of proceedings in public under section 15 and Schedule 1 to the Defamation Act 1996. The claimant applied under CPR 24.3 for summary judgment removing that defence. He argued that the defence was logically unavailable because the reported material was not defamatory of him, and alternatively that the article was not fair and accurate.

1. Summary judgment. The claimant’s application was dismissed, except in relation to specified passages concerning an alleged legal requirement to cancel the Shaikan production sharing contract. The order was to record that those passages could not be relied upon as privileged reports.
2. Nature and sequence of the issue. Qualified privilege for a fair and accurate report is a freestanding statutory right which limits the material capable of founding the claim. It is not necessary first to establish a defamatory meaning. Under the approach in Curistan, privileged words are disregarded for the purpose of meaning, save that they may provide context for non-privileged words. The issue therefore may need to be decided before meaning.
3. Fair and accurate reporting. The question is evaluative. A report need not be verbatim and may be selective, but it must fairly and accurately convey the impression received by a reasonable spectator. Fairness concerns presentation. Privilege may be lost by a substantial or material misstatement prejudicial to reputation, or by intermingling extraneous material so that the publication becomes a critically different text.
4. Separate material. The presence of non-privileged material does not automatically defeat privilege. The court should divide the publication where there is a clear separation, while recognising that boundaries may be blurred and that the overall question remains whether the purported report is fair and accurate. Commentary may be distinct from the report if the reasonable reader would understand that distinction.
5. Application. Most complaints about characterisation, omissions, alleged connections, descriptions of payments and the reporting of ETAMIC raised arguable evaluative questions, disputed meanings or matters which could be supported by further material at trial. The defendants therefore had a real prospect of establishing privilege, and there was also a compelling reason for a trial.
6. The passages stating or implying that Kurdish law required the claimant to cancel the entire Shaikan production sharing contract were materially different from the Excalibur Material. The judgment did not establish that requirement and recorded instead that the benefits formerly payable to Dabin were directed to the KRG. The defendants had no real prospect of relying on privilege for those passages.