Reynolds v. Times Newspapers Ltd and Others

This appeal concerned the balance between freedom of expression and protection of reputation in the context of newspaper reporting of political matters. The House considered whether English common law should recognise (a) a new generic qualified privilege for political information or (b) the 'circumstantial test' formulated by the Court of Appeal as an additional separate requirement for privilege, or whether the traditional twofold test of duty and interest (or the "right to know" test) should continue to govern.

The majority concluded that the common law should not create a blanket or generic qualified privilege for political discussion and that the Court of Appeal's circumstantial test should not be adopted as a separate third limb; instead the established duty/interest approach remains sound, but must be applied with regard to all relevant circumstances of publication (for example seriousness of allegation, nature and status of information, steps taken to verify, urgency, whether the plaintiff's side was sought and published, tone and timing). The House held that on the facts of this case the publication was not privileged in the absence of proof of malice and therefore upheld the Court of Appeal's conclusion that privilege did not protect the article in question.

The respondent, Mr Reynolds (former Taoiseach of Ireland), sued the appellants, Times Newspapers Ltd and others, for libel arising from an article published on 20 November 1994 which alleged he had deliberately misled the Dáil and cabinet colleagues. The trial (French J. with a jury, October–November 1996) produced findings that the defamatory allegation was not true, that the journalists were not malicious, but awarded nominal damages. The judge ruled the publication was not privileged. The Court of Appeal set aside the verdict because of misdirections and ordered a retrial, and held that the defendants would not be able to rely on qualified privilege. The defendants appealed to the House of Lords on the point of qualified privilege.

Nature of the claim: a libel action seeking damages and costs for alleged defamatory publication; central defences raised were justification, qualified privilege and fair comment (the latter abandoned at trial).

Issues framed: (i) whether English law should recognise a generic qualified privilege for political speech (analogous to some foreign models); (ii) whether the Court of Appeal's separate "circumstantial test" was correct in law; (iii) if neither, what the correct approach to qualified privilege for political speech should be; and (iv) the respective roles of judge and jury.

Court's reasoning: the majority rejected creation of a generic privilege for political discussion on grounds of principle and practical consequences, including the protection of journalistic sources in the United Kingdom and the lack of procedural discovery comparable to the United States. The Court declined to adopt the Court of Appeal's circumstantial test as a separate legal limb, preferring to apply the traditional duty/interest test (the "public was entitled to know" test) while taking into account all relevant circumstances listed by Lord Nicholls (seriousness, public concern, source, verification steps, status, urgency, whether plaintiff was approached, inclusion of plaintiff's side, tone, timing and circumstances of publication). The judge determines whether an occasion is privileged; the jury decides disputed primary facts and, where relevant, whether privilege was abused (malice). The majority concluded that the circumstances of the 'Sunday Times' article did not attract qualified privilege in the absence of malice and dismissed the defendants' appeal.

Appeal dismissed. The House (majority) refused to create a new generic qualified privilege for political speech and declined to adopt the Court of Appeal's separate 'circumstantial test'; instead the traditional duty/interest approach governs, applied with regard to all relevant circumstances (seriousness, source, verification, whether the plaintiff's response was sought or published, tone, timing, urgency). On these principles the publication in this case was not privileged in the absence of malice, so the Court of Appeal's conclusion was upheld.

Trial before French J. and a jury (14 October–19 November 1996). Court of Appeal allowed Mr Reynolds' appeal, set aside the verdict and ordered a new trial, and held the defendants could not rely on qualified privilege: Court of Appeal [1998] 3 W.L.R. 862. Leave was granted to the defendants to appeal to the House of Lords; House of Lords decision reported [1999] UKHL 45.