DEFAMATION

LAW, PROCEDURE AND PRACTICE

Fourth Edition

David Price, Korieh Duodu and Nicola Cain

SWEET & MAXWELL

 DEFAMATION
LAW, PROCEDURE
& PRACTICE
 DEFAMATION
LAW, PROCEDURE
& PRACTICE
Fourth edition
by

David Price LL.B

Solicitor-Advocate ( Higher Courts, Civil)

Korieh Duodu
of Lincoln's Inn, Barrister

Nicola Cain LL.M

of Middle Temple, Barrister

SWEET & MAXWELL THOMSON REUTERS

 First Edition 1997
Second Edition 2001
Third Edition 2004
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[v]
 FOREWORD TO THE FIRST EDITION

I have been involved in a number of defamation actions, with varying degrees

of importance, but none of them dull. I have on many occasions heard
judges and litigants complain of the complexities of the law and practice of
defamation. Sometimes these complaints are exaggerated but equally I have
sympathy for them. After all, at the end of the day the law should not only be
available to all, but be capable of being generally understood. Cases are often
conducted in the spotlight of publicity and the presence of the jury gives them
an added dimension absent from so many other civil actions.
It is important not to be overawed by defamation. A jury of 12 ordinary
men and women will, in most cases, determine the outcome of a contested
defamation action. Therefore, the overall impression created by the parties
is often as important as the technical legal rules. This is not simply a consid-
eration for the advocate at a trial. A defamation action should be a seamless
process where the themes of the case are established from the outset. In addi-
tion, the trial advocate is only as good as the evidence that has been obtained
and the detailed preparation that the legal team has put into the case.
David Price has succeeded in writing a book which grasps the elements
which are necessary for a proper practical understanding of defamation. The
law is considered in detail but always with a view to how it can be best used
to the client's advantage. The section on procedures and tactics provides
a straightforward and detailed reference point for each stage of a defama-
tion action, especially when combined with the precedents in Appendix 1.
Importantly, the changes in law and procedure introduced by the Defamation
Act 1996 the Civil Procedure Rules and the Human Rights Act 1998 have
been thoroughly considered. The chapters on pre-publication considerations,
which might assist both publishers and potential claimants, give unique guid-
ance on this important aspect of defamation practice. Finally, the appendices
are a mine of information: in particular, the schedule of defamation trials
since the 1990s which makes salutary reading for anyone who is confident of
accurately predicting the result of a defamation action.
Despite being a legal textbook, the helpful and clear way in which the book
is written will give it an appeal to journalists, students and anyone with an
interest in defamation. However, it is not simply a guide for the amateur. The
thoroughness of the book makes it essential reading for practitioners, whether
or not they specialise in defamation. I am happy to warmly recommend it.
George Carman Q.C.
November 2000
 PREFACE

This book's purpose is to provide a guide through the whole defamation

process: from newsroom to courtroom, acting for both claimants and defend-
ants, and each chapter seeks to demystify the various aspects of law and prac-
tice. This book is not a critique of the law; nor is it an advocate of either freedom
of speech or the defence of reputation—the two conflicting interests that the
law seeks to balance. Its aim is simply to state and explain the law and practice
as it is, so that it can be utilised to the best interest of the very many people who,
either regularly or once in their lives, have a brush with defamation.
The Summary of Law and Procedure, which last appeared in the second
edition, has been re-introduced to provide an at-a-glance reference guide.
Parts One to Three set out the law, as clearly and definitively as possible,
from the basic elements, through defences, to remedies. Part Four discusses
procedure, as well as strategy and tactics—explaining some of the tricks of
the trade. It also contains a chapter on the law, procedure and tactics that
specifically relate to the rapidly developing field of internet defamation. Part
Five deals with pre-publication considerations for potential claimants and
defendants. It will be particularly useful to clients, to whom it provides a
guide to the risks involved, prior to their making important decisions about
initiating proceedings, or, in the case of the media, before taking the deci-
sion to publish. Finally, Part Six addresses two areas that warrant special
mention—the impact of human rights jurisprudence and the relationship
between defamation and privacy.
We said in the Preface to the Third Edition (published in 2004) that "the
pack is being cut more in favour of defendants". This was in recognition of
the law of defamation making significant advances by taking greater account
of freedom of expression, including through the impact of the Human Rights
Act 1998, the development of the Reynolds and fair comment defences, as
well as with the revamped offer of amends regime.
So who holds the cards now, five years on from the Third Edition? In that
time, the House of Lords has reiterated the liberalising intention underpin-
ning the Reynolds decision on qualified privilege, in Jameel v Wall Street
Journal Europe Sprl [2007] 1 A.C. 359, with the result that the defence has
been upheld in a greater number of cases than ever before. The categories of
absolute privilege have also been extended to incorporate oral and written
complaints to the police (see Buckley v Dalziel [2007] 1 W.L.R. 2933 and
Westcott v Westcott [2009] 2 W.L.R. 838), and there is first instance dicta that
internet search engines are not liable for the publication of material included
in search results (see Metropolitan International Schools Ltd v Designtechnica
Corp (2009) E.M.L.R. 27). The courts continue to exercise their case manage-
ment powers robustly, striking out claims as an abuse of process where there
is no "real and substantial tort".
 Furthermore, the current edition is published amidst a whirlwind of public large sums in costs through lawyers acting on a conditional fee basis may well
and Parliamentary scrutiny of defamation law and procedure, both in this find themselves subject to severe media criticism. It pays to ensure that the
jurisdiction and abroad. The Commons Culture, Media and Sports Select action being taken does not end up being counter-productive.
Committee has been investigating "Press Standards, Privacy and Libel", It remains a "massive" task producing an up-to-date defamation guide,
taking evidence from reporters, editors, lawyers for both claimants and particularly when five years have passed between editions, in an ever-chang-
defendants, members of the judiciary, and the victims of defamatory pub- ing area of law. New cases are emerging with slightly less frequency than
lications. The Ministry of Justice is consulting on the impact of the internet previously, but there continues to be a constant trickle of important decisions
on defamation law, in particular the multiple publication rule established in (often unreported) bringing about further developments in the law. Each of
1849 in The Duke of Brunswick's case, and costs of defamation proceedings the authors is a full-time practitioner, making this edition no mean feat. We
are under particular scrutiny: the media successfully campaigned for a review remain extremely grateful to all of those who have assisted us with this and
of the costs regime for defamation cases, and following a consultation by previous editions.
the Ministry of Justice, there is a new pilot costs-management scheme for The law is stated as at July 2009, with some additional changes made at
defamation cases, which is due to run for a year (until September 30, 2010) proofs stage.
but could well be extended. A further wide ranging review of civil litigation
costs is being conducted by Lord Justice Jackson, which is looking at the level David Price, Korieh Duodu and Nicola Cain
of costs incurred in defamation proceedings and the use of conditional fee October 2009
agreements to fund such claims. Abroad, criticism of our defamation laws in
the United States has led to the enactment of so-called "libel terrorism" laws
to restrict the enforcement of judgments which are passed in jurisdictions
which do not accord equal weight to freedom of expression as under the US
Constitution (i.e. most commonwealth jurisdictions).
The significance of these developments and reviews should not be over-
stated. A defamation claim is still a potent weapon, and those who are
genuinely defamed will be able to obtain redress, and usually swiftly, from
publishers more keen than ever to limit their exposure by settling decent
claims early. The law is developing to weed out weaker cases at an early stage,
and to prevent defamation laws from being used as a bullying tactic.
Moreoever, there is little evidence that claimants have been deterred from
pursuing claims. A report commissioned by Sweet & Maxwell, our publishers,
in July 2009, stated that the number of libel claims had risen by 33 per cent
in 2008-09 in comparison with the previous year, with a substantial increase
in claims brought by corporate claimants and claims involving "new" media
(i.e. internet publishers or users). This latter category is perhaps the most
fertile ground for future changes in the law: nineteenth century principles of
defamation are not easily applied in the internet age, and we anticipate plenty
of litigation concerning online publications.
Defamation is a complex and quirky area of the law, and litigation in this
area continues to be fraught with danger. As we have said before, for the
defamation lawyer, there is always a need for a keen tactical sense, a steady
hand, and some practical knowledge of how things work in Court 13 at the
Royal Courts of Justice (the appropriately named court where most defama-
tion claims are tried). The full complement of legal skills, from academic to
negotiation prowess, as well as the je ne sais quoi required to "melt a jury",
must be contained in the armoury (notwithstanding the continuing decline
in the number of cases being tried by a jury). Following the introduction of
the new costs-management scheme, now more than ever the lawyer must also
keep a firm grip on the costs of the action, in order to avoid judicial criticism
of the legal costs incurred. Finally, in an age where more than ever a defama-
tion claim is news in itself, claimants (against media publishers) who incur
[x]
 CONTENTS

Acknowledgments
Foreword vii
Preface ix
Table of Cases xxiii
Table of Statutes liii
Table of Statutory Instruments lvii
Table of Civil Procedure Rules lix
Rules of the Supreme Court lxiii
Summary of the Law and Procedure lxv
CH. PARA.

PART ONE
WHAT THE CLAIMANT MUST PROVE

1 General 1-01
2 The defamatory statement
General 2-01
The meaning of the words 2-02
Is the meaning defamatory? 2-15
3 Publication
The meaning of publication 3-01
Responsibility for publication 3-02
Different media 3-03
Responsibility for republication 3-09
Place and date of publication 3-11
4 Identification
Introduction 4-01
Examples 4-02
The legal principles 4-03
Coincidental naming 4-04
Lookalikes 4-05
Class libel 4-06
Corporations 4-07
5 Slander claims and special damage
Distinction between libel and slander 5-01
Slanders that do not require proof of special damage 5-02
 Commission of a criminal offence punishable by The comment must be objectively "fair" 9-05
imprisonment 5-03 Matters of public interest 9-06
Contagious diseases 5-04 The functions of judge and jury 9-07
Imputations of unchastity to a woman 5-05 10 Privilege—general
Allegations likely to damage the claimant's reputation in Introduction 10-01
relation to any office, profession, trade or business 5-06 Absolute privilege 10-02
Special damage 5-07 Qualified privilege 10-03
The functions of judge and jury 5-08 Relationship with other defences 10-04
Vulgar abuse 5-09 The functions of judge and jury 10-05
Proving the words 5-10
11 Absolute privilege
6 Malicious falsehood Introduction 11-01
Introduction 6-01 Statements made in the course of judicial or quasi-judicial
Comparison with defamation 6-02 proceedings 11-02
What the claimant must prove 6-03 Statements made in parliamentary proceedings and papers 11-05
The false statement 6-04 Reports of court proceedings 11-06
Malice 6-06 Statements made by one officer of state to another in the
Damage 6-07 course of duty 11-07
Solicitor and client 11-08
Miscellaneous statutory privileges 11-09
PART TWO General public interest privilege 11-10
DEFENCES
12 Qualified privilege—duty and interest
Introduction 12-01
7 General 7-01 General principles 12-02
Examples of privileged publications 12-11
8 Justification Seeking redress for grievances 12-17
Introduction 8-01
Relationship with other defences 8-02 13 Qualified privilege—media publications on matters of public
Burden and standard of proof 8-03 interest—Reyno/ds v Times Newspapers Ltd
The meaning that must be proved to be true 8-04 Introduction 13-01
"Higher" and "lower" meanings 8-05 Reynolds v Times Newspapers Ltd—the case 13-02
Repetition rule 8-06 The 10 criteria to be taken into account 13-03
"Grounds to suspect" meanings 8-08 Principles established in cases following Reynolds 13-04
"Grounds to investigate" meanings 8-09 Cases following Reynolds 13-05
General and specific allegations 8-10 Other post-Reynolds cases 13-07
Non-defamatory meanings 8-11 Jameel v Wall Street Journal (Europe) Sprl 13-10
Proving the sting 8-12 Post-Jameel cases 13-11
Section 5 of the Defamation Act 1952 8-13 Procedural and practical considerations 13-14
The limits of section 5-separate and distinct allegations 8-14 Information from and disclosure by the defendant 13-15
Effect on damages 8-15 Malice 13-17
The functions of judge and jury 8-16 The functions of judge and jury 13-19
9 Fair comment 14 Qualified privilege—reports, copies and extracts protected
Introduction 9-01 by statute
The defendant must overcome four hurdles in order to Schedule 1 of the Defamation Act 1996 14-01
establish the defence 9-02 Part One—no explanation or contradiction 14-02
Comment—the test 9-03 Part Two—subject to explanation or contradiction 14-03
The comment must have a sufficient factual basis 9-04 Residual common law privilege 14-04

[xv]
 Public concern and benefit 14-05 Improper motives 18-04
The report—fair and accurate 14-06 Evidence of malice 18-07
Reasonable letter or statement by way of explanation or Malice and Reynolds-based qualified privilege 18-13
contradiction 14-07 Malice and report-based qualified privilege 18-14
Malice and fair comment 18-15
15 Secondary responsibility Joint liability 18-17
General 15-01 The functions of judge and jury 18-18
The defence—section 1 of the 1996 Act 15-02
The author, editor and publisher—primary responsibility 15-03
Not the author, editor or publisher—secondary PART THREE
responsibility 15-04
Reasonable care and absence of knowledge or reason to REIVIEDIES
believe 15-06
The distinction between defamatory and libellous 15-12
The effect of the Human Rights Act 1998 15-14 19 General 19-01
20 Damages
16 Offer of amends Introduction 20-01
General 16-01 Compensatory damages 20-02
The offer 16-02 General damages 20-03
Qualified offers 16-03 Relevant factors in assessing the size of the award 20-04
Acceptance of the offer 16-04 Aggravation of damages 20-11
Non-acceptance 16-11 Mitigation or reduction of damages 20-17
The test for disqualification 16-12 How much? 20-29
Relationship with other defences 16-15 Financial loss and special damage 20-33
Non-acceptance of a qualified offer 16-16 Exemplary damages 20-35
Rejection 16-17 Joint liability 20-42
Tactical considerations 16-18 The functions of judge and jury 20-43
Joint liability 16-21
21 Injunctions
17 Miscellaneous defences and prohibitions or restrictions on Introduction 21-01
bringing a defamation claim Interim injunctions 21-02
Limitation 17-01 Undertakings 21-07
Consent to publication 17-06 Final injunctions 21-08
Abuse of process 17-08 Breach of an injunction 21-09
Accord and satisfaction—release 17-14 The Human Rights Act 1998 21-10
Vulgar abuse 17-15
Prohibitions and restrictions on bringing a defamation claim 17-16 22 Apologies
Corporations 17-18 Apologies 22-01
Unincorporated associations 17-20 Statements in open court 22-03
The Crown and foreign states 17-23 The publication of summary judgments 22-11
Members of Parliament 17-24
Bankrupts 17-25
Children 17-26 PART FOUR
Mental patients 17-27
Spouses 17-28 PROCEDURE, STRATEGY AND TACTICS
18 Malice
The definition of malice 18-01 23 General considerations for claimants
The relevance of malice 18-02 Introduction 23-01
Malice and duty and interest qualified privilege 18-03 Only start if you intend to finish 23-02
 Establish the goals at the outset 23-03 Requests for further information 28-26
The oxygen of publicity—giving the defamation new Amendment 28-27
life 23-04 Extensions of time 28-30
Do not be unduly pessimistic 23-05
Assess the defendant at the outset 23-06 29 Summary disposal and strike out
Move quickly 23-08 Introduction 29-01
Attack may be the best form of defence 23-09 The grounds for summary disposal or striking out 29-02
Probing the client 23-10 Summary disposal under CPR Part 24 and section 8 of the
It may be wrong but is it defamatory? 23-11 1996 Act 29-03
Consider any offer of settlement seriously 23-12 Rulings on meaning—Part 53 PD 4 29-11
The perception of juries and judges 23-13 The general power to strike out—CPR r.3.4 29-14
Procedure 29-18
24 General considerations for defendants Costs 29-22
Introduction 24-01 Tactical considerations 29-23
Poacher and gamekeeper 24-02
"Hold or fold from day one" 24-03 30 Disclosure and further information
A simple and consistent message 24-05 Introduction 30-01
Steel fist in a velvet glove 24-07 Standard disclosure 30-02
Empathy for the defendant (and his witnesses) 24-08 Disclosure before proceedings start 30-03
Disclosure against non-parties 30-04
25 Defamation and the Civil Procedure Rules Further information 30-05
The overriding objective 25-01 Information from non-parties 30-06
The need for active case management 25-02 Disclosure and information in defamation 30-07
Focusing on the essential issues 25-03 Lost documents 30-19
The importance of the case 25-04 Restrictions on the use of disclosed documents and further
Levelling the playing field 25-05 information 30-20
The diminishing role of the jury 25-06
31 From case management conference to trial
26 Commencing a defamation claim Case management conference 31-01
Whom to sue?—Choice of defendant 26-01 Exchange of witness statements 31-04
Who should sue?—Choice of claimant 26-05 From exchange of witness statements to trial 31-06
Letters of claim 26-06
Responses to letters of claim 26-07 32 Trial
Introduction 32-01
27 Jurisdiction—claims with a foreign element The role of the trial judge 32-02
General 27-01 Preliminary argument 32-03
Basic concepts 27-02 Empanelling the jury 32-04
The jurisdiction of the English courts in defamation claims 27-10 Trial of preliminary issues 32-05
A more appropriate jurisdiction—forum non conveniens 27-16 The claimant's advocate makes an opening speech 32-06
Double actionability 27-22 The claimant's witnesses give evidence 32-07
Permission to serve out of the jurisdiction 27-23 Defendant's submission of no case to answer 32-11
Enforcement of English judgments abroad 27-29 The defendant's case 32-12
28 Statements of case Claimant's submission of no case to answer 32-13
General 28-01 Closing speeches 32-14
Claim form 28-02 The judge's summing-up to the jury 32-15
Particulars of claim 28-03 The jury retires 32-16
Defence 28-11 The verdict and judgment 32-17
Reply 28-20 The media 32-18
Rejoinder 28-24
Malicious falsehood 28-25 33 Appeals
Final appeals 33-01
 The powers of the Court of Appeal 33-11 Practical knowledge 36-04
Appeals from interim orders 33-15 Creative advice 36-05
Procedure for appeals to the Court of Appeal 33-16 Creating a culture 36-06
Appeals to the House of Lords 33-17 A personal view 36-07
34 Costs, security for costs and conditional fees 37 Considerations for a person facing a threatened defamatory
Introduction 34-01 publication
The general rule—costs "follow the event" 34-02 Don't panic 37-01
Exceptions to the general rule 34-03 The objectives 37-02
Costs in applications before trial 34-09 Dialogue with the publisher 37-03
Costs in the Court of Appeal 34-18 Exercise caution with journalists 37-04
Detailed assessment 34-19 Instruct a solicitor 37-05
Conditional fee agreements 34-26 Injunctions 37-06
The "chilling effect" of CFAs 34-37 Warning the disseminators 37-07
Costs capping 34-38 The sympathetic spoiler 37-08
Maintenance 34-39
Security for costs 34-41
PART SIX

PART FIVE HUMAN RIGHTS AND PRIVACY

SPECIFIC CONSIDERATIONS
38 Defamation and The Human Rights Act 1998
Introduction 38-01
35 Internet The consequences of incorporation 38-02
Introduction 35-01 Article 8—The right to respect for private and family life 38-03
Libel and slander 35-02 How Article 10 works 38-04
Meaning 35-03 Article 10 in practice—decisions of the European Court of
Proof of publication 35-04 Human Rights 38-09
Who can be held responsible for an internet publication? 35-05 The impact of Article 10 on English defamation law 38-15
The defence of secondary responsibility—section 1(3)(c) Article 6—The right to a fair trial 38-24
and (e) of the Defamation Act 1996 35-08 Procedure and evidence 38-29
Who can qualify for protection?—Not the editor, author Applications to the European Court of Human Rights 38-30
or publisher 35-09 39 Defamation and privacy
Reasonable care and absence of knowledge or reason to Introduction 39-01
believe 35-10 Privacy and breach of confidence-general 39-02
Electronic Commerce (EC Directive) Regulations 2002 35-11 Misuse of private information 39-03
Jurisdictional issues 35-12 Main differences with defamation 39-04
Practical considerations for ISPs 35-13 Tactical considerations 39-11
Practical considerations for online publishers 35-20
Practical considerations for employers 35-22
Practical considerations for internet users 35-23 PART SEVEN
Practical considerations for people who have been defamed
on the internet 35-24 APPENDICES
A recent example 34-31
36 Pre-publication considerations for publishers PAGE
General 36-01 523
Advice not censorship 36-02 1 Precedents
Knowledge of the law 36-03 2 Statutes, statutory instruments and protocol 545
 Defamation Act 1952 545
Defamation Act 1996 553
Human Rights Act 1998 570
Pre-action Protocol for Defamation 594
CPR Part 53 Defamation claims 597
Practice Direction 53—Defamation claims 598 TABLE OF CASES
Practice Direction 51D—Defamation proceedings costs
management scheme 601
1-800 Flowers Inc v Phonenames Ltd; sub nom. 800-FLOWERS Trade Mark
[2001] EWCA Civ 721; [2001] 2 Costs L.R. 286; [2002] F.S.R. 12; [2002]
3 Schedule of defamation trials since 1990 605 Masons C.L.R. 5; (2001) 24(7) I.P.D. 24042; (2001) 98(28) L.S.G. 42 34-17
4 Decisions on damages under section 8 Courts and Legal
Services Act 1990 633 A v B Ltd [2001] 1 W.L.R. 542 CA 39-02,39-14
A v K [2008] EWHC 594 (QB) 11-11
5 Personal injury awards 637 A Ltd v B Ltd [1996] 1 W.L.R. 665 Ch D 34-44
ABC v Thames Television Unreported March 3,1987 CA 21-05
6 Glossary 639 AEI Rediffusion Music Ltd v Phonographic Performance Ltd (Costs); sub nom.
7 Criminal libel 643 Phonographic Performance Ltd v AEI Rediffusion Music Ltd (Costs)
[1999] 1 W.L.R. 1507; [1999] 2 All E.R. 299; [1999] C.P.L.R. 551; [1999]
Index 645 E.M.L.R. 335; [1999] R.P.C. 599; (1999) 22(5) I.P.D. 22046; (1999) 96(12)
L.S.G. 33; (1999) 143 S.J.L.B. 97 CA (Civ Div) 34-07
Abraham v Thompson [1997] 4 All E.R. 362; [1997] C.L.C. 1370; (1997) 94(37)
L.S.G. 41; (1997) 141 S.J.L.B. 217 CA (Civ Div) 34-40
Abu v MGN Ltd [2003] E.M.L.R. 432 16-06,16-07,21-08,26-06
Adam v Ward [1917] A.C. 309 HL.. 12-01,12-07,12-08,12-23,12-24,18-12,36-10
Adams v Associated Newspapers Ltd; Associated Newspapers Ltd v
Northumbrian Fine Foods Plc [1999] E.M.L.R. 26 CA (Civ Div) 3-04,20-42
Adams v Bracknell Forest BC; sub nom. Bracknell Forest BC v Adams [2004]
UKHL 29; [2005] 1 A.C. 76; [2004] 3 W.L.R. 89; [2004] 3 All E.R. 897;
[2004] E.L.R. 459; [2005] P.I.Q.R. P2; (2004) 101(26) L.S.G. 28; (2004) 148
S.J.L.B. 761 17-02
Adams v Cape Industries Plc [1990] Ch. 433; [1990] 2 W.L.R. 657; [1991] 1 All
E.R. 929; [1990] B.C.C. 786; [1990] B.C.L.C. 479 CA (Civ Div) 27-24
Addis v Crocker [1961] 1 Q.B. 11; [1960] 3 W.L.R. 339; [1960] 2 All E.R. 629;
(1960) 104 S.J. 584 CA 11-03
Adelson v Associated Newspapers Ltd [2007] EWHC 3028 (QB) 17-04,28-28
Adelson v Associated Newspapers Ltd [2008] EWHC 278 (QB); [2009] E M.L.R.
10 17-12,29-06
Adoko v Lewis [2002] EWHC 848 12-17,18-18,29-06
Adoko v Pal (No.2); sub nom. Adoko v Todd [2004] EWHC 25 (QB).... 12-15,17-09
Aeronave SpA v Westland Charters Ltd [1971] 1 W.L.R. 1445; [1971] 3 All E.R.
531; (1971) 115 S.J. 656 CA (Civ Div) 34-43
Ahari v Birmingham Heartlands and Solihull Hospitals NHS Trust, April 1,
2008 EAT 11-03
Aiden Shipping Co Ltd v Interbulk Ltd (The Vimeira) (No.2) [1986] A.C. 965;
[1986] 2 W.L.R. 1051; [1986] 2 All E.R. 409; [1986] 2 Lloyd's Rep. 117;
(1986) 130 S.J. 429 HL 34-02
Aitken v Preston; Aitken v Granada Television Ltd [1997] E.M.L.R. 415 CA
(Civ Div) 31-03
Akinleye v East Sussex Hospitals NHS Trust [2008] EWHC 68 (QB); [2008] LS
Law Medical 216 29-06
Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 W.L.R. 113; [2006] 3 All
E.R. 294; (2006) 150 S.J.L.B. 856 3-11,35-04
Al Rajhi Banking & Investment Corp v Wall Street Journal Europe SPRL Associated Newspapers Ltd v Burstein [2007] EWCA Civ 600; [2007] 4 All E.R.
Unreported June 12,2003 28-27 319; [2007] E.M.L.R. 21; (2007) 151 S.J.L.B. 856 9-03
Aldington v Watts Unreported May 22,1995 CA 21-09 Associated Newspapers Ltd v Dingle; sub nom Dingle v Associated Newspapers
Alexander v Arts Council of Wales [2001] EWCA Civ 514; [2001] 1 W.L.R. Ltd [1964] A.C. 371; [1962] 3 W.L.R. 229; [1962] 2 All E.R. 737; (1962) 106
1840; [2001] 4 All E.R. 205; [2001] E.M.L.R. 27; [2001] Po. L.R. 100; (2001) S.J. 488 HL 10-04,14-06,17-07,33-02
98(22) L.S.G. 35; (2001) 145 S.J.L.B. 123 18-16,18-18,25-06,29-06, Atkinson v Fosbroke (1865-66) L.R. 1 Q.B. 628 QB 30-09
29-25,32-11,33-03 Atlantis World Group of Cos NV v Gruppo Editoriale L'Espresso SPA [2008]
Alexander v Jenkins [1892] 1 Q.B. 797 CA 5-06 EWHC 1323 (QB); [2009] E.M.L.R. 15 27-01
Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634; Attorney General v Butterworth; sub nom. Attorney General's Application, Re
[2002] E.M.L.R. 13 8-07,13-04,13-06,13-09,13-11 [1963] 1 Q.B. 696; [1962] 3 W.L.R. 819; [1962] 3 All E.R. 326; (1962) 106 S.J.
Al-Fayed v Telegraph Group Ltd [2002] EWHC 1631 2-07,2-08 610 CA 31-05
Al-Fayed v United Kingdom (A/294-B) (1994) 18 E.H.R.R. 393, ECHR 38-25 Attorney General v Guardian Newspapers Ltd (No.2). See Attorney General v
Al-Koronky v Time Life Entertainment Group Ltd [2006] EWCA Civ 1123; Observer Ltd
[2006] C.P. Rep. 47; [2007] 1 Costs L.R. 57 34-43 Attorney General v Hislop 979 [1991] 1 Q.B. 514; [1991] 2 W.L.R. 219; [1991] 1
Al-Misnad v Azzaman Ltd [2003] EWHC 1783 (QB) 13-04 All E.R. 911 CA (Civ Div) 20-16
Allason v Haines [1996] E.M.L.R. 143; 145 N.L.J. 1576 QBD 17-24 Attorney General v Observer Ltd; Attorney General v Guardian Newspapers
Allason v MGN Ltd, unreported, February 26,1998 and July 30,1998 17-14 Ltd (No.2); Attorney General v Times Newspapers Ltd (No.2) [1990] 1 A.C.
Alum Boultbee (1854) 9 Exch. 738 33-07 109; [1988] 3 W.L.R. 776; [1988] 3 All E.R. 545; [1989] 2 F.S.R. 181; (1988)
American Cyanamid Co v Ethicon Ltd (No.1) [1975] A.C. 396; [1975] 2 W.L.R. 85(42) L.S.G. 45; (1988) 138 N.L.J. Rep. 296; (1988) 132 S.J. 1496 HL 39-02
316; [1975] 1 All E.R. 504; [1975] F.S.R. 101; [1975] R.P.C. 513; (1975) 119 Attorney General v Punch Ltd; sub nom. Steen v Attorney General [2002]
S.J. 136 HL 21-03 UKHL 50; [2003] 1 A.C. 1046; [2003] 2 W.L.R. 49; [2003] 1 All E.R. 289;
Anders v Gas (1960) 104 S.J. 211 8-12,8-13 [2003] E.M.L.R. 7; [2003] H.R.L.R. 14 39-14
Anderton v Clwyd CC; Cummins v Shell International Manning Services Ltd; Attorney General for Canada v Ritchie Contracting & Supply Co Ltd [1919]
Chambers v Southern Domestic Electrical Services Ltd; Dorgan v Home A.C. 999 PC (Can) 21-02
Office; Bryant v Mike Beer Transport Ltd; sub nom. Cummins v Shell Attwood v Chapman [1914] 3 K.B. 275 KBD 11-03
International Trading & Shipping Ltd; Home Office v Dorgan; Bryant v
Pech [2002] EWCA Civ 933; [2002] 1 W.L.R. 3174; [2002] 3 All E.R. 813; B v J [1999] E.M.L.R. 490 QBD 28-13,31-05
[2002] C.P. Rep. 71; (2002) 99(35) L.S.G. 38; (2002) 152 N.L.J. 1125; (2002) Baigent v BBC; Baigent v O'Hare (Damages); Baigent v McCulloch (Damages),
146 S.J.L.B. 177 17-05 2001 S.C. 281; 2001 S.L.T. 427; 2001 S.C.L.R. 869; 2001 Rep. L.R. 15; 2000
Andrews v Chapman (1853) 3 Car. & Kir. 286 14-06 G.W.D. 35-1339 IH (Ex Div) 20-14
Angel v Stainton [2006] EWHC 637 (QB) 16-09 Baker v Carrick [1894] 1 Q.B. 838 12-15
Angelsea v Observer, The Times, December 8,1994 24-08 Baldwin v Guardian Newspapers Ltd, The Times, July 23,2001 21-09
Anglo Cyprian Trade Agencies v Paphos Wine Industries [1951] 1 All E.R. 873; Baldwin v Rusbridger [2001] E.M.L.R. 47 QBD 13-07
[1951] W.N. 205; (1951) 95 S.J. 336 KBD 34-03 Bank of Credit & Commerce v Ali, The Times, March 2,2000 34-07
Annodeus Ltd v Gibson, The Times, March 3,2000 Ch D 29-17 Barclays Bank Plc v Guardian News and Media Ltd [2009] EWHC 591 (QB);
Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QB); [2008] (2009) 153(13) S.J.L.B. 30 39-03
Info. T.L.R. 318 35-31 Barford v Denmark (1991) 13 E.H.R.R. 493 38-08
Arab News Network Unreported February 2,2001 2-17 Barham v Lord Huntingfield [1913] 2 K.B. 193 CA 28-05
Aratra Potato Co Ltd v Taylor Joynson Garrett [1995] 4 All E.R. 695; (1995) Barnes v Hill; Gould v Hill [1967] 1 Q.B. 579; [1967] 2 W.L.R. 632; [1967] 1 All
145 N.L.J. 1402 QBD 34-27 E.R. 347; (1966) 110 S.J. 892 CA 32-16
Arcand v Evening Call (1977) 567F 2d 1163 4-06 Barnet v Crozier [1987] 1 W.L.R. 272; [1987] 1 All E.R. 1041; (1987) 84 L.S.G.
Archer v The Star, The Times, July 25,1987, Unreported 24-08 658; (1987) 131 S.J. 298 CA (Civ Div) 22-09,22-10
Argyll v Argyll. See Duchess of Argyll v Duke of Argyll Barnett v Allen (1858) 3 H. & N. 376 2-12
Armstrong v Times Newspapers Ltd [2005] EWCA Civ 1007; [2005] E.M.L.R. Baroda v Wildenstein. See Maharanee Seethadevi Gaekwar of Baroda v Wildenstein
33 8-09,13-05,13-09,29-06 Basham v Gregory Unreported February 21,1996 CA 38-29
Armstrong v Times Newspapers Ltd; sub nom Armstrong v Times Newspapers Basham v Gregory, The Times, December 20,1996 22-09
Ltd (No.2) [2006] EWCA Civ 519; [2006] 1 W.L.R. 2462 8-16,25-06,31-03 Basham v Gregory Unreported July 2,1998 CA 32-09
Ashby v Times Newspapers Ltd 31-04 Bata v Bata [1948] W.N. 366; (1948) 92 S.J. 574 CA 3-11,27-03
Aspro Travel Ltd v Owners Abroad Group Plc [1996] 1 W.L.R. 132; [1995] 4 All Bataille v Newland [2002] EWHC 1692, QB 3-08,29-06
E.R. 728; [1995] E.M.L.R. 501 CA (Civ Div) 4-07,8-06,12-21 Baylis Baxter v Sabath [1958] 1 W.L.R. 529; [1958] 2 All E.R. 209; (1958) 102
Associated Leisure Ltd (formerly Phonographic Equipment Co Ltd) v Associated S.J. 347 CA 34-08
Newspapers Ltd [1970] 2 Q.B. 450; [1970] 3 W.L.R. 101; [1970] 2 All E.R. Beach v Freeson [1972] 1 Q.B. 14; [1971] 2 W.L.R. 805; [1971] 2 All E.R. 854;
754; (1970) 114 S.J. 551 CA (Civ Div) 28-13,32-16 (1971) 115 S.J. 145 QBD 11-05,12-15,18-09
Beckham v News Group Newspapers Ltd [2005] EWHC 2252 30-21 Botham v Khan (Costs); Lamb v Khan (Costs); sub nom. Botham v Niazi
Bennett v Guardian Newspapers Ltd (No.2) [1997] E.M.L.R. 301 CA 32-04, (Costs) [2004] EWHC 2602 (QB); [2005] 2 Costs L.R. 259 34-19
32-09,36-04 Botterill v Whytehead (1879) 41 L.T. 588 18-09
Benson v Flower (1630) W. Jones 215 17-25 Bottomley v Wadworths (1932) 48 T.L.R. 521 15-08
Bensusan v Freedman Unreported September 20,2001 34-30 Bowen-Rowlands v Argus Press, The Times, February 10 and March 26,
Bentinck v Associated Newspapers Ltd [1999] E.M.L.R. 556 QBD 21-07,21-09 1926 17-17
Berezovsky v Forbes Inc (No.1); Glouchkov v Forbes Inc; sub nom. Berezovsky Boys v Chaplin; sub nom. Chaplin v Boys [1971] A.C. 356; [1969] 3 W.L.R. 322;
v Michaels; Glouchkov v Michaels [2000] 1 W.L.R. 1004; [2000] 2 All E.R. [1969] 2 All E.R. 1085; [1969] 2 Lloyd's Rep. 487; (1969) 113 S.J. 608 HL; 27-06
986; [2001] I.L.Pr. 21; [2000] E.M.L.R. 643; (2000) 97(22) L.S.G. 44; (2000) Brady v Norman [2008] EWHC 2481 (QB) 12-22
150 N.L.J. 741 HL 27-18,35-12 Branson v Bower (No.1) [2001] EWCA Civ 791; [2001] E.M.L.R. 32 ... 9-03,9-05,9-07
Berezovsky v Forbes Inc (No.2) [2001] EWCA Civ 1251; [2001] E.M.L R. 45.... 8-08, Branson v Bower (No.2) [2002] Q.B. 737; [2002] 2 W.L.R. 452; [2001] E.M.L.R.
29-12 33 QBD 9-02,9-03,9-04,9-06,9-07,18-10,18-15,18-16,18-18
Bergens Tidende v Norway (26132/95) (2001) 31 E.H.R.R. 16, ECHR 38-13,38-15 Bray v Deutsche Bank AG [2008] EWHC 1263 (QB); [2009] E.M.L.R. 12 12-10,
Berkoff v Burchill [1996] 4 All E.R. 1008; [1997] E.M.L.R. 139 CA (Civ Div).... 2-01, 18-07
2-21,29-13,38-22 Bray v Ford [1896] A.C. 44 HL 33-02
Berry v British Transport Commission [1962] 1 Q.B. 306; [1961] 3 W.L.R. 450; Brent Walker Group v Time Out [1991] 2 Q.B. 33; [1991] 2 W.L.R. 772; [1991] 2
[1961] 3 All E.R. 65; (1961) 105 S.J. 587 CA 2-19 All E.R. 753 CA (Civ Div) 9-04
Best v Charter Medical of England Ltd [2001] EWCA Civ 1588; [2002] E.M.L.R British Coal Corp v NUM Unreported June 28,1996 17-19
18; (2001) 98(47) L.S.G. 27 5-10,28-05,30-09 British Data Management Plc v Boxer Commercial Removals Plc [1996] 3 All
Beta Construction Ltd v Channel Four Television Co Ltd [1990] 1 W.L.R. 1042; E.R. 707; [1996] E.M.L.R. 349 CA (Civ Div) ....5-10,21-04,21-05,28-05,30-09
[1990] 2 All E.R. 1012; (1989) 139 N.L.J. 1561 CA (Civ Div) 30-15,31-03 British Russian Gazette & Trade Outlook Ltd v Associated Newspapers Ltd;
Beta Construction v Channel 4 Unreported July 31,1992 20-02,20-34 Talbot v Associated Newspapers Ltd [1933] 2 K.B. 616 CA 17-14
Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926; [1999] 4 All E.R. 934; [2000] Broadway Approvals Ltd v Odhams Press Ltd [1965] 1 W.L.R. 805; [1965] 2 All
C.P. Rep. 6; [1999] C.P.L.R. 675; [2000] 1 Costs L.R. 67 CA (Civ Div) 29-17 E.R. 523; (1965) 109 S.J. 294 CA 9-03,9-04,18-11,18-16
Bin Mahfouz v Ehrenfeld [2005] EWHC 1156 (QB) 27-29,30-09 Broome v Agar (1928) 138 L.T. 698 33-06
Birchwood Homes Ltd v Robertson [2003] EWHC 1542 34-02 Broome v Cassell & Co Ltd (No.1) [1972] A.C. 1027; [1972] 2 W.L.R. 645; [1972]
Bishop v Latimer (1861) 4 L.T. 775 14-06 1 All E.R. 801; (1972) 116 S.J. 199 HL 20-02,20-11,20-15,20-21,
Blackshaw v Lord [1984] Q.B. 1; [1983] 3 W.L.R. 283; [1983] 2 All E.R. 311 CA 20-26,20-31,20-35,20-40,20-42
(Civ Div) 2-23,13-03,14-03 Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] Q.B. 103;
Bladet Tromso v Norway (21980/93) (2000) 29 E.H.R.R. 125; 6 B.H.R.C. 599 [2007] 3 W.L.R. 289; [2007] C.P. Rep. 29; [2007] E.M.L.R. 20; (2007) 157
ECHR 38-08,38-11,38-13,38-21 N.L.J. 671 21-03
Blake v Associated Newspapers Ltd [2002] EWHC 677 18-18,29-06. Broxton v McClelland (No.1) [1995] E.M.L.R. 485 CA (Civ Div) 17-09
Blake v Associated Newspapers Ltd [2003] EWHC 1960 18-16 Broxton v McClelland (No.2) [1997] E.M.L.R. 157 CA (Civ Div) 20-02,32-15
Bloom v Robinson-Millar Unreported October 1,2009 20-28A Bruce v Leisk (1892) 19 R. 482 12-14
Bobolas v Economist Newspaper [1987] 1 W.L.R. 1101; [1987] 3 All E.R. 121; Bruce v Odhams Press Ltd [1936] 1 K.B. 697; [1936] 1 All E.R. 287 CA 28-07
(1987) 84 L.S.G. 2536; (1987) 131 S.J. 1064 CA (Civ Div) 33-13 Bryanston Finance Ltd v De Vries (No.1) [1975] Q.B. 703; [1975] 2 W.L.R. 718;
Boehringer Ingelheim Ltd v Vetplus Ltd [2007] EWCA Civ 583; [2007] Bus. L.R. [1975] 2 All E.R. 609; (1975) 119 S.J. 287 CA (Civ Div) 3-07,20-42,21-08
1456; [2007] E.T.M.R. 67; [2007] H.R.L.R. 33; [2007] F.S.R. 29; (2007) 97 Buchanan v Jennings; sub nom Jennings v Buchanan [2004] UKPC 36; [2005] 1
B.M.L.R. 1; (2007) 30(8) I.P.D. 30052; (2007) 30(9) I.P.D. 30055 21-03 A.C. 115; [2004] 3 W.L.R. 1163; [2005] 2 All E.R. 273; [2004] E.M.L.R. 22;
Bonnard v Perryman [1891] 2 Ch. 269; [1891-94] All E.R. Rep. 965 CA.. 21-02,21-03 (2004) 101(33) L.S.G. 34 5-10,11-05
Bonnick v Gleaner. See Bonnick v Morris Buckley v Dalziel [2007] EWHC 1025 (QB); [2007] 1 W.L.R. 2933; [2007]
Bonnick v Morris [2002] UK.PC 31; [2003] 1 A.C. 300; [2002] 3 W.L.R. 820; E. M. L. R. 23 11-11,17-04
[2002] E.M.L.R. 37; 12 B.H.R.C. 558; (2002) 146 S.J.L.B. 161 PC (Jam) .. 13-01, Buffery v Guardian Newspapers Ltd [2004] EWHC 1514 (QB) 9-03,9-06
13-04,13-06,13-07 Bunt v Tilley [2006] EWHC 407 (QB); [2007] 1 W.L.R. 1243; [2006] 3 All E.R.
Bookbinder v Oppenheimer Unreported November 19,1993 29-23,32-11 336; [2006] E.M.L.R. 18; [2006] Info. T.L.R. 151; (2006) 103(14) L.S.G.
Bookbinder v Tebbit (No.1) [1989] 1 W.L.R. 640; [1989] 1 All E.R. 1169; (1989) 29 35-07
139 N.L.J. 112; (1989) 133 S.J. 569 CA (Civ Div) 8-10,28-06,29-12 Burstein v Times Newspapers Ltd [2001] 1 W.L.R. 579; [2001] E.M.L.R. 14;
Bookbinder v Tebbitt Unreported June 1991 32-07 (2001) 98(8) L.S.G. 44; (2001) 145 S.J.L.B. 30 CA (Civ Div) 9-03,9-07,
Bostock v Ramsey [1900] 1 Q.B. 377 34-08 16-07,16-08,20-19,20-20,20-21,20-22,28-19,29-09
Boston v WS Bagshaw & Sons [1966] 1 W.L.R. 1126; [1966] 2 All E.R. 906; Burstein v Times Newspapers Ltd Unreported March 3,2000 24-07
(1966) 110 S.J. 350 CA 14-03,14-05 Burstein v Times Newspapers Ltd Unreported May 14,1999 29-06
Botham v Khan; sub nom. Botham v Niazi, The Times, July 15,1996 CA (Civ Buttes Gas & Oil Co v Hammer (No.1) [1971] 3 All E.R. 1025 CA (Civ Div) 27-20
Div) 2-07 Byrne v Deane [1937] 1 K.B. 818 CA 2-17,35-06
 C v Mirror Group Newspapers; sub nom. Clare v Mirror Group Newspapers Carrie v Tolkien [2009] EWHC 29 (QB); [2009] E.M.L.R. 9 17-07,17-12
(1986) Ltd [1997] 1 W.L.R. 131; [1996] 4 All E.R. 511; [1996] E.M.L.R. 518; Carter v Leeds Daily News Co & Jackson 30-11
[1996] 2 F.L.R. 532; [1997] 1 F.C.R. 556; [1996] Fam. Law 671; (1996) 146 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 K.B. 331; 69 A.L.R. 720
N.L.J. 1093 CA (Civ Div) 17-05,18-18 CA 2-11,2-13
C Evans & Son Ltd v Spritebrand Ltd [1983] Q.B. 310; [1985] 1 W.L.R. 317; Cassidy v Hawcroft Unreported July 27,2000 CA 17-10,30-20
[1985] 2 All E.R. 415; (1985) 1 B.C.C. 99316; [1985] P.C.C. 109; [1985] Chadha & Osicom Technologies Inc v Dow Jones & Co Inc [1999] I.L Pr. 829;
F.S.R. 267; (1985) 82 L.S.G. 606; (1985) 129 S.J. 189 CA (Civ Div) 3.03 [1999] E.M.L.R. 724; (1999) 96(23) L.S.G. 34 CA (Civ Div) 27-19
CHC Software Care v Hopkins & Wood [1993] F.S.R. 241 Ch D 28-05,30-09, Chalmers v Payne, 150 E.R. 67; (1835) 2 Cr. M. & R. 156 Ex Ct 2-08
30-10 Chamberlain v Boyd (1882-83) L.R. 11 Q.B.D. 407 CA 5-07
Cadam v Beaverbrook Newspapers Ltd [1959] 1 Q.B. 413; [1959] 2 W.L.R. 324; Chapman v Ellesmere; sub nom. Chapman v Lord Ellesmere [1932] 2 K.B. 431
[1959] 1 All E.R. 453; (1959) 103 S.J. 177 CA 8-06 CA 17-07
Calderbank v Calderbank [1976] Fam. 93; [1975] 3 W.L.R. 586; [1975] 3 All Charleston v News Group Newspapers Ltd [1995] 2 A.C. 65; [1995] 2 W.L.R.
E.R. 333; (1975) 5 Fam. Law 190; (1975) 119 S.J. 490 CA (Civ Div) 16-10, 450; [1995] 2 All E.R. 313; [1995] E.M.L.R. 129; (1995) 145 N.L.J. 490;
34-16 (1995) 139 S.J.L.B. 100 IlL 2-08,2-14,2-06,28-01
Callery v Gray (No.1); Russell v Pal Pak Corrugated Ltd (No.1); sub nom. Charlton v EMAP Plc, The Times, June 11,1993 QBD 22-07
Callery v Gray (No.2); Callery v Gray (Nos.1 and 2) [2002] UKHL 28; Charman v Orion Publishing Group Ltd [2005] EWHC 2187 (QB) 8-16
[2002] 1 W.L.R. 2000; [2002] 3 All E.R. 417; [2002] 2 Costs L.R. 205; [2003] Charman v Orion Publishing Group Ltd [2007] EWCA Civ 972; [2008] 1 All
R.T.R. 4; [2003] Lloyd's Rep. I.R. 203; [2002] P.I.Q.R. P32; (2002) 152 E.R. 750; [2008] E.M.L.R. 16; (2007) 104(41) L.S.G. 26 10-05,13-04,13-12
N.L.J. 1031 34-30 Charterhouse Clinical Research Unit Ltd v Richmond Pharmacology Ltd
Calvet v Tomkies [1963] 1 W.L.R. 1397; [1963] 3 All E.R. 610; (1963) 107 S J. (Defamatory Meaning) [2003] EWHC 1099 2-24,32-05,34-31,38-22
791 CA 28-08,28-25 Chase v News Group Newspapers Ltd ; sub nom. Chase v Newsgroup
Cambridge Nutrition Ltd v BBC [1990] 3 All E.R. 523 CA (Civ Div) 21-03 Newspapers Ltd [2002] EWCA Civ 1772; [2003] E.M.L.R. 11; (2002) 146
Camiller v Commissioner of Police of the Metropolis, The Times, June 8,1999 S.J.L.B. 279 2-19,8-06,8-08
CA (Civ Div) 34-02 Chasten and Warby v Tesco Supermarkets Unreported October 1989 CA 33-14
Campbell v Frisbee [2002] EWCA Civ 1374; [2003] I.C.R. 141; [2003] E.M.L.R. Chatterton v Secretary of State for India in Council [1895] 2 Q.B. 189 CA 11-10
3; 146 S.J.L.B. 233 39-02 Chomley v Watson [1907] V.L.R. 502 4-06
Campbell v Mirror Group Newspapers Ltd; sub nom. Campbell v MGN Ltd Christie v ASA Publications Unreported, 1996 30-11
[2004] UKHL 22; [2004] 2 A.C. 457; [2004] 2 W.L.R. 1232; [2004] 2 All E.R. Christie v Wilson; sub nomWilson v Christie [1998] 1 W.L.R. 1694; [1999] 1 All
995; [2004] E.M.L.R. 15; [2004] H.R.L.R. 24; [2004] U.K.H.R.R. 648; 16 E.R. 545; [1998] P.N.L.R. 748; (1998) 95(30) L.S.G. 25; (1998) 142 S.J.L.B.
B.H.R.C. 500; (2004) 101(21) L.S.G. 36; (2004) 154 N.L.J. 733; (2004) 148 205 CA (Civ Div) 36-02
S.J.L.B. 572 39-02,39-03,39-08,39-09, Church of Scientology of California v Commissioner of Police of the Metropolis
Campbell v Mirror Group Newspapers Ltd (Costs); sub nom. Campbell v MGN (No.1) (1976) 120 S.J. 690 CA (Civ Div) 27-22,27-14
Ltd (Costs); Campbell v MGN Ltd (No.2) [2005] UKHL 61; [2005] 1 Church of Scientology of California v Department of Health and Social Security
W.L.R. 3394; [2005] 4 All E.R. 793; [2006] 1 Costs L.R. 120; [2006] [1979] 1 W.L.R. 723; [1979] 3 All E.R. 97; (1979) 123 S.J. 304 CA (Civ
E.M.L.R. 1; [2006] H.R.L.R. 2; 21 B.H.R.C. 516; (2005) 102(42) L.S.G. 23; Div) 30-20
(2005) 155 N.L.J. 1633 34-37 Church of Scientology of California v North News Ltd (1973) 117 S.J. 566 CA
Campbell v News Group Newspapers Ltd; sub nom.Newsgroup Newspapers (Civ Div) 22-07
Ltd v Campbell [2002] EWCA Civ 1143; [2002] E.M.L.R. 43 20-02,20-22, Clark v Molyneaux; sub nom. Claric v Molyneux (1877-78) L.R. 3 Q.B.D. 237
20-32,33-02,33-14 CA 18-09,33-02
Campbell v Pollak. See Donald Campbell & Co Ltd v Pollak Clarke v Davey [2002] EWHC 2342 (QB) 11-08
Campbell v Safra [2006] EWHC 819 9-06 Clarke v Norton [1910] V.L.R. 494 9-03
Campbell v Spottiswoode (1863) 32 L.J.Q.B. 185 9-06 Clarke (t/a) Elumina Iberica UK v Bain [2008] EWHC 2636 20-16
Campbell-James v Guardian Media Group Plc [2005] EWHC 893 (QB); [2005] Cleese v Associated Newspapers Ltd. See Cleese v Clark
E.M.L.R. 24 16-09,16-20 Cleese v Clark [2003] EWHC 137 (QB); [2004] E.M.L.R. 3...16-04,16-07,16-20,24-07
Capital and Counties Bank Ltd v George Henty & Sons (1881-82) L.R 7 App. Clift v Slough BC [2009] EWHC 1550 12-05
Cas. 741 HL 2-07,12-21,33-02 Club La Costa (UK) Ltd v Gebhard [2008] EWHC 2552 (QB) 16-11,16-15
Carlco Ltd v Chief Constable of Dyfed-Powys, unreported, November 18,2002 Cohen v Daily Telegraph [1968] 1 W.L.R. 916; [1968] 2 All E.R. 407; (1968) 112
CA 30-21 S.J. 356 CA (Civ Div) 8-01,9-04,28-14
Carlton Communications Plc v News Group Newspapers Ltd (No.1); Cook v News Colback v Ferguson [2001] EWCA Civ 1207 17-10,30-20
Group Newspapers Ltd [2001] EWCA Civ 1644; [2002] E.M.L.R. 16 28-13 Collins Stewart Ltd v Financial Times Ltd (No.1) [2004] EWHC 2337 (QB);
Carnegie v Drury; sub nom. Drury v BBC [2007] EWCA Civ 497; [2007] [2005] E.M.L.R. 5; (2004) 101(43) L.S.G. 33 20-33
E.M.L.R. 24 17-05 Collins Stewart Ltd v Financial Times Ltd (No.2) [2005] EWHC 262 (QB);
Carpenter v Associated Newspapers Ltd Unreported November 30,2002 20-20 [2006] E.M.L.R. 5 20-11,20-16

[xxviii]
 Collins v Jones [1955] 1 Q.B. 564; [1955] 2 W.L.R. 813; [1955] 2 All E.R. 145; D (A Child) v Walker; sub nom. Walker v D (A Child) [2000] 1 W.L.R. 1382;
(1955) 99 S.J. 258 CA 5-10,30-08,30-09 [2000] C.P.L.R. 462; [2001] H.R.L.R. 1; [2000] U.K.H.R.R. 648; [2000]
Collison v Loder (1750) Buller's N.P. 10 20-16 P.I.Q.R. P193; (2000) 97(22) L.S.G. 44 CA (Civ Div) 38-28
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co DSG Retail Ltd v Comet Group Plc [2002] EWHC 116 (QB); [2002] U.K.C.L.R.
(1882-83) L.R. 11 Q.B.D. 55 CA 30-02 557; [2002] F.S.R. 58 6-05
Condliffe v Hislop [1996] 1 W.L.R. 753; [1996] 1 All E.R. 431; [1996] E.M.L.R. Dakhyl v Labouchere [1908] 2 K.B. 325 (Note) HL 33-02
25 CA (Civ Div) 34-39,34-40 Dalban v Romania (28114/95) (2001) 31 E.H.R.R. 39; 8 B.H.R.C. 91,
Control Risks v New English Library [1990] 1 W.L.R. 183; [1989] 3 All E.R. 577; ECHR 38-23
(1989) 139 N.L.J. 1008 CA (Civ Div) 9-03,28-14 Daniels v Griffiths [1998] E.M.L.R. 489; (1997) 94(48) L.S.G. 29; (1997) 147
Cook v Alexander [1974] Q.B. 279; [1973] 3 W.L.R. 617; [1973] 3 All E.R. 1037; N.L.J. 1809; (1998) 142 S.J.L.B. 22 CA (Civ Div) 11-11
(1973) 117 S.J. 618 CA (Civ Div) 14-06 Darragh v Chief Constable of Thames Valley (1998) 95(43) L.S.G. 32 CA (Civ
Cook v Ward (1830) 4 Moo. & P. 99 17-06 Div) 31-03
Cooper v Wakley (1828) 3 Car. & P. 474 32-06 Davies v Solomon (1871-72) L.R. 7 Q.B. 112 QB 5-07
Cornelius v De Taranto [2001] EWCA Civ 1511; [2002] E.M.L.R. 6; (2002) 68 Dawkins v Lord Paulet (1869-70) L.R. 5 Q.B. 94 QB 11-07
B.M.L.R. 62; [2001] M.H.L.R. 217 39-08 Dawkins v Lord Rokeby (1874-75) L.R. 7 H.L. 744 HL 11-03
Cornwall v Richardson (1825) Ry. & M. 305 20-08 Day v Bream (1837) 2 M. & Rob. 54 212 35-06
Cornwell v Myskow [1987] 1 W.L.R. 630; [1987] 2 All E.R. 504; (1987) 84 L.S.G. De Beers Abrasive Products Ltd v International General Electric Co of New
1243; (1987) 131 S.J. 476 CA (Civ Div) 2-07,2-24,9-03,33-02,34-18 York Ltd; De Beers Industrial Diamonds (Ireland) Ltd v International
Coulson & Sons v James Coulson & Co (1887) 3 T.L R. 846 21-03 General Electric Co of New York Ltd; Diamond Products (Sales) Ltd v
Coupland v Arabian Gulf Oil Co [1983] 1 W.L.R. 1136; [1983] 3 All E.R. 226; International General Electric Co of New York Ltd [1975] 1 W.L.R. 972;
(1983) 133 N.L.J. 893; (1983) 127 S.J. 597 CA (Civ Div) 27-22 [1975] 2 All E R 599; [1975] F.S.R. 323; (1975) 119 S.J. 439 Ch D 6-05
Cowell v Taylor (1886) L.R. 31 Ch. D. 34 CA 34-42 De Haes v Belgium (19983/92) (1998) 25 E.H.R.R. 1 ECHR 9-01,9-03,38-12
Cox v MGN Ltd [2006] EWHC 1235 (QB); [2006] 5 Costs L.R. 764 34-23 De Stempel v Dunkels [1938] 1 All E.R. 238 CA 2-17
Coys Ltd v Autocherish Ltd [2004] EWHC 1334 (QB); [2004] E.M.L.R. 25 21-10 Dellow's Will Trusts, Re; sub nom. Lloyds Bank v Institute of Cancer Research
Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2005] 1 A.C. 253; [2004] 3 [1964] 1 W.L.R. 451; [1964] 1 All E.R. 771; (1964) 108 S.J. 156 Ch D 8-03
W.L.R. 918; [2004] 4 All E.R. 617; [2005] E.M.L.R. 1; [2004] H.R.L.R. 39; Derby & Co Ltd v Weldon (No.2), The Times, October 20,1988, Ch D 17-10
[2004] U.K.H.R.R. 1071; 17 B.H.R.C. 464; (2005) 28(2) I.P.D. 28001; Derbyshire CC v Times Newspapers Ltd [1993] A.C. 534; [1993] 2 W.L.R. 449;
(2004) 101(42) L.S.G. 29; (2004) 154 N.L.J. 1589; (2004) 148 S.J.L.B. [1993] 1 All E.R. 1011; 91 L.G.R. 179; (1993) 143 N.L.J. 283; (1993) 137
1215 21-10,39-10 S.J.L.B. 52 HL 4-07,17-19,17-21,38-05,38-20,38-29
Creative Resins International Ltd v Glasslam Europe Ltd [2005] EWHC 777 Dering v Uris (No.2); Dering v William Kimber & Co Ltd; Dering v Purnell &
(QB) 29-06 Sons Ltd [1964] 2 Q.B. 669; [1964] 2 W.L.R. 1298; [1964] 2 All E.R. 660
Crossland v Wilkinson Hardware Stores Ltd [2005] EWHC 481 (QB) 12-21,, (Note); (1964) 108 S.J. 405 QBD 20-02,20-42,34-03
17-07,29-06,29-08 Desmond v Bower [2009] EWCA Civ 857 33-02
Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB) 11-06 Dicks v Yates (1880-81) L.R. 18 Ch. D. 76 CA 34-08
Cruise v Express Newspapers Plc [1999] Q.B. 931; [1999] 2 W.L.R. 327; [1998] Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd; Distillers Co
E.M.L.R. 780 CA (Civ Div) 2-08,2-20,8-11,8-14,28-06,33-15 (Biochemicals) Ltdv Phillips [1975] Q.B. 613; [1974] 3 W.L.R. 728; [1975] 1
Culla Park Ltd v Richards [2007] EWHC 1687 (QB) 6-02 All E.R. 41; (1974) 118 S.J. 864 QBD 30-20
Culnane v Morris [2005] EWHC 2438 (QB); [2006] 1 W.L.R. 2880; [2006] 2 All Donald Campbell & Co Ltd v Pollak [1927] A.C. 732 HL 34-08
E.R. 149; [2006] E.M.L.R. 7; [2006] H.R.L.R. 8; (2006) 103(1) L.S.G. 15; Donovan v Gwentoys Ltd [1990] 1 W.L.R. 472; [1990] 1 All E.R. 1018; (1990)
(2005) 155 N.L.J. 1810 12-15 87(15) L.S.G. 40; (1990) 134 S.J. 910 HL 17-02
Cumming v Scottish Daily Record and Sunday Mail Ltd [1995] E.M.L.R. 538 Dorset Flint & Stone Blocks Ltd v Moir [2004] EWHC 2173 (QB) 18-07
QBD 27-16,27-20 Douglas v Hello! Ltd (No.1) [2001] Q.B. 967; [2001] 2 W.L.R. 992; [2001] 2 All
Cunningham v Essex CC Unreported June 26,2000 3-09,12-08 E.R. 289; [2001] E.M.L.R. 9; [2001] 1 F.L.R. 982; [2002] 1 F.C.R. 289;
Curistan v Times Newspapers Ltd [2008] EWCA Civ 432; [2009] Q.B. 231; [2001] H.R.L.R. 26; [2001] U.K.H.R.R. 223; 9 B.H.R.C. 543; [2001] F.S.R.
[2009] 2 W.L.R. 149; [2008] 3 All E.R. 923; [2008] E.M.L.R. 17 2-14,8-07, 40 39-02
10-04,14-06 Douglas v Hello! Ltd (No.6); sub nom. Douglas v Hello! Ltd (Trial Action:
Curnen v Sweeney (1969) 103 I.L.T. 29 33-02 Breach of Confidence) (No.3) [2005] EWCA Civ 595; [2006] Q.B. 125;
Customglass Boats Ltd v Salthouse Bros Ltd [1976] R.P.C. 589 Sup Ct (NZ) 5-06, [2005] 3 W.L.R. 881; [2005] 4 All E.R. 128; [2005] E.M.L .R. 28; [2005] 2
6-07 F.C.R. 487; [2005] H.R.L.R. 27; (2005) 28(8) I.P.D. 28057; (2005) 155
N.L.J. 828 39-02
D v National Society for the Prevention of Cruelty to Children (NSPCC) [1978] Douglas v Hello! Ltd (No.8) [2003] EWHC 2629 (Ch); [2004] E.M.L.R. 2 39-08
C. 171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589; 76 L.G.R. 5; (1977) Downtex Plc v Flatley (Damages) [2004] EWHC 333 (QB) 29-09
121 S.J. 119 1-11, 11-01 Doyle v Skelton Unreported October 24,2003 16-21,34-02
Drummond-Jackson v British Medical Association [1970] 1 W.L.R. 688; [1970] Francome v Mirror Group Newspapers Ltd [1984] 1 W.L.R. 892; [1984] 2 All
1 All E.R. 1094 CA (Civ Div) 2-24 E.R. 408; (1984) 81 L.S.G. 2225; (1984) 128 S.J. 484 CA (Civ Div) 9-06,
Duchess of Argyll v Duke of Argyll [1967] Ch. 302; [1965] 2 W.L.R. 790; [1965] 38-15,39-02
1 All E.R. 611 Ch D 39-02 Fraser v Evans [1969] 1 Q.B. 349; [1968] 3 W.L.R. 1172; [1969] 1 All E.R. 8;
Duck v Mayeu [1892] 2 Q.B. 511 CA 17-14 (1968) 112 S.J. 805 CA (Civ Div) 21-02,21-03
Duke of Brunswick v Harmer, 117 E.R. 75; (1849) 14 Q.B. 185 QB 3-02,3-11, Fraser-Armstrong v Hadow [1995] E.M.L.R. 140 CA (Civ Div) 12-24
17-05,17-07,35-21 Freeguard v Martlet Homes Ltd [2008] EWCA Civ 157, The Times, January 15,
Dwek v Macmillan Publishers Ltd ; Dwek v Associated Newspapers Ltd [2000] 2009 29-06
E.M.L.R. 284 CA (Civ Div) 2-04 Freer v Zeb [2008] EWHC 212 (QB) 3-02,4-03,17-09
Fressoz v France [1999] E.H.R.L.R. 339 38-11
E Hulton & Co v Jones; sub nom Jones v E Hulton & Co [1910] A.C. 20 HL 4-03, Friend v Civil Aviation Authority (No.1) [1998] I.R.L.R. 253 CA (Civ Div) 3-09,
4-04,33-02 11-07,17-07
Edgington v Fitzmaurice (1885) L.R. 29 Ch. D. 459 CA 9-03,18-01 Friend v Civil Aviation Authority [2005] EWHC 201 (QB) 6-06
Edwards v Bell (1824) 1 Bing. 403 8-12 Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 W.L.R. 651; (1977) 121
Edwards v Golding [2007] EWCA Civ 416, The Times, May 22,2007 17-01 S.J. 376 CA (Civ Div) 2-13,28-06,28-07
Egger v Viscount Chelmsford; sub nom. Egger v Davies [1965] 1 Q.B. 248; [1964]
3 W.L.R. 714; [1964] 3 All E.R. 406; (1964) 108 S.J. 619 CA 12-06,18-17 G Scammell and Nephew Ltd v HC&JG Ouston [1941] A.C. 251 HL 17-14
Electrical Electronic, Telecommunication and Plumbing Union v Times GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd (No.1) [2000] 1
Newspapers [1980] Q.B. 585; [1980] 3 W.L.R. 98; [1980] 1 All E.R. 1097; W.L.R. 2571; [2000] 2 All E.R. 931; [2000] C.P. Rep. 47; [2000] E.M.L.R.
(1980) 124 S.J. 31 QBD 17-21 396; (2000) 97(4) L.S.G. 32; (2000) 144 S.J.L.B. 50 CA (Civ Div) 10-05,
Elite Model Management Corp v BBC Unreported May 24,2001, QB 4-07 13-03,13-04,13-14,25-02,25-04,32-01,32-05
Emmens v Pottle (1885-86) L.R. 16 Q.B.D. 354 CA 15-08 GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd (No.2) [2000]
Englefield v Steinberg. See Pritchard Englefield (A Firm) v Steinberg 17-12 E.M.L.R. 410 QBD 13-03,13-05,13-14,25-06
English v Clipson Unreported August 5,2002 34-27 Gaddafi v Telegraph Group Ltd (No.1) [2000] E.M.L.R. 431 13-15
English v Hastie Publishing Ltd Unreported January 31,2002 QBD 13-07 Gaddafi v Telegraph Group Ltd Unreported July 27,2000 29-17
English & Scottish Cooperative Properties Mortgage & Investment Society Ltd Gallagher v Gruner Unreported November 27,1997 39-05
v Odhams Press Ltd [1940] 1 K.B. 440 CA 2-04,2-07,2-14,16-03 Galloway v Telegraph Group Ltd [2006] EWCA Civ 17; [2006] E.M.L.R. 11;
Evans v Granada Television Ltd [1996] E.M.L.R. 429 CA (Civ Div) 30-14 [2006] H.R.L.R. 13; (2006) 150 S.J.L.B. 131 9-04,13-09,13-19
Evans & Son Ltd v Spritebrand Ltd. See C Evans & Son Ltd v Spritebrand Ltd Gardener v Slade (1849) 12 Q.B. 796 12-12
Everton v WPBSA (Promotions) Ltd 1999-E-No. 151 QBD 34-02 Gardiner v Moore (No.2) [1969] 1 Q.B. 55; [1966] 3 W.L.R. 786; [1966] 1 All
Exoteric Gas Solutions and Duffield v BG plc, unreported, June 23,1999 35-22 E.R. 365; (1965) 110 S.J. 34 QBD 17-14
Gazley v Wade [2004] EWHC 2675 (QB); [2005] 1 Costs L.R. 129 34-24
Fairrie v Hall (Inspector of Taxes) [1947] 2 All E.R. 141; 28 T.C. 200; 177 L.T. Geenty v Channel Four Television Corp Ltd [1998] E.M.L.R. 524 CA (Civ
600 KBD 20-02 Div) 2-07,33-15
Fallon v MGN Ltd [2006] EWHC 783 (QB); [2006] E.M.L.R. 19 2-19,8-08 General Medical Council v Spackman; sub nom. R. v General Medical Council
Farrington v Leigh, The Times , December 10,1987 CA (Civ Div) 4-06 Ex p. Spackman [1943] A.C. 627; [1943] 2 All E.R. 337; (1943) 59 T.L.R.
Femis-Bank (Anguilla) Ltd v Lazer; Singh (Dinesh Kumar) v Lazer [1991] Ch 412; (1943) 169 L.T. 226; (1943) 87 S.J. 298 HL 11-03
391; [1991] 3 W.L.R. 80; [1991] 2 All E.R. 865 Ch D 21-03 Gentoo Group Ltd (formerly Sunderland Housing Co Ltd) v Hanratty [2008]
Fenner v Wilson [1893] 2 Ch. 656 Ch D 21-03 EWCA Civ 968 17-04
Ferguson v Associated Newspapers Ltd Unreported March 15,2002 29-06, Ghannouchi v Houni Ltd Unreported March 17,2003 20-20
29-09,29-25 Gilberthorpe v Hawkins, The Times, April 3,1995; Independent, May 1 1995 CA 17-04
Field v Local Sunday Newspapers Ltd Unreported November 28,2001 28-27 Gillick v BBC [1996] E.M.L.R. 267 CA (Civ Div) 2-07,29-12
Field v Local Sunday NewspapersLtd Unreported December 10,2001 31-03 Gillick v Brook Advisory Centres, The Times, October 21,1995 2-16
Fielding v Variety Inc [1967] 2 Q.B. 841; [1967] 3 W.L.R. 415; [1967] 2 All E.R. Gillick v Brook Advisory Centres (No.1) [2001] EWCA Civ 1263 2-16
497; (1967) 111 S.J. 257 CA (Civ Div) 6-07 Gillick v Brook Advisory Centres Unreported March 12,2002 29-06 29-25
Finburgh v Moss Empires Ltd [1908] S.C. 928 17-28 Gladding v Channel Four Television Corp [1999] E.M.L.R. 475; (1998) 95(35)
Firman v Ellis; Pheasant v Smith (Tyres); Down v Harvey; Ince v Rogers [1978] L.S.G. 36; (1998) 142 S.J.L.B. 217 CA (Civ Div) 32-02,32-14,34-02
Q.B. 886; [1978] 3 W.L.R. 1; [1978] 2 All E.R. 851; (1978) 122 S.J. 147 CA Glaxo Group Ltd v Dowelhurst Ltd [1999] 2 All E.R. (D) 1288 29-05
(Civ Div) 17-03 Gleaner Co Ltd v Abrahams; sub nom. Abrahams v Gleaner Co Ltd [2003]
Flowers Inc v Phonenames Ltd. See 1-800 Flowers Inc v Phonenames Ltd UKPC 55; [2004] 1 A.C. 628; [2003] 3 W.L.R. 1038; [2003] E.M.L.R. 32;
Foot v Murdoch, Guardian, July 8,1995 3-03 (2003) 100(35) L.S.G. 39; (2003) 147 S.J.L.B. 901 PC (Jam) 33-14
Foster v Associated Newspapers Ltd Unreported September 18,2002 ... 28-27,31-03 Gleaves v Insall [1999] 2 Cr. App. R. 466; [1999] E.M.L.R. 779; [1999] C.O.D.
Foxen v Scotsman Publications Ltd [1995] E.M.L.R. 145 QBD 27-20 402 QBD 38-23

Doodil [xxxiii]
 Godfrey v Demon Internet Ltd (Application to Strike Out) [2001] Q.B. 201; Hall v Poyser (1845) 13 M. & W. 600 33-07
[2000] 3 W.L.R. 1020; [1999] 4 All E.R. 342; [1999] E.M.L.R. 542; [1998-99] Halloran v Delaney [2002] EWCA Civ 1258; [2003] 1 W.L.R. 28; [2003] 1 All
Info. T.L.R. 252; [1999] I.T.C.L.R. 282; [1999] Masons C.L.R. 267; (1999) E.R. 775; [2002] 3 Costs L.R. 503; [2003] R.T.R. 9; [2003] P.I.Q.R. P5;
149 N.L.J. 609 QBD 20-21,35-05,35-06,35-14 (2002) 152 N.L.J. 1386; (2002) 146 S.J.L.B. 205 34-30
Golder v United Kingdom (A/18) (1979-80) 1 E.H.R.R. 524 ECHR 38-24 Hamilton v Al-Fayed [2001] E.M.L.R.394 34-08
Goldsmith v Bhoyrul [1998] Q.B. 459; [1998] 2 W.L.R. 435; [1997] 4 All E.R. Hamilton v Al-Fayed (No.1) [2001] 1 A.C. 395; [2000] 2 W.L.R. 609; [2000] 2 All
268; [1997] E.M.L.R. 407; (1997) 94(28) L.S.G. 26; (1997) 141 S.J.L.B. 151 E.R. 224; [2000] E.M.L.R. 531; (2000) 97(14) L.S.G. 43; (2000) 144 S.J.L.B.
QBD 17-19,29-12 157 HL 17-24,32-06,32-10
Goldsmith v Pressdram, The Times, November 23,1976 CA (Civ Div) 2-19 Hamilton v Al-Fayed (Costs); sub nom. Hamilton v Fayed (Costs); Al-Fayed v
Goldsmith v Pressdram Ltd [1988] 1 W.L.R. 64; [1987] 3 All E.R. 485 CA (Civ Hamilton (Costs) [2002] EWCA Civ 665; [2003] Q.B. 1175; [2003] 2 W.L.R.
Div) 31-03 128; [2002] 3 All E.R. 641; [2002] C.P. Rep. 48; [2002] 3 Costs L.R. 389;
Goldsmith v Sperrings Ltd; Goldsmith v Various Distributors [1977] 1 W.L.R. [2002] E.M.L.R. 42; (2002) 99(25) L.S.G. 34; (2002) 146 S.J.L.B. 143 34-40
478; [1977] 2 All ER. 566; (1977) 121 S.J. 304 CA (Civ Div) 3-04,15-12, Hamilton v Clifford [2004] EWCA Civ 1407 8-07
15-14,17-09,17-09,19-01,38-17 Hamilton v Hencke, The Times, July 21,1996; Guardian, October 1,1996 26-05,
Goodwin v United Kingdom (17488/90) (1996) 22 E.H.R.R. 123; 1 B.H.R.C. 81 30-14,30-15
ECHR 38-05 Handelswekerij GJ Bier BV v Mines de Potasse d'Alsace SA (21/76) [1978] Q.B.
Goody v Odhams Press [1967] 1 Q.B. 333; [1966] 3 W.L.R. 460; [1966] 3 All E.R. 708; [1977] 3 W.L.R. 479; [1976] E.C.R. 1735; [1977] 1 C.M.L.R. 284;
369; (1966) 110 S.J. 793 CA 20-23 (1977) 121 S.J. 677 ECJ 27-09
Gorman v Mudd Unreported October 15,1992 CA 20-06,20-07,20-21 Handyside v United Kingdom (A/24) (1979-80) 1 E.H.R.R. 737 ECHR.... 38-05,38-11
Gowrie v Express Neswpapers Plc Unreported, 1986 2-11 Hankinson v Bilby (1847) 16 M. & W. 442 2-13
Grant v McRae (1906) 8 O.W.R. 304 28-19 Harakas v Baltic Mercantile and Shipping Exchange Ltd [1982] 1 W.L.R. 958;
Grant v Southwestern and County Properties Ltd [1975] Ch. 185; [1974] 3 [1982] 2 All E.R. 701; (1982) 126 S.J. 414 CA (Civ Div) 21-03
W.L.R. 221; [1974] 2 All ER. 465; (1974) 118 S.J. 548 Ch D 30-16 Harris v Warre (1878-79) L.R. 4 C.P.D. 125 CPD 5-10,28-05
Grappelli v Derek Block (Holdings) Ltd [1981] 1 W.L.R. 822; [1981] 2 All E.R. Harris v White Ltd (1926) O.P.D. 104 9-04
272; (1981) 125 S.J. 169 CA (Civ Div) 2-23 Harrods (Buenos Aires) Ltd (No.2), Re [1992] Ch. 72; [1991] 3 W.L.R. 397;
Gray v Avadis (No.1) [2003] EWHC 1830 (QB); (2003) 100(36) L.S.G. 43 11-04 [1991] 4 All E.R. 348; [1991] B.C.C. 249; [1992] I.L.Pr. 453 CA (Civ Div)... 27-15
Gray v Jones (1939) 55 T.L.R. 437 5-03 Harrods Ltd v Dow Jones & Co Inc [2003] EWHC 1162 (QB) 3-11,27-21,27-24
Green v Times Newspapers Ltd Unreported October 24,2003 16-20 Hartt v Newspaper Publishing (No.1), The Times, November 9, 1989;
Greene v Associated Newspapers Ltd; sub nom. Green v Associated Newspapers Independent, October 27,1989 CA (Civ Div) 2-07
Ltd [2004] EWCA Civ 1462; [2005] Q.B. 972; [2005] 3 W.L.R. 281; [2005] 1 Harvey v Hewitt (1884) 8 Dow. P.C. 598 33-07
All E.R. 30; [2005] E.M.L.R. 10; (2004) 101(45) L.S.G. 31; (2004) 148 Hasselblad (GB) Ltd v Orbinson (No.2) [1985] Q.B. 475; [1985] 2 W.L.R. 1;
S.J.L.B. 1318 21-10,29-10 [1985] 1 All E.R. 173; [1984] 3 C.M.L.R. 540; [1984] 3 C.M.L.R. 679; (1984)
Gregson v Channel Four Television Corp [2002] EWCA Civ 941 8-16,31-03 81 L.S.G. 3596; (1985) 129 S.J. 32 CA (Civ Div) 11-02,11-10
Grobbelaar v News Group Newspapers Ltd, The Times, August 12, 1999 Hayward v Thompson [1982] Q.B. 47; [1981] 3 W.L.R. 470; [1981] 3 All E.R. 450;
CA 32-02,32-12 (1981) 125 S.J. 625 CA (Civ Div) 4-02,18-17,20-42,26-03,30-19,33-02
Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 1 W.L.R. Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943; [2005]
3024; [2002] 4 All ER. 732; [2003] E.M.L.R. 1; (2002) 146 S.J.L.B. 246.... 13-04, I.C.R. 329; [2005] I.R.L.R. 270; [2004] Po. L.R. 259; (2004) 148 S.J.L.B. 913
20-02,20-18,21-08 , 33-06,33-14 11-03
Groom v Crocker [1939] 1 K.B. 194; (1938) 60 LI. L. Rep. 393 CA 2-19 Henderson v Henderson (1843) 3 Hare 100 17-11
Gros v Crook (1969) 113 S.J. 408 18-17 Hennessy v Wright (No 2) (1890) L.R. 24 Q.B.D. 445 CA 18-16
Gulf Oil (Great Britain) Ltd v Page [1987] Ch. 327; [1987] 3 W.L.R. 166; [1987] Henry v BBC (Costs Capping) [2005] EWHC 2503 (QB); [2006] 1 All E.R. 154;
3 All E.R. 14; (1987) 84 L.S.G. 1968; (1987) 137 N.L.J. 408; (1987) 131 S.J. [2006] 3 Costs L.R. 412; (2006) 103(1) L.S.G. 16; (2005) 155 N.L.J. 1780 34-38
695 CA (Civ Div) 21-03 Henry v BBC (Qualified Privilege) [2005] EWHC 2787 (QB) 10-05,13-08
Gupta v Klito [1991] 2 W.L.R. 494 34-08 Herbage v Pressdram [1984] 1 W.L.R. 1160; [1984] 2 All E.R. 769; (1984) 81
Gur v Avrupa Newspaper Ltd [2008] EWCA Civ 594; [2009] E.M.L.R. 4 20-30, L.S.G. 1844. (1984) 128 S.J. 615 CA (Civ Div) 8-03,21-03,29-06
20-31 Herver v Dowson (1765) Buller's N.P. 7 12-15
Gutnick v Dow Jones [2002] HCA 56 HC (Aus) 3-11,35-12 Hewitt v Grunwald [2004] EWHC 2959 12-07
Hickinbotham v Leach (1842) 10 M. & W. 361 28-27
H v Chief Constable of H [2003] EWCA Civ 102; [2003] Po. L.R. 77 12-12 Hiles v Davies, The Times, June 20,1964; The Times, June 23,1964 34-03
Hadmor Productions v Hamilton [1983] 1 A.C. 191; [1982] 2 W.L.R. 322; [1982] Hill v Archbold [1968] 1 Q.B. 686; [1967] 3 W.L.R. 1218; [1967] 3 All E.R. 110;
1 All E.R. 1042; [1982] I.C.R. 114; [1982] I.R.L.R. 102; (1982) 126 S.J. 134 3 K.I.R. 40; (1967) 111 S.J. 543 CA (Civ Div) 34-39,34-40,34-40
HL 33-15 Hillman's Airways Ltd v Societe Anonyme d'Editions Aeronautiques
Halford v Chief Constable of Hampshire Constabulary [2003] EWCA Civ 102 12-12 Internationales [1934] 2 K.B. 356 KBD 30-11
 Hinds v Sparks (No.1) [1964] Crim. L.R. 717 QBD 8-03 Irvine v Talksport Ltd [2002] EWHC 367 (Ch); [2002] 1 W.L.R. 2355; [2002] 2 All
Hinduja v Asia TV Ltd; sub nom. Hinduja v Asian TV Ltd [1998] E.M.L.R. 516 E.R. 414; [2002] E.M.L.R. 32; [2002] F.S.R. 60; (2002) 25(6) I.P.D. 25039;
CA (Civ Div) 2-07 (2002) 99(18) L.S.G. 38; (2002) 152 N.L.J. 553; (2002) 146 S.J.L.B. 85 39-16
Hinks v Channel 4 Television Corp Unreported March 3,2000 17-03 Irving v Penguin Books Ltd Unreported, March 31,1999 8-13
Hird v Wood (1894) Sol. J. 234 35-21 Ivereigh v Associated Newspapers Ltd Unreported January, 29,2009 34-02
Hobbs v CT Tinling & Co Ltd; Hobbs v Nottingham Journal Ltd [1929] 2 K.B.
1 CA 32-09,33-07 J v R. (1984) 128 S.J. 333, The Times, February 23,1984 22-07
Hodgson v Imperial Tobacco Ltd (No.1) [1998] 1 W.L.R. 1056; [1998] 2 All ER. J Lyons & Co v Prescott-Decje, The Times, July 16 1925 3-09
673; [1998] 1 Costs L.R. 14; [1999] P.I.Q.R. Ql; (1998) 41 B.M.L.R. 1; J Trevor & Sons v Solomon (1978) 248 E.G. 779 CA (Civ Div) 21-03
(1998) 95(15) L.S.G. 31; (1998) 148 N.L.J. 241; (1998) 142 S.J.L.B. 93 CA Jameel v Dow Jones & Co Inc; sub nom. Dow Jones & Co Inc v Jameel [2005]
(Civ Div) 34-26,34-27 EWCA Civ 75; [2005] Q.B. 946; [2005] 2 W.L.R. 1614; [2005] E.M.L.R. 16;
Holland v Lampen-Wolfe [2000] 1 W.L.R. 1573; [2000] 3 All E.R. 833; [2001] (2005) 149 S.J.L.B. 181 3-11,4-03,4-04,17-12,29-15,34-04
I.L.Pr. 49; [2000] U.K.H.R.R. 734; (2000) 97(32) L.S.G. 37; (2000) 144 Jameel v Times Newspapers Ltd (Pre-Trial Review) [2005] EWHC 1219 (QB).... 8-09
S.J.L.B. 223 HL 17-23 Jameel v Times Newspapers Ltd [2004] EWCA Civ 983; [2004] E.M.L.R. 31;
Holley v Smyth [1998] Q.B. 726; [1998] 2 W.L.R. 742; [1998] 1 All E.R. 853; (2004) 148 S.J.L.B. 941 2-08
[1998] E.M.L.R. 133; (1998) 95(2) L.S.G. 23; (1998) 142 S.J.L.B. 35 CA Jameel v Wall Street Journal Europe SPRL (No.1) [2003] EWCA Civ 1694;
(Civ Div) 21-03 [2004] E.M.L.R. 6; (2003) 147 S.J.L.B. 1399 29-12
Hollins v Russell; Sharratt v London Central Bus Co Ltd (No.3); Worth v Jameel v Wall Street Journal Europe SPRL (No.3) [2006] UKHL 44; [2007] 1
McKenna; Pratt v Bull; Dunn v Ward; Tichband v Hurdman [2003] EWCA A.C. 359; [2007] Bus. L.R. 291; [2006] 3 W.L.R. 642; [2006] 4 All E.R. 1279;
Civ 718; [2003] 1 W.L.R. 2487; [2003] 4 All E.R. 590; [2003] 3 Costs L.R. [2007] E.M.L.R. 2; [2006] H.R.L.R. 41; 21 B.H.R.C. 471; (2006) 103(41)
423; (2003) 100(28) L.S.G. 30; (2003) 153 N.L.J. 920; (2003) 147 S.J.L.B. L.S.G. 36; (2006) 156 N.L.J. 1612; (2006) 150 S.J.L.B. 1392 4-07,13-01,
662 34-27 13-04,13-05,13-07,13-09,13-10,13-11,13-12,
Homal v Neuberger Products [1957] 1 Q.B. 347 25-04 13-17,13-19,17-18,18-13,20-03,38-20
Honeyford v Commission for Racial Equality, Independent, May 13, 1991 James Gilbert Ltd v MGN Ltd [2000] E.M.L.R. 680 QBD 13-03,13-05,13-14,
QBD 22-07 13-18,29-05,29-06,29-25,37-05,38-15
Hook v Cunard Steamship Co [1953] 1 W.L.R. 682; [1953] 1 All ER. 1021; Jani Allan v Channel 4 Unreported August 1992 20-28,30-18,32-09
[1953] 1 Lloyd's Rep. 413; (1953) 117 J.P. 226; (1953) 97 S.J. 335 Assizes Jason Donovan v Logan Unreported April, 1991 2-12,2-20
(Hampshire) 29-09 Jayson v Midland Bank Ltd [1968] 1 Lloyd's Rep. 409 CA (Civ Div) 2-22
Hooper v Truscott (1836) 2 Bing. N.C. 457 18-06 Jefferson v Paskell [1916] 1 K.B. 57 CA 33-02
Hope v Leng [1907] 23 T.L.R. 243 11-06 Jenner v Sun Oil Co [1952] 2 D.L.R. 526 3-11
Hornal v Neuberger Products [1957] 1 Q.B. 247; [1956] 3 W.L.R. 1034; [1956] 3 Jennings v Buchanan. See Buchanan v Jennings
All E.R. 970; (1956) 100 S.J. 915 CA 8-03 Jersild v Denmark (A1298) (1995) 19 E.H.R.R. 1 ECHR... 15-14,38-05,38-13,38-15
Horrocks v Lowe [1975] A.C. 135; [1974] 2 W.L.R. 282; [1974] 1 All E.R. 662; 72 Jerusalem v Austria (App. No.26958/95) February 27,2001, ECHR 38-12
L.G.R. 251; (1974) 118 S.J. 149 HL 12-18,18-03,18-04,18-08,18-11, Jerusalem v Austria (2003) 37 E.H.R.R. 25 9-01,9-03
18-12,18-18,33-02,33-04,33-12 Jeynes v News Magazines Ltd [2008] EWCA Civ 130 2-05,2-07
Howitt Transport Ltd v Transport and General Workers Union [1973] I.C.R. 1; John v Express Newspapers [2000] 1 W.L.R. 1931; [2000] 3 All E.R. 257; [2000]
[1972] I.R.L.R. 93 NIRC 22-13 E.M.L.R. 606; 97(21) L.S.G. 38; 150 N.L.J. 615; 144 S.J.L.B. 217 CA 30-12
Howlett v Holding [2003] EWHC 286; (2003) 147 S.J.L.B. 269 12-14 John v Guardian News and Media Ltd [2008] EWHC 3066 (QB)....2-07,2-21,29-13
Howlett v Holding [2006] EWHC 41 (QB); (2006) 150 S.J.L.B. 161 21-03 John v MGN Ltd [1997] Q.B. 586; [1996] 3 W.L.R. 593; [1996] 2 All E.R. 35;
Hubbuck & Sons Ltd v Wilkinson Heywood & Clark Ltd [1899] 1 Q.B. 86 CA .. 6-05 [1996] E.M.L.R. 229; (1996) 146 N.L.J. 13 CA (Civ Div) 20-02,20-05,
Hughes v Alan Dick & Co Ltd [2008] EWHC 2695 (QB) 3-11 20-11,20-21,20-26,20-29,20-31,20-32,20-34,20-36,20-38,
Hulton v Jones. See E Hulton & Co v Jones 20-39,20-41,24-04,24-06,31-03,33-02,33-14,33-17
Hunt v News Group Newspapers Unreported May, 1991 17-26 Johnson v Browning (1705) 6 Mod. 217 23-04
Hunt v Star Newspaper Co Ltd [1908] 2 K.B. 309 CA 9-03,14-06 Johnson v MGN Ltd [2009] EWHC 1481 29-12
Hussain v Hussain [1986] Fam. 134; [1986] 2 W.L.R. 801; [1986] 1 All E.R. 961; Johnson v Perot Systems Europe Ltd (Application for Summary Judgment)
[1986] 2 F.L.R. 271; [1986] Fam. Law 269; (1986) 83 L.S.G. 1314; (1986) [2005] EWHC 2450 17-13,29-15
136 N.L.J. 358; (1986) 130 S.J. 341 CA (Civ Div) 21-07 Jones v Associated Newspapers Ltd [2007] EWHC 1489 (QB); [2008] 1 All E.R.
Huth v Huth [1915] 3 K.B. 32 CA 3-07 240; [2008] E.M.L.R. 6 34-04
Hyde v Wrench, 49 E.R. 132; (1840) 3 Beav. 334 Ct of Chancery 16-17 Jones v Jones (1916) [1916] 2 A.C. 481 HL 5-06
Jones v Pollard [1997] E.M.L.R. 233 CA (Civ Div) 16-03,20-23,20-31,20-34,
ICN Photonics Ltd v Patterson. See Patterson v ICN Photonics Ltd 27-22,33-14
Interbrew SA v Financial Times Ltd [2002] EWCA Civ 274; [2002] 2 Lloyd's Joyce v Sengupta [1993] 1 W.L.R. 337; [1993] 1 All E.R. 897; (1992) 142 N.L.J.
Rep. 229; [2002] E.M.L.R. 24; (2002) 99(16) L.S.G. 37 30-12 1306; (1992) 136 S.J.L.B. 274 CA (Civ Div) 6-07

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 Juby v London Fire and Civil Defence Authority Unreported 1990 34-25 Kuddus v Chief Constable of Leicestershire [2001] UKHL 29; [2002] 2 A.C. 122;
Judd v Sun Newspapers (1930) 30 N.S.W.L.R. 294 32-09 [2001] 2 W.L.R. 1789; [2001] 3 All E.R. 193; (2001) 3 L.G.L.R. 45; [2001]
Jupiter Unit Trust Managers Ltd v Johnson Fry Asset Managers Plc Unreported Po. L.R. 181; (2001) 98(28) L.S.G. 43; (2001) 151 N.L.J. 936; (2001) 145
April 19,2000 6-05,32-05 S.J.L.B. 166 20-35
Kaye v Robertson [1991] F.S.R. 62 CA (Civ Div) 6-04 Ladd v Marshall [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745; (1954) 98 S.J. 870
Kearns v General Council of the Bar [2003] EWCA Civ 331; [2003] 1 W.L.R CA 28-29,33-10
1357; [2003] 2 All E.R. 534; [2003] E.M.L.R. 27; (2003) 153 N.L.J. 482; Lafone v Smith (1858) 3 H. & N. 735 22-02
(2003) 147 &LL.B. 476 12-05,12-09,12-22,29-06 Lakah Group v Al Jazeera Satellite Channel [2002] EWHC 2500 21-03
Keays v Guardian Newspapers Ltd [2003] EWHC 1565 (QB) 9-03,9-07 Lambert v Roberts [1933] 2 W.W.R. 508 17-11
Keith-Smith v Williams [2006] EWHC 860 (QB) 20-16 L'Anson v Stuart (1787) 1 T.R. 748 4-02
Kelly v O'Malley (1889) 6 T.L.R. 62 14-05 Latimer-Sayer v Mirror Group Newspapers, Lawtel, January 24,2000 31-03
Kemsley v Foot [1952] A.C. 345; [1952] 1 All E.R. 501; [1952] 1 T.L.R. 532; Laughton v Lord Bishop of Sodor and Man (1871-73) L.R. 4 P.C. 495 PC (IoM)
(1952) 96 S.J. 165 HL 9-01,9-03,9-04,9-07 12-24,18-05
Kensington Income Tax General Commissioners v Aramayo; sub nom. R. v Laurie v Raglan Building Co Ltd [1942] 1 K.B. 152; (1942) 86 S.J. 69 CA 32-11
Kensington Income Tax Commissioners [1916] 1 A.C. 215 HL 21-06 Le Fanu v Malcomson (1848) 1 H.L. Cas. 637 4-06
Kerr v Kennedy [1942] 1 K.B. 409 KBD 5-05 Lennon v Scottish Daily Record & Sunday Mail Ltd [2004] EWHC 359 (QB);
Ketteman v Hansel Properties Ltd [1987] A.C. 189; [1987] 2 W.L.R. 312; [1988] [2004] E.M.L.R. 18 27-17,27-21
1 All E.R. 38; 36 B.L.R. 1; [1987] 1 F.T.L.R. 284; 85 L.G.R. 409; [1987] 1 Level 8 Systems (UK) Ltd v Abbas Unreported July 6 1999 27-19
E.G.L.R. 237; (1987) 84 L.S.G. 657; (1987) 137 N.L.J. 100; (1987) 131 S.J. Levien v Fox (1890) 11 N.S.W.L.R. 414 3.03
134 HL 28-27 Lewis v Daily Telegraph Ltd (No.2) [1964] 2 Q.B. 601; [1964] 2 W.L.R. 736;
Khallili v Bennett Unreported, May 19,2000 17-04,29-17 [1964] 1 All E.R. 705; (1964) 108 S.J. 94 CA 26-05
Khan v Ahmed [1957] 2 Q.B. 149; [1957] 2 W.L.R. 1060; [1957] 2 All E.R. 385; Lewis v Daily Telegraph Ltd. See Rubber Improvement Ltd v Daily Telegraph Ltd
(1957) 101 S.J. 447 DC 14-07 Lewis Chester v Richard Desmond Unreported February 10,2009 3-03
Khashoggi v IPC Magazines Ltd [1986] 1 W.L.R. 1412; [1986] 3 All E.R. 577; Liberace v Daily Mirror Newspapers, The Times, June 18,1959 2-20
(1986) 83 L.S.G. 3598; (1986) 136 N.L.J. 1111; (1986) 130 S.J. 862 CA (Civ Lightbody v Gordon (1882) 9 R. 934 12-12,12-14
Div) 21-03 Lillie v Newcastle City Council; Reed v Newcastle City Council [2002] EWHC
Khodaparast v Shad [2000] 1 W.L.R. 618; [2000] 1 All E.R. 545; [2000] E.M.L.R. 1600 (QB); (2002) 146 S.J.L.B. 225 12-13,18-08,20-32,33-14
265 CA (Civ Div) 6-07 Limpus v London General Omnibus Co, 158 E.R. 993; (1862) 1 Hurl. & C. 526
Kiam v MGN Ltd [2002] EWCA Civ 43; [2003] Q.B. 281; [2002] 3 W.L.R. 1036; Ex Ct 18-17,35-22
[2002] 2 All E.R. 219; [2002] E.M.L.R. 25; (2002) 99(11) L.S.G. 35 20-02, Lincoln v Daniels [1962] 1 Q.B. 237; [1961] 3 W.L.R. 866; [1961] 3 All E.R. 740;
29-09,33-14 (1961) 105 S.J. 647 CA 11-03,11-04
Kiam v MGN Ltd (Costs) [2002] EWCA Civ 66; [2002] 1 W.L.R. 2810; [2002] 2 Lindon v France (21279/02); July v France (36448/02) (2008) 46 E.H R.R. 35
All E.R. 242; [2002] C.P. Rep. 30; [2002] E.M.L.R. 26 33-14 ECHR (Grand Chamber) 38-03
Kiam v Neil (No.1) [1995] E.M.L.R. 1 CA (Civ Div) 16-19 Lingens v Austria (A1103); sub nom. Lingens v Austria (9815/82) (1986) 8
Kiam v Neil (No.2) [1996] E.M.L.R. 493 CA (Civ Div) 16-06,16-19,20-06, E.H.R.R. 407 ECHR 9-01,9-03,38-03,38-10,38-12
20-07,20-12,20-26,22-04,29-09,33-02,33-14 Lion Laboratories Ltd v Evans [1985] Q.B. 526; [1984] 3 W.L.R. 539; [1984] 2
Kiam v Times Newspapers [1996] E.M.L.R. 493 2-22 All E.R. 417; (1984) 81 L.S.G. 1233; (1984) 81 L.S.G. 2000; (1984) 128 S.J.
Kimber v Press Association Ltd [1893] 1 Q.B. 65 CA 14-06 533 CA (Civ Div) 39-02
Kinch v Associated Newspapers Ltd [2002] EWHC 1020 8-11 Lloyd v Syme (David) & Co [1986] A.C. 350; [1986] 2 W.L.R. 69; (1986) 130 S.J.
King v Lewis; sub nom. Lewis v King [2004] EWCA Civ 1329; [2005] I.L.Pr. 16; 14 PC (Aus) 4-02,4-03
[2005] E.M.L.R. 4; (2004) 148 S.J.L.B. 1248 27-17,27-21 Lockhart v Harrison (1928) 139 L.T. 521 33-06
King v Telegraph Group Ltd Unreported June 9,2003 34-37,34-38,34-41 Lombardo v Malta (2009) 48 E.H.R.R. 23 ECHR 38-03
King v Telegraph Group Ltd [2004] EWCA Civ 613; [2005] 1 W.L.R. 2282; London Artists v Littler; Grade Organisation v Littler; Associated Television v
[2004] C.P. Rep. 35; [2004] 3 Costs L.R. 449; [2004] E.M.L.R. 23; (2004) Littler [1969] 2 Q.B. 375; [1969] 2 W.L.R. 409; [1969] 2 All E.R. 193 CA
101(25) L.S.G. 27; (2004) 154 N.L.J. 823; (2004) 148 S.J.L.B. 664 34-38 (Civ Div) 9-03,9-06
Kingshott v Associated Kent Newspapers [1991] 1 Q.B. 88; [1990] 3 W.L.R. 675; London Association for the Protection of Trade v Greenlands Ltd; sub nom
[1991] 2 All E.R. 99 CA (Civ Div) 10-05,14-05,14-06,32-11,33-03 Greenlands Ltd v Wilmshurst [1916] 2 A.C. 15 HL ...10-03,12-12,12-22,17-20
Kirby-Harris v Baxter [1995] E.M.L.R. 516 CA (Civ Div) 10-05 Longdon Griffiths v Smith [1951] 1 K.B. 295; [1950] 2 All E.R. 662; 66 T.L.R.
Knuppfer v London Express Newspaper Ltd [1944] A.C. 116 HL 4-034-06 (Pt. 2) 627; (1950) 94 S.J. 580 KBD 5-01
Komarek v Ramco Energy Plc Unreported November 21,2002 12-21,27-14, Lonrho Plc v Al-Fayed (No.5) [1993] 1 W.L.R. 1489; [1994] 1 All E.R. 188;
27-22 (1993) 143 N.L.J. 1571; (1993) 137 S.J.L.B. 189 CA (Civ Div) 39-08
Konig v Germany (No.1) (A/27) (1979-80) 2 E.H.R.R. 170 ECHR 38-30 Loughton Contracts Plc v Dun and Bradstreet Ltd [2006] EWHC 1224 (QB) 16-04

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Loutchansky v Times Newspapers Ltd (No.1) [2001] EWCA Civ 536; [2002] MacIntyre v Chief Constable of Kent; MacIntyre v Pugash; sub nom. MacIntyre
Q.B. 321; [2001] 3 W.L.R. 404; [2001] 4 All E.R. 115; [2001] E.M.L.R. 26; v Phillips [2002] EWCA Civ 1087; [2003] E.M.L.R. 9; [2002] Po. L.R. 24;
(2001) 151 N.L.J. 643 13-04,13-06,13-19,17-05,18-13 (2002) 99(37) L.S.G. 36 32-05
Loutchansky v Times Newspapers Ltd (No.2) [2001] EWCA Civ 1805; [2002] McKeith v News Group Newspapers Ltd [2005] EWHC 1162 (QB); [2005]
Q.B. 783; [2002] 2 W.L.R. 640; [2002] 1 All E.R. 652; [2002] E.M.L.R. 14; E.M.L.R. 32 8-14,13-08
[2002] Masons C.L.R. 35; (2002) 99(6) L.S.G. 30; (2001) 145 S.J.L.B. McKenna v MGN Ltd [2006] EWHC 1996 (QB); (2006) 103(33) L.S.G. 23 20-22
277 3-02,3-11,13-01,13-06,27-22,35-20,35-21,38-16 McKenna v MGN Ltd Unreported July 16,2007 18-07,26-06,34-07
Loutchansky v Times Newspapers Ltd (No.4) [2001] E.M.L.R. 38 QBD 13-06 McKennitt v Ash; sub nom. Ash v McKennitt [2006] EWCA Civ 1714; [2008]
Loutchansky v Times Newspapers Ltd (No.6) [2002] EWHC 2490 (QB) 13-06, Q.B. 73; [2007] 3 W.L.R. 194; [2007] E.M.L.R. 4; (2007) 151 S.J.L.B. 27 .. 21-03,
13-07,13-08 39-03,39-05,39-07
Loutchansky v Times Newspapers Ltd (Permission to Amend Defence: Mackenzie v Business Magazines (UK) Ltd, The Times , March 5,1996 CA (Civ
Justification) [2002] EWHC 2726 (QB) 25-06,28-29 Div) 20-23,28-27
Loveless v Earl [1999] E.M.L.R. 530 CA (Civ Div) 18-09 McManus v Beckham McManus v Beckham [2002] EWCA Civ 939; [2002] 1
Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB); [2007] Q.B. 580; W.L.R. 2982; [2002] 4 All E.R. 497; [2002] E.M.L.R. 40; (2002) 99(35)
[2007] 2 W.L.R. 595; [2006] 3 All E.R. 357; [2006] E.M.L.R. 17 9-04,28-14 L.S.G. 36; (2002) 146 S.J.L.B. 183 [2002] EWCA Civ 939; [2002] 1 W.L.R.
Lownds v Home Office; sub nom. Home Office v Lownds; Lownds v Secretary 2982; [2002] 4 All E.R. 497; [2002] E.M.L.R. 40; (2002) 99(35) L.S.G. 36;
of State for the Home Department [2002] EWCA Civ 365; [2002] 1 W.L.R. (2002) 146 S.J.L.B. 183 3-09,3-10,5-07,26-01,26-04
2450; [2002] 4 All E.R. 775; [2002] C.P. Rep. 43; [2002] C.P.L.R. 328; [2002] MacMillan Magazines Ltd v RCN Publishing Co Ltd [1998] F.S.R. 9; (1997)
2 Costs L.R. 279; (2002) 99(19) L.S.G. 28; (2002) 146 S.J.L.B. 86 34-21 20(9) I.P.D. 20089 Ch D 6-05
Lucas-Box v News Group Newspapers Ltd; Lucas-Box v Associated Newspapers McPhilemy v Times Newspapers Ltd (Abuse of Process) [2001] EWCA Civ 871;
Group Plc [1986] 1 W.L.R. 147; [1986] 1 All E.R. 177; (1986) 83 L.S.G. 441; [2001] E.M.L.R. 34 31-03,33-04
(1986) 130 S.J. 111 CA (Civ Div) 8-05,28-13 McPhilemy v Times Newspapers Ltd (Costs) [2001] EWCA Civ 933; [2002] 1
Lukowiak v Unidad Editorial SA (No.1) [2001] E.M.L.R. 46 QBD 13-04,13-08 W.L.R. 934; [2001] 4 All E.R. 861; [2002] C.P. Rep. 9; [2001] 2 Costs L.R.
Lunney v Prodigy Services Co 35-07 295; [2001] E.M.L.R. 35 34-06
Lye11 v Kennedy (No.2); sub nom Kennedy v Lye11 (No.2) (1883-84) L.R. 9 App. McPhilemy v Times Newspapers Ltd (Re-Amendment: Justification) [1999] 3
Cas. 81 HL 11-08 All E.R. 775; [1999] C.P.L.R. 533; [1999] E.M.L.R. 751 CA (Civ Div) 25-03,
Lynch v Knight, 11 E.R. 854; (1861) 9 H.L. Cas. 577 HL 5-07,5-08,20-33 25-04,25-05,28-01,28-13
Lyon v Daily Telegraph Ltd [1943] K.B. 746 CA 18-16,18-14,18-17 McVicar v United Kingdom (46311/99) (2002) 35 E.H.R.R. 22; 12 B.H.R.C.
567; (2002) 152 N.L.J. 759 ECHR 8-03,38-18,38-26
MV Yorke Motors v Edwards [1982] 1 W.L.R. 444; [1982] 1 All E.R. 1204; McWhirter v Manning, The Times, October 30,1954 3-09
(1982) 126 S.J. 245 HL 34-43 Maharanee Seethadevi Gaekwar of Baroda v Wildenstein [1972] 2 Q.B. 283;
Maccaba v Lichtenstein (Defamation) [2004] EWHC 1577; [2005] E.M.L.R. [1972] 2 W.L.R. 1077; [1972] 2 All E.R. 689; (1972) 116 S.J. 221 CA (Civ
9 12-08 Div) 27-23
McCarey v Associated Newspapers Ltd [1965] 2 Q.B. 86; [1965] 2 W.L.R. 45; Mahon v Rahn (No.1) [1998] Q.B. 424; [1997] 3 W.L.R. 1230; [1997] 3 All E.R.
[1964] 3 All E.R. 947; (1964) 108 S.J. 916 CA 11-03 687; [1997] E.M.L.R. 558 CA (Civ Div) 17-10,30-20
McCartan Turkington Breen v Times Newspapers Ltd; sub nom. Turkington v Mahon v Rahn (No.2) [2000] 1 W.L.R. 2150; [2000] 4 All ER. 41; [2000] 2 All
Times Newspapers Ltd [2001] 2 A.C. 277; [2000] 3 W.L.R. 1670; [2000] 4 E.R. (Comm) 1; [2000] E.M.L.R. 873; [2000] Po. L.R. 210; (2000) 97(26)
All E.R. 913; [2000] N.I. 410; [2001] E.M.L.R. 1; [2001] U.K.H.R.R. 184; 9 L.S.G. 38; (2000) 150 N.L.J. 899 CA (Civ Div) 11-03,11-04
B.H.R.C. 497; (2000) 97(47) L.S.G. 40; (2000) 150 N.L.J. 1657; (2000) 144 Major v WWR Publications, The Times, January 28,1993 23-04
S.J.L.B. 287 HL (NI) 14-03 Malik v Newspost Ltd [2007] EWHC 3063 (QB) 13-13
McCutcheon v CAN International Unreported December 19,2001 2-22 Manson v Associated Newspapers, Ltd [1965] 1 W.L.R. 1038; [1965] 2 All E.R.
McDonald v Mulqueen (1922) 53 O.L.R. 191 5-03 954; (1965) 109 S.J. 457 QBD 20-38,20-39
McDonalds v Steel Unreported, March 31,1999 8-13,17-18,17-19 Mapp v News Group Newspapers Ltd; Gillan v News Group Newspapers Ltd;
McDonalds v Steel [2000] 1 W.L.R. 618 20-18,23-04,25-03,38-20 Goscomb v News Group Newspapers Ltd; Watton v News Group
McDonald's Corp v Steel (No.1) [1995] 3 All E.R. 615; [1995] E.M.L.R. 527 CA Newspapers Ltd [1998] Q.B. 520; [1998] 2 W.L.R. 260; [1997] E.M.L.R.
(Civ Div) 8-16,28-13,29-06,31-05,32-13,35-25,38-29 397; (1997) 147 N.L.J. 562 CA (Civ Div) 2-07,29-12
MacDougall v Knight (1890) L.R. 25 Q.B.D. 1 CA 14-06,17-11 Mapp v Times Newspapers Ltd. See Mapp v News Group Newspapers Ltd
McFarlane v EE Caledonia Ltd (No.2) [1995] 1 W.L.R. 366; [1995] 1 Lloyd's Marathon Mutual Ltd v Waters [2009] EWHC 1931 6-04
Rep. 535; 44 Con. L.R. 57 QBD 34-39 Marbe v George Edwardes (Daly's Theatre) Ltd [1928] 1 K.B. 269; 56 A.L.R
Macintosh v Dun [1908] A.C. 390 PC (Aus) 12-12 888 CA 18-18
MacIntyre v Chief Constable of Kent; MacIntyre v Pugash; sub nom. MacIntyre Marco Pierre White v New York Times Co Unreported April 3,2000 ... 24-05,24-06
v Phillips [2002] EWCA Civ 1087; [2003] E.M.L.R. 9; [2002] Po. L.R. 24; Marco Pierre White v New York Times Co Unreported March 31,2000 17-06
(2002) 99(37) L.S.G. 36 13-14 Mardas v New York Times Co; [2008] EWHC 3135 (QB); [2009] E.M.L.R. 8 35-04
 Maris v Walsh [2003] EWHC 1417 21-06 MORI v BBC Unreported July 1999 15-09
Mark v Associated Newspapers Ltd Unreported January, 16,2002 28-27 Morris v Sanders Universal Products; sub nom. Morris v Sandess Universal
Mark v Associated Newspapers Ltd (No.1) [2002] EWCA Civ 772; [2002] Products [1954] W.L.R. 67; [1954] 1 All E.R. 47; (1954) 98 S.J. 10 CA 2-24
E.M.L.R. 38 2-10,8-07,29-12 Morris v United Kingdom 35-14
Marks & Spencer Plc v Granada Television Ltd Unreported February 23, Morris v Wiltshire, The Times, February 15,1994 CA (Civ Div) 29-16
1998 32-05 Mosley v Focus Magazin Verlag GmbH [2001] EWCA Civ 1030 4-03,29-05,
Marks & Spencer Plc v Granada Television Ltd Unreported March 6,1998 8-04, 29-06,30-10
8-05 Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB); [2008]
Marks v Conservative Newspaper (1886) 3 T.L.R. 244 17-14 E.M.L.R. 20. (2008) 158 N.L.J. 1112 39-08
Markt Intern Verlag GmbH v Germany (A/164); sub nom. Markt Intern Verlag Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) 39-07,39-08
GmbH v Germany (10572/83); Markt Intern and Beermann v Germany Mullan v Birmingham City Council [2000] C.P. Rep. 61 QBD 32-11
(1990) 12 E.H.R.R. 161, The Times , November 23,1989 ECHR 38-11 Murphy v Halpin [1874] I.R.C.L. 127 12-23
Mars UK Ltd v Teknowledge Ltd (Costs) [1999] 2 Costs L.R. 44; [2000] F.S.R. Murray v Express Newspapers Plc; sub nom. Murray v Big Pictures (UK) Ltd
138; (1999) 22(10) I.P.D. 22097 Ch D 34-19 [2008] EWCA Civ 446; [2008] 3 W.L.R. 1360; [2008] E.C.D.R. 12; [2008]
Martin v Watson [1996] A.C. 74; [1995] 3 W.L.R. 318; [1995] 3 All E.R. 559; E.M.L.R. 12; [2008] 2 F.L.R. 599; [2008] 3 F.C.R. 661; [2008] H.R.L.R. 33;
(1995) 145 N.L.J. 1093; (1995) 139 S.J.L.B. 190 HL 11-04,12-14 [2008] U.K.H.R.R. 736; [2008] Fam. Law 732; (2008) 105(20) L.S.G. 23;
Mason v William Hill Organisation Ltd Unreported March 16,1983 5-01 (2008) 158 N.L.J. 706; (2008) 152(19) S.J.L.B. 31 39-03
Mawe v Pigott (1869) I.R. 4 C.L. 54 2-17,8-11 Muter v Newcastle upon Tyne Aero Club Unreported December 17,2001 17-03
Maxwell v Pressdram [1987] 1 W.L.R. 298; [1987] 1 All E.R. 656; (1987) 84
L.S.G. 1148; (1987) 131 S.J. 327 CA (Civ Div) 21-03,22-01 Nail v News Group Newspapers Ltd; Nail v Jones [2004] EWCA Civ 1708;
Meade v Pugh; Meade v Hamilton [2004] EWHC 408 18-10,29-06 [2005] 1 All E.R. 1040; [2005] E.M.L.R. 12; (2005) 155 N.L.J. 111 16-06,
Mealey Horgan Plc v Horgan, The Times, July 6,1999 QBD 31-04 16-08,20-20,33-14
Meek v Fleming [1961] 2 Q.B. 366; [1961] 3 W.L.R. 532; [1961] 3 All E.R. 148; Nash v Eli Lilly & Co [1993] 1 W.L.R. 782; [1993] 4 All E.R. 383; [1992] 3 Med.
(1961) 105 S.J. 588 CA 33-08 L.R. 353 CA (Civ Div) 17-02,17-04
Mehmet Dogan Bey v GG Abdeni & Co Ltd [1951] 2 K.B. 405; [1951] 2 All E.R. National Union of General and Municipal Workers v Gillian [1946] K.B. 81
162; [1951] 1 Lloyd's Rep. 433; [1951] 2 T.L.R. 30; (1951) 95 S.J. 415 KBD 20-43 CA 17-21,17-18
Merivale v Carson (1888) L.R. 20 Q.B.D. 275 CA 9-03,9-04,9-05 Nevill v Fine Art and General Insurance Co Ltd; sub nom. Nevill v Fine Arts
Merricks v Nott-Bower [1965] 1 Q.B. 57; [1964] 2 W.L.R. 702; [1964] 1 All E.R. and General Insurance Co Ltd [1897] A.C. 68 HL 2-24
717; (1964) 128 J.P. 267; (1964) 108 S.J. 116 CA 11-01,11-07 Newman Ex p. Brooke, Re (1876) L.R. 3 Ch. D. 494 CA 17-25
Metropolitan International Schools Ltd (t/a SkillsTrain and t/a Train2Game) v Newstead v London Express Newspaper Ltd [1940] 1 K.B. 377 CA 4-03,4-04,
Designtechnica Corp (t/a Digital Trends) [2009] EWHC 1765 (QB) 15-01, 20-02
35-07,35-11 Nielsen & Johnsen v Norway (2000) E.H.R.R. 878, ECHR 9-01,9-03,38-12
Metropolitan Railway Co v Wright (1886) L.R. 11 App. Cas. 152 HL 33-06 Nigel Peter William Smith v ADVFN Plc [2008] EWCA Civ 518 30-11
Mihaka v Wellington Publishing [1975] 1 N.Z.L.R. 10 17-06 Noorani v Calver [2009] EWHC 561 (QB) 17-12
Miller v Associated Newspapers Ltd (No.2) [2005] EWHC 21 8-09 Norman v Future Publishing Ltd [1999] E.M.L.R. 325 CA (Civ Div) 2-21
Miller v Associated Newspapers Ltd (No.3) [2005] EWHC 557 (QB) 8-16 Norton v Hoare (No.1) [1913] 17 C.L.R. 310 12-23
Milne v David Price Solicitors & Advocates Unreported March 7,2005 Sup Ct Norton v Stringer (1909) 29 N.Z.L.R. 249 33-09
Costs Office 34-32 Norwich Pharmacal Co v Customs and Excise Commissioners; sub nom.
Milne v Express Newspapers Ltd (No.1) [2004] EWCA Civ 664; [2005] 1 W.L.R. Morton-Norwich Products Inc v Customs and Excise Commissioners
772; [2005] 1 All E.R. 1021; [2004] E.M.L.R. 24; (2004) 148 S.J.L.B. 696 16-12, [1974] A.C. 133; [1973] 3 W.L.R. 164; [1973] 2 All E.R. 943; [1973] F.S.R.
16-14,29-24 365; [1974] R.P.C. 101; (1973) 117 S.J. 567 HL 30-03,30-08,30-11,35-19,
Milne v Telegraph Group Ltd (No.2) [2001] E.M.L.R. 30 QBD 29-09,29-25 35-28,35-31
Milner v Reeves (1617) 1 Roll Abr 5-04
Minter v Priest [1930] A.C. 558 HL 11-08 O'Brien v Marquis of Salisbury (1889) 54 J.P. 215 9-03
Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch); [2005] 3 O'Brien v Salisbury (1889) 54 J.P. 215 33-02
All E.R. 511 30-06 O'Shea v MGN Ltd [2001] E.M.L.R. 40 QBD 4-05
Monson v Tussauds Ltd; Monson v Louis Tussaud; sub nom. Monson v Louis Oates v Associated Newspapers Ltd Unreported May 19,2000 17-11,29-15
Tussaud [1894] 1 Q.B. 671 CA 2-02,21-03 Oberschlick v Austria (A1204) (1995) 19 E.H.R.R. 389 ECHR 38-10
Moore v News of the World [1972] 1 Q.B. 441; [1972] 2 W.L.R. 419; [1972] 1 All Observer and Guardian v United Kingdom (A/216) (1992) 14 E.H.R.R. 153,
E.R. 915; (1971) 116 S.J. 137 CA 28-13 ECHR 38-15
More v Weaver [1928] 2 K.B. 520 CA 11-08 Olatawura v Abiloye [2002] EWCA Civ 998; [2003] 1 W.L.R. 275; [2002] 4 All
Morgan v Odhams Press [1971] 1 W.L.R. 1239; [1971] 2 All E.R. 1156; (1971) E.R. 903; [2002] C.P. Rep. 73; [2002] C.P.L.R. 778; (2002) 99(36) L.S.G. 39;
115 S.J. 587 HL 4-02,4-03 (2002) 152 N.L.J. 1204; (2002) 146 S.J.L.B. 197 34-41
Oliver v Chief Constable of Northumbria [2004] EWHC 790 (QB) 18-12 Prince Radu of Hohenzollern v Houston [2008] EWCA Civ 921; [2009] E.M.L.R.
Oraro v The Observer Unreported April 10,1992 27-19 13 13-13,13-14,13-19
Orford v Rasmi Electronics Ltd Unreported October 25,2002 CA 32-11 Pritchard Englefield (A Firm) v Steinberg [2005] EWCA Civ 288; (2005) 149
Oryx Natural Resources v BBC Unreported July 17,2002 22-02 S.J.L.B. 300 17-12
Osborn v Thomas Boulter & Son [1930] 2 K.B. 226 CA 5-01 Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 W.L.R. 557;
O'Shea v MGN Ltd [2001] E.M.L.R. 40 QBD 38-21 [1984] 2 All E.R. 368; (1984) 128 S.J. 265CA (Civ Div) 34-44
Oyston v Blaker [1996] 1 W.L.R. 1326; [1996] 2 All E.R. 106; [1996] E.M.L.R. Procter v Bayley and Son; sub nom. Proctor v Bayley (1889) L.R. 42 Ch. D. 390;
125 CA (Civ Div) 17-05,17-10 (1889) 6 R.P.C. 538 CA 21-08
Pulling v Great Eastern Railway Co (1881-82) L.R. 9 Q.B.D. 110 QBD 17-17
P v T Ltd; sub nom.A v B Ltd [1997] 1 W.L.R. 1309; [1997] 4 All E.R. 200; [1997] Pullman v Walter Hill & Co Ltd [1891] 1 Q.B. 524 CA 3-01
I.C.R. 887; [1997] I.R.L.R. 405 Ch D 30-08 Purnell v BusinessF1 Magazine Ltd [2007] EWCA Civ 744; [2008] 1 W.L.R. 1;
Padder & Drummer v Newsgroup Newspapers Ltd Unreported October 7,2003 17-11 (2007) 104(18) L.S.G. 29 20-28
Pamplin v Express Newspapers Ltd (No.2) [1988] 1 W.L.R. 116; [1988] 1 All
E.R. 282 CA (Civ Div) 20-18,20-23 Quartz Hill Co v Beal (1882) 20 Ch. D. 501 12-21,21-03
Patterson v ICN Photonics Ltd; sub nom ICN Photonics Ltd v Patterson [2003]
EWCA Civ 343 2-24,33-15 RFS Capital LLC v MD7 Europe Unreported October 6,2009 34 10
Paul Leslie Daniels v Frederick Mark Walker. See D (A Child) v Walker R. v Aitken Unreported June 8,1999 23-04
Peacock v MGN Ltd [2009] EWHC 769 (QB) 34-38 R. v Archer (Jeffrey Howard) [2002] EWCA Crim 1996; [2003] 1 Cr. App. R. (S )
Pearson v Lemaitre, 134 E.R. 742; (1843) 5 Man. & G. 700 CCP 20-16,20-27 86 23-04
Pedder v News Group Newspapers Ltd (No.2) [2003] EWHC 2442; [2004] R. v Clerk (1728) 1 Barn. K.B. 304 3-02
E.M.L.R. 19 17-11 R. v Cooper (1846) 8 Q.B. 533 3-03
Pedder & Dummer v News Group Newspapers Ltd Unreported October 7,2003 29-15 R. v Dudley Magistrates Court Ex p. Power City Stores Ltd (1990) 154 J.P. 654;
Pepin v Watts Unreported October 4,2000 34-17 (1990) 154 J.P N. 490; (1990) 140 N.L.J. 361 QBD 34-25
Pet Plan Ltd v Protect-A-Pet Ltd [1988] F.S.R. 34 CA (Civ Div) 21-07 R. v Galbraith (George Charles) [1981] 1 W.L.R. 1039; [1981] 2 All E.R. 1060;
Pfeifer v Austria (12556/03) (2009) 48 E.H.R.R. 8; 24 B.H.R.C. 167 ECHR 38-03 (1981) 73 Cr. App. R. 124; [1981] Crim. L.R. 648; (1981) 125 S.J. 442 CA
Phillips v Associated Newspapers Ltd; sub nom. Phillipps v Associated (Crim Div) 29-06
Newspapers Ltd [2004] EWHC 190 (QB); [2004] 1 W.L.R. 2106; [2004] 2 All R. v Gutch (1829) Moo. & Mal. 433 3-03
ER. 455; [2004] E.M.L.R. 12; (2004) 154 N.L.J. 249 22-07 R. v Kensington Income Tax Commissioners. See Kensington Income Tax
Phillips v Clagett (1843) 11 M. & W. 84 17-14 General Commissioners v Aramayo
Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] R. v Secretary of State for the Home Department Ex p. Simms; sub nom. R. v
1 W.L.R. 1213 (Note); [1972] 3 All E.R. 384 (Note); [1972] F.S.R. 427; Secretary of State for the Home Department Ex p. Main [2000] 2 A.C. 115;
[1972] R.P.C. 786; (1972) 116 S.J. 697 Ch D 21,06 [1999] 3 W.L.R. 328; [1999] 3 All E.R. 400; [1999] E.M.L.R. 689; 7 B.H.R.C.
Picton v Jackman (1830) 4 C. & P. 257 12-15 411; 11 Admin. L.R. 961; [1999] C.O.D. 520; 96(30) L.S.G. 28; 149 N.L.J.
Plato Films Ltd v Speidel; sub nom. Speidel v Plato Films Ltd; Speidel v Unity 1073; 143 S.J.L.B. 212 HL 38-11,38-29
Theatre Society [1961] A.C. 1090; [1961] 2 W.L.R. 470; [1961] 1 All E.R. R. v Walter (1799) 3 Esp. 21 3-02,3.03
876; (1961) 105 S.J. 230 HL 8-14,16-05,20-22,20-23 R. v Wilde, The Times, April 30, May 1,2,1895 23-04
Plummer v Charman (No.1) [1962] 1 W.L.R. 1469; [1962] 3 All E.R. 823; (1962) RCA Corp v Reddingtons Rare Records; sub nom. Radio Corp of America v
106 S.J. 855 CA 12-15 Reddington's Rare Records [1974] 1 W.L.R. 1445; [1975] 1 All E.R. 38;
Plummer v Charman (No.2), The Times, October 25,1962 HC 5-09 [1974] F.S.R. 509; [1975] R.P.C. 95; (1974) 118 S.J. 777 Ch D 30-11
Polanski v Conde Nast Publications Ltd Unreported October 21,2003 20-19 Rackham v Sandy [2005] EWHC 482 (QB) 20-07,20-28A
Polly Peck (Holdings) Plc v Trelford [1986] Q.B. 1000; [1986] 2 W.L.R. 845; Rackham v Sandy (Costs) [2005] EWHC 1354 (QB); [2006] 1 Costs L R. 34 34-20
[1986] 2 All E.R. 84 CA (Civ Div) 8-14 Radio France v France (53984/00) (2005) 40 E.H.R.R. 29 ECHR 38-03
Ponsford v Financial Times (1900) 16 T.L.R. 249 14-05 Radu v Houston [2009] EWHC 398 28-13
Porzelack KG v Porzelack (UK) Ltd [1987] 1 W.L.R. 420; [1987] 1 All E.R. Rahamim v Channel Four Unreported May 16,2002 34-30
1074; [1987] 2 C.M.L.R. 333; [1987] E.C.C. 407; [1987] F.S.R. 353 Ch D 34-43 Rankine v Roberts [1873] I.R. 225 12-07
Praed v Graham (1890) L.R. 24 Q.B.D. 53 CA 20-11,20-15,20-21,33-09 Rantzen v Mirror Group Newspapers (1986) Ltd [1994] Q.B. 670; [1993] 3
Prager v Times Newspapers [1988] 1 W.L.R. 77; [1988] 1 All E.R. 300; (1988) W.L.R. 953; [1993] 4 All E.R. 975; (1993) 143 N.L.J. 507 CA (Civ Div) ... 20-02,
85(6) L.S.G. 38; (1987) 137 N.L.J. 810; (1988) 132 S.J. 55 CA (Civ Div) 2-04, 20-06,20-07,20-29,24-04,31-03,33-14,33-22
8-05,20-19,28-13 Ratcliffe v Evans [1892] 2 Q.B. 524 CA 5-07,20-33,28-08
Prebble v Television New Zealand Ltd [1995] 1 A.C. 321; [1994] 3 W.L.R. 970; Rath v Guardian News and Media Ltd [2008] EWHC 398 (QB) 9-04,20-22
[1994] 3 All E.R. 407; (1994) 91(39) L.S.G. 38; (1994) 144 N.L.J. 1131; Ratiu v Conway; sub nom. Conway v Ratiu [2005] EWCA Civ 1302; [2006] 1 All
(1994) 138 S.J.L.B. 175 PC (NZ) 17-24 E.R. 571; [2006] 1 E.G.L.R. 125; [2006] W.T.L.R. 101; [2005] 46 E.G. 177
Prince Radu of Hohenzollern v Houston [2007] EWHC 2328 (QB) 10-05,25-06 (C.S.) 20-11,33-04

[xliv]
 Red Man's Syndicate v Associated Newspapers (1910) 26 T.L.R. 394 34-03 Ruddy v Mercury Personal Communications Ltd Unreported July31,2000 17-10
Redland Bricks v Morris; sub nom. Morris v Redland Bricks [1970] A.C. 652; Russell v Stubbs Ltd [1913] 2 K.B. 200 HL 28-05,30-09
[1969] 2 W.L.R. 1437; [1969] 2 All E.R. 576; (1969) 113 S.J. 405HL 21-04 Russo v Cole [1966] 1 W.L.R. 248; [1965] 3 All E.R. 822; (1966) 110 S.J. 173
Rees v Law Society Gazette Unreported, 2003 2-07 QBD 5-05
Regan v Taylor [2000] E.M.L.R. 549; (2000) 150 N.L.J. 392 CA (Civ Div) 12-06,
12-23,12-24,18-18,37-05 S (A Child) (Identification: Restrictions on Publication), Re; sub nom. S (A Child)
Reid Minty (A Firm) v Taylor [2001] EWCA Civ 1723; [2002] 1 W.L.R. 2800; (Identification: Restriction on Publication), Re [2004] UKHL 47; [2005] 1
[2002] 2 All E.R. 150; [2002] C.P. Rep. 12; [2002] C.P.L.R. 1; [2002] 1 Costs A.C. 593; [2004] 3 W.L.R. 1129; [2004] 4 All E.R. 683; [2005] E.M.L.R. 2;
L.R. 180; [2002] E.M.L.R. 19 34-06 [2005] 1 F.L.R. 591; [2004] 3 F.C.R. 407; [2005] H.R.L.R. 5; [2005]
Reuben v Time Inc; TWM Landal Ltd v Time Inc [2003] EWHC 1430 27-17, U.K.H.R.R. 129; 17 B.H.R.C. 646; [2005] Crim. L.R. 310; (2004) 154
27-20,28-28 N.L.J. 1654; (2004) 148 S.J.L.B. 1285 38-15,39-03
Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127; [1999] 3 W.L.R. 1010; S v Newham LBC [1998] E.M.L.R. 583; [1998] 1 F.L.R. 1061; [1998] 3 F.C.R.
[1999] 4 All E.R. 609; [2000] E.M.L.R. 1; [2000] H.R.L.R. 134; 7 B.H.R.C. 277; [1998] Fam. Law 387; (1998) 95(11) L.S.G. 35; (1998) 142 S.J.L.B. 102
289; (1999) 96(45) L.S.G. 34; (1999) 149 N.L.J. 1697; (1999) 143 S.J.L.B. CA (Civ Div) 11-01,11-07,11-11,18-17,29-06
270 HL 8-07,10-03,12-19,13-01,13-02,13 03,13 04, SD Marine Ltd v Powell [2006] EWHC 3095 16-02
13-07,13-09,13-10,13-11,13-12,13-15,13-19,14-04, S&K Holdings v Throgmorton Publications [1972] 1 W.L.R. 1036; [1972] 3 All
20-02,28-15,28-22,33-02,34-03,36-06,36-10,36-11, E.R. 497; (1972) 116 S.J. 375 CA (Civ Div) 8-14
36-12,36-13,37-03,38-10,38-15,38-16,38-29 Safeway Stores Plc v Tate [2001] Q.B. 1120; [2001] 2 W.L.R. 1377; [2001] 4 All
Reynolds v Times Newspapers Ltd, The Times, November 20,1996 20-02 E.R. 193; [2001] C.P. Rep. 56; [2001] E.M.L.R. 13; [2000] Po. L.R. 395;
Richardson v Schwarzenegger [2004] EWHC 2422 12-23,27-21 (2001) 98(8) L.S.G. 45; (2001) 145 S.J.L.B. 16 CA (Civ Div) 29-25
Riches v News Group Newspapers Ltd [1986] Q.B. 256; [1985] 3 W.L.R. 432; Samuels v Evening Mail (1875) 6 Hun. (N.Y.) R.5 2-16
[1985] 2 All E.R. 845; (1985) 82 L.S.G. 2088; (1985) 135 N.L.J. 391; (1985) Saunders v Punch Ltd (t/a Liberty Publishing) [1998] 1 W.L.R. 986; [1998] 1 All
129 S.J. 401 CA (Civ Div) 4-06,20-38 E.R. 234; [1998] E.M.L.R. 18 Ch D 30-12
Riddick v Thames Board Mills [1977] Q.B. 881; [1977] 3 W.L.R. 63; [1977] 3 All Schapira v Ahronson [1998] I.L.Pr. 587; [1999] E.M.L.R. 735 CA (Civ Div) 27-18
E.R. 677 CA (Civ Div) 12-21,17-10,30-20,33-02 Schellenberg v BBC [2000] E.M.L.R. 296 QBD 8-16,9-03,17-11,25-06,
Rigg v Associated Newspapers Ltd [2003] EWHC 710 (QB); [2004] E.M.L.R. 26-04,29-01,29-06,29-15
4 16-04,16-17,17-06,30-17 Schloimovitz v Clarendon Press (A Firm), The Times, July 6,1973 4-06
Riley v Johnson, The Times, January 13,1911 33-07 Schulke & Mayr UK Ltd v Alkapharm UK Ltd [1999] F.S.R. 161; (1997) 20(11)
Risk Allah Bey v Whitehurst (1868) 18 L.T. 615 22-02 I.P.D. 20106 Ch D 6-05
Roache v News Group Newspapers Ltd [1998] E.M.L.R. 161 CA (Civ Div) 21-01, Science Research Council v Nasse; Leyland Cars (BL Cars Ltd) v Vyas; sub
21-08,34-05 nom. Nasse v Science Research Council; Vyas v Leyland Cars [1980] A.C.
Roberts v Gable [2007] EWCA Civ 721; [2008] Q.B. 502; [2008] 2 W.L.R. 129; . 1028; [1979] 3 W.L.R. 762; [1979] 3 All E.R. 673; [1979] I.C.R. 921; [1979]
[2007] E.M.L.R. 16; (2007) 151 S.J.L.B. 988 10-05,13-04,13-11,13-12 I.R.L.R. 465; (1979) 123 S.J. 768 HL 11-01
Robinson v St Helens MBC [2002] EWCA Civ 1099; [2002] E.L.R. 681; [2003] Scoot v Interactive Investor International Unreported 35-19,35-28
P.I.Q.R. P9; (2002) 99(39) L.S.G. 39 17-02 Scott v Hillier (1611) Lane 98 5-03
Robinson v Ward (1958) 108 L.J. 491 5-06 Scott v Sampson (1881-82) L.R. 8 Q.B.D. 491 QBD 20-19,20-23
Roe v Clargis (1683) 3 Mod. Rep. 26 2-17 Seaga v Harper [2008] UKPC 9; [2009] 1 A.C. 1; [2008] 3 W.L.R. 478; [2008] 1
Rogers v Secretary of State for the Home Department; R. v Lewes Justices Ex p All E.R. 965; [2008] E.M.L.R. 18 PC (Jam) 10-03,13-01,13-04,13-13
Secretary of State for the Home Department; R. v Lewes Justices Ex p Seaman v Netherclift (1876-77) L.R. 2 C.P.D. 53; (1876) 46 L.J. Q.B. 128
Gaming Board for Great Britain [1973] A.C. 388; [1972] 3 W.L.R. 279; CA 11-04
[1972] 2 All E.R. 1057; (1972) 116 S.J. 696 HL 11-10 Selisto v Finland (56767/00) [2005] E.M.L.R. 8; (2006) 42 E.H.R.R. 8 ECHR 38-16
Rookes v Barnard (No.1) [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All Senior v Holdsworth Ex p. Independent Television News [1976] Q.B. 23; [1975]
E.R. 367; [1964] 1 Lloyd's Rep. 28; (1964) 108 S.J. 93 HL 20-35,20-39, 2 W.L.R. 987; [1975] 2 All E.R. 1009; (1975) 119 S.J. 393 CA (Civ Div) 30-16
20-40,20-41 Seray-Wurie v Charity Commission [2008] EWHC 1263 28-22
Rothermere v Times Newspapers Ltd [1973] 1 W.L.R. 448; [1973] 1 All E.R. Seray-Wurie v Charity Commission of England and Wales [2008] EWHC 870
1013; (1973) 117 S.J. 267 CA (Civ Div) 31-03 (QB) 12-16,29-06
Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson [1892] 1 Service Corp International Plc v Channel Four Television Corp [1999] E M.L.R.
Q.B. 431 CA 11-02,11-03 83 Ch D 21-03,39-10
Rubber Improvement Ltd v Daily Telegraph Ltd; Lewis v Daily Telegraph Ltd; Shah v Standard Chartered Bank [1999] Q.B. 241; [1998] 3 W.L.R. 592; [1998]
Lewis v Associated Newspapers Ltd; Rubber Improvement Ltd v Associated 4 All E.R. 155; [1998] E.M.L.R. 597; (1998) 142 S.J.L.B. 164 CA (Civ
Newspapers Ltd [1964] A.C. 234; [1963] 2 W.L.R. 1063; [1963] 2 All E.R. Div) 8-06,8-08,12-21,32-04
151; (1963) 107 S.J. 356 HL 2-02,2-06,2-07,2-09,2-19,4-07,8-06, Shapland v Palmer [1999] 1 W.L.R. 2068; [1999] 3 All E.R. 50; [1999] P.I.Q.R.
8-08,17-18,20-02,38-22 P249 CA (Civ Div) 17-05
 Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375 Steel & Morris v United Kingdom, noted [1999] E.H.R.L.R. 109 38-26
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[1995] All E.R. (E.C.) 289; [1995] E.C.R. 1-415; [1995] I.L.Pr. 267; [1995] Stevens v Kitchener [1887] 4 T.L.R. 159 12-24
E.M.L.R. 543 ECJ 3-11,27-09,27-12,27-13, Stevens v Sampson (1879-80) L.R. 5 Ex. D. 53 CA 18-14
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Silkin v Beaverbrook Newspapers [1958] 1 W.L.R. 743; [1958] 2 All E.R. 516; Stoner v Audley (1590) Cro. Eliz. 250 5-03
(1958) 102 S.J. 491 QBD 9-05 Stonor v Daily Telegraph Unreported July 19,1976 CA 8-14
Sim v Stretch [1936] 2 All E.R. 1237 HL 2-16,2-18,2-21 Stuart v Bell [1891] 2 Q.B. 341 CA 12-14,18-09
Simmons v Mitchell (1880) 6 App. Cas. 156 5-03 Stubbs Ltd v Russell; sub nom Russell v Stubbs Ltd [1913] A.C. 386; 1913 S.C.
Simpson's Motor Sales (London) Ltd v Hendon Corp (No.2) [1965] 1 W.L.R (H.L.) 14; 1913 1 S.L.T. 428 HL 2-22
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Singh v Observer Ltd [1989] 3 All E.R. 777; (1989) 133 S.J. 485 CA (Civ Div) 34-40 Sun Life Assurance Co. v W.H. Smith (1933) 150 L.T. 211 15-08
Sir Lindsay Parkinson & Co v Triplan Ltd [1973] Q.B. 609; [1973] 2 W.L.R. 632; Sunday Times v United Kingdom (13166/87); sub nom. Sunday Times v United
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Skeate v Slaters Ltd [1914] 2 K.B. 429 CA 18-18 Sunday Times v United Kingdom (A130) (1979-80) 2 E.H.R.R. 245; (1979) 76
Skuse v Granada Television Ltd [1996] E.M.L.R. 278 CA (Civ Div) 2-07,2-23, L.S.G. 328 ECHR 38-05,38-07
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497; (1968) 112 S.J. 97 CA (Civ Div) 2-07,9-03,28-01,28-06 20-07,20-16,20-29,28-08,29-18,33-02,33-10,33-13,33-14
Slipper v BBC [1991] 1 Q.B. 283; [1990] 3 W.L.R. 967; [1990] 1 All ER. 165; Sutherland v Stopes [1925] A.C. 47 HL 8-03
(1990) 134 S.J. 1042 CA (Civ Div) 2-23,3-09,20-02,20-07,20-33, Swain v Hillman [2001] 1 All E.R. 91; [2001] C.P. Rep. 16; [1999]; C.P.L.R. 779;
20-34,26-01,26-04,28-08 [2000] P.I.Q.R. P51 CA 29-05,29-06
Smeaton v Butcher (No.1) [2000] E.M.L.R. 985; (2000) 97(22) L.S.G. 47 Ca (Civ Sybron Corp v Barclays Bank Plc [1985] Ch. 299; [1984] 3 W.L.R. 1055; (1984)
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Smith v ADVFN Plc [2008] EWHC 1797 (QB) 35-02,35-03 Syms v Warren (1976) 51 D.L.R. 17-06
Smith v ADVFN PLC [2008] EWHC 577 (QB) 35-19
Smith v ADVFN Plc. See Nigel Peter William Smith v ADVFN Plc Tadd v Eastwood and Daily Telegraph [1985] I.C.R. 132; [1985] I.R.L.R. 119;
Smith v Houston Unreported December 14,1993 20-14,20-26,23-04,32-18 (1984) 81 L.S.G. 3342 CA (Civ Div) 11-03
Smith v Scott (1847) 2 Car. & Kir. 580 14-06 Takenaka (UK) Ltd v Frankl, unreported, November 1,2000 35-28
Smith's Newspapers v Becker (1932) 47 C.L.R. 279 9-03 Tancic v Times Newspapers Ltd; sub nom. Times Newspapers Ltd v Tancic, The
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South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 Q.B. (Civ Div) 33-15
133 CA 2-23,8-08 Taylforth v News Group Newspapers Unreported 1994 30-18,32-09
Speight v Gosnay (1891) 60 L.J.Q.B. 231 3-09 Taylor v Director of the Serious Fraud Office; sub nom. Taylor v Serious Fraud
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168; [1987] 1 F.T.L.R. 103; (1987) 84 L.S.G. 113; (1986) 136 N.L.J. 1137; Taylor v Perkins (1607) Cro. Jac. 144 5-04
(1986) 130 S.J. 925 HL 27-16,27-20 Tejendrasingh v Metsons; sub nom. Tejendrasingh v Ginn & Co; Tejendrasingh
Spill v Maule (1868-69) L.R. 4 Ex. 232 Ex Chamber 18-12 v Pickwell; Tejendrasingh v Christie; Singh (Tejendra) v Christie [1997]
Spring v Guardian Assurance Plc [1995] 2 A.C. 296; [1994] 3 W.L.R. 354; [1994] E.M.L.R. 597 CA (Civ Div) 30-20
3 All E.R. 129; [1994] C.L.C. 766; [1994] I.C.R. 596; [1994] I.R.L.R. Tejendrasingh v Metsons; Tejendrasingh v Ginn & Co; Tejendrasingh v
460; (1994) 91(40) L.S.G. 36; (1994) 144 N.L.J. 971; (1994) 138 S.J.L.B. 183 Pickwell; sub nom. Tejendrasingh v Christie; Singh (Tejendra) v Christie
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Standen v South Essex Recorders (1934) 50 T.L.R. 365 12-23,17-17 Telnilcoff v Matusevitch [1992] 2 A.C. 343; [1991] 3 W.L.R. 952; [1991] 4 All
Steedman v BBC [2001] EWCA Civ 1534; [2002] E.M.L.R. 17; (2001) 98(47) E.R. 817; (1991) 141 N.L.J. 1590 HL 9-03,9-07,18-07,18-17,27-29
L.S.G. 27; (2001) 145 S.J.L.B. 260 17-03,17-04,17-05 Templeton v Jones [1984] 1 N.Z.L.R. 448 8-14
Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419, The Times , Tench v Great Western Railway (1873) 33 U.P. Can. Q.B. 8 12-07
May 16,2001 17-02 Tesco Stores Ltd v Guardian News & Media Ltd [2009] E.M.L.R. 5; (2008)
Steel & Morris v United Kingdom (2005) 41 E.H.R.R. 22 38-03 105(34) L.S.G. 24; (2008) 152(34) S.J.L.B. 29 QBD 6-02,16-04,16-17
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Thomas v Bradbury Agnew & Co Ltd [1906] 2 K.B. 627 CA 18-11 I.P.D. 19091 Ch D 2-03,6-04,6-05
Thompson v Matthiaen (1912) 135 N.Y.S. 796 2-24
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Costs L.R. 606 34-38 W v Westminster City Council [2005] EWHC 102 (QB); [2005] 4 All E.R. 96
Times Newspapers Ltd v United Kingdom (3002/03) (23676/03) 3-11,35-21 (Note) 12-05,12-09,12-16,18-09
Tinn v Hoffman (1873) 29 L.T. 271 16-17 W v Westminster City Council (Application to Amend Defence) [2004] EWHC
Todd v Hawkins (1837) 8 C. & P. 88 12-15 2812 28-27,31-03
Tolley v JS Fry & Sons Ltd [1931] A.C. 333 HL 2-16 Wainwright v Home Office; sub nom. Secretary of State for the Home
Tolstoy Miloslavsky v United Kingdom (A/323) [1996] E.M.L.R. 152; (1995) 20 Department v Wainwright; Wainwright v Secretary of State for the Home
E.H.R.R. 442 ECHR 21-10,38-07,38-08,38-27 Department [2003] UKHL 53; [2004] 2 A.C. 406; [2003] 3 W.L.R. 1137;
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1979 S.L.T. 126; (1979) 123 S.J. 202 HL 11-02,11-03 Walkley v Precision Forgings Ltd [1979] 1 W.L.R. 606; [1979] 2 All E.R. 548;
Trevor v Solomon. See J Trevor & Sons v Solomon (1979) 123 S.J. 548 HL 17-02,17-05
Trident International Freight Services Ltd v Manchester Ship Canal Co [1990] Wallersteiner v Moir (No.1); sub nom. Moir v Wallersteiner (No.1) [1974] 1
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[1]
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CA 29-19 Act (6 & 7 Will. 4) 30-11 1967 Parliamentary
Winchester Cigarette Machinery Ltd v Payne, The Times, December 15,1993 s.19 30-11 Commissioner Act
CA (Civ Div) 32-17 1840 Parliamentary Papers Act (3 (c.13) 11-09
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Winyard v Tatler Publishing Co Independent, August 16,1991 CA (Civ Div) .... 2-12, 1869 Newspapers, Printers and s.4(1) 5-01
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Woods v Chaleff Unreported April 30,2002 34-27 1888 Law of Libel Amendment 1974 Local Government Act (c.7)
Woods v Chaleff Unreported May 14,1999 20-42,26-03,28-27 Act (51 & 52 Vict. s.32 11-09
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166; (1958) 102 S.J. 655 Assizes (Leeds) 30-20 s.3 11-06 Juries Act (c.23)
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S.J. 409 CA (Civ Div) 39-02,39-10 & 55 Vict. c.51) 5-02,5-05 Trade Union and Labour
Wraith v Wraith Unreported, The Times, June 28,1994 34-03 1946 Education (Scotland) Act (9 Relations Act (c.52) 17-21
Wright v Outram (1890) 17 R. 596 14-06 & 10 Geo. 6 c.42) Rehabilitation of Offenders
s.81(3) 11-02 Act (c.53) 8-03
X v FRG (App. No.3925/69) 32 CD 56 38-26 1952 Defamation Act (1 Eliz. 2 s.8 8-03
c.66) 5-06,14-01, 1977 National Health Service Act (c.49)
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] A.C. 581; [1975] 2 14-03,14-04,14-05, s.119(5) 11-09
W.L.R. 690; (1975) 119 S.J. 273 PC (HK) 17-11 16-01 1978 Civil Liability
Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 Q.B. 148 s.1 5-01 (Contribution) Act
CA 30-14 s.2 5-02,5-06,5-07 (c.47) 3-04,17-01,
Young v Rank [1950] 2 K.B. 510; [1950] 2 All ER. 166; (1950) 84 Ll. L. Rep. 26; s.83 6-02 20-42
66 T.L.R. (Pt. 2) 231; (1950) 94 S.J. 437 KBD 18-18,3211 (1) 6-04,6-07 s.1 20-42
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 T.L.R 581; 99 s.5 8-13,8-14,9-04,16-07, s.2(1) 20-42
A.L.R. 864 CA 2-16,2-17,2-20,4-02,4-04 16-16,20-18,20-19, (2) 20-42
20-24,21-03,23-11, s.4 17-11,20-42,20-42
28-06,28-13,29-06, s.7(3)
39-12 1980 Competition Act (c.21)
s.6 9-04,9-04,23-11,28-14 s.16(2) 11-09
14-07 Limitation Act (c.58)
(3) 14-06,30-11 s.4A 17-01
s.8 18-18 s.10 17-01
s.10 12-15 s.32A 17-02,17-03,17-04,
s.11 3-04,15-12 17-05
s.12 20-28 (2)(b) 17-05
Sch. para.5 14-06 s.33 17-02,17-03,17-04
1955 Defamation Act (Northern s.35(1) 28-28
Ireland) (3 & 4 Eliz. 2 (4) 28-28
c.11) 14-03 (5) 28-28
 1981 Contempt of Court Act (c.49) s.230 35-07 (4) 29-06,29-08 (a) 39-02
s.8 32-01 1996 Defamation Act (c.31) 2-13, (d) 29-09 (b) 39-02
s.10 13-15,30-12,30-16 2-23,14-04,15-12, ss.8-10 13-14 s.8 38-02
Supreme Court Act (c.54) 16-01,16-17,17-04, s.9 29-02,29-03,29-04, s.12 21-10,38-05,38-14,
s.33 30-03 30-04 30-08 17-05,20-19,29-01, 29-09 38-14
s.34 30-04,30-14 29-04,35-11 (1)(b) 22-11 (2) 21-06
s.35A 20-34 s.1 3-02,7-01,15-01,15-02, (2) 22-11,22-12,29-09 (3) 21-10
5.37 16-02 15-09,17-06,18-02, $.10 29-19 (4) 39-02
s.51 34-38 26-03,35-01,35-08, (2)(0 29-09,29-19 art.10 15-08
s.69 28-02,29-25,31-03 35-09,35-10,35-11, s.12 8-03 1999 Access to Justice Act
(1) 31-03 35-13,35-14,35-15, s.13 17-24 (c.22) 34-27
1982 Civil Jurisdiction and 35-23,35-27,35-30, (4) 11-05 s.27 34-27
Judgments Act (c.27) 27-07, 38-17 (5) 11-05 s.29 34-29
27-09,27-22,27-23,35-12 (1) 15-02,35-08,35-09 s.14 10-02,10-03,11-06, Sch.2 para.1 6-02
s.41 27-09 (a) 15-05 14-02 2000 Financial Services and
s.42 27-09 (c) 15-12,35-10, (2) 11-06 Markets Act (c.8)
Sch.4 27-16 35-14,38-17 s.15 10-03,14-01 s.160 11-09
1985 Companies Act (c.6) 38-25 (b) 15-04 (2) 14-07 s.304 11-09
s.1(3) 14-03 (2) 15-03,15-04, (3) 14-05,14-06 Postal Services Act (c.26)
s.695 27-21,27-24 15-05,28-16 (4) 14-04 s.16A(3) 11-09
1986 Gas Act (c.44) (3) 15-04,15-05,35-08 Sch.1 10-03,14-01,14-05 Freedom of Information Act
s.25(3) 11-09 (a) 15-03 Schl Pt 1 14-01,14-02 (c.36)
s.26A(11A) 11-09 (c) 35-08,35-09 para.2 14-02 s.79 10-03
1986 Insolvency Act (c.45) (d) 15-04,38-29 Sch.1 Pt 2 .. 14-01,14-03,14-07 2002 Enterprise Act (c.40)
s.281(1) 17-25 (e) .15-05,35-08,35-09, Housing Act (c.52) s.108 11-09
1988 Copyright, Designs and 35-15,35-20 Sch.2 para.9 11-09 s.173 11-09
Patents Act (c.48) (4) 15-03 1997 Protection from Harassment 2003 Communications Act (c.21)
s.85(1) 39-16 (5) 15-06,35-14 Act (c.40) 21-03,39-16 Sch.14 para.1 11-09
1989 Electricity Act (c.29) (c) 15-11 1998 Data Protection Act 2004 Higher Education Act (c.8)
s.13(3) 11-09 s.2...16-02,22-02,29-09,29-10 (c.29) 12-16,35-19, s.17(2) 11-09
s.14A(11A) 11-09 (2) 16-03 39-03,39-16 Children Act (c.31)
s.56D(4) 11-09 (4) 16-02,16-04 Competition Act (c.41) Sch.1 para.10 11-09
Children Act (c.41) 11-11 (c) 16-06 s.16 11-09 2005 Inquiries Act (c.12)
1990 Courts and Legal Services ss.2-4 16-01 Human Rights Act (c.42) 8-02, s.37(3) 11-09
Act (c.41) 33-14 s.3(1) 16-04,16-05 8-07,9-01,13-09, 2006 Charities Act (c.50) 12-16
s.8 33-02,33-14,34-18 (3) 16-04 15-14,21-02,34-37, Armed Forces Act (c.52)
(3) 20-30 (4) 16-705 35-01,38-01,38-19, s.150 11-09
s.23(5) 11-09 (5) 16-05,16-06 39-02 2007 Legal Services Act (c.29)
s.58 34-27 s.4 16-14,17-02 s.2 38-02 s.57(6) 11-09
1991 Water Industry Act (c.56) (2) 16-16 (1) 38-09 2008 Libel Terrorism Protection
s.15(3) 11-09 (3) 16-12,16-14, s.3(2)(c) 38-02 Act s,.6687/A.9652
1992 Trade Union and Labour 28-17,29-24 s.6(3) 38-02 (US) 27-29
Relations (b) 15-12
(Consolidation) Act (c.52) (4) 16-15,16-16
s.10 17-21 s.5 17-01
1993 Charities Act (c.10) 12-16 s.8 13-05,20-43,27-29,
Railways Act (c.43) 29-02,29-03,29-04,
s.14(3) 11-09 29-05,29-06,29-09,
s.15C(1) 11-09 29-10,29-13,29-14,
Sch.4A para.15(1) 11-09 29-19,29-23,29-24,
1995 Civil Evidence Act (c.38) 8-08 29-25
Communications Decency (2) 29-08,29-19
Act (US) (3) 29-08,29-09

[lv]
 TABLE OF STATUTORY INSTRUMENTS

1986 Companies (Northern reg.17 35-11,35-23

Ireland) Order (SI 1986/1032) reg.18 35-11
art.12(3) 14-03 reg.19 35-11,35-14
1998 Conditional Fee Agreements reg.20 35-11
Order (SI 1998/1860) 34-27 2003 Conditional Fee Agreements
2000 Conditional Fee Agreements (Miscellaneous
Regulations (SI Amendments)
2000/692) 34-27 Regulations (SI
2001 Civil Jurisdiction and 2003/1240) 34-36
Judgments Order (SI 2008 Civil Proceedings Fees Order
2001/3929) 27-09 (SI 2008/1053) 28-02
art.2(1) 27-09 Sch.1 26-03
art.5(3) 27-09
2002 Electronic Commerce (EC
Directive) Regulations
(SI 2002/2013) 3-02,
35-01,38-17
 TABLE OF CIVIL PROCEDURE RULES

1998 Civil Procedure Rules (SI Pt 11 27-28

1998/3132) 8-14, 13-15, r.15.4 28-30
17-02, 17-09, 17-11, r.15.5 28-30
20-19, 20-42, 23-05, r.15.9 28-24
25-01, 25-05, 26-04, Pt.16 28-01
26-06, 27-19, 28-01, r.16.2 28-02
28-02, 28-27, 28-27, r.16.4(1)(b) 28-08, 28-12
28-19, 29-01, 29-04, (c) 28-08
29-15, 29-17, 30-02, r.16.5 28-12
30-14, 31-02, 32-02, (2) 28-12
33-03, 34-06, 34-07, (5) 28-12
34-15, 34-17, 34-22, r.16.7(1) 28-20
34-23, 34-38, 38-28 r.17.1 28-27
Pt 1 16-04, 31-04, 34-17 Pt 18 28-26, 30-05, 30-06
r.1.1(2)(c) 34-21 r.18.1 30-20
(ii) 25-04 (a) 30-05
(iv) 25-05 (b) 30-05
Pt 3 17-11, 29-07, 30-21, r.18.2 30-20
34-17 Pt 18 PD para.1 30-05
r.3.1(2)(b) 32-03 Pt 21 17-26, 17-27
(8) 31-02 Pt 22 28-01
(h) 31-02 Pt 23 17-05, 22-05,
(i) 32-02,32-05 28-03,29-21
(j) 32-02, 32-05 Pt 24 13-14, 17-11, 18-18,
(n) 32-02, 34-38 29-02, 29-03, 29-04,
r.3.1(5) 29-17 29-05, 29-06, 29-09,
r.3.4 29-02, 29-14, 29-17, 29-13, 29-14, 29-18,
29-21 29-19, 29-23, 29-24,
(2)(b) 17-08 29-25, 32-02
Pt 3 PD para.5 29-21 r.24.2 29-02, 29-03
r.5.4C 14-02, 28-03 (b) 29-08
(4) 28-03 rr.24.4-24.6 29-18
r.6.9 17-05 Pt 24 PD para.4 29-07
r.6.19 27-23 para.5.2 29-07
r.6.20 27-23, 27-24, 27-26 para.5.3 29-19
(1) 27-24 Pt 25 21-06
(2) 27-24 r.25.12 34-41
(3) 27-24 (3) 31 11
(8) 27-24 r.25.13 34-42
r.6.21 27-23, 27-25, 27-26 (1)(a) 34-43
r.6.24 27-27 (2)(a) 34-42
r.7.6 17-05 (b) 34-42
Pt 7 PD para.2.8 28-02 (c) 34-42
para.2.9(1) 28-02 (d) 34-42
Pt 8 16-07, 30-06 (e) 34-42

Dix]
 (b) 34-07 (5) 29-19 para.3 16-04, 16-07
(0 34-42 para.3.3(2)(e) 16-07
34-42 (5) 34-08 r.53.3 30-12, 33-01
(g) 34-19 Pt 53 PD 28-23 para.4 2-05, 29-02,
r.26.3 31-01 (8) 29-06, 29-11, 29-12,
31-01 r.44.4 34-20 para.2.1 28-01
r.26.5 para.2.2(1) 28-02 29-13, 29-20, 33-15,
r.26.6 31-01 (2) 34-20
34-20 (2) 28-02 34-17
Pt 29 PD para.2.6(4) 31-01 (3) para.4.1(3) 29-12
30-01 (4) 34-20 para.2.3 28-06
Pt 31 (1)(b) 28-06 para.4.2 28-06, 29-12
r.31.3 30-02 r.44.7 34-17, 34-19
r.44.13(1) 34-15 (2) 28-06 para.4.3 29-20
(1)(b) 30-02 para.4.4 29-20
30-02 r.44.14 34-08 para.2.4 28-05
r .31 . 5 28-13 para.4.6 33-15
r.31.6 30-02 r.44.15 34-28 para.2.5(1)
34-38 (2) 28-13 para.5.1 29-19
r.31.7 30-02 r.44.18 29-19
Pt 44 PD 34-30, 34-09 para.2.6(1) 28-14 (1)
r.31.10 30-02 para.6 22-05, 22-06,
30-02 para.2.1 34-30 (2) 28-14
(4)(b)(ii) 28-21 22-07
r.31.12 16-17, 30-02 para.5 34-21 para.2.8
para.11.1 34-21 para.2.9 28-22 para.6.4 22-10
r.31.15 30-02 Sch.1 17-22
30-03 para.11.5 34-30 para.2.10 28-08
r.31.16 (2) 28-08 Sch.1 0.52 21-09
r.31.22 30-20 para.11.7 34-30
30-19 para.11.8 34-28 para.2.11 28-17
r.31.23
Pt 32 31-04 paras 11.8-11.10 34-30
r.32.1(2) 32-02, 32-08, 32-12 para.11.10 34-29
(3) 32-02, 32-09 para.12.1 34-19
r.32.4(1) 31-04 para.13.2 34-17
(2) 31-04 para.19 34-28
r.32.5 31-04 para.23A.1 34-38
(2) 32-08 para.23A.2 34-38
r.32.9 31-05 r.47.7 34-19
(2) 31-05 r.47.8 34-19
r.32.10 31-04 r.47.9 34-19
r.32.12 31-05 r.47.13 34-19
(2) 31-05 r.47.14 34-19
Pt 32 PD para.5 30-02 r.47.15 34-17
r.33.2 31-06 r.48.7 34-27
r.34.2 30-14, 31-05, 31-06 r.48.8 34-21
Pt 36 16-19, 16-21, 17-14, Pt 48 PD para.10.2 34-21
20-42, 22-04, 22-06, Pt 52 33-16
22-07, 23-03, 23-12, r.52.2(2) 33-15
24-04, 34-02, 34-04, r.52.3(2) 33-16
34-06, 34-16, 34-20, (3) 33-16
34-32, 34-02 (4) 33-16
r.36.2 34-04 (6) 33-16
r.36.10 34-04 (7) 33-16
r.36.14(2) 34-04 r.52.4 33-16
(3) 34-06 r.52.5(2) 33-16
r.38.6 34-02 (4) 33-16
r.39.5 31-06 r.52.7 32-17
r.43.2 34-30 r.52.11 33-15
Pts 43-48 34-21 r.52.12.10 33-16
Pt 43 PD para.4.13 34-19 Pt 53 25-01, 26-06, 29-06
r.44.3(1) 34-02 r.53.2 29-19
(2) 34-02 (2) 29-19
(a) 34-07 (3) 29-19
(4)(a) 34-08 (4) 29-19
 TABLE OF RULES OF THE SUPREME COURT

Rules of the Supreme Court (SI

1965/1776)
Ord.14 29-01,29-05
Ord.16 20-42
Ord.18 r.12(1)(c) 28-19
Ord.22 34-04
Ord.81 17-22
Ord.82 r.3A 2-05,29-11
 SUM1VIARY OF THE LAW AND PROCEDURE

THE DIFFERENCE BETWEEN LIBEL AND SLANDER

Defamation is the generic term for libel and slander. Where the defamation is
in writing or in some other permanent form it is a libel. Where it is spoken or
in some other temporary form it is slander. 1

WHAT THE CLAIMANT MUST PROVE

In order to bring a defamation action a claimant must prove that the defend-
ant has published, or is responsible for the publication of, a defamatory alle-
gation which is understood to refer to him.

Publication

Publication2 means communicating the allegation to another person or

persons. It could be one person, as in the case of a letter, or millions, as in the
case of a national newspaper. It could be in writing, on a computer or, in one
instance, by putting a waxwork of the claimant in the Chamber of Horrors.

Defamatory allegation

A defamatory allegation 3 is one which would either tend to make people

think the worse of the claimant or avoid him or expose him to ridicule.

Reference to the claimant

Generally the claimant will be named and the issue will not arise, but an
unnamed but identifiable claimant will be able to sue. So too might a person
who shares the same name as the intended target of the publication. The
publication must be understood to refer to the claimant. 4

I See Ch.5.
2 See Ch.3.
3 See Ch.2.
4 See Ch.4.
Additional requirements in slander actions them." An example would be an employment reference. The House of Lords
decision in Reynolds v Times Newspapers widened the scope of this defence
In certain slander actions the claimant must also prove financial loss. 5 by protecting the media (or others who can meet the requirements of the
If the claimant can prove these matters he will win the action, unless the defence) when publishing information on a matter of legitimate public inter-
defendant can establish one or more of the following defences. est which the public has a corresponding interest in receiving. 12 The second
is in respect of the publication of reports of various documents and proceed-
ings. These are set out in Sch.1 of the Defamation Act 1996.
DEFENCES In the case of fair comment" and qualified privilege, the defence will be
lost if the claimant can prove that the defendant has been motivated by
The three most common defences 6 are as follows: "malice". 14 Malice means an improper motive for publication. To establish
malice it is usually necessary for a claimant to show that the defendant knew
that the publication was false or was indifferent to its truth, or in the case of
Justification comment, that the opinion was not honestly held.
The remaining defences are as follows:
Justification7 really means "truth". The defendant must show that the allega-
tion complained of is factual as opposed to comment (see below) and is true
or substantially true. Immaterial errors will not therefore prevent the defence Secondary responsibility
from succeeding.
The defendant has an innocent and secondary role in the publication of the
defamatory statement. 15
Fair comment

The fair comment 8 defence protects statements of comment or opinion as Offer of amends'
opposed to statements of fact. The word "fair" is inappropriate, because the
comment or opinion could be exaggerated or prejudiced provided it is hon- An offer to make amends volunteered by a defendant who published in good
estly held. The opinion, however, must be based on facts which are true or faith, which is not accepted by the claimant. 16
sufficiently true and relate to a matter of public interest.
Limitation
Privilege
The claimant's action has been brought too late. 17
In certain circumstances, the law regards freedom of speech to be more
important than the protection of reputation and allegations which may be Consent to publication
false and defamatory will nevertheless be protected by the defence of privi-
lege. 9 The most widely known examples are proceedings in the courts and The claimant expressly or impliedly agreed to the publication taking place. 18
Parliament. However, the defence is flexible and covers any situation where it
is felt to be of overriding importance that people should be free to speak their
mind, e.g. certain business communications and public meetings. Accord and satisfaction (waiver)
Privilege is either absolute, 1° which is an unassailable defence, or qualified.
There are two types of qualified privilege. The first is where the defendant has The claimant has expressly or impliedly agreed not to pursue an action
a legal, moral or social duty or interest in making the defamatory allegations, against the defendant. 19
and the recipients have a corresponding duty or interest in reading or hearing
" See Ch.12.
17 [1999] 3 W.L.R. 1010. See Ch.13.
13 See Ch.9.
5 See Ch.5. 14 See Ch.18.
6 See generally Ch.7. 15 See Ch.15.
7 See Ch.8.
16 See Ch.16.
8 See Ch.9.
17 See Ch.17.
9 See Ch.14.
18 See Ch.17.
'° See Ch.11. 19 See Ch.17.
JUDGE AND JURY Most actions settle before trial, in which case it is common for the defend-
ant to agree to apologise, often by way of an agreed statement read in the
High Court27 (which will be reported by the media if the subject matter is of
Either party has the right to have the case tried by a jury, except in certain interest).
circumstances. 2° In a jury trial most issues are decided by the jury, but the
judge retains power in certain circumstances to direct the jury to dismiss or
uphold all or part of a party's case if he believes that no reasonable jury could COSTS
disagree with him. Furthermore, where a judge is satisfied that either the
claimant or the defendant has no realistic chance of success at trial, he may
dismiss the claim or enter judgment for the claimant, as appropriate, at an Costs28 will generally be paid by the defendant if the claimant wins and vice
early stage under what is known as the summary procedure. 2' versa. It is often the case that the winning party does not recover all of his
costs.

IF THE CLAIMANT WINS

PROCEDURE
If the claimant wins, 22 he is entitled to damages and usually an injunction.
Set out below are the steps that will normally take place in a defamation
claim (see the glossary in Appendix 6 for further explanation). It is rarely the
Damages case that the claim proceeds at such a pace, and the court has the power to
grant extensions of time. Furthermore, any interim (pre-trial) application will
Damages23 are assessed by the jury, subject to the power of the Court of slow down the action.
Appeal to reduce the jury's award if it is too large. The jury may now be told Claim form29
of awards for pain and suffering in personal injury cases and of previous Particulars of claim (claimant)—Must be filed and served with the claim form
Court of Appeal decisions in order to assist them. Exorbitant jury awards or within 14 days after service of the claim form or within four months from
(which in most cases were reduced on appeal or settlement) are therefore the date of issue of the claim form, whichever is the earlier.
likely to be a thing of the past. Where no financial loss has been suffered, it is Acknowledgement of service (optional—defendant)—Within 14 days after
unlikely that the Court of Appeal will allow damages in a defamation action service of the particulars of claim.
to exceed £250,000, which is intended to compare with the maximum award Defence (defendant)—Within 14 days after service of the particulars of claim
for pain and suffering in a personal injury action. or, if the defendant files an acknowledgement of service, 28 days after service
of the particulars of claim.
Injunction Allocation questionnaire (both parties)—Once the defence is filed, the court
automatically sends the parties an allocation questionnaire, which must be
An injunction24 is a court order restraining the defendant from publishing the completed and filed with the court by a date specified by the court (usually
same or similar defamatory allegations. If the defendant breaches the injunc- within 14 days).
tion he can be fined or sent to prison for contempt of court. Reply (claimant)—Filed and served at the same time as the allocation ques-
A judge or jury cannot force a defendant to apologise. However, where the tionnaire. A reply is not always necessary.
claimant succeeds under the summary procedure, the defendant can be com- Directions for managing the case—The allocation questionnaire will ask for
pelled to publish a summary of the court's judgment. 25 Furthermore, a news- proposed directions. A case management conference (see below) will gener-
paper or magazine defendant is likely to be bound by the Press Complaints ally only be listed at this stage if the parties have not agreed directions. Where
Commission's Code of Conduct which requires them to report the outcome the directions are agreed the court will generally make an order putting them
of libel proceedings in which they are involved. 26 into effect.
Disclosure and inspection of documents—Usually 14 days after the directions
order (see above).
20 See para.31-03.
21 See Ch.29.
22 See Ch.19.
28 See Ch.20.
24 See Ch.21. 27 See para.22-03.
28 See para.22-11. 28 See Ch.34.
26 See para.19-02. 28 See para.28-02 and Appendix 1(4).

[lxviii]
 Exchange of witness statements—Usually around six weeks after the direc-
tions order.
Case management conference—Usually fixed for shortly after exchange of
witness statements or, if directions cannot be agreed or the case is compli-
cated, after the filing of allocation questionnaires.
Trial—This will take place within the "trial window", which is usually deter-
mined at the case management conference. The clerk of the lists will arrange
an appointment to fix a date for the trial within that window. At the time
of writing, a three-day trial will be listed for hearing in February/March
2010, a 3-5-day trial in May 2010, a 5-10-day trial in May/June/July 2010, a
10-20-day trial in June/July 2010 and a trial lasting over four weeks will be
listed for hearing in October 2010.
Detailed assessment—Where a party wins the action, their costs bill must be
lodged within three months of the judgment. The assessment hearing will
usually take place within two months of the bill being lodged.
Appeal—The notice of appeal (or notice of application for permission to
appeal) must be filed at the appeal court within either the period directed by
the lower court or 14 days after the date of the decision of the lower court. At
the time of writing the target dates set by the Court of Appeal for the hearing
of appeals are nine months after it enters the court's records in the case of
a final appeal and eight months in the case of an interlocutory appeal. The
court can hear expedited appeals.
 CHAPTER 1

GENERAL

In order to establish a claim in defamation, a claimant must prove that the 1-01
defendant has published or is responsible for the publication of defamatory
material, which is reasonably understood to refer to the claimant, either by
name or by other means of identification. A simpler (but slightly less accu-
rate) alternative is to ask whether the defendant has made a defamatory
allegation about the claimant. Where the publication is in writing or in some
other permanent form it is a libel. Where it is spoken or in some other tempo-
rary form it is a slander. There is only one significant difference between libel
and slander, which is that in the case of certain slanders a claimant must also
prove financial loss.'
The fact that the claimant proves these matters does not mean that he will
necessarily win the case. It then falls to the defendant to seek to establish one
or more of the recognised defences. The most common defences are that the
material is true (known as justification), fair comment or that it was published
on a privileged occasion. These are considered in Part Two. If the defendant
cannot establish a defence, the claimant will win the case and be entitled to
an award of damages. An awareness of what each party must prove is neces-
sary for a proper understanding of defamation law and procedure. In legal
terminology, a defamatory allegation only becomes libellous or slanderous
when the defendant has failed to establish a defence.
In a typical newspaper or broadcast libel case 2 the claimant has no dif-
ficulty in establishing a claim—the article will have been published to a large
number of people and where the claimant is named, as is usually the case, it
will be clear that it refers to him. There may be a dispute over whether or not
the article carries a defamatory meaning. However, in the majority of cases
the real battleground will be whether the defendant establishes a defence. It is
important to bear this in mind. Textbook definitions tend to focus on what the
claimant needs to prove and do not give proper recognition to the fact that a
defamatory statement concerning the claimant and published by the defend-
ant will only give rise to liability if the defendant cannot establish one of the
available defences. The most serious defamatory allegations, which destroy
a claimant's reputation and livelihood, can be disseminated with impunity if,
for example, they are true or are published on a privileged occasion.
It is therefore important that the claimant gives detailed consideration at 1-02
the outset not merely to the matters which he must prove to get his claim up
and running (which are discussed in the following chapter), but also to how
he will rebut any of the defences that may be raised by the defendant. For

I See Ch.5.
2See Appendix 1 for an example.

[3]
example, there is no obligation on the claimant to prove the allegation is false
in order to establish a claim in defamation. However, he must nevertheless
anticipate the evidence on which he could rely in order to demonstrate its
falsity if there is a prospect that the defendant will seek to prove that it is true. CHAPTER 2
Similarly, the claimant need not prove that the defendant was malicious in
order to establish that he has been defamed. But, where the defendant proves THE DEFAMATORY STATEMENT
that the publication is fair comment or was made on an occasion of quali-
fied privilege, the claimant must prove malice in order to defeat the defence
and win the case. 3 Finally, it is also worth bearing in mind that even when The claimant must prove that the statement in question conveys a defamatory
the claimant technically has a claim and there is no defence, if the case lacks meaning
any real merit, it may not be worth pursuing. Although there is generally no
requirement to prove actual harm either in the sense of financial loss or of General 2-01
anyone in fact thinking the worse of the claimant as a result of the publica- The meaning of the words 2-02
tion, a jury in such a case would be entitled to award nominal damages 4 and The natural and ordinary meaning 2-03
the claimant would be unlikely to recover his costs. 5 This and other practical The functions of judge and jury 2-05
considerations are addressed in Ch.23. The ordinary reader 2-06
In conclusion, the burden of proof on the claimant can be conveniently How the ordinary reader interprets the words 2-07
divided into three elements: The entire publication must be considered—bane and antidote 2-08
Repetition and rumour 2-09
1. The defamatory statement: do the words convey a defamatory Innuendo meanings 2-11
meaning?6 The single meaning rule 2-14
Is the meaning defamatory? 2-15
2. Publication by the defendant: if the answer to 1. is yes, has the defend- The definition of defamatory 2-16
ant published or been responsible for the publication of the defama- The right-thinking member of society 2-17
tory statement? 7 Examples of defamatory allegations 2-18
3. Reference to the claimant: if the answers to 1. and 2. are yes, would Criminal offences 2-19
the defamatory statement be reasonably understood to refer to the Personal morality 2-20
claimant?8 Ridicule 2-21
Financial 2-22
The claimant must succeed under each head. Professional and trade 2-23

General

In order to consider whether or not the statement (aka the "publication") 2-01
which is the subject of a defamation claim is defamatory, it is generally nec-
essary to ask two questions:
1. What meaning or meanings would it convey to an ordinary and rea-
sonable person?
2. Is that meaning or are those meanings defamatory?
Whether or not there is a serious dispute on either of these questions will obvi-
3 See Ch.18. ously depend on the nature of the statement and is best illustrated by example:
4 See para.20-02.
5 See para.34-03. (a) D states directly that C is a habitual liar and is untrustworthy—both
6 See Ch.2.
7 See Ch.3.
the meaning of the statement and the defamatory nature of the
8 See Ch.4. meaning are clear.

[4] [5]
 (b) D states directly that C is horrendously ugly—the meaning may The natural and ordinary meaning
be clear but the question of whether it is defamatory to allege that
someone is horrendously ugly is open to argument.' In most defamation claims the court will only be concerned with the natural 2-03
and ordinary meaning. This is the meaning that an ordinary, reasonable
(c) D states of C "He makes Richard Nixon look like George Washington". person would derive from the words, without any special knowledge beyond
There may be some argument over whether the statement means that that which is known to ordinary people generally. Alternatively, it is how
C is a liar and is untrustworthy. However, if that is the meaning, it is the words would be understood by "the man in the street" or "Joe Public". 5
clearly defamatory. The claimant must identify what he claims to be the natural and ordinary
(d) D states of C "When he walks past mirrors they start to crack". There meaning of the words as understood by the ordinary reader. It has been estab-
will be a question over whether the meaning of the statement is that C lished that this notional ordinary reader has certain characteristics which are
is horrendously ugly and, if so, whether that is defamatory. considered below. However, his most notable attribute is his ability to read
between the lines and not to be chained to the literal meaning conveyed by
The principles for determining the meaning of the statement are considered in the words. The natural and ordinary meaning therefore includes what might
paras 2-02 to 2-11 below and are followed by the principles for determining be popularly understood as an innuendo, i.e. something which is insinuated
whether or not the meaning is defamatory. in or inferred from the words. Indeed, a natural and ordinary meaning of this
kind is sometimes confusingly described as a "false" innuendo, in contrast to
the "true" or "legal" innuendo which relies on special knowledge possessed
The meaning of the words by the reader (see para.2-09).
Examples
2-02 The first consideration therefore is the meaning of the statement. There are
a number of obscure authorities relating to defamation by gesture or physi- In English and Scottish Co-operative Investment Mortgage and Investment 2-04
cal representation—for example by placing a waxwork of the claimant near Society Ltd v Odhams Press Ltd, 6 The Daily Herald published an article
the Chamber of Horrors. 2 However, almost invariably the publication which headed "False Profit Return Charge Against Society" which reported that
is the subject of a defamation claim will consist of words, be they written, the plaintiff had been accused of certain false entries in its annual return.
spoken, broadcast or transmitted electronically. Words are the essence of The plaintiff successfully claimed that to an ordinary reader the word "false"
the tort of defamation and the claimant must in his statement of claim set would imply fraudulent and dishonest, and not merely incorrect, as the news-
out the words of which he complains.' The difficulty with words is that they paper claimed it had intended to suggest.
can mean different things to different people and the context and manner in In Prager (aka Duff) v Times Newspapers Ltd, 7 The Sunday Times pub-
which they are published will affect their meaning. Furthermore, as Lord lished the following words in the course of an article on boxing promoters:
Devlin recognised, those who "spread scandal" will often seek to hide the
true meaning within the words in order to avoid being caught by the penalties "Duff, who spends most of his time in the United States, then formed alliances with
Harold Smith, who was funding promotions with money stolen from the Wells
of defamation. 4 Fargo Bank."
In order to ascertain the meaning of a publication it is necessary to have
a clear understanding of the twin concepts of the "natural and ordinary" The plaintiff alleged that the article implied that he had not only associated
meaning and the "innuendo" meaning. They are the first example of the law with Mr Smith, but had participated and connived in the use of the stolen
of defamation creating confusion by misusing ordinary English words. The money. The jury agreed.
easiest way of approaching the matter is to consider all meanings as natural In Dwek v Macmillan Publishers Ltd 8 the defendants were the publishers of
and ordinary meanings unless the meaning is only accessible to readers who a biography of Mohammed Al-Fayed. One of the photographs in the book
have some special knowledge, which is not known by ordinary people gener- showed a young woman sitting between two men on a sofa. The caption iden-
ally. Such a meaning is known as an innuendo meaning (aka "true" or "legal" tified the young woman as a prostitute and one of the men as Dodi Fayed. In
innuendo) and is considered in para.2-09 below. fact, it was not Dodi Fayed, but a dentist from Surrey named Norman Dwek.
The Court of Appeal concluded that an ordinary reader reading between the

I See Berkoff V Burchill [1997] E.M.L.R. 139, referred to in para.2-21. 5 See for example Vodaphone Group Plc v Orange Personal Communications Services Ltd [1997]

2 Monson v Tussauds [1894] 1 Q.B. 671. E.M.L.R. 84; The Times, August 31,1996.
3 Where the claimant is unable to ascertain the words with reasonable precision his claim will 6 [1941] K.B. 440.
fail (see para.28-05). 7 [1988] 1 W.L.R. 77.
4 Lewis v Daily Telegraph [1964] A.C. 234 at 278. 8 [2000] E.M.L.R. 284.

[6] [7]
 lines was capable of concluding that the person wrongly described as Dodi not the publication is capable of bearing a defamatory meaning, a body of
Fayed would have had sex with the woman described as a prostitute. authority has emerged which sets out the relevant considerations in determin-
In the examples set out above, the claimant was alleging that the defam- ing the interpretational capabilities of the ordinary reader.
atory implication, although not stated literally, was accessible to any ordi- The leading authority is Lewis v The Daily Telegraph 14 in which an article
nary reader of the publication. It was therefore the natural and ordinary in The Daily Telegraph headed "Inquiry on Firm by City Police" reported
meaning. that the City of London Fraud Squad were "inquiring into the affairs of
Rubber Improvement Ltd". The article continued:
The functions of judge and jury "The investigation was requested after criticisms of the chairman's statement and
the accounts made by a shareholder at a company meeting. The chairman is Mr
John Lewis, former Socialist M.P."
45 The determination of meaning is complicated by the split functions of judge
and jury. Questions of law are always for the judge to determine, but ques- Mr Lewis and Rubber Improvement Limited sued for libel. They claimed
tions of fact are generally decided by the jury. 9 The actual meaning of the that the natural and ordinary meaning of the article was that they were guilty
publication is a question of fact, to be determined by the jury. However, of fraud. However, the House of Lords held that the article was incapable
the judge has a preliminary power to hold that the words are not capable of suggesting that the plaintiffs were guilty of fraud. Their Lordships held
of bearing a particular meaning and that it would be perverse for a jury to that no ordinary and reasonable reader would infer guilt merely because the
conclude otherwise (see para.29-11). This is a question of law and applies police were investigating the matter. The article was capable of conveying
regardless of the type of publication in which the allegations appear and the the impression that the plaintiffs were suspected of fraud and that this was a
style in which they are written; a judge is no less competent to give a ruling defamatory allegation in itself, albeit less serious.
on the meaning of a publication that appears in a "trashy" magazine thanin
the most esteemed journal.° Where the words are not capable of bearing the
pleaded meaning, that meaning will be struck out. Unless there is an alter- How the ordinary reader interprets the words
native defamatory meaning that can be relied on by the claimant the entire
claim will be struck out. CPR Pt 53 PD 4 (originally RSC 0.82 r.3A, intro- The following general principles of construction emerge from their Lordships' 2-07
duced in 1994) allows the court to determine the question of capability at an speeches in Lewis and the subsequent authorities.°
early stage." The concept of whether or not words are capable of bearing a
particular meaning may be difficult to grasp. In practice, the judge will be 1. The natural and ordinary meaning is that which the words convey to
considering whether the meaning that is sought to be inferred from the words ordinary reasonable persons.
is so exaggerated or strained that no ordinary reader could possibly read it 2. The ordinary reader is not avid for scandal but can read between
into the words. The issue is of wider significance. The defendant may not be
able to justify the meaning contended for by the claimant.° In addition, the the lines and draw inferences. Ordinary men and women have dif-
seriousness of the allegation will affect the level of damages.° ferent temperaments and outlooks. Some are unduly suspicious and
Inevitably, the determination of meaning is, to a large extent, a question of some are unusually naive. One must try to envisage people between
impression. Where the meaning is within the range or spectrum of meanings these two extremes and determine the most damaging meaning that
which an ordinary reader might attach to the words it should be left to the they would put on the words. However, where there are a number
jury to determine which meaning is, in fact, correct. of innocent interpretations, the ordinary reader will not seize on the
only defamatory one. 16 On the facts of Lewis, it was held that only an
unduly suspicious person would have concluded that the plaintiffs had
The ordinary reader been guilty of fraud simply because the police were investigating their
affairs. In Jeynes v News Magazines Ltd, 17 it was held that no reason-
—06 It might be thought that the simplest way of determining the natural and able reader could have concluded that the headline on the front cover
ordinary meaning would be to place the allegedly defamatory material before of a magazine proclaiming "Lisa 'The Geezer'. My fake boobs fell out
the jury, who are, by definition, ordinary readers and ask them for their
immediate reaction. However, because of the preliminary issue of whether or
14 [1964] AC. 234.
19 See also Slim v Daily Telegraph [1968] 2 Q.B. 157; Hartt v Newspaper Publishing Plc, The
See para.31-03 for the right to elect trial by jury.
9 Times, November 9, 1989, CA; Skuse v Granada Television Ltd [1996] E.M.L.R. 278; Charleston
1° Jeynes v News Magazines Ltd [2008] EWCA Civ 130. v News Group Newspapers Ltd [1995] 2 W.L.R 451; Gillick v BBC [1996] E.M.L.R. 267; Botham
See para.29-11. v Khan, The Times, July 15, 1996; Mapp v Times Newspapers Ltd [1998] Q.B. 520.
16 Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App. Cas. 741.
12 See Ch.8.
13 See Ch.20.
17 Ibid.

[8] [9]
 on a date with James Hewitt", was capable of meaning that the former tive authorities had discovered credible evidence of their involvement
Big Brother contestant was a man posing as a woman, nor that she in a conspiracy to smuggle uranium to Osama bin Laden for use in a
was a transgendered or transsexual person who had been born a man terrorist nuclear bomb attack. The defendant argued that the article
but had become a woman. was not capable of being taken as seriously suggesting that the clai-
The effect of the publication on an ordinary reader is one of impres- mants were implicated in the plot. Eady J., in refusing the application,
3. observed that the story was presented as having been written by five
sion and the court should be wary of an over-elaborate analysis. The investigative journalists, and therefore as being "a story of some sub-
narrow and analytical construction put on words by a lawyer is inap- stance—a serious story, in other words, of an investigative nature,
propriate. This is particularly the case in relation to television broad- albeit at an early stage". By contrast, words clearly spoken in circum-
casts where the visual aspect is important and where a defamatory stances where they could not reasonably be understood seriously, for
implication is likely to be conveyed in subtle terms, for example by example in jest or vulgar and abusive language in the heat of passion,
juxtaposition of materia1. 18 will not be considered defamatory. 25 A humorous and ironic "spoof"
4. It follows from 1. that the meaning the defendant intended to convey of Sir Elton John's diary, which was published in the "Weekend"
is irrelevant for this purpose. 19 The court is concerned solely with the section of a newspaper and which suggested that Sir Elton's annual
objective test of how the words would be understood. It was therefore White Tie and Tiara Ball only raised a relatively small amount of
no defence for the newspaper in English and Scottish Co-operative20 to money for his AIDS foundation after the costs of the lavish event
allege that they did not intend to accuse the plaintiff of fraud. were deducted, was held not to be capable of bearing the defama-
5. Equally, the way in which the words were in fact understood is irrelevant. tory meanings contended for, since readers would have expected that
No evidence can therefore be adduced of how the words were under- such serious allegations would be made without humour in the news
stood in relation to meaning. The parties cannot, for example, conduct section of the newspaper. 26 Whilst the correctness of this decision is
readership surveys in support of their respective cases. However, the open to question, since it suggests that almost the entire contents of
way the words were understood is relevant in determining the extent of Private Eye are immune from action, the Court of Appeal refused to
the injury to the claimant's reputation, and witnesses in a defamation grant permission to appeal. The submission that has occasionally been
claim may therefore give evidence of how they understood the words, made on behalf of a newspaper, that nobody takes what they publish
but solely for that purpose. The jury must then be directed to engage in seriously, is unlikely to be successful however, and may have unfortu-
the sort of logical game more suited to lawyers and disregard the evi- nate consequences in relation to any defence the newspaper raises.
dence when determining meaning. 21 They are simply to put themselves 7. The class of reader may also be relevant in determining the scope of
in the position of the ordinary reader, ignoring how anyone else has possible meanings the publication may bear. For example, a solicitor
understood the words, and form their own view. reading the Law Society Gazette is less prone to "loose thinking" than
6. The ordinary reader takes notice of the circumstances and manner the average ordinary reader. 27
of the publication, such as the prominence given to the allegations.
Where a particular matter is given prominence in a newspaper it may The entire publication must be considered—bane and antidote
be assumed that it is one of significance and is therefore more likely
to convey a defamatory meaning to the ordinary reader. 22 In English The ordinary reader is treated as having read the publication as a whole in 2-08
and Scottish Co-operative 23 the prominence given to the article and determining its meaning.
headline—"False profit return charge against Society"—was a matter
which could lead the jury to conclude that "false" would have been "[If] in one part of the publication, something disreputable to the plaintiff is stated,
understood to mean fraudulent rather than merely mistaken. In but that is removed by the conclusion, the bane and the antidote must be taken
Al-Fayed v Telegraph Group Ltd, 24 The Sunday Telegraph published together." 28
an article which the claimants alleged suggested that French investiga-
In simpler terms, the claimant must take the good with the bad. As Lord
18 See Skuse v Granada Television Ltd [1996] E.M.L.R. 278, above; Hinduja v Asia TV Ltd [1998]
Bridge observed in Charleston v News Group Newspapers Ltd29:
E.M.L.R. 517; Geenty v Channel Four Television Corp [1998] E.M.L.R. 524.
19 It may be relevant to malice. See Ch.18.
29 See para.2-04 above. 28 See para.5-09.
21 Cornwell v Myskow [1987] 1 W.L.R. 630. 28 John v Guardian News & Media Ltd [2008] EWHC 3066.
22 See Lord Morris, who dissented on the facts, in Lewis at 265. 27 See Rees v Law Society Gazette Unreported 2003 Gray J.
23 See para.2-04 above. 28 per Alderson B. in Chalmers v Payne (1835) 2 Cr. M. & R. 156 at 159.
24 [2002] EWHC 1631. 29 [1995] 2 A.C. 65; see para.2-12 below.

[1 0]
 "it is often a debatable question which the jury must resolve whether the antidote breach of confidence by Cherie Blair. The article quoted at length from a
is effective to neutralise the bane and in determining the question the jury may press statement issued by the Mail on Sunday which was defamatory of the
certainly consider the mode of publication and the relative prominence given to claimant, who was the Blairs' former nanny. It also cited an extract from
different parts of it." the press statement issued by the claimant. The newspaper argued that it
Where a newspaper publishes a defamatory headline it is, according to Lord was merely reporting both statements in a neutral fashion and should not
Bridge, "playing with fire" and any curative words in the text must be suf- therefore be regarded as having defamed the claimant. The Court of Appeal
ficiently clear and prominent. It is rare that a publication attacks a claimant rejected this submission on the facts (both newspapers being published by the
without giving some coverage to his side of the story, and this of itself will same company) and on principle. As was stated by Simon Brown L.J. 35:
clearly be insufficient to neutralise the attack. It is only in very obvious cases, "If A says to B that C says that D is a scoundrel, B will think just as ill of D as if
of which Charleston was one, that the judge will decide that any explanation he heard the statement directly from C. If, moreover, A is a respectable newspaper,
or excuse given on the part of the claimant is so clear cut that no reasonable D's position will be worse than if B had merely heard the statement directly from
reader could have thought the worse of the claimant as a result of reading C. It will be worse in part because there will be many more Bs, and in part because
the publication as a whole. 3° In Jameel v Times Newspapers Ltd, 31 the court responsible newspapers do not generally repeat serious allegations unless they
observed that "Mud, in short, is likely to stick . . .", before going on to hold think that there is something in them so that the very fact of publication carries a
that the article was capable of bearing the meaning that grounds existed to certain weight."
suspect Mr Jameel of funding terrorism, because whilst the article contained
significant exculpatory material, this was inadequate to provide an "incon- Innuendo meanings
testable antidote to whatever poison a jury may detect".
It follows that a claimant will only need to rely on an innuendo meaning (also 2-11
Repetition and rumour known as "true" or "legal innuendo") where the ordinary reader, armed with
his powers of interpretation and implication, cannot discern any defamatory
-09 Where the defendant is repeating what somebody else has told him he is meaning or a particular defamatory meaning in the publication. The claimant
generally to be treated as having said it himself. This is known as the repeti- must then rely on the special knowledge which he alleges was possessed by a
tion rule. Great care should therefore be taken before a person gives further reader or readers of the publication, which would allow them to see a defam-
coverage to defamatory allegations. If D states that there is a rumour that atory meaning that would escape the ordinary reader. A simple example is the
C is guilty of theft or, alternatively, that X has told him that C is guilty of statement that C was seen leaving 26 Acacia Avenue. To ordinary readers it is
theft, it is generally treated as the equivalent of a direct allegation by D of harmless, without there being any reference, direct or implied to what occurs
C's guilt. 32 However, merely to suggest that C is suspected of theft, although at that address. To those who know that 26 Acacia Avenue is a brothel, the
defamatory, is incapable of being reasonably understood as an allegation of meaning may be that C associates with prostitutes.
guilt. Furthermore, there may be a case where D derides X's claims to such In Cassidy v The Daily Mirror, 36 The Daily Mirror published a photograph
an extent that no reasonable reader could think worse of C. The rule is not of a man who called himself Corrigan, in the company of a lady. Mr Corrigan
absolute. Where a defendant republishes someone else's allegations, he has a volunteered the information that they were engaged to be married, which the
defence if he can prove that the allegations were in the public interest, he did newspaper duly reported. Corrigan's real name was Cassidy. He was already
not adopt those allegations and behaved responsibly in reporting them. 33 The married and his lawful wife successfully sued on the basis that the publica-
privilege that is accorded to the fair and accurate reporting of statements in tion implied, to those who knew her as Mrs Cassidy, that she was an immoral
Parliament is a further example of an exception to the repetition rule. woman who, while purporting to be his wife, was really his mistress. The jury
awarded her £500. In Cassidy the special knowledge which was the basis of
Example the innuendo meaning was that Mrs Cassidy held herself out as the wife of
the man identified as Mr Corrigan in the article. She claimed that this was
-10 In Mark v Associated Newspapers Ltd, 34 The Daily Mail published an article implicitly contradicted by the terms of the article. In order to establish her
the day after its sister newspaper, the Mail on Sunday, had been sued for claim, she had to prove that there was at least one reader of the newspaper
who knew her as Mrs Cassidy.
An innuendo can also arise where the matter or matters in question are
3 ° See the analysis of bane and antidote cases in Cruise v Express Newspapers Plc [1999] 2 widely known to the publishees, but may not have entered the consciousness
W.L.R. 327 and Al-Fayed v Telegraph Group Ltd LTL July 24,2001.
31 [2004] EWCA Civ 983; (2004) E.M.L.R. 31.
32 See Lewis v Daily Telegraph Ltd above and also para.8-06 on justification.
33 See Ch.13.
34 At 285. [2002] E.M.L.R. 38.
35 At [29].
36 [1929] 2 K.B. 331.
[12] [13]
 of the ordinary reader. In Gowrie v Express Newspapers Plc 37 The Daily Star was the case.4 ' If he can do so, the court will consider how the words would
wrote "A lordly price to pay"— have been understood by an ordinary and reasonable person in possession
of the special knowledge. The claimant must demonstrate that such a person
"There's been much excited chatter as to why dashing poetry-scribbling Minister would understand them to convey the defamatory meaning which he alleges.
Lord Gowrie left the Cabinet so suddenly. What expensive habits can he not The principles for determining how the ordinary reader understands the
support on an income of £33,000? I'm sure Gowrie himself would snort at sugges- words are similar to those in relation to the natural and ordinary meaning.
tions that he was born with a silver spoon around his neck." However, in innuendo cases evidence may be given of how the words were
in fact understood by the publishees who had the requisite knowledge. In
The plaintiff was able to argue successfully that many readers would have Cassidy, for example, the plaintiff called witnesses to state that they under-
knowledge of drug terminology and would therefore have understood the stood the terms of the article to imply that she was an immoral woman.
words "expensive habits", "snorting" and "silver spoon" to refer to the use Such evidence, however, is not conclusive. 42 If the jury had decided that an
of cocaine. ordinary and reasonable reader was more likely to think that Corrigan was
-12 To say that the claimant believes that, "No one with a conscience votes a rascal rather than Mrs Cassidy a liar, she would have lost. The intended
Conservative", would not appear to be defamatory. However, to those meaning of the defendant is once again irrelevant. However, where the
readers who know that the claimant holds himself out as a Conservative defendant could not have foreseen that the claimant would be defamed by
activist, it may be defamatory, since it could amount to an allegation of innuendo, he will receive some protection from the offer of amends defence
hypocrisy. This was the argument advanced by Norman Tebbitt in his claim in the 1996 Act. 43
against the publishers of The Guardian. Michael Foot, the former leader of Occasionally it is the defendant who seeks to rely on an innuendo in order
the Labour party, successfully sued The Daily Mail, on the same basis, for to negate a defamatory natural and ordinary meaning. To say that C was
alleging that he had received private medical treatment. seen leaving a brothel at 26 Acacia Avenue would not be defamatory if all the
The "hypocrisy" innuendo argument is commonly advanced. The actor publishees were aware that C was an undercover police officer with respon-
Jason Donovan brought proceedings against the publishers of a magazine sibility for investigating vice. However, the defendant would be liable in
over an article which he argued accused him of homosexuality. He did not respect of any publishees who were unaware of this fact. 44
suggest that there was anything wrong with homosexuality, but since he
had always claimed to be heterosexual, he argued that to suggest otherwise
would imply that he was a hypocrite. 38 The article did not state that Donovan The single meaning rule
claimed to be a heterosexual. Hence the need to plead it as an innuendo in
order to establish the imputation of hypocrisy. It is often said that there can be only one natural and ordinary meaning and, 2-14
Words published in a foreign language fall within the innuendo principle where appropriate, one innuendo meaning. This is an oversimplification. To
because ordinary readers cannot be assumed to understand the language. 39 The say of C that he is a thief, adulterer and drunk does not mean that C can only
same applies to slang.° The claimant must show that at least one of the readers select one allegation in respect of which to complain, although he may choose
understood the language or the slang so as to comprehend the allegation. to do so. A newspaper or magazine article, for example, can level a number of
-13 As can be seen from the examples set out above, it is sometimes difficult to allegations against a claimant which will be listed in his particulars of claim.
decide whether a particular fact or expression will be understood generally The effect of the "single meaning rule" is that where there are legitimate but
by ordinary readers so as to obviate the need for an innuendo. It is probable contradictory interpretations of the words, the court cannot recognise the
that the significance of comparisons with "Bin Laden", "Imelda Marcos", reality, which is that a number of reasonable readers would have interpreted
"Casanova" or "Maxwell" would be understood by ordinary readers. In the words in one way and the remainder in the alternative. The court must
these borderline cases, the matter is academic. The claimant should, out of determine one "correct" meaning out of the conflicting interpretations.
caution, rely on the innuendo meaning as an alternative to the natural and A striking illustration of this principle is found in the House of Lords
ordinary meaning. Where the publication is to a wide audience it is unlikely decision in Charleston v News Group Newspapers Ltd. 45 The plaintiffs were
that the defendant will deny that these matters would have been known to a actors in the television serial Neighbours. Makers of a pornographic com-
large number of readers. puter game produced, without the actors' consent, photographic images
However, where there is a genuine dispute as to whether or not readers had where the plaintiffs' faces had been superimposed onto near-naked bodies.
the necessary knowledge, the claimant must establish by evidence that this

41 Fulham v Newcastle Chronicle and Journal Ltd [1977] 1 W.L.R. 651.

39 Unreported 1986. 42 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 K.B. 331.
38 Jason Donovan v Logan Unreported April 1991; see Appendix 3. 43 See Ch.16.
39 Barnett v Allen (1858) 3 H. & N. 376. 44 Hankison v Bilby (1847) 16 M.& W. 442.
4° ibid., Winyard v Tatler Publishing Co, The Independent, July 16, 1991, CA. 45 [1995] 2 A.C. 65

[14] [15]
 The News of the World published an article under the prominent heading different roles of judge and jury explained in para.2-05 above, the judge has
"Strewth! What's Harold up to with our Madge" which reported this. It was power to determine whether a particular meaning is capable of being defam-
illustrated with a still from the game which appeared to depict the plaintiffs atory. This is a question of law. Whether the meaning is actually defamatory
in a pornographic pose. The text of the article made clear that the game had is a question of fact. If there is to be a dispute about capability, it is preferable
been produced without the plaintiffs' consent or knowledge and that the that it is decided at the outset of the claim. 48 Where an allegation is capable
images were artificially constructed. It was accepted by the publishers of The of being defamatory it is for the tribunal of fact, most commonly a jury, to
News of the World that a large number of its readers would only have seen decide whether or not it is defamatory. Judicial decisions on whether a par-
the photograph and headline and would have concluded that the plaintiffs ticular meaning is capable of being defamatory are therefore of limited assist-
were willing participants in pornography. It was accepted by the plaintiffs ance, particularly if they reflect outdated values.
that those readers who read the text would have realised the true position The mere fact that an allegation is false does not necessarily make it defam-
and would not have thought the worse of them. They therefore limited their atory. If the allegation is not defamatory in nature, there can be no claim in
claim to those readers who had only seen the headline and the photograph. defamation. It is irrelevant that it causes substantial damage. The aggrieved
In the leading speech Lord Bridge re-affirmed the "single meaning" rule and party can make a complaint to the Press Complaints Commission or to
upheld the principle that the ordinary reader must be assumed to have read OFCOM if the maker of the false statement is subject to the relevant code of
the whole article. It followed that it was incapable of bearing a defamatory conduct and has refused to publish a correction. 49 In relation to certain alle-
meaning. In Charleston, the inconsistent meanings arose from some readers gations, the claimant may have a claim in malicious falsehood, provided that
only reading part of the material, however the same principle applies where he can prove that the maker of the statement has been malicious. 80 However,
two equally legitimate but inconsistent meanings may be derived by reason- there is no general right of redress for a person who has been a victim of a
able readers when considering the publication in its entirety. For example, in false statement which is not defamatory, unless perhaps the allegation relates
English and Scottish Co-operative (see para.2-04 above) it may well have been to private information (see Ch.39, below).
the case that a substantial number of readers would not have assumed that
"false" meant fraudulent as opposed to mistaken.
Where the claimant alleges a natural and ordinary meaning and an innu- The definition of defamatory
endo meaning, it is possible for the two meanings to differ. In Winyard v
Taller," the plaintiff, who was the proprietor of a health farm, sued over There have been numerous judicial attempts to define what is defamatory. 2-16
an article in Tatler in which she was described as "the international boot". The most common direction now given to juries is that a defamatory alle-
She claimed that the natural and ordinary meaning of "boot" was an ugly gation is one that tends to make reasonable people think the worse of the
harridan. She also alleged that there was a slang meaning of "boot", namely claimant. 81 This incorporates an element of discredit or moral blame. Other
prostitute, which would have been known to a limited number of readers and definitions refer to "words which cause a person to be shunned or avoided".
which she pleaded as an innuendo. The Court of Appeal accepted that the This would include allegations which carry no moral blame but which might
words could bear this meaning, but reduced an award of £75,000 to £40,000 make people avoid the claimant. In Youssoupoff v MGM Pictures Ltd, 52 a
because of the limited number of Tatler readers who would have understood 1934 Court of Appeal held that an allegation that the plaintiff was raped was
the words in this way. An article may also be held to have a different meaning defamatory because it would prejudice her chances of "receiving respectable
where it consists of both material protected by qualified privilege and sup- consideration from the world". The concept of defamation by exposure to
plementary materia1. 47 In order to give effect to the privilege, the meaning "ridicule", from the least satisfactory definition of "hatred, ridicule and con-
of the article that must be defended is the meaning of the supplementary tempt" has received the approval of the Court of Appea1. 83
material, although this will be read in the context of the privileged matter. However, words which merely cause injured feelings or annoyance but do
Accordingly, it will be necessary to determine the question of privilege before not reflect on reputation are not defamatory. A claimant may be upset to
the issue of meaning. hear that he has died but it is not defamatory. 84 The fact that the publication
amounts to a breach of confidence or misuse of private information will not
make it defamatory. To use a person's name without his authority for the
Is the meaning defamatory? purposes of an advertisement is not of itself defamatory, although it may

-15 Having arrived at the meaning or meanings of the publication, it is necessary 48 See paras 29-11 et seq.
to ask whether any of those meanings are defamatory. In accordance with the 49 See para.I9-02.
Ch.6.
51 Sim v Stretch (1936) 52 T.L.R. 669; Tolley v J.S. Fry & Sons Ltd [1931] A.C. 333.
57 (1934) 50 T.L.R. 581.
46 See para.15-04; The Independent, August 16,1991, CA. 83 See para.2-21.
47 Curistan v Times Newspapers Ltd [2008] EWCA Civ 432. 84 Samuels v Evening Mail (1875) 6 Hun. (N.Y.) R.5.

[16] [17]
 give rise to liability in passing off. In Tolley v Fry, 55 the plaintiff was able to Examples of defamatory allegations
establish a libel in such a case by innuendo. He was a well-known golfer who
without his consent was portrayed advertising the defendant's chocolates. It There are numerous authorities in relation to whether or not particular alle- 2-18
was held that the advert implied that he had prostituted his amateur status. gations are capable of being defamatory.° Many are old and may not be fol-
A defamatory allegation may also arise by virtue of the particular goods lowed today. As Lord Atkin observed in Sim v Stretch:
advertised, where, for example, people would think the worse of the claimant
for associating himself with the product. "I do not fmd much value in other cases where words are held to have been inca-
An allegation that the claimant's actions have had undesirable conse- pable of being defamatory. Like cases on construction in other branches of the law,
quences is not defamatory without an element of moral blame to be attached they often darken counsel rather than give light." 64
to the claimant. For example, to say that a campaign to prevent contracep-
tion being prescribed to under-age girls has led to teenage suicides is not Nevertheless, there are certain categories of allegation that are worth high-
defamatory of the campaigner unless it carries the implication that she has lighting.
behaved in a culpable fashion. 56
Criminal offences
The right-thinking member of society
Allegations of criminality generally fall into one of three levels of meaning: 2-19
-17 The test is seen through the eyes of "reasonable" or "right-thinking" people. 52 It guilt, grounds to suspect, or grounds to investigate. 65 An allegation that the
follows that allegations which lower the claimant in the estimation of a section claimant has been guilty of a criminal offence will almost always be defam-
of society whose values do not reflect those of "right-thinking" people will not atory. 66 Where the meaning is one of suspicion rather than guilt, it remains
be defamatory, even in the more diverse society in which we now live. 58 defamatory but will be easier to justify.° The suggestion that the claimant
To say that the claimant has informed on members of the IRA is of itself is being investigated by the relevant authorities is defamatory of itself
not defamatory, regardless of the damage it may cause him, because right- and, depending on the wording, is likely to imply that there are reasonable
thinking members of society report crime to the authorities. 59 As can be seen grounds to suspect guilt. 68 Indeed, it may be perverse to conclude that the
from Youssoupoff, opinions and standards change over the years and it is rec- words convey a lesser meaning. 69 There may be certain offences which are so
ognised that certain conduct which was unacceptable to reasonable people in minor and involve no real blame that they are not considered to be defama-
the past is now acceptable and vice versa. In 1683 an allegation that the plain- tory. In Berry v BTC 7° Diplock J. held that a charge of pulling a communica-
tiff was a Roman Catholic was held to be defamatory, 69 and until 1938 it was tion cord on a train without reasonable and sufficient cause was not capable
not accepted that it was defamatory to accuse a plaintiff of anti-semitisim. 61 of a defamatory meaning.
In order to satisfy the test, the claimant need only show that the allegation
is one which "tends" to make people think the worse of the claimant. It is the Personal morality
nature of the allegation and not the effect which is important for this pur-
pose. 62 There is no need to show that any of the publishees actually thought The cult of the celebrity and the prurience of the media lead to a large propor- 2-20
the worse of the claimant. tion of libel claims having as their subject matter the private lives of the well-
and the less well-known. A degree of common sense is required. Allegations of
lying, bad treatment of family and friends, marital infidelity, racism, or crude,
55 [1931] A.C. 333. anti-social and selfish behaviour are capable of being defamatory. There has
56 See for example Gillick v BBC, The Times, October 21, 1995; Gillick v Brook Advisory Centres
Unreported March 12, 2002 CA and Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 been recent judicial doubt that an allegation of homosexuality is capable
(Gray J.). The latter decision was under appeal when the case settled.
57 Byrne v Deane [1937] 1 K.B. 818.
58 In Arab News Network Unreported February 2, 2001 the Court of Appeal was concerned with
an allegation that the claimants were tools of the Israelis and Americans, which was said to be 65 See Gatley on Libel and Slander 1 1 th edn (London: Sweet & Maxwell, 2008), paras 2.18—
defamatory of an Arab broadcasting company. The court did not have to decide whether the 2.41.
allegation was defamatory as the case was decided on other grounds. Keene L.J. noted that there 64 At 672.
were "considerable difficulties" in permitting a claimant to contend that he had been defamed 65 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772.
within a section of society, but considered that this was "an issue which may need to be addressed 66 See Berry v BTC [1961] 1 Q.B. 149 reversed in part by [1962] 1 Q.B. 306; Groom v Crocker
in the future" (judgment at [30]). [1939] 1 K.B. 194; Goldsmith v Pressdram Ltd [1987] 2 Q.B. 83.
Mawe v Pigott (1869) I.R. 4 C.L. 54; Bryne v Deane [1937] 1 KB. 818. 67 Lewis v Daily Telegraph Ltd [1964] A.C. 234.
60 Roe v Clargis (1683) 3 Mod. Rep. 26. 68 See Lewis above.
61 De Stempel v Dunkels [1938] 54 T.L.R. 289. 69 Fallon v MGN Ltd (No.2 ) [2006] EWHC 783.
62 Although the effect will be relevant on damages see Ch.20. 70 [1961] 1 Q.B. 146.

[18] [19]
 of being defamatory 71 ; however, a claimant will often circumvent this by had got trapped in swing doors. On being advised to turn sideways, it was
claiming that it amounts to an allegation that he has been hypocritical about alleged that she responded, "Honey I ain't got no sideways". The Court
his sexuality or, where married, that he has also been unfaithful. of Appeal recognised that there could be a thin line between mockery and
Allegations of unpleasant illnesses, mental instability and illegitimacy have insults as opposed to defamatory ridicule. Since the article as a whole por-
all been held to be capable of being defamatory under the "shunning and avoid- trayed the plaintiff in a favourable light, it was held that she would not have
ing" principle. 72 The blame for certain illness may not lie with the claimant, been exposed to ridicule in the eyes of reasonable readers. The question
but the cases make it clear that it is the tendency to be shunned of itself which may arise as to whether it is necessary, within the meaning of art.10 of the
makes the allegation defamatory, regardless of any moral blame. As society European Convention of Human Rights, to restrict freedom of expression,
becomes more tolerant towards mental illness, and of forms of private moral- so as to prevent a person being ridiculed. 76 The judgment in John v Guardian
ity which differ from the norm, it is doubtful whether these authorities would News and Media Lan is an example of the courts giving greater recognition
be followed. The question of what makes right-thinking people avoid the clai- to the art.10 rights of the media.
mant is now more closely linked with what is blameworthy.
Financial

Ridicule An allegation of insolvency is defamatory, even though it may carry no 2,-22

moral blame. In Kiam v Times Newspapers 78 the Court of Appeal re-stated
ZI Most right-thinking members of society in 21st century Great Britain would the seriousness with which the court views such allegations. However,
probably conclude that to expose the claimant to ridicule, without any sug- merely to suggest that the claimant owes money, without the implication
gestion of discredit, would not be defamatory. However, despite a powerful that he is avoiding or delaying payment, or is unable to pay, is not defam-
dissenting judgment by Millett L.J., the Court of Appeal held just over a atory. 79 The same applies to allegations that a creditor has unsuccessfully
decade ago that an allegation by columnist, Julie Burchill, that actor, Steven sought to obtain an account of what the claimant owes him, or that creditor
Berko ff, was horrendously ugly was capable of being defamatory on the basis and debtor are due to meet to resolve a dispute over a debt." Once again,
that it might expose him to ridicule. 73 The passages complained of were con- merely to state that the claimant has had a judgment made against him is
tained in a review of a horror movie: not defamatory, without a similar implication of evasion or inability to
pay." The question of whether information imparted by credit agencies is
"film directors, from Hitchcock to Berkoff are notoriously hideous-looking people defamatory will therefore depend on the words used and their context. It
. . . the creature is made as a vessel for Maldman's brain, and rejected in disgust has been held that "refer to drawer" written on a cheque is capable of being
when it comes out scarred and primeval. It is a very new look for the creature—no
bolts in the neck or flat-top hairdo—and I think it works; it's a lot like Steven defamatory."
Berkoff, only marginally better looking."
The finding that the review was capable of being defamatory of Mr Berkoff Professional and trade
makes it difficult to see where the line is to be drawn between defamation
and vulgar abuse or allegations which cause mere annoyance. As Lord Atkin For an allegation concerning someone's office, profession or trade to be con- 2-23
observed in Sim v Stretch: sidered defamatory, it must impute to the claimant either some quality which
would be detrimental to the successful carrying on of his office, profession or
"a jury should be free to award damages for injuries to reputations is one of the trade, or the absence of some quality which is essential to its success." The
safeguards of liberty. But the protection is undermined when exhibitions of bad failing may be a lack of judgment, an allegation which of itself might not be
manners or discourtesy are placed on the same level as attacks on character and are considered to involve any moral fault. There is also an element of subjectivity
treated as actionable wrongs."
in the test. To say of the claimant that he knows nothing of the Defamation
Berkoff was distinguished in Norman v Future Publishing Ltd75 in which a
music magazine wrongly alleged that the admittedly corpulent opera singer
26 See Ch.38. In Berke, Millett Li. considered the claim as an "unwarranted restriction on free
speech" at 153.
22 Ibid.
n Donovan v Logan Unreported April 1991; see Appendix 3; cf. Liberace v The Daily Mirror,
The Times, June 18, 1959 and Cruise v Express Newspapers [1999] 2 W.L.R. 327. 28 [1996] E.M.L.R. 493.
22 Youssoupoff v MGM Pictures Ltd (1934) 50 T.L.R. 581; Villers v Monsley (1769) 2 Wils. 403; " Winstanley v Bampton [1943] K.B. 319.
Solomon v Simmons, The Times, April 10, 1954. 811 McCutcheon v Can International Unreported December 19, 2001.
73 Berkoff v Burchill [1997] E.M.L.R. 139. 81 Stubbs v Russell [1913] A.C. 386.
24 (1936) 52 T.L.R. 669 at 672. 82 Jayson v Midland Bank [1968] 1 Lloyds Rep. 409, CA.
75 [1999] E.M.L.R. 325. 83 See Gatley on Libel and Slander (London: Sweet & Maxwell, 1980), para.2.26.

[20] [21]
 Act 1996 would not ordinarily be defamatory unless the claimant is a lawyer Morland J. held that a clear distinction had to be made between defamation
who specialises in defamation. However, the implication of a failing on the and malicious falsehood. Invoking the law of defamation to prevent criticism
part of the claimant in relation to his trade or profession is fundamental. of products or services offered by traders was contrary to art.10 ECHR. It
False statements to the effect that the claimant has died or retired or is unwell is only where the allegation genuinely attacked the reputation of the "pro-
are not defamatory, even if they cause serious damage. 84 The claimant may, ducer" that it could be regarded as defamatory.
however, have a claim in malicious falsehood. 85 Similar principles apply to professionals, except that it is harder to divorce
Allegations of lack of integrity or "sharp practice" are clearly defamatory. the "product" or technique from the "producer". The question is often
Difficulties can arise when the allegation is directed at competence rather whether the criticism of a professional's technique amounts to an imputa-
than integrity. It is defamatory to state that the claimant is unfit for his pro- tion of a lack of competence. In Drummond Jackson v BMA 9° the Court of
fession, calling or trade, or that he has been guilty of a lack of care or judg- Appeal held (Lord Denning M.R. dissenting) that an attack on the special
ment." However, where the criticism relates solely to the claimant's product technique of a dentist was arguably capable of defaming the dentist. 91 In
and not the claimant it will not be defamatory. It may be thought that an Cornwell v Myskow, 92 the allegation was that the plaintiff actress "can't
allegation directed against a product would inevitably reflect on the person sing, her bum is too big and she has the sort of stage presence that jams
who produces it. Indeed the distinction between an allegation relating to the lavatories". Popular reporting of the case unfortunately focused on Miss
competence and judgment of the claimant as opposed to merely his goods or Cornwell's bottom, which obscured the fact that the allegation that she
technique (in the case of a professional) may be difficult to make. The most could not sing was clearly capable of being defamatory. No hard and fast
commonly cited illustration was given by Lord Esher M.R. in South Hetton rule can be laid down and much will depend on the words used and the
Coal v North East News": nature of the publication.
Where the defendant accuses the claimant of the absence of a particular
"Suppose the plaintiff was a merchant who dealt in wine, and it was stated that quality, it must be such as to be essential to successful practice. Since it is not
wine which he had for sale of a particular vintage was not good wine; that might be essential to be the "best" in order to be successful, the suggestion that the
so stated as only to import that the wine of the particular year was not good in who- claimant is of "average ability" or "lacks prominence" is not defamatory. 93
soever hands it was, but not to imply any reflection on his conduct of his business. However, whilst there is nothing defamatory in a statement that an employer
In that case the statement would be with regard to his goods only and there would
be no libel, although such a statement, if it were false and were made maliciously, and employee have parted company, to allege that the claimant has been dis-
with intention to injure him, and it did injure him, might be the subject of an action missed from his employment will often suggest that the dismissal has been
on the case (i.e. malicious falsehood). On the other hand, if the statement was made for some discreditable reason. In Morris v Sanders Universal Products94 the
so as to import that his judgment in the selection of wine was bad, it might import defendant sent the following circular to various customers:
a reflection on his conduct of his business, and show that he was an inefficient man
of business. If so, it would be a libel. In such a case a jury would have to say which
sense the libel really bore; if they thought it related to the goods only, they ought "Dear Sirs, We wish to bring to your notice the fact that we have dismissed (the
to find that it was not a libel; but, if they thought it related to the man's conduct of plaintiff) from our employ, he having been our representative in your area."
business, they ought to find that it was a libel."
The Court of Appeal held that the letter was capable of suggesting that the
-24 It follows that the more that consumer programmes and publications focus plaintiff had been dismissed for misconduct. By contrast, in Nevill v Fine Arts
on the product rather than the supplier or manufacturer, the less chance and General Insurance Co Ltd,95 where the defendant insurance company told
there is of them being sued for libel. For example, in ICN Photonics Ltd v its clients that "The Agency of Lord William Nevill at 27 Charles Street, St
Patterson88 the Court of Appeal struck out a defamation claim brought by James' Square, has been closed by the Directors", it was held that the publi-
the manufacturer of a cosmetic laser treatment system over an allegation that cation was incapable of suggesting that the closure was as a result of discred-
it should only be used under medical supervision. It could not be inferred itable behaviour by the plaintiff.
from the words used in this case that the manufacturer was responsible for Although not relevant to the question of whether or not the allegation is
its use without medical supervision. Article 10 of the European Convention defamatory, it should be borne in mind that criticisms of performance or
on Human Rights may have some relevance in this context. In a recent case 89

84 Grappelli v Derek Block ( Holdings) Ltd [1981] 1 W.L.R. 822. 9°[1970] 1 W.L.R. 688.
" See Ch.6. The application was under RSC 0.18 r.19, hence the "arguably capable" test. Under s.7 of the
91
86 Skuse v Granada Television Ltd [1996] E.M.L.R. 278; SliPper v BBC [1991] 1 Q.B. 283; 1996 Act, the "arguably capable" test no longer applies
Blackshaw v Lord [1984] 1 Q.B. 1 92 [1987] 1 W.L.R. 630.
87 [1894] 1 Q.B. 133. 93 Thompson v Matthiaen (1912) 135 N.Y.S. 796.
88 [2003] EWCA Civ 343. 94 [1954] 1 W.L.R. 67.
89 Charterhouse Clinical Research v Richmond Pharmacology Ltd [2003] EWHC 1099. 95 [1897] A.C. 68.

[22] [23]
products, even if defamatory, are often comment and opinion in which case
the defence of fair comment may be available to the publisher. 96 Similarly,
communications made in the course of business, as in Morris and Neville may
be protected by qualified privilege. 97 CHAPTER 3
PUBLICATION

The claimant must prove that the defendant has published or participated in the
publication of the defamatory statement

The meaning of publication 3-01

Responsibility for publication 3-02
Different media 3-03
Newspapers and the printed media 3-03
Broadcasters 3-05
Electronic media 3-06
Letters 3-07
Business communications 3-08
Responsibility for republication 3-09
Place and date of publication 3-11

The meaning of publication

Publication is the technical term for the communication of the defamatory 3-01
matter by the defendant to at least one person other than the claimant.'
It need not be published in the traditional sense of the word—it could be
spoken, broadcast, sent electronically or in smoke signals. Similarly, it is not
only the originator or author who may be liable. All those who have played
a significant part in the act of publication or distribution, i.e. those who have
caused the matter to be published, will be responsible for what is published.
The question of whom to sue is addressed in Ch.26.
In most cases, publication is not in dispute. In newspaper or television
libel claims the claimant will sue the commercial publisher or broadcaster
(and often the editor and journalist) and publication will be admitted. There
may be a dispute as to the size or influence of the circulation, which may be
relevant to damages, but the fact of publication will be indisputable. This
section will primarily be of interest where a claimant wishes to sue a party
not primarily responsible for the publication, or where there is a dispute
over whether the defamatory statement has been communicated to any third
party.

Pullman v Hill & Co [1891] 1 Q.B. 524. Communication from husband to wife is not publica-
96 See Ch.9. tion, Wennhak v Morgan (1888) 20 Q.B.D. 635. Communication to one spouse of material about
97 See Ch.12.
the other is publication, Watt v Longsdon [1930] 1 K.B. 130.

[24] [25]
 Responsibility for publication by an individual who will in any event be vicariously liable for the acts of his
employee journalists.
-02 It is the act of communication to a publishee and not that of creation that
The modern day "proprietors", such as Rupert Murdoch and Richard
constitutes the tort of defamation. Each communication to a publishee is Desmond, are in legal terms simply directors and shareholders, even if their
therefore an independent tort. 2 effective influence is the same. Directors are generally only liable where they
Under general principles, therefore, anyone who participates in or have some personal involvement which amounts to authorising, directing or
authorises the publication is jointly liable. An employer can be held vicari- procuring the tortious act, i.e. the publication of the defamatory statement.w
ously liable for a publication by an employee provided that the publication Michael Foot's attempt to show "authorisation" by Mr Murdoch in relation
was within the scope of the employment, even if the specific publication was to an article in The Sunday Times by virtue of the latter's alleged control over
not authorised. 3 The process of getting the words of the author to the eyes the editorship and political direction of the newspaper was never tested as the
of the reader can involve a number of persons. For example, the author case settled."
of a newspaper article submits copy and the editor, at least notionally, Printers and distributors (or the equivalent in any media) are liable prima 3-04
decides whether or not to publish. The article is then printed and distrib- facie even if they are unaware that the publication contains defamatory
uted through a main distributor and local wholesalers, who in turn deliver material. However, some protection is provided by the defence of secondary
to local retailers who sell to the eventual reader. Courts in the 18th and 19th responsibility. 12 Liability as a distributor is not limited to the primary distrib-
century were particularly concerned to prevent the dissemination of what utors. Wholesalers and retailers can be held responsible for disseminating a
were perceived to be seditious or blasphemous libels and the net of liabil- libel.° Printers and distributors are generally indemnified by publishers. A
ity was spread widely. 4 Applying these authorities to modern media is not publisher in turn will generally seek an indemnity from the author, unless
always straightforward. the latter is an employee. An indemnity will have no effect on liability to the
It is also important to bear in mind that while all the participants may be claimant, who can sue and recover from any or all of the participants. Since
prima facie responsible, those who have a more limited involvement may one of the common reasons for suing a printer or distributor is the impecu-
have a defence of secondary responsibility under s.1 of the Defamation niosity of the publisher and author, an indemnity may be valueless. Where
Act 1996 ("the 1996 Act") 8 or, in respect of online publication, under the there is any doubt about the solvency of the publisher or author, printers and
Electronic Commerce (EC Directive) Regulations 2002. 6 distributors should consider demanding that the indemnity is supported by a
bond or guarantee. Furthermore, a watertight guarantee of indemnity does
not allow the party in whose favour it is made to simply absolve himself from
Different media any responsibility. Section 11 of the 1952 Act provides that the indemnity
will be unlawful where the party indemnified knows that the matter is defam-
atory and does not reasonably believe that there is a good defence to any
Newspapers and the printed media claim brought upon it. In the absence of a contractual indemnity, the court
would generally award a contribution under the Civil Liability Act 1978 to
-03 The editor, publisher (in the traditional sense) and author will be responsible. the printer or distributor against a more culpable party, such as the publisher.
It is usually the case that alterations to an author's copy are made by sub- The Act allows the court to apportion damages between the various parties
editors. Provided that the substance remains the same this will not affect the who are responsible for the publication of a defamation. 14 However, it will
author's liability. 7 Where the article or part of the article derives from infor- have no effect on the entitlement of the claimant to seek the full amount of
mation supplied by a third party, he may also be responsible. 8 any damages awarded from any of the defendants.
There is 19th century authority to the effect that the "proprietor" of the
publication in question will also be liable. 9 However, the cases are primarily
concerned with unsophisticated organisations where the publication is owned Broadcasters

Similar principles apply. The commercial broadcaster will be the primary 3-05
Duke of Brunswick v Harmer (1849) 14 Q.B. 185, recently cited with approval in Loutchansky publisher. The independent production company, editor and presenter/
v Times Newspapers (2002) W.L.R. 640.
3 Freer v Zeb [2008] EWHC 212.
reporter are also responsible. The broadcaster will be responsible for any
4 See R. v Clerk (1728) 1 Barn. K.B. 304 and R. v Walter (1799) 3 Esp. 21.
5 See Ch.15.
6 See Ch.35. 113 Evans v Spritebrand [1985] 1 W.L.R. 317.
7 K v Cooper (1846) 8 Q.B. 533. " Foot v Murdoch, The Guardian, July 8,1995.
8 See para.3-09. 12 See para.15-06.
9 R v Gutch (1829) Moo. & Mal. 433; R v Walter (1799) 3 Esp. 21; Levien v Fox (1890) 11 13 See Goldsmith v Sperrings Ltd [1977] 1 W.L.R. 478.
N.S.W.L.R. 414. 14 See Ch.20 and Adams v Associated Newspaper Ltd [1999] 7 E.M.L.R. 26.

[26] [27]
 material that is broadcast even where the broadcaster has no real control over of the information contained in the relevant document. There are various acts
the person who makes the defamatory statement. Care should therefore be that can give rise to legal responsibility, for example, encouraging the primary
taken with studio audiences, guests and "phone-ins", although the defence of author, supplying him with information intending or knowing that it will be re-
secondary responsibility may apply. 15 published, or, if one is in a position to do so, instructing or authorising him to
publish it." 18
Electronic media
Responsibility for republication 19
-06 A person who disseminates or causes the dissemination of defamatory
material by email or on the internet, for example by hosting a website, blog- Where A communicates defamatory material to B and B then repeats it to 3-09
ging or posting material, is liable in the same way as in any other media. others, it is clear that A will be responsible for the publication to B and B
Nevertheless, there are certain issues that arise in the application of the estab-
lished legal principles to the new electronic media. For example, a recent case will be responsible for the repetition. This situation commonly arises where
suggests that search engines such as Google are not publishers of the content B is a journalist or a publisher, to whom A makes a statement. In such a case
produced following searches. Because of the increasing importance of elec- the repetition by B disseminates the defamatory allegations to a far wider
tronic communications and the absence of decided cases, the legal and prac- audience. The question arises as to whether A will be responsible for B's
tical issues are considered in their own right in Ch.35. repetition. The courts have held that A will be responsible in the following
circumstances:

Letters 1. where A authorised or secured the repetition by B;

2. where there was a legal or moral obligation on the part of B to
-07 It is presumed that a posted letter is published to its addressee. Where the repeat;
addressee is the claimant he will have to show that there has been another
reader in order to establish publication. This could be the employee who 3. where the repetition by B was the natural consequence of the publica-
typed the letter on behalf of the sender or the employee of the claimant who tion by A to B.
may have read the letter in the course of his duties. 16 However, where the
sender did not know and had no reason to believe that it would be read by The same principles apply to subsequent repetitions. 20 Thus where A calls a
another person he will not be liable.° Since private and confidential letters press conference which B attends, A will be responsible for the republication
are often opened by employees of the addressee it is preferable to state clearly by B or his publisher or broadcaster. However, the mere fact that journalists
that the letter is personal and should only be opened by the addressee. In happen to be present at the time that A makes a speech does not necessarily
most cases it is foreseeable that a fax, in the same way as a postcard, will be make A responsible for any republication. 2' In order to pin responsibility on
read by someone other than the addressee, in which case the sender should be A for the repetition, the courts have until recently required some authorisa-
liable, although the point has not been tested. tion, express or implied, in relation to the repetition. 22 The conduct of the
speaker must be held to amount to a request to publish. Where a person gives
an interview or sends a document directly to a journalist or journalists, it will
Business communications usually, therefore, amount to a request for publication.
The above said, the net of responsibility for republication may well have
-08 As discussed at para.3-02 above, the net of responsibility for publication has been broadened by a recent decision of the Court of Appeal which does not
traditionally been widely cast. Where a publication is made by a corporate discuss responsibility in terms of "authorising" the publication. In McManus
entity, for example, it may be that a number of individuals have played some v Beckham, 23 Victoria Beckham (also known as "Posh Spice" and wife to
part in the publication so as to become responsible. As has been recently
observed:
"To participate in publication in such a way as to be liable in accordance with the 18 Bataille v Newland [2002] EWHC 1692 per Eady J.
law of defamation is not, I should emphasise, to be equated with being the source 13 See the decisions of McManus v Beckham [2002] 1 W.L.R. 2982, CA; Shendish Manor Ltd v
Coleman [2001] EWCA Civ 913, CA; Cunningham v Essex County Council Unreported June 26,
2000 and Friend v Civil Aviation Authority [1998] I.R.L.R. 253.
20 Speight v Gosnay (1891) 60 L.J.Q.B. 231; Shpper v BBC [1991] 1 Q.B. 283.
18 See para.15--04. 21 Lyons (J) & Co v Prescott-Decie, The Times, July 16, 1925.
16 In such circumstances the publication may be protected by qualified privilege, see Bryanston 22 McWhirter v Manning, The Times, October 29, 1954; Ward v Weeks (1830) 7 Bing 211; Lyons
Finance v DeVries [1975] Q.B. 703. (J) & Co v Prescott-Decie, The Times, July 16, 1925; Slipper v BBC [1991] 1 Q.B. 283.
17 Huth v Huth [1915] 3 K.B. 32.
23 [2002] 1 W.L.R. 2982, CA.

[28] [29]
 the captain of the England football team David Beckham) was at a shop- Place and date of publication
ping centre with her mother when she spotted in an autograph shop what
she believed to be fake David Beckham autographs. She mentioned to a Since publication is communication, it takes place when the material is seen 3-11
number of people in the shop that the autographs were not genuine and that or heard by the publishee and not when it is created by the publisher. A letter
she did not want to see the customers "being ripped off". The matter was is published in the jurisdiction in which it is read, as are electronic publica-
subsequently reported extensively in the press including in a Mirror article tions.28 Newspapers, magazines and broadcasts are published in each juris-
entitled "Posh goes stropping—Beck's forgery fury". The proprietors of the diction in which they are distributed or transmitted. 26 This may give rise to
autograph shop sued Mrs Beckham for slander over the allegations made in jurisdictional issues, which are addressed in Ch.27. Online publications are
the shop. In support of the claim for damages, the proprietors alleged that potentially published to the world at large, although the claimant is required
Mrs Beckham was responsible for the allegations appearing in the press. The to prove that publication within the jurisdiction did in fact take place or can
newspapers were not sued separately. At first instance, Previte J. struck out be inferred. 27
the claim for damages based on the republication of the slander in the press. Where publication is very limited, it may be possible to plead that the claim
The Court of Appeal overturned his decision, concluding that it was open to is an abuse of process. 28 Whilst a single publication of a very serious libel will
the jury to find that the damage caused by the press publications had been not necessarily constitute an abuse of process, 29 publication solely to a person
caused by the initial slander. Waller L.J. re-stated the test for responsibility or persons closely associated with the claimant, such as a close family member
for republication in such circumstances as follows: or his solicitor, may render a claim an abuse of process and liable to be struck
"If the Defendant is actually aware that (1) what she says and does is likely to be out on the grounds that there has been no real and substantial tort.
reported; (2) that if she slanders someone, that slander is likely to be repeated in Where back issues of newspapers are sold or an old article is supplied by a
whole or in part; there is no injustice in her being held responsible for the damage cuttings library, a further publication will take place, which may give the clai-
that the slander causes via that republication. I would suggest further that if a jury mant the opportunity to sue where the original publication is time-barred. 86
were to conclude that a reasonable person in the position of the defendant should This principle has taken on a new lease of life in relation to archive material
have appreciated that there was a significant risk that what she said would be held on newspaper websites. 31
repeated in whole or in part in the press and that that would increase the damage
caused by the slander, it is not unjust that the defendant should be liable for it."
– 10 Laws L.J. considered that this attempt to "demythologise" the law of defa-
mation by avoiding reference to "foreseeability" was "commended by a need
for clarity rather than an adherence to principle". He continued:
"for in principle the approach [Waller L.J.] proposes, and for what it is worth my
own reasoning, require that the damage in question flowing from X's act be fore-
seen or foreseeable by D, or by the reasonable person in D's position."
It appears therefore that for A to be liable for republication by B, there is no
longer a requirement that A has authorised the publication. It is sufficient
that the circumstances of A's publication were such as to make republication
reasonably foreseeable. In other words, a reasonable person in the position
of the defendant should have anticipated that there was a significant risk that
what the defendant said or wrote would be repeated. As above, in McManus
the Court of Appeal held that the issue would have to be determined by the 25 Bata v Bata [1948] W.N. 366. See also Gutnick v Dow Jones & Co Inc [2002] HCA 56;
jury, and shortly after their decision the case settled with an apology in court Loutchansky v Times Newspapers (2002) W.L.R. 640 and Harrods Ltd v Dow Jones [2003]
and the payment of £55,000 damages. EWHC 1162.
In cases of republication, a claimant may therefore have a series of options 26 Sheville v Press Alliance SA [1995] 2 A.C. 18; Jenner v Sun Oil Co [1952] 2 D.L.R. 526.
available to him, and should give careful consideration to whom he shOuld 22 Al Amoudi v Brisard [2006] EWHC 1062.
28 Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75. See Ch.17.
sue. 24 29 Hughes v Alan Dick & Co Ltd [2008] EWHC 2695.
39 Duke of Brunswick v Harmer (1894) 14 Q.B. 185. However, this decision has been the subject
of criticism on the basis that the sale was at the instigation of the claimant.
31This issue is dealt with in greater depth in Ch.35. See in particular the discussion of
Loutchansky v Times Newspapers Ltd and the decision of the European Court of Human Rights
24 See Ch.26. in Times Newspapers Ltd v UK (3002/03) (23676/03).

[30] [31]
 CHAPTER 4

IDENTIFICATION

The claimant must prove that the defamatory statement would have been under-
stood to refer to him

Introduction 4-01
Examples 4-02
The legal principles 4-03
Coincidental naming 4-04
Lookalikes 4-05
Class libel 4-06
Corporations 4-07

Introduction

A claimant must identify himself as the subject of the defamatory material. 4-01
In most cases he will be named and the issue will not arise. However, an
unnamed claimant can often claim to be identified either by virtue of material
contained within the publication or as a result of special knowledge held by
publishees. Similarly, those who share the same name as the intended target
of the defamatory statement can allege that people would have reasonably
believed the attack was directed at them, even where the defendant had no
intention of so doing.

Examples

In Youssoupoff v MGM Pictures Ltd the defendant produced a film called 4-02
Rasputin—the Mad Monk which was a partly fictional account on the life of
Gregory Rasputin. In the film, Rasputin was killed by a fictional character
named Prince Paul Chegodieff, whose wife, Princess Natasha Chegodieff,
was portrayed being seduced or possibly raped by Rasputin. It was well
known that Prince Felix Youssoupoff had, in fact, killed Rasputin in 1916
and his wife, Princess Irena Youssoupoff was able to persuade a jury that
viewers would have associated the fictional Princess Natasha with her and
that the implication that she had been "ravished" by Rasputin was defam-
atory. 2 In Morgan v Odhams Press,3 The Sun newspaper stated that X, who

(1934) 50 T.L.R. 581.

2 See para.2-20.
3 [1971] 1 W.L.R. 1239.

[33]
was a witness in a dog doping prosecution, had been kidnapped the previous The legal principles
week and kept in a house in Finchley. There was no mention of Mr Morgan,
who lived in Finchley. However, X had been staying with him (voluntarily)
two weeks previously. The evidence was that six witnesses, who had seen Mr 1. Identification of the claimant can arise by virtue of the "natural and 4-03
Morgan with X at that time and had subsequently read the article, thought ordinary" meaning of the words. 8 In Watts, it was the juxtaposition
that he was involved in kidnapping and dog doping. The jury found that of the photograph of the claimant with the defamatory words. More
Mr Morgan had been defamed and the House of Lords held that they were commonly it arises because certain readers have knowledge of partic-
entitled to do so. Notably, the sightings of Mr Morgan with X pre-dated the ular matters, which lead them to understand the statement to refer to
alleged kidnapping. the claimant. This is known as identification by innuendo. 9 In common
In Hayward v Thompson, 4 The Sunday Telegraph published: with iimuendo in relation to meaning, the particular matters necessary
to make the identification may be known to a large number of readers,
"Two more in Scott affair. The names of two more people connected with the as was the case in Lloyd, or a limited number, as in Morgan. The clai-
Norman Scott affair have been given to the police. One is a wealthy benefactor mant must prove by direct evidence or inference that there are readers
with a Liberal past, the other is a businessman from the Channel Islands. Both who have the necessary knowledge. 1°
men, police have been told, had arranged for leading Liberal supporters. to be
'reimbursed' £5,000, the same amount Mr Andrew Newton alleges he was paid to 2. The test is whether reasonable readers generally or a reasonable
murder Mr Scott." reader with the particular knowledge would understand the statement
to refer to the claimant. Mere conjecture that it might refer to the clai-
The Liberal Party had few wealthy benefactors and Mr Hayward was able to mant is insufficient.
show that many people understood him to be one of the alleged suspects. He
was also permitted to rely on an article in the following issue of The Sunday 3. The identification may be as a result of a photograph or other physical
Telegraph, in which he was named, in support of his case on identification in description, nickname, initials or any other pointers in the defamatory
relation to the earlier article. material which lead a reader or readers to the claimant. Reference to
In Watts v Times Newspapers, 5 The Sunday Times published an article the claimant merely by a first name 11 or where the name of the claim-
accusing author Nigel Watts of plagiarism. The article was mistakenly illus- ant is very common 12 will often be insufficient without additional
trated with a photograph of a different Nigel Watts, who was an artist. Nigel identifying factors.
Watts, the artist, was able to successfully contend that many people would 4. The interpretational characteristics of a reasonable reader for the
have understood the allegation of plagiarism to refer to him. In Lloyd v David purpose of identification are the same as for defamatory meaning. 13
Syme & Co Ltd, 6 an Australian newspaper alleged that Kerry Packer had In particular, he is capable of a certain amount of loose thinking. In
"fixed" the result of a cricket match involving the West Indian team. Clive Morgan it was held that discrepancy on timing which would have dem-
Lloyd, the captain of the team was entitled to claim that he had been defamed, onstrated that Mr Morgan played no part in the kidnapping could have
even though he was not named in the article since it would be assumed that been missed by a reasonable reader of The Sun. The words were there-
the captain would have been party to the arrangement. In L'Anson v Stuart, 7 fore capable of being understood to refer to Mr Morgan and the jury
a newspaper stated: was therefore entitled to find as a fact that they did. In common with
many House of Lords authorities, the principle may have been correctly
"this diabolical character, like Polyphemus the man-eater, has but one eye and
is well known to all persons acquainted with the name of a certain noble circum- stated, but it is questionable whether the right result was reached.
navigator." 5. The test is objective and the intention of the defendant in this and
other areas is irrelevant for the purposes of proving the claimant's
The plaintiff had one eye and bore a name similar to that of a famous case. 14 The fact that The Sun had never heard of Mr Morgan was no
admiral, named Anson. It was held that the pointers in the article were suf- defence. However, where the defendant had no reason to believe that
ficient to identify the plaintiff.

8 See para.2-03.
See Hulton ( E) & Co v Jones [1910] A.C. 20; Morgan v Odhams Press Ltd [1971] 1 W.L.R. 1239.
9
1° See Mosley v Focus Magazin Verlag GmbH Unreported June 29, 2001 CA for a recent
example.
4 [1982] Q.B. 47. 11 Freer v Zeb [2008] EWHC 212.
5 [1996] 1 W.L.R. 427. 12 Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 (2005) Q.B. 946.
6 [1986] A.C. 350. 13 Morgan, above and see para.2-07.
7 (1787) 1 T.R. 748. 14 Hulton, see above.

[34] [35]
 the statement would be understood to refer to the claimant, he may Newstead, a 30-year-old Camberwell resident, was understood to refer to
make an offer of amends. If the claimant does not accept the offer, the one Harold Cecil Newstead, who was also aged about 30 and who worked in
defendant may rely on it as a defence. 15 Camberwell, but who was a bachelor. It was no defence that the allegations
against the bigamous Harold Newstead were true. However, the jury only
6. Despite the objectivity of the test, the claimant may adduce evidence awarded the plaintiff a farthing.
from readers that they did understand the statement to refer to him. In Hulton v Jones, 22 The Sunday Chronicle published a light-hearted item
However, if a reasonable reader would not have reached the same purporting to describe scenes at a motor race in Dieppe. The article referred
conclusion, the claimant's witnesses will be disregarded. 16 In Morgan, to an Artemus Jones, who was a church warden at Peckham but who was
Lord Donovan observed that identification required not merely a seen at Dieppe with a woman who was not his wife. The character of Artemus
reasonable person but also a reasonable conclusion. 17 Although Lord Jones was intended to be fictional. Unfortunately for the defendant, an
Donovan dissented on the facts of Morgan, it is submitted that his Artemus Jones who was a barrister practising on the Welsh circuit, was con-
statement of principle was correct. tacted by several friends who thought the article referred to him. Despite the
7. A reader who reasonably believes the allegations to refer to the clai- fact that Mr Jones was not a church warden in Peckham, the House of Lords
mant may nevertheless not believe them to be true. This also arises in held that reasonable people acquainted with the plaintiff were capable of
relation to defamatory meaning. The principle is the same. Provided understanding the publication to refer to him and to impute adultery.
that the identification can be made, the fact that the allegations were The most relevant factor is the commonness of the name. The more
not believed will not prevent the claimant from establishing liability, common the less likely the identification. In Jameel v Dow Jones & Co Inc 23
but he may only receive small or nominal damages. 18 the Court of Appeal accepted that where a common name is included in an
article, in that case the common Islamic name Yousif Jameel, that will not be
8. In cases based on innuendo, the claimant, in his particulars of claim, sufficient to identify any individual who bears that name. There may be other
must set out particulars of the relevant knowledge on the part of the pointers to the claimant apart from the name. In Jameel, the allegation that
publishees which enables them to understand the words to refer to the the subject of the article was a Saudi financial backer of Osama Bin Laden
claimant.° Unless admitted, evidence should be adduced to prove was sufficient to narrow the range of potential subjects and lead to the claim-
that the publishees had the requisite knowledge to connect the clai- ant's identification. Conversely, there may be other matters in the publication
mant with the defamatory allegation. which would negate an identification, although in Hulton v Jones the fact
9. As with defamatory meaning, there is a two-stage process in deter- that the plaintiff was not a church warden in Peckham or elsewhere was not
mining the matter. Whether the words are capable of referring to the conclusive. The nature of the publication is relevant. Reasonable people are
claimant is a question of law for the judge. This is, essentially, whether likely to assume that what purports to be a work of fiction contains imagi-
or not there is an arguable case. 2° If so, it is for the tribunal of fact nary characters. The publishers of "faction"—fictional works based on real
(usually the jury) to decide whether the material does in fact refer to events—should take great care. The damages in Youssoupoff v MGM Pictures
the claimant. Ltd24 were £25,000—a very substantial sum in 1934. The classic phrase "any
similarity with persons living or dead is unintended and coincidental" is not
conclusive, but is worth inserting, unless it is manifestly disingenuous. The
"risk of coincidence" 25 always lies with the defendant, who should therefore
Coincidental naming identify the intended subject as closely as possible and ensure that he has the
material in order to justify or otherwise defend what is published about him.
-04 Problems arise where the defendant makes defamatory allegations against
a named person, either real or fictional, and the claimant who shares the
same name, but was not the intended subject, claims to have been identi- Lookalikes
fied. In Newstead v London Express Newspapers' the Court of Appeal
upheld a jury finding that a report of the conviction for bigamy of Harold
The principles governing coincidental naming would suggest that where the 4-05
claimant looks like a person who is photographed while engaged in some dis-
15 See Ch.16.
reputable activity, he should be entitled to bring a claim. In O'Shea v MGN
16 Morgan v Odham Press Ltd [1971] 1 W.L.R. 1239.
12 At 1264B.
18 See Newstead v London Express Newspapers [1940] 1 K.B. 377; para.20-02. n [1910] A.C. 20 and para.29-10.
19 See para.28-07. 23 [2005] EWCA Civ 75 (2005) Q.B. 946.
20 See Knupffer v London Express Newspapers Ltd [1944] A.C. 116. 24 (1934) 50 T.L.R. 581; para.4-02.
21 [1940] 1 K.B. 377. 25 per Lord Greene in Newstead at 388.

[36] [37]
 LuF6 the claimant was the "spit and image" of a well-known glamour model Only one officer was named. There were 12 officers at Banbury CID, 10 of
who regularly appeared in pornographic advertisements. The claimant com- whom brought a claim for libel and were able to show that the allegations
plained about an advertisement in The Mirror which showed the glamour would have been understood to refer to them.
model advertising an adult Internet Service Provider. She complained that Further problems arise where the defamatory allegation is not directed
reasonable people who knew her would have understood the photograph at the class as a whole but at only one or a limited number of unnamed
to have been of her. Morland J. struck out the action. He concluded that to members. For example, had the allegation in Riches been directed at one
hold publishers responsible in these circumstances would impose an impos- unnamed detective as opposed to the CID as a whole, could the officers all
sible burden on them. Publishers would be required to check whether a have sued on the basis that the "cloud of suspicion" had been cast over them?
photograph resembled another person who could claim to be defamed. The There is authority that if the defendant says "either Smith or Jones is a thief"
judge concluded that this would be an unjustifiable interference with the pub- neither Smith nor Jones can sustain a claim unless there is something in the
lisher's right to freedom of expression and therefore contrary to art.10 of the surrounding circumstances to implicate either Smith or Jones. 3' However,
European Convention of Human Rights. the correctness of this approach has been doubted. 32 It is submitted that an
It remains to be seen whether this approach will be applied more generally allegation of misconduct against an unnamed member or members of a class
to unintended indentification. could reflect adversely on all the members, either because any member might
claim that he was reasonably suspected of being guilty or possibly because
of an implication that all the group or class condoned the misconduct. Once
again, the primary consideration is the size of the group and the number of
Class libel members who have been accused. An allegation that an unnamed planning
officer at a named local authority had accepted bribes would be unlikely to
-06 Another common difficulty arises where the defendant makes an allega- be defamatory of any of the officers if there were 21 in the department, in the
tion against a group or class of people as a whole and the question arises absence of a specific pointer to a particular officer. 33 However, if it was sug-
as to whether an individual within the group can claim to be identified. No gested that 10 unnamed officers had been accused, all 21 could reasonably
lawyer could claim to be identified by the allegation that "all lawyers are claim that they had been defamed. Each case will turn on its own facts. The
thieves", although if the allegation was directed against a small firm of solic- prudent publisher will either make the allegation highly general, so that no
itors, any one of the practitioners would be able to claim identification. Mr one individual can claim to be identified, or highly specific, e.g. by naming
Schloimovitz's attempt to sue the Clarendon Press for libel over an offensive only the intended target.
dictionary definition of the word "Jew" was doomed to failure" although it As is apparent, the consequence of the principles governing class libel
did result in the dictionary being amended. (and coincidental naming) is that allegations which may be literally true can
The primary consideration is the size of the group. Other factors include the give rise to unintended liability. Freedom of expression may be restricted
generality and seriousness of the charge and the language used. Extravagant to an unacceptable level. There has been particular concern about large
language about a large group will not be understood to refer to any individ- numbers of claims brought by unnamed, but potentially identifiable, police
ual member. There may however be specific pointers to the claimant within officers. The fact that an allegation is directed at a group as opposed to
the words which allow him to prove identification. 28 The question remains an individual is a matter which the European Court of Human Rights has
whether or not the words are reasonably capable of being understood to regarded as relevant in assessing whether a restriction on freedom of expres-
refer to the claimant. The leading authority is Knupffer v London Express sion is justified. The possible effect of the incorporation of the European
Newspapers Ltd29 in which the plaintiff was the representative of the British Convention on Human Rights on the question of identification is consid-
branch of the Young Russia Party. The party numbered 2,000 and the British ered in para.38-21.
branch had 24 members. The allegation, in a British newspaper, was that the
party was pro-Hitler but there was no reference to any particular member
in the article. The Court of Appeal held that the words were not capable Corporations
of referring to the plaintiff, as opposed to the party, which was upheld by
the House of Lords. In Riches v News Group Newspapers, 3° The News of the A trading corporation can sue for libel provided it can show that the defama- 4-07
World repeated various allegations of misconduct against "Banbury CID". tory publication tends to damage its business as a trading company. 34 The

28 [2001] E.M.L.R. 943.

27 Schloimovitz v Clarendon Press, The Times, July 6, 1973. 31 Chomley v Watson [1907] V.L.R. 502; Sir John Bourne's case Cro. Eliz. 497.
28 Le Fanu v Malcomson (1848) 1 H.L. Cas. 637. 32 Farrington v Leigh, The Times, December 10, 1987.
28 [1944] A.C. 116. 33 Arcand v Evening Call (1977) 567F 2d 1163.

38 [1986] Q.B. 256. 34 Jameel v Wall St Journal Europe Sprl [2006] UKHL 44 (2007) 1 A.C. 539.

[38] [39]
individuals responsible for the direction and control of a corporate body will
often be able to claim that reasonable people would understand defamatory
allegations concerning the corporation to reflect on them, even if they are not
specifically referred to. It is reasonable to assume that an officer who is known CHAPTER 5
to be responsible for the management of a corporation will be damaged by an
allegation of malpractice against the corporation. 35 SLANDER CLAIMS AND SPECIAL DAMAGE
An individual officer, even if unnamed, has certain advantages over the cor-
poration. A corporation can only be "injured in its pocket", i.e. to the extent
that it actually suffers financial loss or damage to its reputation and goodwill, In certain slander claims a claimant must also prove pecuniary loss
whereas an officer can claim substantial damages for injury to his feelings. 36
In addition, certain corporations are unable to sue for defamation, 37 but this Distinction between libel and slander 5-01
will not prevent the officers from bringing a claim. The principle can work the Slanders that do not require proof of special damage 5-02
other way. A corporation can claim that a defamatory allegation directed at Commission of a criminal offence punishable by imprisonment 5-03
an employee or officer is defamatory of the corporation, where it implies that Contagious diseases 5-04
the corporation either condones the activity or has failed to exercise proper Imputations of unchastity to a woman 5-05
care and supervision. 38 In Elite v BBC 39 for example, Eady J. refused to strike Allegations likely to damage the claimant's reputation in relation
out claims by a model agency over a documentary that claimed that the to any office, profession, trade or business 5-06
owners of the agency were guilty of compromising the protection of young Special damage 5-07
models. The issue was whether the programme went as far as to suggest that The functions of judge and jury 5-08
there was some corporate act or omission, thereby bringing in the three Elite Vulgar abuse 5-09
companies who were claimants. The judge considered the evidence to be such Proving the words 5-10
as to allow the claimants to "squeak" home, but was sceptical as to why the
individuals were not suing in their own right. He observed that the court
should be astute to prevent corporations being put up to front libel actions Distinction between libel and slander
properly to be brought by individuals. Where the defamatory publication
merely reflects on the individual officer only he will be the proper claimant. 40 Libel is the publication of defamatory matter in permanent form and slander 5-01
is publication in temporary form. Most commonly, but not exclusively, libel
is in writing and slander is spoken. Section 1 of the Defamation Act 1952
provides that defamatory broadcasts are treated as libel. A similar provision
applies in relation to performances on stage by virtue of s.4(1) of the Theatres
Act 1968. 1 Films, records and tapes are all considered to be in permanent
form. Almost all publications on electronic media, such as the internet and
email, have sufficient permanence to be considered libel. 2
Defamatory matter communicated by word of mouth is slander except,
arguably, when the speaker is reciting from a document. 3 Defamatory ges-
tures and conduct are slanders. Occasionally claims are brought where the
claimant has been physically removed or escorted from the defendant's
premises; for example, on the summary termination of employment. 4 It
is suggested that the conduct of the defendant or his agents conveys the
impression to bystanders that the claimant has been guilty of improper
behaviour.

35 Derbyshire CC v Times Newspapers Ltd [1993] A.C. 534; Lewis v Daily Telegraph Ltd [1964]
1 There are limited exceptions relating to domestic performances, rehearsals and performances
A.C. 234; Aspro Travel Ltd v Owners Abroad Group Plc [1996] 1 W.L.R. 132.
36 See para.20-02.
for the purpose of recording.
2 See Ch.35.
37 See para.17-18.
3 Longdon-Griffiths v Smith [1950] 1 KB. 295; Osborn v Thomas Boulter [1930] 2 K.B. 226.
38 Bognor Regis UDC v Campion [1972] 2 Q.B. 169, overruled by Derbyshire on another
4 The defendant could probably rely on qualified privilege. See Mason v William Hill
ground.
9 Unreported May 24,2001.
Organisation Ltd Unreported March 16,1983 and Watson v Argles & Court Unreported January
4° Shendish Manor Ltd v Coleman [2001] EWCA Civ 913.
1992; see Appendix 3.

[40] [41]
 In slander claims there is an additional burden on the claimant which Words merely alleging suspicion of having committed a criminal offence 9
reflects the fact that libel is more durable and therefore more likely to damage or criminal inclination° are insufficient. Where they amount to an allegation
reputation. The claimant must prove that special damage has resulted from of an attempt though, they will be actionable per se on the basis that attempts
the publication unless the allegation falls within one of four exemptions. to commit offences are offences in themselves. 11
Special damage is essentially financial loss and is considered in para.5-07
below. Contagious diseases

Slanders that do not require proof of special damage This exception is completely anachronistic as virtually all the authorities were 5-04
decided in the 17th century. The justification is that a claimant who is accused
of suffering from a contagious disease will be "shunned and avoided". The
-02 There are four classes of slander which are said to be actionable per se, i.e. fact that no moral blame will attach to someone who has the disease is irrel-
there is no need to prove special damage: evant. The only diseases which have been found to fall within the exception
are venereal diseases 12 and leprosy. 13 The position in relation to plague is
1. An allegation that the claimant has been guilty of a criminal offence uncertain. 14 The words must allege that the claimant is presently suffering
punishable by imprisonment (common law). from the disease.
2. An allegation that the claimant is suffering from certain contagious Imputations of unchastity to a woman
diseases (common law).
3. About a woman only, an allegation of unchastity (Slander of Women This exemption was enacted by the Slander of Women Act 1891. Following 5-05
Act 1891). general principles the allegation may be made expressly or by implication or
innuendo. In 1942 unchastity was considered to include lesbianism.' 5 A prac-
4. An allegation likely to damage the claimant's reputation in relation to tical obstacle is that the claimant cannot recover a greater sum in costs than
any office, profession, trade or business held or carried on by him at the amount of the damages awarded unless the judge certifies that there was
the date of publication (s.2 of the Defamation Act 1952). reasonable ground for bringing the claim. 16
The supposed rationale is that allegations which fall within the exemptions Allegations likely to damage the claimant's reputation in relation to any office,
are so serious that they should be treated in the same way as libels. There is a profession, trade or business
considerable body of ancient and generally irrelevant authority in relation to
the boundaries of each class. Claimants have strained to fit the allegation in
question into one or more of the exemptions, so that a claim can be brought Section 2 of the 1952 Act provides: 5-06
without proof of special damage. "in an action for slander in respect of words, calculated to disparage the claimant
in any office, profession, calling, trade or business held or carried on by him at the
Commission of a criminal offence punishable by imprisonment date of publication, it shall not be necessary to allege or prove special damage,
whether or not the words are spoken of the claimant in the way of his office, profes-
sion, calling, trade or business."
-03 The words do not have to refer to the specific offence. 5 It is sufficient if the
claimant is accused directly, or by implication, of conduct which constitutes a This exemption is the most commonly utilised. Allegations within the first
criminal offence. 6 The general principles of construction apply. 7 Provided the three categories may also fall within this category.
offence is one where there is a power to punish by imprisomnent, it is irrele-
vant that the claimant would be unlikely to receive a custodial sentence if he
were to be found guilty. 8 9 Simmons v Mitchell (1880) 6 App. Cas. 156.
Stoner v Audley (1590) Cro. Eliz. 250.
Scott v Hillier (1611) Lane 98.
17 Milner v Reeves (1617) 1 Roll Abr. It would seem therefore that an allegation of infection
with the HIV virus would fall within this category, even if the virus is often acquired otherwise
than through sexual intercourse.
5 Webb v Bevan (1883) 11 Q.B.D. 609. 13 Taylor v Perkins (1607) Cro. Jac. 144.
6 See Gray v Jones (1939) 55 T.L.R. 437. '4 See Villiers v Monsley (1769) 2 Wils. 403.
7 See para.2-07. 15 Kerr v Kennedy [1942] 1 K.B. 409.
8 McDonald v Mulqueen (1922) 53 0.L.R. 191. 16 See Russo v Cole [1966] 1 W.L.R. 248.

[42] [43]
 The activity or office to which the allegation relates must be carried on or rise to added expense it will constitute special damage. 26 It is notable that the
held at the time of publication. "Calculated" means "likely", and focuses on sort of slanders which are most likely to cause financial loss are in any event
the nature of the allegation and not its actual effect." The old common law exempted from the requirement to prove it by s.2. By contrast, in the type of
requirement was that the allegation related directly to the claimant's profes- case where a claimant needs to show special damage to establish the claim, it
sion, business or office. The 1952 Act is more generous and focuses on the is often difficult to find.
likelihood of damage rather than whether or not the words are directed at the
particular occupation. An allegation that a teacher at a religious school was
having an adulterous affair would therefore arguably fall within the exemp- The functions of judge and jury
tion even though it did not cast doubt on his teaching abilities."
However, in relation to offices carrying no remuneration—an office of
honour—the allegation must impute want of integrity or misconduct in the In trials by judge and jury, the jury determines, as a question of fact, what 5-08
performance of the officer's duties. Words alleging incompetence or unfit- damage has been caused and whether it resulted from the publication.
ness for office due to misconduct outside the office are insufficient unless the Whether any damage proved constitutes special damage is a question of law
conduct alleged would be grounds for removal from the office." for the judge. 27 In relation to the four classes of slander actionable per se, it is
It is important to note that the fact that the allegation relates to the claim- for the jury to decide the meaning of the words and whether they fall within
ant's trade or profession will not necessarily make it defamatory. It must the class, subject to the judge's usual discretion to weed out weak cases."
reflect adversely on the claimant and not merely his merchandise, products
or teclmiques. 2°
Vulgar abuse

Special damage
The phrase "vulgar abuse" is generally used to describe vituperative or 5-09
abusive language spoken in the heat of the moment and therefore not taken
07 Where the claimant is unable to claim that the allegation falls within one of seriously or literally. 29 It is often described and pleaded as a defence but in
the above categories, he will have to show that foreseeable special damage essence, it is a denial of defamatory meaning. However, there appears to be a
has flowed from the publication in order to establish a claim. 21 The term requirement for the defendant to prove that the words were in fact not taken
"special damage" is confusing. It is often used to describe a specific and seriously by those who heard them even if that is how they would have been
identifiable financial loss on which a figure can be put. It is contrasted with understood by a reasonable person. 3° This is contrary to the objective test
a general loss of business or profits which is said to be general damage. 22 for determining meaning. 3 ' A further anomaly is that there is authority that
However, a general loss of profits is considered sufficient damage that would a libel can never be considered as vulgar abuse. 32 However, there seems no
entitle a claimant to bring a slander claim assuming such loss was foresee- reason why a defendant in a libel claim cannot under general principles allege
able.23 The simplest way of approaching the matter is that the loss must be that a reasonable person would not understand the publication to be taken
pecuniary or capable of being calculated in money. 24 Injury to feelings and seriously or in a defamatory fashion. This argument is advanced on occasions
mental and physical illness following the publication have been held to be by satirical publications in relation to humorous items, see para.2-06.
insufficient.25 Even if the latter could be connected to financial loss it would
be unlikely to have been a foreseeable consequence of a slander. Loss of hos-
pitality and "society" is only considered special damage if it can be linked to Proving the words
money. Where loss of gratuitous hospitality from friends or relations gives
The requirement to prove the defamatory statement is common to libel and 5-10
slander. In both types of claim, the claimant must set out in his particulars of
Customglass Boats v Salthouse Boats [1976] R.P.C. 589. claim with reasonable certainty the words which it is alleged were published
18 See Jones v Jones [1916] 2 AC. 481, which was decided before the 1952 Act and may now be
decided differently.
1 Alexander v Jenkins [1892] 1 Q.B. 797 and Robinson v Ward (1958) 108 L.J. 491.
'2

28 See para.2-23.
26 Davies v Solomon (1871) L.R. 7 Q.B. 112.
21 For the principles governing foreseeablilty and causation see McManus v Beckham [2002] 1
27 See Lynch v Knight (1861) 9 H.L.C. 577; L.R. 10 Q.B. 111.
W.L.R. 2982, CA and para.3-09 above.
22 Ratcliffe v Evans [1892] 2 Q.B. 524.
28 See para.2-05.
25 Thorley v Kerry ( Lord) (1812) 4 Taunt. 355.
23 See Ratcliffe above.
38 See Gatley on Libel and Slander (London: Sweet & Maxwell, 1988), para.3.32.
24 Chamberlain v Boyd (1883) 11 Q.B.D. 407.
25 Lynch v Knight (1861) 9 H.L.C. 577.
31 See para.2-06.
32 Plummer v Charman ( No.2 ), The Times, October 25, 1962.

[44] [45]
by the defendant. 33 It is the actual words that are required and not their sub-
stance or effect. 34 However, as a practical matter, the transient nature of a
slander may make it very difficult for a claimant in a slander claim to satisfy
this requirement. In a recent decision it was suggested that, as a minimum, CHAPTER 6
an accurate expression of the substance of what was said must be pleaded. 35
Where the claimant pleads what he reasonably believes to be the actual words MALICIOUS FALSEHOOD
he may apply to amend where it subsequently emerges that there are differ-
ences between what was pleaded and the actual words used. 36
A false statement, published maliciously by the defendant which causes damage
to the claimant

Introduction 6-01
Comparison with defamation 6-02
What the claimant must prove 6-03
The false statement 6-04
Trade disputes 6-05
Malice 6-06
Damage 6-07

Introduction

Malicious falsehood is the generic term for the malicious publication of false 6-01
statements which cause damage to the claimant. It is a separate tort from def-
amation, although the facts of a case may justify a claim in both defamation
and malicious falsehood. In common with defamation, the tortious act is the
publication of the statement to a third party. It is sometimes described as inju-
rious falsehood or an action on the case and incorporates the torts of slander
of title and slander of goods. These do not warrant separate classification and
are really examples of the general tort of malicious falsehood.

Comparison with defamation

Malicious falsehood has traditionally been considered to be the poor relation 6-02
of defamation.' There are certain disadvantages:
1. The claimant has to prove that the statement is false. In defamation it
is presumed to be false and the burden is therefore on the defendant to
prove it to be true2. The claimant will not be absolved from proving
falsity even where a defence of justification in associated defamation
proceedings has been struck out, 3 although an admission that the
words were false might be considered sufficient having regard to the
33 See para.28-05. In slander cases the words must also be set out in the claim form, see CPR court's case management powers and the overriding objective.
Pt 53 PD2.2(2). •
34 Collins v Jones [1955] 1 Q.B. 564; British Data Management v Boxer Commercial Removal Plc
[1996] E.M.L.R. 349; Best v Charter Medical of England Ltd [2001] EWCA Civ 1588. I See Chs 1 and 7.
33 Jennings v Buchanan [2004] UKPC 36. 2See Ch.8.
36 Harris v Warre (1879) 4 C.P.D. 125. 3 Culla Park v Richards [2007] EWHC 1687.

[46] [47]
 2. The claimant must not only prove that the statement was false but that disapproval of Tesco's tactic of bringing concurrent claims in defama-
the defendant published it maliciously, in effect, either knowing it to be tion and malicious falsehood, and attempting to continue to pursue
false or indifferent as to its truth. Negligent publishers will not be liable. the malicious falsehood claim whilst neither accepting nor rejecting
In defamation there is generally no obligation to prove malice. However, the defendant's offer of amends in the libel action. The judge held
where the publication is made on an occasion of qualified privilege, the there was no tangible benefit to the claimant in doing so, other than
claimant will, in any event, have to prove malice in order to win the the possibility of a finding of malice, and to permit it to continue
case.4 In qualified privilege cases therefore, the advantage of defamation would subvert the intention of Parliament.
is more limited. It should be noted that many malicious falsehood claims
concern business communications, where qualified privilege would be 4. Finally, in malicious falsehood cases, unlike defamation, the claimant
potentially available as a defence to a defamation claim. has no right to elect for trial by jury.° It is questionable whether this is
an advantage or disadvantage, but most claimants, if given the choice,
3. Malicious falsehood is a tort which, primarily, protects property rights. would elect for trial by jury on the basis that the damages tend to be
The claimant must therefore prove special damage, i.e. financial loss, higher and juries tend to be more sympathetic to claimants. However,
unless the allegation falls within the exemption provided by s.3 of the the outcome of trial by judge is generally more predictable and the
Defamation Act 1952 (see para.6-07 below). The claimant's compen- trial will be shorter.
sation is more closely linked to actual financial loss, although there
has been a recent liberalisation of the court's approach to damages
for malicious falsehood. 5 Claims for libel and certain slanders can be What the claimant must prove
brought without proof of special damage. Since defamation protects
reputation, substantial damages can therefore be awarded even where
there is no financial loss, in order to "vindicate" the claimant's rep- There are three elements to the tort of malicious falsehood: 6-03
utation and compensate for injury to feelings. 6 Furthermore, where
special damage has been caused it can also be claimed in defamation. 1. The statement must be false.
2. It must be published maliciously.
Malicious falsehood has the following advantages. 7
3. The publication must cause financial loss or be likely to cause such
1. There is no need for a claimant to show that the statement is of a loss.
defamatory nature. This is the most common reason for a claimant
suing in malicious falsehood instead of defamation. Where both torts
are pleaded it is usually an indication that the claimant realises that The false statement
there may be a real dispute as to whether the allegation in question is
defamatory.
Slander of title is a statement disparaging the claimant's title or ownership of 6-04
2. Because malicious falsehood is a property tort it survives the death of real or personal property. Slander of goods is the disparagement of the claim-
either party and the right or liability passes to the personal represen- ant's goods. "Slander" is a misnomer because the publication can be in perma-
tatives. Where a party to a defamation claim dies, the claim, in so far nent or temporary form; however, only permanent form publications have the
as it relates to him, abates. 8 Where the claimant is elderly or in poor benefit of the first limb of s.3(1) of the 1952 Act (see para.6-07 below).
health it may be prudent to include a claim for malicious falsehood This terminology is unhelpful because in a malicious falsehood claim the
where the facts allow, although explaining the reason to him may subject matter of the malicious statement is irrelevant, provided it is referable
require some tact. to the claimant or his goods or property." In common with defamation there
3. Malicious falsehood is not subject to the statutory offer of amends may be a dispute as to the meaning of the words comprising the statement.
regime. However in Tesco v Guardian,9 Eady J. expressed his The claimant will in his particulars of claim set out the meanings which he
alleges the statement bears and which he contends to be false. 12 The rules of
construction are similar to those in relation to defamation.°
4 See Ch.10.
5 See para.6-07 below.
6 See Ch.20. 1 ° See para.31-03.
7 State funding is no longer available for malicious falsehood—the former perceived advantage 11 Marathon Mutual Ltd v Waters [2009] EWHC 1931.
of suing for this reason no longer applies—see para.1 of Sch.2 to the Access to Justice Act 1999. 12 See Appendix 1(12).
8 See para.17-17. 13 See Vodaphone Group Plc v Orange Personal Communications Services Ltd [1997] E.M.L.R.
9 [2009] E.M.L.R. 5. 84, The Times, August 31,1996 and paras 2-02 et seq.

[48] [49]
 Where the meaning of the statement is in issue, the court must determine defendant's goods was made in a pamphlet purporting to be a proper scien-
whether or not the words bear the meaning attributed to them by the clai- tific test. Walton J. held that there was an arguable case that readers of the
mant. If so, consideration can then be given as to whether or not that pamphlet would take the allegations seriously and it could therefore be the
meaning is false and has been published maliciously. In common with defa- subject of a malicious falsehood claim. It follows that malice of itself cannot
mation claims, it is possible to rely on a meaning conveyed by inference. In make a statement unlawful and the claimant will have no remedy unless he
Kaye v Robertson' 4 the claimant, who was a well-known actor, was in hospital can show that his rival's claims would be understood seriously.
following brain surgery. A reporter from The Sunday Sport gained access to Finally, it has been held that the mere publication of a statement by a
his room, took photographs and purported to carry out an interview, even defendant about its own product without any reference to the claimant or its
though the plaintiff was in no fit state to do so. The newspaper planned to product cannot give rise to a claim in malicious falsehood even if the state-
publish the story as a world exclusive. The Court of Appeal held that the pres- ment is false and causes the claimant damage. 20
entation of the article would convey the false impression that the plaintiff had
agreed to be interviewed by the newspaper. This would prejudice his ability
to sell his story at a later date. The newspaper was obviously aware that the Malice
article presented a false impression and was therefore malicious. It followed
that the necessary elements of a malicious falsehood had been made out. Malice is a term of art meaning a dominant improper motive. In order to 6-06
establish malice it is generally necessary to demonstrate that the defendant
published the statement knowing it to be false or without caring whether
Trade disputes it was true or false, i.e. recklessly. Chapter 18 considers the subject in more
detail. For the purposes of a malicious falsehood claim it is important to note
-05 Disputes between rival businesses in respect of criticisms of one trader's that malice will not be proved solely because the words are false, and have
goods or exaggerations about the qualities of his own goods are commonly caused injury to the claimant. A false statement, if it were published in good
the subject of malicious falsehood claims. In these cases it is necessary to ask faith, would preclude a finding of malice. 21 Nor would negligent or mistaken
whether the ordinary reader would take the claims seriously or would regard conduct by the defendant constitute malice. However, where the defendant
them as mere advertising "puffs" to be taken with a substantial dose of salt." could have easily verified the statement but failed to do so, the claimant will
As Jacob J. observed, "the public are used to the ways of advertisers and seek to infer that the defendant's conduct was deliberate so as to avoid con-
expect a certain amount of hyperbole". 16 In White v Mellin 17 the defendant fronting the truth and was therefore reckless.
attached labels to bottles of infant food manufactured by the plaintiff, which The motive for publishing a false statement against a trade rival is com-
claimed that an alternative brand, distributed by him, was "far more nutri- monly alleged to be financial gain. This will only be regarded as improper
tious and healthful than any other preparation". The House of Lords held it where the maker does not believe the statement to be true. Where the defen-
was not unlawful in such circumstances for a trader merely to state his goods dant is a commercial publisher or broadcaster the suggestion is usually
were better than a rival's or any other products on the market. The readers of advanced that its only interest was to publish sensational materia1. 22
the label would simply regard it as an advertiser's "puff' and would not take
it seriously. Lord Herschell was concerned lest "the courts of law would be Damage23
turned into the machinery for advertising rival products by obtaining a judi-
cial determination of which of the two was better". 18
By contrast, in De Beers Abrasive Products Ltd v International General The claimant must either prove that he has suffered financial loss (special 6-07
Electric Co of New York Ltd° the comparison between the plaintiff s and the damage) or his claim must fall within the exception contained in s.3(1) of the
1952 Act which provides:
"In an action for slander of title, slander of goods or other malicious falsehood, it
14 [1991] F.S.R. 62, CA.
Is See Hubbuck v Wilkinson [1899] 1 Q.B. 86; Vodaphone Group Plc v Orange Personal
shall not be necessary to allege or prove special damage:
Communications Services Ltd [1997] E.M.L.R. 84, The Times, August 31, 1994; White v Mellin
[1895] A.C. 154; Emaco Ltd v Dyson Appliances Ltd, The Times, February 8, 1999; MacMillan
Magazines v RCN Publishing Co Ltd [1998] F.S.R. 9; Jupiter Unit Trust Managers Ltd v Johnson
Fry Asset Managers Plc (2000) Unreported April 19, 2000 QB; DSG Retail Ltd (TIA Currys) v 28 Schulke & Mayr UK Ltd v Alkapharm UK Ltd [1999] F.S.R. 161, where the defendant
Comet Group Plc [2002] EWHC 116. claimed that it produced "the most powerful, the most stable" cleaning and disinfectant
16 See Vodaphone Group Plc, above. agents.
17 White v Mellin [1895] A.C. 156. 21 Friend v Civil Aviation Authority [2005] EWHC 201.
18 See above at 165. 27 See para.18-08.
19 [1975] 1 W.L.R. 972. 23 See also Ch.20.

[50] [51]
 (a) if the words upon which the action is founded are calculated to cause pecu-
niary damage to the plaintiff and are published in writing or other perma-
nent form; or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff
in respect of any office, profession, calling, trade or business held or carried
on by him at the time of the publication."
Permanent form malicious falsehoods therefore have the advantage that
the financial loss need not relate to any office, profession, calling, trade or
business. The use of "calculated" is confusing. It means "likely" 24 and the
crucial question is the likely effect, not the intention of the defendant.
In considering whether or not an allegation is likely to cause financial loss,
the court will be concerned with the nature of the allegation and how it relates
to the claimant and in particular his livelihood. In Joyce v Sengupta 25 the
plaintiff was formerly employed as a lady's maid to a member of the royal
family. A national newspaper accused her of stealing her employer's confi-
dential correspondence and passing it to another newspaper. The plaintiff
had insufficient means to bring an action for libel but obtained legal aid for
malicious falsehood. Although she could not point to any specific financial
loss, she alleged that an allegation of breach of trust against someone in 'her
position would be particularly damaging. The Court of Appeal recognised
that the justification for s.3(1) is that proving financial loss may be difficult
and the plaintiff should not be deprived of a remedy in cases where such
loss is likely bearing in mind the allegation. Furthermore, in the absence of
proved loss it does not follow that the damages will necessarily be nominal. 26
In Joyce, the plaintiff received a substantial payment in an out of court settle-
ment. This may reflect the fact that she was legally aided and the newspaper
would have been substantially out of pocket regardless of the outcome.
In Khodaparast v Shad,27 the claimant sued over an item in a pornographic
magazine which apparently showed her offering telephone sex services. The
photograph had been sent to the magazine by the defendant, the claimant's
ex-lover, and had been doctored by him. The trial judge awarded the claimant
£20,000 which took into account the injury to her feelings and the conduct of
the defendant, which clearly aggravated the hurt caused to the claimant. The
Court of Appeal did not regard the award as excessive. It viewed malicious
falsehood as a species of defamation. In consequence, there was no reason
why aggravated damages could not be recoverable for injury to feelings in an
appropriate case.

24Customglass Boats v Salthouse Boats [1976] R.P.C. 589; Stewart-Brady v Express Newspapers
Plc [1997] E.M.L.R. 92.
25 [1993] W.L.R. 337.
26 To be contrasted with Fielding v Variety [1967] 2 Q.B. 841 and Allason v MGN Ltd Unre-
ported July 30, 1998.
27 [2000] 1 W.L.R. 618.

[52]
 CHAPTER 7
GENERAL

As was emphasised in Ch.1, the fact that the claimant establishes a claim in 7-01
defamation (i.e. a statement published by the defendant which is defamatory
of the claimant) does not necessarily mean that he will win the case. It then
falls to the defendant to establish one or more of the available defences which
are set out in this chapter. If the defendant fails to do so he will lose. Where he
is able to do so, he may still lose if the claimant successfully counter-attacks
by proving malice, which is fatal to certain defences.
It is therefore open to a defendant merely to allege that the claimant has
not established a case either because the words are not defamatory of the
claimant or because the defendant was not responsible for their publication.
Alternatively, he may seek to rely on one or more substantive defences, which
he will have to prove. These defences are as follows:
1. Justification (or truth)—the defamatory statement is true or substan-
tially true (Ch.8).
2. Fair comment—the defamatory statement is an opinion, based on
true facts, which an honest person could hold in relation to a matter
of public interest (Ch.9).
3. Absolute privilege—the nature and circumstances of the publication
give rise to an absolute defence (Chs 10 and 11).
4. Qualified privilege—the nature and circumstances of the publication
give rise to a defence unless the claimant proves malice (Chs 10, 12, 13
and 14).
5. Secondary responsibility—the defendant had an innocent and sec-
ondary role in the publication of the defamatory statement (Ch.15).
This is set out in s.1 of the Defamation Act 1996 and is sometimes
described as innocent dissemination.
6. Offer of amends—an offer to apologise and pay damages is volun-
teered by a non-culpable defendant, which is not accepted by the clai-
mant (Ch.16).
7. Limitation—the claim has been brought too late (Ch.17).
8. Consent to publication—the claimant expressly or impliedly agreed to
the publication taking place (Ch.17).
9. Accord and satisfaction (release)—the claimant has expressly or
impliedly agreed not to pursue a claim against the defendant (Ch.17).
The defendant may also contend that the claim is an abuse of process or that
the claimant or defendant is not a proper party to a defamation claim. These
[55]
 are not defences, strictly speaking, but they absolve the defendant of liability
and are considered in Ch.17.
A defence of fair comment, qualified privilege or offer of amends will be
lost if the claimant proves that the defendant was malicious. Malice is an CHAPTER 8
improper motive for publication and will generally be established where the
defendant knew that what he was publishing was false or was indifferent to its JUSTIFICATION
truth. It is considered in Ch.18. An offer of amends defence may also be lost
if the defendant had reason to believe that the words were false and defama-
The defamatory statement is true or substantially true
tory of the claimant.
–02 A defendant may rely on any number of defences in combination or in the
alternative, where the facts allow. He may be obliged to do so where a par- Introduction 8-01
ticular defence only applies to part of the defamatory statement. The only Relationship with other defences 8-02
exception is an offer of amends, which cannot be run with any other defence. 1 Burden and standard of proof 8-03
The various defences are different in nature and presentation. Only justifica- The meaning that must be proved to be true 8-04
tion and, to a lesser extent, fair comment amount to a restatement of the "Higher" and "lower" meanings 8-05
validity of what was published. The remaining defences are in effect excuses Repetition rule 8-06
or explanations which absolve the defendant from liability. They are not of "Grounds to suspect" meanings 8-08
themselves an attack on the claimant. "Grounds to investigate" meanings 8-09
Chapter 24 sets out some of the practical considerations that should be General and specific allegations 8-10
borne in mind by a defendant. Examples of pleaded defences can be found in Non-defamatory meanings 8-11
Appendix 1. Proving the sting 8-12
The following matters are not of themselves defences to a defamation Section 5 of the Defamation Act 1952 8-13
claim: The limits of section 5—separate and distinct allegations 8-14
Effect on damages 8-15
1. the publication of an apology and the promise not to repeat the The functions of judge and jury 8-16
defamatory statement;
2. that the defendant either honestly and reasonably believed the state- Introduction
ment to be true, or was unaware that it was defamatory or referred to
the claimant; Justification means truth. For this reason the Faulks Committee recommended 8-01
3. that the statement or similar allegations have been published on that the defence be retitled "Truth". 1 It is an absolute defence in a civil defa-
numerous previous occasions and the claimant has never challenged mation claim that the statement in question is true or substantially true. It is
them; irrelevant for the purposes of defamation that its publication constitutes a gross
breach of privacy or confidence, or that it is contrary to the public interest. The
4. that the claimant has a bad reputation. purpose of the civil law is to compensate a claimant, not to punish a defendant.
A claimant is not entitled to be compensated for a reputation that he does not
Some of these matters may be relied on in mitigation of damages and may deserve. Thus the most malicious defendant, who publishes allegations believ-
result in a nominal award of damages. 2 In certain circumstances these ing them to be wholly false, solely with the intention of injuring the claimant,
matters will generate sufficient sympathy on the part of a jury for them to will successfully defend the claim if it emerges that he has accidentally stumbled
return a "perverse" verdict for the defendant. 3 However, as a matter of law, upon the truth. Furthermore, even if the statement is untrue at the date of pub-
they will not let the defendant off the hook. lication, subsequent misconduct of the claimant before the claim is tried may be
relied on by the defendant to prove the truth of the publication. 2

1At para.5(a) Cmnd 5909 (1975).

2 Cohen v Daily Telegraph Ltd [1968] 1 W.L.R. 916, unless, that is, the allegation sought to be
1 A qualified offer of amends may be accompanied by another defence (see Ch.16). justified is that there were reasonable grounds to suspect that the claimant had committed dis-
2 See Ch.20. reputable acts, in which case the defendant can seek to rely only on such grounds as existed prior
3 See para.33-06. to publication of the allegations. See para.8-08 below.

[56] [57]
 Whether or not to plead justification, and if so to what extent, is an impor- defences more available and attractive. 8 By contrast, the strict principles
tant tactical decision for the defendant. The relevant considerations are dis- governing justification have remained fairly immutable, unaffected to any
cussed in greater detail in Ch.24. This chapter is primarily concerned with degree by the incorporation of the Human Rights Act 1998. 9 In addition,
the law relating to the defence. However the following considerations should there has been a significant liberalisation on restrictions governing mitiga-
always be borne in mind: tion of damages.° This means that justification is not the only way of getting
damaging evidence about a claimant before the jury.
• Is the available evidence admissible and sufficiently cogent to advance
the defence?
What effect will an unsuccessful plea of justification have on the Burden and standard of proof
•
award of damages and the costs of the claim? 3
It is a reflection of the importance accorded to reputation under English law 8-03
• Where there is a dispute over the meaning of the publication, what that there is a presumption that any defamatory statement is false. The defen-
meaning should the defendant select as the "correct" meaning, the dant can only rebut the presumption by pleading and proving that it is true.
truth of which he will seek to prove?' Thus the burden of proof in justification is firmly on the defendant. 11 The stan-
There are also a number of complicated technical rules governing how the dard of proof is the normal civil one of the balance of probabilities, i.e. more
defence may be pleaded. A defendant who disregards them risks an applica- likely than not. However, it is said that the more serious (or improbable) the
tion to strike out all or part of the defence by the claimant. 5 allegation, the more cogent is the evidence required to prove it. 12 In a juror's
mind this may well come closer to the more familiar criminal standard of
beyond reasonable doubt.
Relationship with other defences Section 13 of the Civil Evidence Act 1968 as amended by s.12 of the
Defamation Act 1996 provides an exception to the general rule requiring
;-02 For the purposes of defending a libel claim, there is a fundamental difference proof of justification by the defendant. It provides that the fact that a person
between a statement of fact and a statement of opinion. The defence of justi- has been found guilty of a criminal offence is conclusive proof that he com-
fication protects statements of fact, and the defence of fair comment protects mitted the offence. The provision was enacted following a claim brought by
statements of opinion. 6 A publication may contain a number of defamatory a plaintiff convicted of robbery. He successfully sued a police officer who
allegations, some fact and some opinion, in which case justification should be gave a newspaper interview alleging that he was guilty of the offence.° It is
pleaded to the facts, and fair comment pleaded to the opinions. In addition, important to note that s.13 (as amended) only applies where the claimant (or
there are commonly disputes over whether a particular allegation is fact or a co-claimant) is the person who has been convicted of the offence. Where
opinion, in which case both justification and fair comment can be relied on for example, a police officer sues an investigative journalist for alleging that
in the alternative. a conviction was secured by police misconduct, it may be a necessary part of
Justification is, in effect, a further attack on the claimant by re-asserting the journalist's defence to allege that the conviction was wrong. Section 13
the truth of what was published. It is very different from the "excuse" type would not apply in such a case. The conviction would be admissible under
defences which were set out in the previous chapter. These may nevertheless s.11 of the 1968 Act, but not conclusive on the issue whether or not the
be pleaded as an alternative to justification: 7 However, defendants often offence had, in fact, been committed.
choose merely to rely on a soundly based excusing defence, even if they could Where a claimant's conviction is "spent" within the meaning of the
also advance justification. Where, for example, the publication was made on Rehabilitation of Offenders Act 1974, a defendant who maliciously refers
an occasion of qualified privilege, it would be highly unlikely (but not impos- to the conviction will not be able to rely on justification. 14 Thus where a
sible) for the defence of justification to succeed where qualified privilege fails
(as a result of the defendant's malice). The added costs of pleading justifica-
tion may not be worth the benefit. See Chs 9 and 10-14.
8

Justification has traditionally been regarded as the main defence to a 9 See below.
defamation claim. However, its primacy has, to an extent, waned in recent i° See Ch.20.
II Placing the burden of proof on the defendant is not contrary to art.10 European Convention
years. Developments in qualified privilege and fair comment have made these on Human Rights. See McVicar v United Kingdom (46311/99) Judgment of May 10,2001.
17 Dellow's Will Trust, Re [1964] 1 W.L.R. 451; Hornal v Neuberger [1957] 1 Q.B. 247; Re H
(Minors) [1996] A.C. 563 at 586. It might be asked whether this is consistent with art.10 of the
3 See para.20-14. European Convention on Human Rights; see para.38-18.
4 See para. 8-05 below. 13 See Hinds v Sparks [1964] Crim. L.R. 717.

5 See Ch.29. 14 Rehabilitation of Offenders Act 1974 s.8. The Act sets out the circumstances in which a con-

6 See Ch.9 and particularly para.9-03. viction will be considered spent. See Herbage v Pressdrarn [1984] 2 All E.R. 769. The section runs
7 But not a general offer of amends (see Ch.16). See also para.24-04 for tactical considerations.
contrary to the general principle that the defendant's state of mind is irrelevant to justification.

[58] [59]
 defendant drags up an old and irrelevant conviction for an ulterior and spite- being defamatory. 21 This is commonly known as a "Lucas-Box" meaning. 22
ful purpose he will be deprived of the defence, even if he believes that the clai- The jury will have to decide which meaning is the "correct" meaning 23 and
mant was properly convicted.° Furthermore, where the defendant implies whether or not it has been proved to be true.
that the claimant remains untrustworthy or disreputable, there will be an It is commonly the case therefore that the claimant contends for the
additional defamatory sting which will not be justified simply by the convic- most serious meaning that the words are capable of bearing, and the defen-
tion. 16 Nevertheless, the requirement of malice remains a significant hurdle dant, unwilling or unable to justify the claimant's meaning, seeks to prove
for a claimant and since the 1974 Act there have been no reported authorities a less serious defamatory meaning, one of reasonable grounds to suspect
in which malice has been established. or grounds to investigate, rather than guilt. An example is the Marks and
Spencer type case (see above), where the claimant alleges that the meaning
is one of guilty knowledge on his part and the defendant seeks to justify a
The meaning that must be proved to be true "lower" meaning of negligence. The defendant necessarily runs the risk of the
jury concluding that the publication carries the more serious meaning. Where
'-04 The meaning of the defamatory statement is a theme which runs through the it is obvious that the claimant's meaning is the only sensible interpretation of
whole of defamation law and, in particular, the defence of justification. 17 The the publication the defence of justification will be struck out. 24
fundamental principle is that the defence will not succeed if the meaning that
is proved to be true is a materially less serious meaning than that which the
words are held to bear. Repetition rule
Example
Marks and Spencer Plc v Granada Television18 concerned a documentary about It is a fundamental rule of justification that a defendant who reports another 8-06
the well-known retailers which alleged that they sold goods marked "made in the person's defamatory allegation cannot justify merely by proving that the alle-
U.K.", some of which were, in fact, produced by child labour in Morocco. The gation has been made. He must prove that the reported allegation is true. So
plaintiffs contended that the broadcast suggested that they had known about and where D reports A's claims that C is a thief, to rely on justification D must
approved of the misdescription and of the use of child labour. The defendants' prove that C is a thief, not merely that A has made such a claim. The rule is
case was that the ordinary viewer would simply have understood the broadcast as often criticised, but its validity is not in doubt.
alleging a lack of reasonable care on the plaintiffs' part. Disputes of this kind are
common. Defendants in such cases often plead justification to the allegation of In Stern v Piper25 The Mail on Sunday reported the contents of an affidavit
negligence. If the jury conclude that the publication or broadcast imputes actual sworn in the course of a £3 million debt claim against Mr Stern. The affida-
knowledge, as was the case in Marks and Spencer, the justification defence will fail vit made allegations of perjury and other misconduct against Mr Stern. The
even if negligence is proved.° defendants, who were the City editor, author and publisher, pleaded justifi-
cation relying simply on the fact of the affidavit being sworn and reciting its
contents. There was no allegation that the contents were true. The Court of
"Higher" and "lower" meanings Appeal struck out the defence. It is the defence of privilege which determines
the extent to which a defendant can report what someone else has said. 26 The
'-05 The above principles illustrate that in order to assess the chances of a defen- affidavit was not a public document and there was no privilege attaching to a
dant successfully proving the truth of the statement, the first consideration report of its contents. 27 Where there is no privilege, the truth of the underlying
should be of the principles governing the determination of its meaning. In claim must generally be justified. The only justification defence available to the
particular one must consider the extent to which the ordinary reader will defendants in this case was to prove that Mr Stern was indeed guilty of perjury
derive a meaning beyond what is stated literally. 2° and other misconduct. Nevertheless Hirst L.J., who gave the leading judg-
The principle works both ways. The defendant is not chained to the partic- ment, recognised two exceptional cases which were limited to their own facts.
ular meaning chosen by the claimant as the "correct" meaning of the defam-
atory statement. He is entitled to seek to prove the truth of any meaning that
the statement is capable of bearing, provided that the meaning is capable of 21 Prager v Times Newspapers Ltd [1988] 1 W.L.R. 77; Lucas-Box v News Group Newspapers
Ltd [1986] 1 W.L.R. 147.
22 Lucas-Box v Associated Newspapers Group Plc [1986] 1 W.L.R. 147.
23 Generally by a preliminary determination at the beginning of the trial; see paras 2-05 and

16 See Ch.18. 29-11.

16 Sutherland v Stopes [1925] A.C. 47 at 74. 24 See Ch.29.
17 See para.2-02. 25 [1997] Q.B. 123. See Lewis v Daily Telegraph [1964] A.C. 234 at 260; Truth (NZ) Ltd v
18 Unreported March 6,1998 Popplewell J. Holloway [1960] 1 W.L.R. 997.
19 But the damages would be mitigated because of the finding of negligence; see para.20-21. 26 See Ch.10.

20 See para.2-06. 27 See Ch.14.

[60] [61]
 In Cadam v Beaverbrook Newspapers Ltd, 28 a newspaper simply reported the had made public statements regarding the allegations on behalf of the com-
issue of a writ for fraud against the plaintiffs. The Court of Appeal refused plainant, who was his client, including when he stated on GMTV:
to strike out a justification defence based solely on the fact that the writ had "All I would say is that when it comes to judging who's telling the truth I totally
been issued on the basis that an ordinary reader may have understood the believe what the young lady told me."
article to mean no more than that and not that the plaintiffs were guilty of
fraud. In Waters v Sunday Pictorial, 29 the defendants had accurately reported It later emerged that, unknown to Clifford, the allegations had been entirely
a statement made by Lord Goddard C.J. in a criminal case which was defam- fabricated by the complainant. On an application by the claimants to strike
atory of the plaintiff. There was no privilege because the report was one- out the defendant's pleaded meaning, Eady J. held:
sided. 3° The defendants pleaded justification relying simply on the fact that
Lord Goddard had made the statement, not that it was true, and the Court of "What he was arguably doing, in making his public pronouncements was to adopt
Appeal, relying on Cadam, refused to strike out the defence. or endorse the allegations of the 'victim' the nature of which by then would have
In Aspro Travel v Owners Abroad Group, 31 the defendants repeated a been generally understood by viewers and readers."
rumour that the first plaintiff was insolvent and the Court of Appeal refused
to strike out a justification defence which simply referred to the fact of the However, he went on to hold:
rumour on the same principle, i.e. a possible meaning of the publication was
that rumours existed, not that they were true. There was no reference to "readers could, without necessarily being perverse, come to the conclusion that Mr.
Cadam or Waters or any of the authorities which established the rule against Clifford was saying that the police had reasonable grounds for continuing to pursue
repetition. Furthermore, the case was not cited to the Court of Appeal in their inquiries and/or that there must have been some factors supporting suspicion
over and above the bare assertions of Miss. Milroy-Sloan."
Stern the following year. It is difficult to see how this case can be reconciled
with the clear statement of principle of Hirst L.J. and the case was doubted by Recent developments concerning the interaction of the repetition rule and
a subsequent Court of Appeal in Shah v Standard Chartered Bank.32 other defences have limited its application. Where a publisher neutrally
—07 Stern was decided before the Human Rights Act 1998. However, in Mark reports an allegation made by another, without adoption or embellishment,
v Associated Newspapers Ltd 33 the Court of Appeal confirmed that the and has acted responsibly in doing so, the repetition rule may not apply and,
repetition rule is consistent with art.10 European Convention on Human if the publication is in the public interest, it could be protected by Reynolds
Rights. The defence of qualified privilege, as developed by Reynolds v Times qualified privilege. 36 The Court of Appeal held in Curistan v Times Newspapers
Newspapers Ltd, accords sufficient protection to reported speech. 34 If the Ltd37 that the repetition rule is not applicable to passages in an article which
defendant cannot bring himself within the ambit of qualified privilege he will are protected by qualified privilege. The meaning of an article comprising
not be able to justify merely by proving that the allegation was made. The both privileged and non-privileged passages is to be determined by consider-
danger in repeating or reporting the statements and actions of others, even of ing the meaning of the non-privileged passages in the context of the privileged
officials, which are not protected by privilege is illustrated by the very substan- passages, and not as a whole. 38
tial sums paid in settlement of libel claims against various media organisations
brought by Kate and Gerry McCann and by Robert Murat, all of whom had
been named as "arguidos" or official suspects by the Portuguese police, in
respect of numerous articles which it was claimed suggested (falsely) that they "Grounds to suspect" meanings
were guilty of, or that there were grounds to suspect that they were involved
in, the disappearance or even murder of the McCanns' daughter Madeleine.
The repetition rule is of relevance not only to the issue of proof, but also to As stated above, it is often the case that the defendant seeks to justify a less 8-08
the issue of meaning. The case of Hamilton v Clifford 38 concerned false sexual serious meaning than that complained of by the claimant. The most common
allegations made against Neil and Christine Hamilton. PR guru Max Clifford example arises where the claimant alleges that the meaning of the publication
is that he has been guilty of a particular anti-social or criminal act. The defen-
dant by contrast argues that the allegation is merely that there are "grounds
to suspect" or "reasonable grounds to suspect" this to be the case, and seeks
to prove that the lesser meaning is true. 39 Justification defences which allege
28 [1959] 1 Q.B. 413.
29 [1961] 1 W.L.R. 967.
39 See para.14-08.
31 [1996] 1 W.L.R. 132.
36 Al-Fagih v H. H Saudi Research Marketing ( United Kingdom ) Ltd [2002] E.M.L.R. 13. The
32 [1999] 2 Q.B. 241 and also in Chase v News Group Newspapers [2003] E.M.L.R. 11, CA at [40]. allegation must also be in the public interest; see Ch.13.
33 [2002] E.M.L.R. 38, CA. 37 [2009] Q.B. 231.
3 8 See also Ch.14.
34 See Ch.13
39 See para.28—I3.
35 [2004] EWHC 1542.

[62] [63]
grounds to suspect as opposed to guilt, although superficially attractive in had received "credible allegations" that the plaintiffs were involved in
terms of level of proof, can be problematical for defendants. While they may laundering fraud proceeds. The plaintiffs applied to strike out the defence
be appropriate in cases involving a police or other official investigation, 40 in of justification. The Court of Appeal struck out the passages, relying on the
many cases the distinction between guilt and grounds to suspect is a subtle conduct and repetition rules above.
one generally more familiar to lawyers than juries. 41 Such defences are often In common with Stern v Piper" Shah was decided before the Human Rights
met with the hackneyed but jury-friendly response that the defendant is Act 1998 and its validity was subjected to subsequent unsuccessful challenge.
"willing to wound but afraid to strike". Where the publication can only sen- In Chase v News Group Newspapers Ltd" the Court of Appeal upheld the con-
sibly read as an accusation of guilt rather than suspicion, the defence will be tinuing validity of the rules governing "grounds to suspect defences" and held
struck out. 42 In Berezovsky v Forbes" it was said that the claimant was the that they were not incompatible with art.10 European Convention on Human
"Godfather of the Kremlin" who had left "a trail of corpses" behind him. Rights. However, the court did qualify the strictness of the rules in two
Eady J. struck out a justification defence to the effect that there were rea- material ways. First, strong circumstantial evidence implicating a claimant
sonable grounds to suspect the claimant of using violence. His decision was may afford reasonable grounds to suspect even if it does not directly focus on
upheld in the Court of Appeal, where Sedley J. observed: some conduct of the claimant. Secondly, the admissibility of hearsay is now
generally permitted following the enactment of the Civil Evidence Act 1995.
"To require a defendant, albeit a serious and reputable publisher, to be able to
justify not a diminished version of a damaging assault on a claimant's reputation
but the essence or substance or sting of that assault is not in our judgment a dispro- "Grounds to investigate" meanings
portionate invasion of the right to free expression."

Even where the publication could be read as imputing mere suspicion, In some cases, the defendant may claim that the publication has an even 8-09
there are three significant restrictions on advancing such a defence: lower "level 3" meaning: that there are grounds to investigate whether the
claimant committed the offence.
1. The Conduct Rule. A defence of justification based upon "reasonable The mere fact of suspicion can be relied upon to justify this level of
grounds for suspicion" must focus upon some conduct of the individual meaning. In Miller v Associated Newspapers Ltd° , a claim brought by a
claimant that in itself gives rise to the suspicion, objectively judged. 44 police officer in respect of allegations that he had incompetently conducted
two inquiries including one into allegations, which were later found to have
2. The Repetition Rule. This is a facet of the conduct rule. The rule been false, of sexual assault made against the politician Neil Hamilton and
prevents reliance on rumour or hearsay as grounds for suspicion (see his wife Christine, the defendant was permitted to rely on the fact that the
para.8-06 above). claimant was suspected of neglect of duty in connection with the second
3. Nor may a defendant plead as supposed "grounds" matters post- investigation to justify a meaning that there were grounds to investigate
dating publication. 45 whether or not the claimant had in fact been negligent. The fact that an inves-
tigation is not already underway will not preclude a defendant from justifying
In Shah v Standard Chartered Bank46 the plaintiffs were the Chairman a "grounds to investigate" meaning where grounds which would merit an
and Deputy Chairman of Mount Bank. The defendant had been the victim investigation can be pleaded and proven. 50 The grounds to investigate must
of a major fraud. In a number of communications to the Bank of England be objectively reasonable ones. In Jameel v Times Newspapers Ltd 51 the sole
the defendant made allegations against the plaintiffs which they complained evidence in support of the justification of the meaning of "sufficient grounds
suggested that they had illegally laundered the proceeds of the fraud. The to enquire" whether the claimant had been associated, through funding, with
plaintiffs sued SCB for damages for libel and slander. The defence pleaded Osama Bin Laden and Al-Qaeda consisted of an unattributable so-called
justification on the basis of "grounds to suspect" that the plaintiffs were guilty "Golden Chain" list, which purported to show donors to terrorist causes and
of fraud. The particulars of justification went on to allege that the defendants which had been admitted into evidence in criminal proceedings in the USA.
This was held to fall "well short of establishing the existence of sufficient
grounds for an inquiry or investigation" and the defence of justification was
48 Such as Lewis v Daily Telegraph Ltd; see para.2-06. struck out.
41 See Skuse v Granada Television Ltd [1996] E.M.L.R. 278, CA.
42 See Shah v Standard Chartered Bank above and para.29-11.
45 [2001] EWCA Civ 1251.
44 See Shah above at 261,266 and 270; Fallon v MGN Ltd [2006] EWHC 783; Miller v Associated " See above.
Newspapers Ltd [2005] EWHC 21. 48[2003] E.M.L.R. 11, CA.
45 See Bennett (above, at 877) and Evans v Granada Television Ltd [1996] E.M.L.R. 427 at 49 Miller v Associated Newspapers ( No.2) [2005] EWHC 21.
435-436. 50 Armstrong v Times Newspapers Ltd [2004] EWHC 2928.
46 [1999] Q.B. 241. 51 [2005] EWHC 1219.

[64] [65]
 General and specific allegations particular allegations contained in the publication, it will be his only hope of
justifying what was published. It follows that in this situation the claimant
will seek to narrow the ambit of the case by limiting it to the particular alle-
1-.10 The relationship between the meaning of the words and the defence of justi- gation.
fication is also highlighted by the difficulties that can arise when determining The fact that an allegation is held to be general may give the defendant the
whether or not an allegation is of a general or specific nature. ability to rely on matters outside the wording of the publication, but it also
In Bookbinder v Tebbit 52 the defendant attacked the level of expenditure brings obligations. The defendant must be in a position to prove the truth
involved in the decision of the plaintiff to overprint "Derbyshire is a nuclear of a sufficient number of discreditable acts to justify the general charge. The
free zone" on Derbyshire County Council notepaper. The plaintiff was the suggestion that the claimant is a "libellous journalist" carries the meaning
Labour leader of Derbyshire County Council. In his justification defence, the that he makes a practice of writing defamatory articles and cannot be justi-
defendant cited a large number of other examples of what he considered to be fied by proving that on one occasion damages of £,100 were awarded against
wasted expenditure on the part of the plaintiff. These were unconnected with him.56
the particular allegation in relation to the notepaper. The Court of Appeal
held that he would not be permitted to do so. The starting point was the
meaning of the words. In this case, they were held to be incapable of bearing Non-defamatory meanings
a general meaning that the plaintiff habitually wasted taxpayers' money and
the defendant was therefore limited to proving the truth of the specific alle-
gation concerning the notepaper. 53 Nor can general allegations which do not Justification is only necessary to defend a publication which is defamatory. 8-11
relate specifically to the claimant be pleaded in justification. In Armstrong v Where the defendant is confident that he can successfully contend that the
Times Newspapers LtoP 4 the defendant sought to justify allegations published "true" meaning is not defamatory there is no need to plead justification.
in The Sunday Times which questioned whether seven-time Tour de France For example, in Mawe v Pygott, 57 where the plaintiff was accused of being
winner Lance Armstrong had succumbed to illegal performance-enhancing a police informer, the truth of the allegation was irrelevant because it was
drugs. Eady J. struck out a number of the pleaded grounds of justification clearly not defamatory. There was therefore no need for the defendant to
on the basis that they related to the issue of the use of illegal drugs in cycling plead justification. 58 Where a defendant seeks to justify a meaning which is
generally and to the lack of an effective doping system as providing grounds not capable of being defamatory, the claimant can apply to strike it out. In
for suspicion, and not to whether the claimant himself had used illegal Cruise v Express Newspapers Ple, 59 which is discussed in greater detail below,
drugs. the defendant sought to justify an allegation in the article complained of
Williams v Reason 55 was a case that went the other way. The plaintiff that the plaintiffs were active members of the Church of Scientology. Brooke
complained about an article in The Sunday Telegraph which suggested that L.J. doubted whether such an allegation was capable of being defamatory.
he had infringed his status as an amateur rugby footballer by receiving cash Since the defence was struck out on other grounds the matter was academic.
payments. The article gave a number of examples. The defendants sought In Kinch 6° part of the defence of justification sought to prove true that K
to prove the truth of other allegations of abuse of amateur status which had was "infamous". The judge accepted that this may convey that K was "well
not been referred to in the article. The Court of Appeal held in this case that known, at any rate in certain circles". He also accepted that "it may well also
the words were capable of being understood as a general charge against the convey, depending on the context, that the person has become well known for
plaintiff to the effect that he was a "shamateur", i.e. someone who pretends discreditable reasons". However, the judge also observed:
to be an amateur. It followed that the justification defence could refer to any
alleged examples of "shamateurism" in order to support the general charge "It seems to me to be clear that, before deciding whether to think the worse of a
even if they were not referred to specifically in the article. person's character, a reasonable person would need to know something about the
It is usually the defendant who seeks to allege that the words are capable of reasons why the person in question is supposed to have been infamous. The mere
bearing a general meaning. The reason being that he will have greater liberty fact that a person has had a bad press does not mean that fair-minded members of
to rove through the claimant's life in the hope that unflattering material society will necessarily think the worse of him. Such words may or may not emerge
can be put before the judge or jury. Where he cannot prove the truth of the in the context of the published words."

52 [1989] 1 W.L.R. 640, CA. 56 Wakley v Cooke (1849) 4 Exch. 511.

53 In fact the claimant in his original statement of claim alleged that the words bore the general " (1869) I.R. 4 C.L. 54; see para.2-15.
meaning that he wasted public funds. However, he amended it to plead the specific allegation 58 Where there is any doubt as to whether or not the publication is defamatory the defendant
and then successfully struck out the defendant's plea to the general allegation. should generally plead justification in the alternative if he is able to do so.
54 [2004] EWHC 2928. 59 (1999) 2 W.L.R. 327.
55 [1988] 1 W.L.R. 96. 60 See above.

[66] [67]
 Proving the sting In Anders v Gas, 64 Ashworth J. directed the jury as follows:
"They (the jury) should imagine five separate charges made against a man. Three
-12 Most defendants in defamation claims have got something wrong. It is might prove to be true, the other two not. If the two not proved to be true were in
very unlikely that a claimant commences a claim over a publication which their view really minor matters, not materially affecting the plaintiff s reputation
is entirely accurate. The defendant may contend that the allegation is not having regard to the other three, then the defence of justification succeeded. On the
defamatory and its falsity is therefore irrelevant. More commonly, he will other hand, if these two were of themselves serious and did materially injure the
argue that in comparison with what is true in the publication, the errors are plaintiff's reputation, then the defence should fail."
insignificant. Where serious allegations against the claimant are proved it The words "having regard to the other three" are crucial. If the allegation or
would be absurd if the defence of justification failed as a result of other com- allegations which are true are sufficient to destroy a reputation, then even if
paratively minor errors in the publication. The claimant would be vindicated the false allegations are serious in themselves, they will not materially affect
on an entirely false basis. It is therefore only necessary for the defendant to the claimant's reputation. The test inevitably involves a subjective assessment
show that the publication is "substantially" true or as it was put by Burrough of relative gravity.
J. in Edwards v Be11, 61 "As much must be justified as meets the 'sting' of the In McDonalds v Stee1 65 the judge held that allegations of responsibility
charge". Where there are errors in the publication, the question of whether for environmental destruction and world starvation, which he found to be
the substance or the sting has been proved is a question of judgment which unproved, did materially damage the burger company's reputation, even
will depend on the facts of the case, having regard to the overall gravity of though he had found allegations concerning health risks and employment
the allegations and the relative significance of the inaccuracies or exaggera- practices had been proved.
tions. 62 Where the errors are merely technical they will be disregarded—for In Irving v Penguin Books Ltd, 66 the defendants sought to justify a
example, where the defendant gets a date or place wrong or misrepresents a number of instances involving the deliberate distortion of the history of Nazi
minor incident. 63 Germany by the claimant, for racist ideological ends. These included the
deliberate underplaying of the extent of Hitler's role in the Holocaust. Gray
J., who tried the case without a jury, found the majority of the allegations
Section 5 of the Defamation Act 1952 proved. He did not find proved allegations that the claimant had been guilty
of misappropriating Goebbels' diaries; had falsified his account in relation
-13 Where two or more charges are made against the claimant it is necessary to to the bombing of Dresden; had shared a platform with terrorists or that he
compare the seriousness of the charges that have been proved against those had a self-portrait of Hitler above his desk. In the circumstances, Gray J. had
that are unproved. no difficulty in relying on s.5 to find for the defendants. The Court of Appeal
Section 5 of the 1952 Act provides: upheld his decision.° The comment of Pill L.J. is a helpful example of how
the courts apply s.5:
"In an action for libel or slander in respect of words containing two or more dis- "We agree with the judge. While the attack on the applicant's historiography was
tinct charges against the plaintiff, a defence of justification shall not fail by reason central and fundamental to the case, it was proved in the context described by the
only that the truth of every charge is not proved if the words not proved to be true judge which involved anti-semitism and racism and association with right wing
do not materially injure the plaintiff's reputation, having regard to the truth of the extremists. In that context, the allegation that on one occasion he agreed to partic-
remaining charges." ipate in a conference at which representatives of terrorist organisations were due
to speak did not materially injure his reputation having regard to the proof of the
charges proved."
An extreme example would be a claimant accused of war crimes and not
paying his television license. If the former but not the latter were true the clai-
mant would lose. If it were the reverse he would obtain substantial damages. The limits of section 5—separate and distinct allegations
The principle also applies to a number of allegations of serious misconduct
where the defendant can only prove one. Where D accuses C of the murder of
X, Y and Z, the fact that C is only proved to have murdered X but not Y or Section 5 only applies to an action "in respect of words containing two or 8-14
Z should be sufficient justification. more distinct charges". Where the publication in question contains two or
more separate and distinct defamatory statements it is open to the claimant to

64 ibid.
61 (1824) 1 Bing. 403. 65 Unreported March 31, 1999 CA.
62 See, e.g. Turcu v News Group Newspapers Ltd [2005] EWHC 799. 66 Unreported April 14, 2000 Gray J.
63 See Anders v Gas (1960) 104 Sol. Jo. 211. 67 Unreported July 20, 2001 CA.

[68] [69]
limit his complaint to certain parts of the publication and the defendant will was a sham, that they adopted poor children simply because it was fashion-
not be permitted to seek to prove the truth of other distinct defamatory state- able and that they sought to manipulate the media. The defendants did not
ments of which no complaint is made. 68 Thus where a publication accuses the seek to justify these allegations, which they argued were not capable of being
claimant of being a thief and an adulterer, the claimant could simply com- derived from the article. Instead they attempted to justify the meaning that
plain of the accusation of adultery. If the allegation of adultery is false but the the plaintiffs were active members of the Church of Scientology, which was
allegation of theft is true, the defendant will not be permitted to prove only a dangerous cult, relying, if necessary on s.5. The plaintiffs had not com-
the theft and then seek to rely on s.5 in respect of the false allegation of adul- plained about the references in ,the article to their admitted membership of
tery. 69 For example in McKeith v News Group Newspapers" grounds of justi- the Church and sought to strike out the defence of justification on the basis
fication which related to the value and accuracy of the claimant's nutritional that any defamatory sting concerning their membership of the Church was
advice, in response to her pleaded meaning that she had exaggerated her totally distinct from the allegations about which they complained. The Court
professional qualifications, were struck out. By contrast, the allegations con- of Appeal, applying the principles set out in Polly Peck, had no difficulty
tained in a publication may or may arguably have a common sting. In such a in striking out the defence. Brooke L.J. noted that, absent the defence of
case the defendant may seek to prove the truth of any part of the publication justification, the only substantive issue on liability was the meaning of the
even if the claimant has not made any complaint about it. Where appropriate, article. By contrast, it would take a number of months to litigate the issue of
he may then rely on s.5 where part of the publication is held to be true and whether, as the defendants alleged, the Church of Scientology was a danger-
part is held to be false. Applying this test to the facts of the case is once again a ous cult. His Lordship stressed the importance of keeping libel claims within
matter ofjudgment and impression. In Templeton v Jones'n a television station economic bounds, by focusing on the essential issues.
in New Zealand stated that the plaintiff "is a man who despises many people The "essential issues" argument can be used as a basis for striking out,
. . . bureaucrats, civil servants, politicians, women, Jews and professionals. even where the justification sting is not separate and distinct from the sting
Doesn't it sound familiar? The politics of hatred". The plaintiff limited his about which the claimant complains. United States Tobacco International
complaint solely to the allegation that he despised Jews. The New Zealand Inc v BBC concerned a "That's Life" broadcast which accused the plaintiff
Court of Appeal held that the broadcaster was not able to seek to justify that company of selling chewing tobacco, which was carcinogenic, and of mar-
the plaintiff despised the other groups referred to in the broadcast. These keting it to young people in breach of an agreement with the DHSS. The
allegations were held to be separate and distinct from the allegation that he plaintiffs only complained about the allegation of marketing the product to
despised Jews. In Polly Peck v Trelfordn O'Connor L.J. felt that Templeton young people. The BBC sought to justify the cancer risk allegation. It was
v Jones was wrongly decided and that the allegations were at least capable of held that although the allegations were not separate and distinct, the trial
bearing a common sting, namely that the plaintiff was an intolerant bigot who would be far lengthier if the health risk allegation was in issue and there
preached the politics of hate. The following test was stated by Bridge L.J. in would be no prejudice to the defendants if it was not. The company had
Stonor v Daily Telegraph Ltd and cited with approval in Polly Peck: made limited admissions in respect of the health risk sting. The jury would
see the whole programme with its reference to "cancer sweets" and would be
"Is this a case where the sting lies in the totality of the allegations in the defend- told that the company had not pursued any complaint in relation to those
ants' article . . . a case where the plaintiffs are seeking artificially to limit the area of allegations. The defendants were therefore not permitted to justify the claim
debate by choosing a part only of that total libel as their battleground?" 73 of a cancer risk.
In Cruise v Express Newspapers Plc 74 the plaintiffs were the well-known In the new litigation climate created by the Civil Procedure Rules the need
actors Tom Cruise and Nicole Kidman, who were married at the material to keep libel claims within economic bounds will assume even greater impor-
time and who sued in respect of an article in The Express on Sunday. They tance. However, the court should also recognise that the placing of excessive
contended that the article suggested, among other things, that their marriage fetters on the defence of justification can impact adversely on freedom of
speech and lead to the false vindication of unsavoury claimants. 76
These principles do not detract from the rule that in any case the court
must consider the publication as a whole in order to determine whether or not
68 Polly Peck (Holdings) Plc v Trelford [1986] Q.B. 1000; S & K Holdings v Throgmorton
Publications Ltd [1972] 1 W.L.R. 1036.
it bears a defamatory meaning. Where the parts of the publication of which
69 In theory the same principle could apply to the example in para.8-12 above of the war crim- no complaint is made neutralise any defamatory element in the part of which
inal who was falsely accused of not paying his television licence. However, the likelihood would complaint is made, the publication will not be defamatory and justification
be an award of contemptuous damages from the jury; see Lord Denning in Plato Films v Speidel will not arise.77
[1961] A.C. 1090 at 1142-1143.
79 [2005] EWHC 1162.
71 [1984] 1 N.Z.L.R. 448.
72 [1986] Q.B. 1000, a case of a common sting. 75 The Independent, March 15,1988, CA; [1998] E.M.L.R. 816.
73 Unreported July 19,1976 CA, at 1030B in Polly Peck. 76 See Ch.38.
74 [1999] 2 W.L.R. 327. 79 See para.2-14.

[70] [71]
 Effect on damages

–15 It follows that a publication may be proved to be partly true, but the justifica- CHAPTER 9
tion defence may fail. In such a case, the court is entitled to take into account
the part that has been proved to be true when considering the amount of the FAIR COMMENT
damages to award and reduce them accordingly. 78 The closer that the defen-
dant has come to justifying the sting, the greater the reduction.
The defamatory statement is an opinion, based on true facts, which an honest
person could hold in relation to a matter of public interest
The functions of judge and jury
Introduction 9-01
–16 In common with other areas of defamation law, the judge has power to weed The defendant must overcome four hurdles in order to establish
out before trial defences of justification which are weak or which fall foul the defence 9-02
of the technical rules for drafting statements of case. Pre-trial attacks by a Comment—the test 9-03
claimant on the defendant's justification meaning are at least as common The comment must have a sufficient factual basis 9-04
as equivalent attacks by a defendant on a claimant's pleaded meaning. The The comment must be objectively "fair" 9-05
following are questions of law for the judge, which, if in issue, ought to be Matters of public interest 9-06
determined well in advance of the trial: The functions of judge and jury 9-07
whether the meaning (or meanings) sought to be justified is capable of
being derived from the publication complained of; Introduction
whether it is capable of being defamatory;
whether it is separate and distinct from the meaning of which the clai- The defence of fair comment protects statements of opinion or comment 9-01
mant complains. on matters of public interest. "Fair" is a misnomer. The Faulks Committee
recommended that the defence should simply be called "comment") Lord
The judge also has a more general power to strike out all or part of a Nicholls has expressed a preference for the expression "honest comment". 2
defence of justification which has no real prospect of success. 79 This can The fact that the opinion is exaggerated, prejudiced, obstinate or wrong and
overlap with the specific questions of law identified above. It can also be the jury totally disagree with it, is not a bar to the defence succeeding. Nor
applied at any stage of a case where, for example, it becomes apparent there does the comment have to reach any standards of "reasonableness" or "fair
is no prospect of the defendant being able to adduce sufficient evidence to mindedness". The liberality of the defence is justified on the basis that readers
establish the defence. 8° The corollary is the power of the judge to dismiss the can recognise an opinion as the subjective view of the publisher or author and
claim where there is no real prospect of the defence of justification failing. 81 make up their own mind about whether to accept it. 8 Statements of fact, in
What meaning the publication in fact bears and whether or not the defen- contrast, are considered more damaging because they are more likely to be
dant has successfully proved it to be true or substantially true is a question accepted at face value.
of fact for the jury. However it is relatively common for meaning to be tried Fair comment is an attractive defence. A jury can reach a verdict for the
as a preliminary issue, either by judge alone 82 or by a judge with a jury, even defendant with the comfort that they are not necessarily condemning the
if the trial itself will be by judge alone, 83 which is becoming more frequent, claimant (as is implicit in justification) but merely upholding the right of the
particularly in cases involving "grounds to suspect" meanings. 84 defendant to express his views. The defendant's advocate can approach the
court from the moral high ground:
"You may disagree with my client's opinion, but do you want to live in a society
28 See para.20-18. where the expression of such opinions is unlawful?"
79 See Ch.29.
80 McDonalds v Steel [1995] 3 All E.R. 615.
91 Schellenberg v BBC [2000] E.M.L.R. 296.
82 See for example Charman v Orion Publishing Group Ltd [2005] EWHC 2187.
83 Gregson v Channel 4 Television Corp [2002] EWCA Civ 941; Armstrong v Times Newspapers ' 16 para.6(b) Cmnd 5909 (1975).
Ltd [2006] EWCA Civ 519. 2 Tse Wai Chun Paul v Albert Cheng [2001] E.M.L.R. 777.
84 See for example, Miller v Associated Newspapers Ltd [2005] EWHC 557. 3 See Kemsley v Foot [1952] A.C. 345.

[72] [73]
 The claimant must take care to avoid being cast in the role of censor. The "More accurately it has been said that the sense of comment is 'something
distinction between fact and comment is also a strong feature of decisions of which is or can reasonably be inferred to be a deduction, inference, conclu-
the European Court of Human Rights. 4 Recent developments in English law, sion, criticism, remark, observation, etc."
following the enactment of the Human Rights Act 1998, have increased the
scope of the defence of fair comment and made it easier to establish. These 2. Where the statement is a pure value judgment, incapable of proof, it is
are considered below. likely to be regarded as a comment. For example, the suggestion that
a critic is "completely out of touch with the tastes and entertainment
requirements of the picture-going public" is a matter of judgment and
The defendant must overcome four hurdles in order to establish the defence is clearly a comment. 8
3. Where the defendant refers to certain facts and makes it clear that the
/-02 1. The statement must be comment and not fact. statement in question is an inference from the facts, it will generally be
2. The comment must have a sufficient factual basis (that is, the comment considered comment. 9 This technique is often utilised by the makers of
must be based on facts which are themselves sufficiently true or which documentaries, who might set out a number of facts from which they
are protected by privilege). draw the conclusion that the claimant is, for example, unfit for public
office. The conclusion will clearly be comment. However, it is vital to
3. The comment must be one which an honest person could hold. This bear in mind that where the preceding matters are defamatory state-
is an objective test, but should not be confused with reasonableness. ments of fact in their own right, they must be protected by privilege or
4. The subject matter of the comment must be of public interest. they will have to be justified, i.e. proved true or substantially true.°
4. A bald statement with no supporting facts is unlikely to be considered
Where these are surmounted, the defence will succeed unless the claimant a comment. 11 To say that "C is a disgrace to the profession of journal-
proves that the comment was maliciously published. Malice is addressed in ism" may sound like an opinion but, in the absence of any indication
Ch.18. It effectively means that the defendant did not honestly believe in the of the basis for the statement, it is likely to be treated as a statement
opinion he was expressing. Unlike malice in other contexts, an improper motive of fact. To say that "C disclosed the identity of his source and is there-
for publishing a defamatory opinion,will not amount to malice if the defendant fore a disgrace to the profession of journalism" clearly identifies the
honestly believes the opinion.' The burden of proof in respect of malice lies on latter allegation as comment based on the fact that he has disclosed
the claimant. It follows that where the defendant satisfies the above four tests his source. Kemsley v Foot 12 concerned an article in Tribune which
there is no added burden on him to prove that he did in fact honestly hold the attacked the conduct of The Evening Standard and its proprietor Lord
opinion in question. It will be for the claimant, if he chooses, to raise the issue Beaverbrook. The article was headed "Lower than Kemsley", refer-
of whether the opinion was honestly held, by alleging malice. ring to the plaintiff who was also a newspaper proprietor. There was
no other reference to the plaintiff and his name was simply used as a
Comment—the test
comparison. The House of Lords held that the headline was capable
of being understood as comment, namely that the Kemsley Press was
of a low and undesirable quality and that Lord Kemsley was respon-
)--03 Whether a statement is fact or comment can be a very difficult distinction, sible for its tone. The supporting facts were the plaintiff's ownership
particularly because in many publications there is a mixture of both. There is and control of popular newspapers and the standards and ethics of
no statutory definition of fact and comment. The following principles can be those newspapers. Although these facts were not referred to directly
derived from the decided cases: in the publication, they were sufficiently indicated to be understood by
reasonable readers to be the facts on which the comment was based.
1. In Branson v Bower 6 Latham L.J. approved the judgment of Cussen J.
in Clarke v Norton 7 where he said: 5. The defence of fair comment is not limited to pure value judgments.
A statement which appears to be factual and which is either true or
false may nevertheless be regarded as a comment where it is apparent
4 Lingens v Austria (1986) 8 E.H.R.R. 407; De Haes & Gersils v Belgium (1997) 25 E.H.R.R. 1;
Nielsen & Johnsen v Norway (2000) E.H.R.R. 878; Thorheirson v Iceland [1992] 14 E.H.R.R. 843;
Jerusalem v Austria (2003) 37 E.H.R.R. 25. 8 Turner v MGM Pictures Ltd [1950] 1 All E.R. 449.
5 See Branson v Bower (No.2) [2002] 2 W.L.R. 452 per Eady J. at [8] and Tse Wai Chun Paul v 9 Hunt v Star Newspapers Co Ltd [1908] 2 K.B. 309.
Albert Cheng [2001] E.M.L.R. 777. 1 ° Broadway Approvals Ltd v Odhams Press Ltd [1964] 2 Q.B. 683; see Ch.8.
6 [2001] E.M.L.R. 800. 11 O'Brien v Marquis of Salisbury (1889) 54 J.P. 215; Kemsley v Foot [1952] A.C. 345.
7 [1910] V.L.R. 494 at 499. 12 [1952] A.C. 345.

[74] [75]
 that it is an inference drawn from other facts. This issue arises most using her daughter to get back at Lord Parkinson by allowing her
commonly where the defendant has attributed an improper motive to give interviews to which she could not properly consent. She also
to the claimant. The traditional view, to use the words of Bowen L.J. complained over the statement in the article that she had given a "kiss
in Edgington v Fitzmaurice, 13 is that "The state of a man's mind is as and tell" story to The Sunday Times in 1982, when she was pregnant
much a fact as the state of his digestion". However, it is now clear that with Flora. The defendants argued that the article was capable only
such allegations will often be regarded as statements of opinion. of being comment. Eady J. agreed, stating that the article bore "the
In Branson v Bower ( No.1 ) 14 the claimant, Sir Richard Branson, unmistakable badge of comment". He therefore withdrew the issue
complained about four paragraphs of an article published by the of whether the article was fact or comment from the jury, observing
defendant in The Evening Standard. The article appeared a day after that any jury deciding that the article was factual would be "perverse".
the claimant had made a speech explaining his lottery bid, in which He observed that the article was clearly in the comment section of the
he had said that the lottery as run by him would be structurally newspaper, and had the appearance of drawing inferences as to fact or
separate from Virgin. The article was entitled "Why we should be motivation from the surrounding context. In the circumstances he had
less charitable to Branson". It discussed the claimant's suitability to no hesitation in ruling that the article was comment.
run the National Lottery. It was in hard-hitting terms, discussing In Associated Newspapers Ltd v Burstein, 17 a case concerning a
among other things how revenge (against Camelot) had motivated brief review of an opera about suicide bombing performed at the
the bid, rather than the claimant's self-righteousness. The meaning Edinburgh Festival, the Court of Appeal upheld Eady J's finding that
contended for by the claimant was that he was using his promise the closing words of the review, which were ". . . the idea that there is
of a private charity fund to disguise his true intention to promote anything heroic about suicide bombers is, frankly, a grievous insult",
Virgin, and that he was a hypocrite, motivated by revenge and self- were comment rather than fact, notwithstanding their suggesting that
interest rather than charity. The defendant argued that the article the claimant sympathised with and glorified suicide bombers.
was comment, and that the allegations made were value judgments 6. By contrast, a statement to the effect that a claimant has been guilty
or imputations of motive or intention which were akin to value judg- of a particular act is likely to be considered factual unless it is appar-
ments. It was contended that to require a defendant to have to prove ent that it is merely an inference drawn from other facts. To say of a
the truth of value judgments would be an infringement of art.10 of composer that he organised the wrecking of concerts is a statement
the European Convention on Human Rights. Eady J. agreed, con- of fact which can only be justified. 18 Likewise, the allegation that the
cluding that the traditional English view in Edgington v Fitzmaurice claimants have been party to a plot to force the end of a play is either
(above) had been affected by recent developments in the law. He true or false and is a statement of fact.°
said:
7. The context in which the statement appears is relevant. Bold head-
"More recently, however, the courts have been readier to treat the attribu- lines and assertions in news stories are more likely to be considered
tion of motive, in some cases, as matters of inference or comment. [ . . . ] statements of fact2° whereas criticisms in leader articles, letters or per-
In the end, however, any such classification must depend upon the words sonal columns are more likely to be considered comment. The reader
actually used and upon their context." understands that the statements represent the personal views of the
columnist. Prefacing statements with the words "in my opinion" or
The Court of Appeal upheld the judge's fmding and his reasons given. 15 "in my judgment" may help, but is not necessary if it is clear from
In Keays v Guardian Newspapers Ltc1 16 the claimant, the former mis- the context that they are comment. 2' A similar principle applies to
tress of Lord Parkinson, complained over an article in the "Comment" reviews of products or literary, dramatic or musical works. 22 These
section of The Observer which was entitled "The mother of all women inevitably involve the subjective evaluation of the reviewer. Humour
scorned". There was a bold headline underneath stating "The vitu- is also more likely to be considered to be comment, albeit exagger-
perative Sara Keays has enlisted her damaged daughter to her cause". ated and prejudiced. It is sometimes claimed by a claimant's advo-
The article, a column, chronicled the "distasteful showing" of the pre- cate that mere "vituperation" or "invective" is not comment. Such
vious week, in which the claimant and her daughter Flora (by Lord
Parkinson) had appeared in television and newspaper interviews. The
claimant complained that the newspaper accused her of cynically " [2007] EWCA Civ 600.
18 See Burstein v Times Newspapers Ltd [2001] 1 W.L.R. 579, CA.
19 London Artists Ltd v Littler [1969] 2 Q.B. 375.
" (1885) 29 OLD. 459 at 483, a case on misrepresentation. 20 Smith's Newspapers v Becker (1932) 47 C.L.R. 279 at 303.
14 Unreported November 24, 2000. 21 Keays v Guardian Newspapers Ltd [2003] EWHC 1565.
15 Branson v Bower ( No.1) [2001] E.M.L.R. 800, CA. 22 Merivale v Carsen (1887) 20 Q.B.D. 275; Buffery v Guardian Newspapers Ltd [2004] EWHC
16 [2003] EWHC 1565. 1514.

[76] [77]
 a submission was advanced in relation to a newspaper review of the The comment must have a sufficient factual basis
performance of an actress which included the suggestion that "her
bum is too big". However, in cases of "vituperation" the closest alter- It is said that a comment cannot exist "in thin air". The defendant must prove 9-04
native to comment is vulgar abuse, which does not appear to get the that the factual building blocks on which the comment is based are true, or
claimant any further. 23 Moreover, both English and European cases sufficiently true. In the example given in point 3. above, the allegation that C
recognise the right to use strong language which may shock and cause has disclosed the identity of a source is the fact on which the opinion—that he
offence. 24 is a disgrace to journalism—is based. If C did not, in fact, disclose the identity
8. The words which are alleged to be comment must be stated within the of a source then the comment and the defence collapse. By analogy, it cannot
publication. This is in contrast to the supporting facts, which need be fair comment to attack an author for something he has not written. In
not be directly stated. A comment cannot be an implication which the Merivale v Carson32 the defendant published a review of the plaintiff's play
reader might draw from the publication but which is not stated. 25 The which suggested that it had an evil tendency on the basis that it treated adul-
reader should be able to point to specific words in the publication and tery cavalierly. In fact, there was no mention of adultery in the play and the
recognise them as comment. A defendant in his defence should gener- defence of fair comment therefore failed.
ally identify the particular words of the publication which he alleges The following principles are relevant:
to be comment. 26
1. The facts must be either stated or summarised in the publication, or
9. In deciding whether a statement is comment, consideration may only indicated with sufficient clarity to enable the publishees to ascertain
be given to the publication which is the subject matter of the claim and the facts on which the comment is based. In Kemsley v Foot there
not other publications to which it refers. In Telnikoff V Matusevitch 27 were no supporting facts stated or summarised in the publication.
the plaintiff wrote an article in The Daily Telegraph following which However, the readers would have had no difficulty in understand-
the defendant wrote (and the newspaper published) a letter which was ing the factual basis of the comment. Where a matter is already the
critical of the plaintiff's article. When read in the context of the origi- subject of public debate, provided the subject matter of the comment
nal article the allegations in the letter were held to be clearly comment. is plainly stated, it is not necessary to set out the facts upon which
However, the House of Lords held that the letter should be construed the comment is based. 33 For example, in an article berating an MP
in isolation, on the ground that many readers of the letter would not about his expenses claims, it may not be necessary to set out the detail
have read or remembered the article. of the unjust claim in support of the allegation that the MP's actions
10. Where the defendant has failed to distinguish clearly between the were morally repugnant, where those facts and matters have already
facts on which he is commenting and the comment which he wishes to received widespread media coverage and would be well-known to the
make, the statements may be regarded as factual. 28 Hence the impor- public.
tance of clearly identifying the comment. 2. Where some of the facts stated in the publication are true and some
11. Whether a statement is fact or comment is to be determined by how are false the defence will succeed if the defendant would have been
it would be understood by the ordinary reader. 29 In contrast to deter- entitled to make the same comment solely on the basis of the true
mining defamatory meaning, 3° it may be that there is less scope for facts.
attributing "loose thinking". 31 Section 6 of the Defamation Act 1952 states:
"In an action for libel or slander in respect of words consisting partly of
allegations of fact and partly of expression of opinion, a defence of fair
23 See Cornwell v Myskow [1987] 1 W.L.R. 630; see paras 2-21 and 5-09. comment shall not fail by reason only that the truth of every allegation
24 See Lingens v Austria (1986) 8 E.H.R.R. 407; De Haes & Gersils v Belgium (1997) 25 E.H.R.R. of fact is not proved if the expression of opinion is fair comment having
1; Nielsen & Johnsen v Norway (2000) E.H.R.R. 878; Thorheirson v Iceland (1992) 14 E.H.R.R. regard to such of the facts alleged or referred to in the words complained
843; Jerusalem v Austria (App.No.26958/95) February 27, 2001; Branson v Bower (No.1 )
Unreported November 24, 2000 Eady J.; Branson v Bower (No.2 ) [2002] 2 W.L.R. 452; Keays v of as are proved."
Guardian Newspapers Ltd [2003] EWHC 1565.
25 Hunt v Star Newspapers Co Ltd [1908] 2 K.B. 309.
26 Control Risks Ltd v New English Library [1989] 3 All E.R. 576; see para.28-14. See also the
The question is whether or not the factual building blocks remain suf-
decision of Eady J. in Schellenberg v BBC [2000] E.M.L.R. 29. ficiently strong to justify the comment. It gives far greater leeway to
27 [1992] 2 A.C. 343.
28 Hunt v Star Newspapers Co Ltd [1908] 2 K.B. 309.
29 Slim v Daily Telegraph [1968] 1 Q.B. 157.
" See Ch.2. 32 (1887) 20 Q.B.D. 275.
31 See Keays v Guardian Newspapers Ltd [2003] EWHC 1565.
33 Lowe v Associated Newspapers Ltd [2006] EWHC 320.

[78] [79]
 defendants than s.5, which is the equivalent provision for justification and the public company of which he was chairman. One of the matters
(see para.8-13). relied on by the defendants in support of the comment was a state-
In Rath v Guardian News & Media Ltd 34 the judge refused to strike ment made by a police officer during a criminal trial of Mr Walker
out a defence of fair comment where, in support of a comment that the in 1956 that "police investigations show that there was a much larger
claimant "had contributed in a large part to the madness which has organisation behind the thieves with a criminal brain at the top". It
perhaps let hundreds of thousands of people die unnecessarily", the was held, on the facts, that merely to report what the police officer
defendant had stated in the article that the claimant sold vitamin pills had said, albeit accurately, was not a fair report of the proceedings.
to AIDS victims in South Africa. In fact the claimant had donated The defendants were not therefore able to rely on the statement in
the drugs through his not-for-profit foundation. The judge held that support of the defamatory comments which they had directed at the
whether or not the defendant would succeed on s.6 at trial depended plaintiffs. In Galloway v The Telegraph Group Ltd, 38 the defence of
on what facts relied upon in support of the comment were proved. He fair comment failed where The Telegraph could neither justify nor rely
could not conclude that the defendant had no real prospect of suc- upon Reynolds qualified privilege to defend the facts upon which the
ceeding in reliance on s.6. The claim was later discontinued. alleged comment was based.
Developing the earlier example, suppose D states that C (a journal- 5. The omission of "truly exculpatory" facts can be as fatal as getting the
ist) disclosed the identity of a source, fabricated an article and gave stated facts wrong. If D states that C has been convicted of a crime
perjured evidence in a libel claim, and that in consequence he is a dis- and comments on this, without stating that the conviction was subse-
grace to journalism. The fact that the allegations of perjury and fabri- quently quashed, the comment will not be protected. 39
cation are false should not prevent the statement that C is a disgrace
to journalism being protected by fair comment, provided that the 6. Unlike justification, the defendant cannot rely on facts or matters
allegation that he disclosed the identity of a source is true. 35 However, taking place after the date of publication on which to base the
that does not mean that C's claim will fail. Where the facts are them- comment.40 Furthermore, there is some authority that the facts on
selves defamatory they must be justified. 36 The allegations of perjury which the defendant relies must also be known to him at the time. 41
and fabrication are clearly defamatory and the truth of the betrayal However in Cohen v The Daily Telegraph 42 Lord Denning said, "A
of source allegation is unlikely to be substantial justification under man may comment on existing facts without having them in the
the stricter "let or provision in s.5. The claimant would be entitled forefront of his mind at the time". This is generally held to be the
to damages for the false factual allegations of perjury and fabrication preferable view. 43 Provided a fact was known by the commentator
but not for the suggestion that he is a "disgrace" (although an award it may be relied upon, even if it had been forgotten at the relevant
by a jury may not reflect such fine distinctions). time, as it may have formed part of a general impression left on the
commentator.
3. Section 6 refers to "facts alleged or referred to in the words com-
plained or. However, there is a similar principle in Kemsley v Foot,
where the facts are not stated in the publication. The defence succeeds The comment must be objectively "fair"
if the comment can be considered "fair" on the basis of any of the facts
on which the defendant is entitled to rely and which are proved to be
true. It might be thought that provided the statement is comment and the facts 9-05
on which it is based are sufficiently true, there should be no requirement
4. Where the supporting facts are protected by absolute or qualified priv- that the comment should be judged objectively as "fair". However, the
ilege the defence will succeed even where they are untrue. A publisher reality is that this additional requirement is in theory very limited, and
is therefore free to comment on matters which he fairly and accurately in practice possibly non-existent. In Branson v Bower (No.2) 44 Eady J.
reports from court or parliamentary proceedings even if the witness or made it clear that the only issue is whether an honest person could express
MP in question subsequently turns out to be mistaken. However, the the comment on the basis of such facts as have been proved. He rejected
defendant must ensure that the privileged report is fair and accurate. the submission that a stricter test applied where the comment was the
In Brent Walker v Time Out 37 an article was published in Time Out
magazine which made defamatory comments about George Walker
38 [2006] EWCA Civ 17; see para.13-09.
38 See Branson ( No.2 ) at [37] to [39] and Harris v White Ltd (1926) O.P.D. 104.
34 [2008] EWHC 398. 40 Cohen v Daily Telegraph Ltd [1968] 1 W.L.R. 916.
38 However, the inclusion of a number of false statements may in an appropriate case be evi- 41 Wheatley v Anderson [1927] S.C. 133 at 147.
dence of malice. See Broadway Approvals v Odhams Press [1964] 2 Q.B. 683. 42 See above at 920A.
36 See Broadway Approvals, above. 43 The approach was approved in Lowe v Associated Newspapers Ltd [2006] EWHC 320.
37 [1991] 2 Q.B. 33. 44 [2002] 2 W.L.R. 452.

[80] [81]
attribution of improper motives to the claimant. 45 Old authorities such as Matters of public interest
Wason v Water 46 requiring the defendant to "bring a reasonable degree
of judgment and moderation, so that the result may be what a jury shall The subject matter of the comment must be a matter of legitimate public 9-06
deem, under the circumstances of the case, a fair and legitimate criticism interest. There is no definition as to what is a matter of public interest. In
on the conduct and motives of the party who is the subject of censure" are London Artists v Littler 52 Lord Denning M.R. was reluctant to confine the
therefore not reconcilable with the modern state of the law as outlined in concept within narrow limits:
Cheng47 or with the European jurisprudence. A defendant should not "have
to demonstrate that his honestly expressed opinions fall within some elusive "Whenever a matter is such as to affect people at large, so that they may be legiti-
and nebulous margin of what is 'fair' and 'reasonable'. Freedom of speech mately interested in, or concerned at, what is going on or what may happen to them
is not a game to be played according to an umpire's subjective assessment or others; then it is a matter of public interest on which everyone is entitled to make
of what constitutes fair play." Indeed, expressions of opinion may be made fair comment."
in the most forthright terms and continue to benefit from the protection of
fair comment; in the words of Lord Nicholls: The test proposed by Blackburn J. in Campbell v Spottiswoode" focused on
the acts of the claimant:
".•. a critic need not be mealy-mouthed in denouncing what he disagrees with. He
is entitled to dip his pen in gall for the purposes of legitimate criticism." 48 "Where a person has done or published anything which may fairly be said to have
invited comment . . in such cases everyone has a right to make a fair and proper
The 19th century cases do pay lip service to the word "fair", while making it comment."
clear it should not be equated with concepts of reasonableness. For example,
the judgment of Lord Esher M.R. in Merivale v Carsen49 poses the question The following have been held to be matters of public interest: published lit-
of whether any fair-minded man could honestly express the opinion in ques- erary, 54 musica1, 55 artistic and dramatic works and productions, 56 the public
tion on the proved facts. However, Lord Porter in Turner v MGM Pictures conduct of any person or organisation which has a public role, the clergy,
Ltd5° accepted Lord Esher's formulation with the substitution of "honest" administration of justice, political matters, the management of public institu-
for "fair", fearing that otherwise the concept of reasonableness might be tions, the administration of local affairs and anything which the claimant has
imported into the test. chosen to place in the public domain.
In Silkin v Beaverbrook Newspapers Ltd 51 Diplock J. directed the jury as It is sometimes said that there is a significant difference between what is
follows: in the public interest and what the public may be interested to read. 57 The
private behaviour of public figures is a matter of public interest only to the
"so in considering this case . . . do not apply the test of whether you agree with it. If extent that it has any bearing on their public role. The question has become
juries did that, freedom of speech, the right of the crank to say what he likes, would important in recent years as exposure of the private behaviour of public
go. Would a fair-minded man holding strong views, obstinate views, prejudiced figures is sought to be justified on the basis that it shows them to be hypo-
views have been capable of making this comment? If the answer to that is yes then crites in their public life. There is no reported decision on whether the private
your verdict in this case should be a verdict for the defendant. Such a verdict does life of a public figure can be the subject matter of fair comment. However,
not mean that you agree with the comments. All it means is that you think that a it may be said that a public figure (or private individual) "invites comment"
man might honestly hold those views on those facts."
in relation to private matters, if he discusses the matter publicly or uses his
Juries tend to return a general verdict either for or against the claimant, so private life to advance himself in his public role.
it is difficult to know on what basis they may have rejected a fair comment
defence. Nevertheless, there is no reported authority in which a comment
based on true facts was held not to be "fair". The obstacles tend to be proving The functions of judge and jury
that the allegation is comment and not fact and that the facts on which it is
based are sufficiently true. In common with other areas of defamation law, the judge has the power to 9-07
determine a fair comment defence (or part of it) where either party has no
45 At [21] and [22].
46 (1868) L.R. 4 Q.B. 73 at 96. 52 [1969] 2 Q.B.D. 375.
47 See above. 53 (1863) 32 L.J.Q.B. 185.
4° Tse Wai Chun Paul v Cheng [2001] E.M.L.R. 777. 54 Campbell v Safra [2006] EWHC 819.
49 (1887) 20 Q.B.D. 275. 55 Burstein v Guardian Newspapers Ltd [2004] EWHC 1514.
5° [1950] 1 All E.R. 449. 56 London Artists v Littler [1969] 2 Q.B. 375.
51 [1958] 2 All E.R. 516. 57 Francome v Mirror Group Newspapers Ltd [1984] 1 W.L.R. 892.

[82] [83]
 realistic prospect of success. 58 The judge must ask whether the issue is so clear-
cut that no reasonable jury could disagree with him. 59 This most commonly
arises in relation to whether the words are fact or comment, because it is a
determination that involves no evidence. There are recent examples of judges CHAPTER 10
striking out a defence on the basis that the allegation is clearly factual 69 or
the converse, ruling that the words are clearly comment. 61 In the latter case, PRIVILEGE—GENERAL
the judge may go on to consider that the other elements of the defence are
so clearly made out that no reasonable jury could conclude otherwise. 62 This
will often depend on the extent to which there is a conflict of evidence in rela- The nature and circumstances of the publication provide a defence
tion to the supporting facts. If the judge rules that the words are clearly fair
comment, the only remaining issue will be malice, if it is raised. Where there Introduction 10-01
is no proper evidence of malice, 63 the judge will enter summary judgment in Absolute privilege 10-02
favour of the defendant. Qualified privilege 10-03
Where both sides have a realistic prospect of success, the claim should Relationship with other defences 10-04
proceed to trial. At trial, all contested issues concerning fair comment are The functions of judge and jury 10-05
treated as questions of fact for the jury, apart from whether the subject
matter of the comment is a matter of public interest. In rare cases in which
this is in issue, it is treated as a question of law for the judge.
Introduction

The law of defamation must balance the competing interests of freedom of 10-01
speech and the protection of reputation. There is no difficulty where the pub-
lication in question is true—freedom to disseminate the truth must outweigh
the protection of an undeserved reputation. However, in certain circum-
stances, the law recognises that it is better that individuals are free to speak
their mind (and others to report what they say) without fear of being sued
even if they get it wrong and the claimant's reputation is damaged. This is
the rationale behind the defence of privilege. It is a "right to get it wrong". It
helps in understanding this defence to keep this rationale at the forefront of
the mind. Once the concept is understood it is easier to recognise the type of
situation which could be privileged.
There are, in general, two types of privilege—absolute and qualified.
There is a complete bar against bringing proceedings on an occasion of abso-
lute privilege. Where the publication is protected by qualified privilege, the
defence may be defeated if the claimant proves that the defendant was mali-
cious. Malice is a term of art meaning a dominant improper motive, and in
order to establish it, it is generally necessary to demonstrate that the defen-
dant published the statement knowing it to be false or without caring whether
it was true or false, i.e. recklessly. It is considered in Ch.18.
The justification for absolute privilege is that on certain occasions the
importance of complete freedom of speech is so great that the protection
should be absolute. There should be no fear of allegations of malice and
the consequent hassle of litigation. As for qualified privilege, although the
58 See Ch.29. requirement of malice might appear a substantial one, the reality is that
59 See Branson v Bower ( No.2), above.
60 See Burstein v Times Newspapers Ltd [2001] 1 W.L.R. 579, CA.
many honest individuals are deterred by the fear of the consequences of
6 See Branson v Bower [2001] E.M.L.R. 800; Keays v Guardian Newspapers Ltd [2003] EWHC
' speaking their mind. The risk of a finding of malice can never be excluded.'
1565; Telnikoff v Matusevitch [1992] 2 A.C. 343; Kemsley v Foot [1952] A.C. 345.
62 Branson v Bower (No.2), above.
63 See Ch.18. I See Appendix 3, which illustrates the ease with which juries find malice.

[84] [85]
 Furthermore, any litigation, even if it can be defended, will leave a litigant case of Reynolds v Times Newspapers Ltd 6. Although the defence was
out of pocket. 2 originally conceptualised as a "moral duty" on the part of the media
to make the defamatory publication and a "legitimate interest" on
Absolute privilege ( Chapter 11) the part of the public in receiving it, later cases have recognised that
the traditional concepts of duty and interest do not translate easily to
-02 The ambit of this defence is very much determined by considerations of media publications to the general public.
public policy. Absolute privilege is a complete denial of any remedy even 3. Fair and accurate reports of certain proceedings, documents and
where the defamatory statement is false, damaging and has been published statements (Chapter 14)
maliciously. 3 It follows that there must be a compelling public interest justifi-
cation for the immunity. Absolute privilege most commonly arises in respect Section 15 of the 1996 Act provides that a long list of reports set out in
of statements made in the course of court or parliamentary proceedings. The Sch.1 to the Act are protected by qualified privilege. These reports are,
different types of absolute privilege are a mixture of common law and statute. in effect, a "B" list, compared with those reports referred to in s.14,
In particular, s.14 of the 1996 Act accords absolute privilege to fair and accu- which are of greater importance and therefore worthy of absolute
rate reports of various court proceedings. privilege (see above). Nevertheless, in practice, it is very rare to prove
malice in relation to such reports. Common law qualified privilege,
notionally based on duty and interest, has always been available for
Qualified privilege reports of certain proceedings and documents. However, because of
the wide protection given by statute, it is rare that a defendant would
03 The categories of qualified privilege cover a wide range of situations where need to rely on the common law privilege for reports.
it is felt that freedom of expression should prevail over the protection of
reputation, but not to the extent of granting a complete immunity. In
order to assist understanding, this book proposes to divide the defence of The above three categories are not mutually exclusive. Although cate-
qualified privilege into three general categories. Although they each have gorisation may help to identify occasions of qualified privilege, it should be
the same underlying justification, they are worthy of separate considera- remembered that the circumstances of qualified privilege can "never be cata-
tion. logued and rendered exact". 7 The underlying principle is the public interest,
which is reasonably flexible and will change as society changes. However,
1. Duty and interest (Chapter 12) any development will be on the basis of analogy with existing categories of
privilege.
Where the maker of the statement has a legitimate duty or interest in
making the statement and the recipient or recipients of the statement
("the publishees") have a legitimate duty or interest in receiving it. Relationship with other defences 8
This is a common law defence. 4
2. Media publications on matters of public interest (Chapter 13—also Although privilege will protect a mistaken defendant, it does not follow 10-04
known as Reynolds qualified privilege)5 that it is only relied on in cases where the defamatory allegations are false.
A defendant may in addition plead justification or fair comment where the
This is a general public interest defence which was originally envis- facts allow. The costs and "heat" may be considerably increased where he
aged to be utilised by the media, but now applies to any publisher, does so and a defendant who has a reasonably watertight defence of priv-
and is based on the subject matter of the publication and the conduct ilege may exclusively rely on it, even if justification or fair comment are
of the defendant, who must have acted "responsibly" in connection available.
with the publication. The conditions which must be satisfied before Most commonly, privilege applies to the whole of a publication. Where
the defence is established were laid down by the House of Lords in the only part is privileged the defendant must rely on a different defence in rela-
tion to any defamatory allegations in the unprivileged part. 9
2 See Ch.34.
3 See para.38-25. 6 [2001] 2 A.C. 127.
4 However, protection has been extended on a statutory basis to certain exceptional situations, 7 London Association for Protection of Trade v Greenlands Ltd [1916] 2 A.C. 15.
for example see s.79 Freedom of Information Act 2000, which gives the protection of privilege to 8 A summary of all defences is contained in Ch.7. Also see Ch.24, which contains further discus-
defendants who publish defamatory allegations in the course of fulfilling their statutory obliga- sion on the various defences and the approach to be employed by a defendant in choosing which
tions under the Act. defence to run.
5 Although the defence is most suited to media publications, it is not restricted to them. See 9 See Associated Newspapers v Dingle [1964] A.C. 371; Curistan v Times Newspapers Ltd [2008]
Seaga v Harper [2008] UKPC 9. EWCA Civ 432.
[86] [87]
 The functions of judge and jury

-05 It is a question of law, to be determined by the judge, as to whether a pub-

lication is privileged and if so, whether the privilege is absolute or qualified. CHAPTER 1 1
However, where there are disputed facts which are relevant to the existence of
privilege, these will be decided by the jury (where it is the tribunal of fact).° ABSOLUTE PRIVILEGE
In particular, whether a report is fair and accurate is a question of fact for
the jury. In common with other factual issues that can arise in a defamation
claim, the judge has power to determine them himself if he is of the view that The nature and circumstances of the publication provide an absolute defence
there is no reasonable prospect of a jury reaching a contrary conclusion."
Malice is also a question of fact to be determined by the jury, subject to the Introduction 11-01
same proviso.' 2 Statements made in the course of judicial or quasi-judicial
In certain cases it may be appropriate to hold a trial on a preliminary issue proceedings 11-02
in order to determine whether or not the publication was made on an occa- Which proceedings are protected? 11-03
sion of absolute or qualified privilege.° How far does the protection go? 11-04
Statements made in parliamentary proceedings and papers 11-05
Reports of court proceedings 11-06
Statements made by one officer of state to another in the course
of duty 11-07
Solicitor and client 11-08
Miscellaneous statutory privileges 11-09
General public interest privilege 11-10

Introduction

In Merricks v Nott-Bower, 1 Salmon L.J. observed that "the categories of 11-01

privilege are not closed". The sentiment was echoed by Lord Woolf M.R. in
S v Newham London Borough Council, 2 who also observed that "development
need not necessarily be in one direction" and that 19th century cases accord-
ing absolute privilege might not be followed in today's conditions. While an
element of flexibility should be acknowledged, there are, nevertheless, clearly
identifiable categories of absolute privilege which are set out below. Any
extension (or diminution) will generally be by analogy, where necessary in the
public interest. 3 Publications falling outside the following categories may be
protected by qualified privilege.

Statements made in the course of judicial or quasi-judicial proceedings 4

This category of absolute privilege has given rise to a number of recent cases. 11-02
1 ° See Kingshott v Associated Kent Newspapers [1991] 1 Q.B. 88. Two issues have caused difficulty. Firstly, what types of proceedings are
1 ' See Ch.29.
12 See para.18-18.
13 See Prince Radu of Hohenzollern v Houston [2007] EWHC 2328; Charman v Orion Publishing 1 [1965] 1 Q.B. 57 at 73.
Group Ltd [2006] EWHC 1756; Roberts v Gable [2006] EWHC 1025; Henry v BBC [2005] EWHC 2 [1998] E.M.L.R. 583 at 594.
2787; GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd ( No.1) [2000] 2 All E.R. 931; 3 See D v NSPCC [1978] A.C. 171; Science Research Council v Nasse [1979] 3 W.L.R. 762 at
Tsikata v Newspaper Publishing [1997] E.M.L.R. 117; Kirby-Harris v Baxter [1995] E.M.L.R. 790.
516. 4 See Royal Aquarium v Parkinson [1892] 1 Q.B. 431.

[88] [89]
protected? Secondly, how far does the protection extend, i.e. what is meant (9) The opinion of the tribunal as reported to the Secretary of State, even
by "in the course or? The privilege applies to judicial or quasi-judicial pro- though not of itself decisive of the issue in dispute between the adverse
ceedings. It therefore covers proceedings before all recognised courts of parties, would have a major influence upon his decision either to
justice and tribunals exercising functions equivalent to that of an established require the education committee to reconsider its resolution to dismiss
court of justice. In determining whether a particular tribunal is exercising a Dr Trapp or to let the matter rest.
quasi-judicial role, the essential consideration is the extent of the similarities (10) As a result of the report either of the parties to the inquiry might
with a court of justice. In Trapp v Mackie 5 Lord Diplock identified the factors be ordered by the Secretary of State to pay the whole or part of the
to be taken into account: expenses of appearing at the inquiry incurred by the adverse parties;
"One must consider firstly, under what authority the tribunal acts; secondly the and such expenses would be recoverable in the same manner as
nature of the question into which it is its duty to enquire; thirdly the procedure expenses incurred in a civil action in a court of law."
adopted by it in carrying out the inquiry; fourthly the legal consequences of the
conclusion reached by the tribunal as a result of the inquiry." It follows that where a tribunal is making a final public determination in
relation to the rights or status of any person, and its procedure is adversarial
In Trapp, the House of Lords was considering a local inquiry before a and witness-based, statements made in the course of such proceedings are
Commissioner appointed under s.81(3) of the Education (Scotland) Act likely to be protected by absolute privilege. Where the tribunal only shares
1946. Lord Diplock set out 10 characteristics of the tribunal which led him to some of these attributes it will be a matter of degree. Even if the particular tri-
the conclusion that it attracted absolute privilege: bunal is not considered sufficiently judicial, a claimant can still be prevented
from bringing a defamation claim under the more general public interest
"(1) It was authorised by law; it was constituted pursuant to an Act of immunity considered in para.11-10 below. 6
Parliament.
(2) It was inquiring into an issue in dispute between adverse parties of a
kind similar to issues that commonly fall to be decided by the courts Which proceedings are protected?
of justice. Proceedings before the following tribunals have been held to be protected by 11-03
(3) The inquiry was held in public. absolute privilege:
(4) Decisions as to what oral evidence should be led and what documents
should be tendered or their production called for by the adverse party Coroners courts 7;
were left to the contending parties. Military courts8;
(5) Witnesses whom either of the adverse parties wished to call were com- Solicitors Disciplinary Tribunal 9;
pellable, under penal sanctions, to give oral evidence or to produce
documents as havers; and were entitled to the same privilege to refuse General Medical Council 16;
to answer a question or produce a document as would apply if the Benchers of an Inn of Court 11 ;
inquiry were a proceeding in a court of law.
The Securities Association (a financial services regulatory body) 12;
(6) The oral evidence was given upon oath; if it were false to the knowl-
edge of the witness he would incur criminal liability for the offence of The Police Disciplinary Board. 13
perjury.
Witnesses who gave oral testimony were subject to examination- Proceedings before the following tribunals have been held not to be pro-
(7) in-chief and re-examination by the party calling them and to cross- tected by absolute privilege, but they will be protected by qualified privilege:
examination by the adverse party, in accordance with the normal
procedure of courts of law.
6 See Hasselblad v Orbison [1995] Q.B. 475.
(8) The adverse parties were entitled to be, and were in fact, represented 7 McCarey v Associated Newspapers [1965] 2 Q.B. 86.
by legally qualified advocates or solicitors and these were given the 8 Dawkins v Lord Rokeby (1873) L.R. 8 Q.B. 255.
9 Addis v Crocker [1961] 1 Q.B. 11.
opportunity of addressing the tribunal on the evidence that had been I° General Medical Council v Spackman [1943] A.C. 627; Ahari v Birmingham Heartlands &
led. Solihull Hospitals NHS Trust, EAT, April 1, 2008.
II Lincoln v Daniels [1962] 1 Q.B. 237
17 Mahon v Rahn [2000] 4 All E.R. 41, CA.
5 [1979] 1 W.L.R. 377. 13 Heath v Commissioner of Police for the Metropolis [2004] EWCA Civ 943.

[90] [91]
 licensing justices hearing applications for the renewal of licenses 14 ;
made or other relevant court proceedings. 26 Wider publication of these doc-
uments will not generally be privileged unless the documents are publicly
a local authority committee hearing applications for music and available. 27 There is also absolute privilege for the contents of interviews with
dancing licenses 15; witnesses and potential witnesses.
conciliation proceedings between employer and employee 16; In Taylor v SF028 it was held that more general out of court statements
made by or to investigators, which could fairly be said to be part of the
domestic or social tribunals, such as the committee of a club 17; process of investigating a crime with a view to a prosecution, were absolutely
determinations of the Parole Board.' 8 privileged. Mahon v Rahn ( No.2 ) 29 applied the reasoning of Taylor to accord
absolute privilege to a letter sent to a financial regulator who was seeking evi-
The position in respect of arbitrations is uncertain. It appears that certain dence in connection with a hearing as to whether a person was fit and proper
forms of arbitration will be absolutely privileged and others subject to to carry on investment business. In both cases, it was held that absolute priv-
common law qualified privilege. 19 ilege would apply irrespective of whether the maker of the statement ended
up giving evidence at any trial or hearing. The Court of Appeal left open the
position where "some malicious informant spontaneously proffers . . . infor-
How far does the protection go? mation" to the investigators.
1-04 Assuming that the proceedings are of a type that can attract absolute priv-
ilege, the question can arise as to what statements are protected. Clearly,