Ipsofactoj.com: International Cases [2002] Part 12 Case 15 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

The Times Newspapers Ltd

- vs -

Loutchansky

LORD PHILLIPS OF WORTH MATRAVERS, MR

LORD JUSTICE SIMON BROWN

LORD JUSTICE TUCKEY

5 DECEMBER 2001


Judgment

The Master of the Rolls

(delivered the judgment of the Court to which all members have contributed)

  1. There are before us a number of inter-related appeals arising out of two consolidated libel actions brought by Dr Loutchansky (the respondent) against the publisher and editor of The Times and two of its journalists (the appellants). The first action was brought on 6 December 1999 in respect of two articles published in The Times respectively on 8 September 1999 (the first article) and 14 October 1999 (the second article); the second action was brought on 6 December 2000 in respect of the continued internet publication of the same two articles on The Times website after 21 February 2000.

  2. The appeals raise interesting and important questions variously as to the correct approach to qualified privilege following the House of Lords' decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, the proper construction of s4A of the Limitation Act 1980 in the context of internet publication, the scope of general damages for defamation under Russian law, and the availability of the summary disposal procedure under s.8 of the Defamation Act 1996 once judgment has been entered, an issue of jurisdiction.

  3. Before attempting further to identify and address the particular points arising, it is necessary to indicate something of the facts of the case although, for reasons which will become clear, we can do so comparatively briefly; their fuller exposition can be found in Gray J's judgment below in Loutchansky v Times Newspapers Ltd (No. 4) [2001] EMLR 898, and in this court's judgment in Loutchansky v Times Newspapers Ltd [2001] 3 WLR 404 (the appeal which decided, subject to further appeal to the House of Lords, that a publisher claiming qualified privilege cannot pray in aid facts unknown to him at the time of publication).

    THE FACTS

  4. The respondent is an international businessman of Russian and Israeli dual nationality. He was born in Tashkent and subsequently based in Latvia. Prior to December 1994 he was a regular visitor to England with numerous personal business contacts here. In that month, however, the Home Secretary personally directed his exclusion from the United Kingdom on the ground that his presence here would not be conducive to the public good. That direction has been under challenge ever since and an appeal is now pending before the Special Immigration Appeals Commission.

  5. The first article was in these terms:

    Second Russian linked to money-laundering.

    British and American investigators are examining the role of an alleged second Russian mafia boss over possible involvement in money-laundering through the Bank of New York. Investigators are understood to be looking at links to Grigori Loutchansky, whose company, Nordex, has been described by the CIA as 'an organisation associated with Russian criminal activity'. Mr Loutchansky's name surfaced in earlier money-laundering investigations which may have links to the Bank of New York affair, in which billions of dollars of Russian money are alleged to have been laundered. The Russian-born businessman came to the attention of European and American investigators in the early Nineties. They suspected Nordex of using its former international base in Vienna as a front for a large-scale money-laundering operation. His name also figured in a British police report in 1995, known as Operation Ivan, which looked at the extent of the influence of the Russian mob in London. Mr Loutchansky has repeatedly denied any wrongdoing or links to criminal activity. Nordex, which has since moved out of Vienna, is also alleged to have been involved in the smuggling of nuclear weapons and by the mid-1990s reportedly controlled about 60 businesses in the former Soviet Union and another 40 companies in the West. The Times has learnt that these included between eight and ten offshore companies in British jurisdictions, including the Channel Islands and the Isle of Man. They were administered through a chartered accountant in central London whose offices and homes were raided in 1996 by officers from the City of London Police. The companies were suspected of being used to help launder money from Russia, which was then channelled through European banks. No charges were ever filed against the accountant. At about the same time, a Yugoslav associate said to have been a front-man for Mr Loutchansky was stopped and questioned after arriving at a London airport. No charges were filed against him. The British investigation into Nordex is believed to have failed because of the difficulty of establishing that the money funnelled through offshore companies controlled by Nordex was linked to criminal activities. Mr Loutchansky is alleged to be a former business associate of Viktor Chernomyrdin, the former Russian Prime Minister, and in 1995 his name hit the headlines after it emerged that he had been photographed with President Clinton at a Democrat fund-raising event in 1993. He is also alleged to have had business dealings with Semyon Mogilevich, the Hungarian-based mafia figure at the centre of the Bank of New York investigation.

  6. The words complained of in the second article read:

    Trader linked to mafia boss, wife claims.

    A Russian businessman under investigation by Swiss authorities pursuing allegations of money-laundering was a friend of Grigori Loutchansky, a suspected mafia boss, the businessman's wife claims ... If Mrs Chernoi's allegation about a connection between her husband and Mr Loutchansky is true, it will raise further questions about Mr Chernoi. In 1996 the CIA described Nordex, a company operated by Mr Loutchansky and alleged to have been used to launder money and smuggle nuclear weapons, as an 'organisation associated with Russian criminal activity'.

  7. The appellants never disputed that both articles were defamatory of the respondent nor, indeed, was there any substantial dispute as to their meaning. Both articles alleged that the respondent was the boss of a major Russian criminal organisation and was involved in, amongst other things, money-laundering and the smuggling of nuclear weapons either personally or through Nordex, a company he owned and controlled. The first article stated more specifically that either personally or by means of companies which he owned or controlled he was involved in the criminal laundering of billions of dollars from Russia, alternatively, by his conduct, had given reasonable cause to suspect him or his companies of such involvement.

  8. Each article foreseeably prompted republication of the libellous matter by the mass media in Russia in respect of which the respondent (in the first action) also claimed damages.

  9. A further consequence of publication was that each article was posted on The Times website where it has since remained accessible and, as ultimately conceded, has from time to time been read. Despite the respondent's letter before action on 17 November 1999 and subsequent complaints about the continuing internet publication of the articles, no qualification was added to the website until 23 December 2000 when the first article was prefaced by the words:

    This article is subject to High Court libel litigation between Grigori Loutchansky and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.

  10. The sole defence pleaded to the first action was that of qualified privilege. The appellants aver that it is the duty of a free press to communicate to the public at large information regarding matters of public interest and that there is a corresponding interest on the part of members of the public in receiving such information. They contend that the subject-matter of the articles complained of was of the greatest general interest and importance to the public at large and to the readers of The Times in particular, that is to say the corruption and criminalisation of Russian society since the break-up of the USSR, the involvement of Russian organised criminal groups in money-laundering through western banks, the smuggling of nuclear weapons and the activities of such groups, including the acquisition of businesses in the West and in the UK in particular. They rely upon various information which they say they were entitled to treat as reliable, responsible and authoritative. That comprised media reports of the involvement of the Bank of New York in laundering the proceeds of criminal activity in Russia; media reports of suspicions about and investigations into serious crimes allegedly committed by the respondent, which have resulted in his exclusion from various jurisdictions including the UK; a statement by the then director of the CIA about the respondent's company, Nordex, being associated with Russian criminal activity; the respondent's conviction by a Latvian court in 1983 of offences of dishonesty; and various reports by intelligence services. In addition, the appellants rely on information provided to Mr Lister, the author of both articles, by three unidentified sources and a fourth source (eventually named as Jeffrey Robinson, the author of a book about organised crime) who asserted amongst other things that the respondent either had been or was being investigated by various law enforcement agencies in connection with money-laundering offences.

  11. The appellants have never sought to justify any aspect of these defamatory publications: they recognise that they have been quite unable to obtain admissible evidence sufficient to plead and prove even the lesser form of justification, reasonable grounds for suspicion. Rather their stance from first to last has been that whilst it is no part of their case that the respondent is either rightly or reasonably suspected of criminal activity, they for their part honestly believe that he is. Certainly there has been no plea of malice in reply so that the appellants' good faith is not in issue.

  12. The second action was brought, as already noted, exactly a year after the first. It related (so far as presently material) to the continuing internet publication of the articles and was prompted by the respondent's discovery that no qualification whatever had been placed upon the appellants' website.

  13. The claim in the second action repeated the allegations that were made in the first. A claim for aggravated damages was added on grounds which included:

    The defendant continued to publish the First and Second libels on the Website despite the fact that they knew that they could not justify the allegations made and despite complaints by the claimant's solicitors in a letter dated 25 October 2000.

    The defence adopted the plea of qualified privilege that had been pleaded in the first action. Additional matters were relied upon in support of the plea of qualified privilege. The first was that The Times maintained on its website a publicly available archive of past issues as a service to the public at large, both in this country and abroad. In addition the appellants sought to rely upon various items of information about the respondent or his companies that had come to their attention between the date of the commencement of the first action and the date of the commencement of the second action.

  14. It is necessary next to indicate something of the course which these two actions have taken, in particular to see just how the present series of appeals arise.

  15. Having ordered a split trial of the issues of liability and quantum, Gray J began the liability trial of both actions on 19 March 2001 and on that day made the first of the several orders now under appeal: an order refusing the appellants leave to re-amend their defence in the second action:

    to contend that as a matter of law the only actionable publication of a newspaper article on the internet is that which occurs when the article is first posted on the internet. In consequence, the claimant's cause of action in respect of internet publication of the articles of 8 September 1999 and 14 October 1999 did not accrue within one year before the commencement of the action and the defendant will rely on s.4A of the Limitation Act 1980.

  16. In other words, the appellants were seeking to contend that a single publication rule should be applied when material which is initially published in hard copy is republished on the internet. In rejecting that contention and holding that the single publication rule (prevalent in many States of the USA) is not applicable in this jurisdiction, the judge relied principally on two authorities, one old and one new: Duke of Brunswick v Harmer (1849) 14 QB 154 and Berezovsky v Forbes [2000] 1 WLR 1004. The appellants submit that he was wrong to do so. This has been called the Internet Single Publication appeal.

  17. On the following day, 20 March 2001, the judge made the second of the orders now appealed, an order striking out the defence of qualified privilege in the second action on the basis that the appellants had no reasonable grounds to contend that after 21 February 2000 (the date of the respondent's defence in the first action) they remained under a duty to publish these articles over the internet, nor could they sustain a separate argument for a special "archive" privilege. The appellants' challenge to that order has been called the Internet Qualified Privilege appeal. These first two appeals (and a third appeal against the consequential order entering judgment for the respondent in the second action) are brought with the permission of Latham LJ.

  18. On 22 March 2001 the judge ruled that general damages in the first action are recoverable by the respondent in respect of the Russian publication of these libels since such damages would be recoverable under Russian law. We ourselves gave permission during the hearing for an appeal against this order and will call it the Russian Publication appeal.

  19. The jury was finally empanelled on 26 March 2001 and the hearing then continued until 11 April when the jury gave their answers to fifteen specific questions of primary fact which had been put to them as part of the process by which the judge had to decide whether the defence of qualified privilege was available to the appellants in the first action. In a very full and careful reserved judgment delivered on 27 April, Gray J then ruled that the defence of qualified privilege was not available to the appellants in respect of either article so that in the first action too judgment was entered for the respondent for damages to be assessed. On this issue, however, the judge gave leave to appeal in the following terms:

    Success on the appeal may be problematic since the decision was ultimately one of fact. But I believe there is a compelling reason why the appeal should be heard, namely what standard the courts should apply when deciding whether there was a duty to publish defamatory words to the world at large.

    This has been called the First Action Liability appeal.

  20. Finally, on 11 May 2001, the judge acceded to the respondent's application "that there be a summary disposal of the claimant's claim for damages under s.8 of the Defamation Act 1996". This order, as stated, is challenged by the appellants on jurisdictional grounds. This has been called the Summary Disposal appeal.

  21. It is logical to consider first the First Action Liability appeal since its outcome must inevitably impact upon other appeals also, most obviously the Internet Qualified Privilege appeal.

    THE FIRST ACTION LIABILITY APPEAL

  22. This appeal must inevitably turn upon a proper understanding and application of the decision of the House of Lords in Reynolds. As to that let us begin by repeating paragraph 26 of Simon Brown LJ's recent judgment in Al-Fagih v H.H. Saudi Research & Marketing (UK) Ltd (unreported, 5 November 2001):

    I must take as read the bulk of what was said in each of the five speeches in Reynolds. To cite even the most important passages would unduly lengthen this judgment. In essence the case held that the question whether a particular publication attracts qualified privilege at common law should be decided simply by asking whether in all the circumstances 'the duty-interest test, or the right to know test' (per Lord Nicholls at 197G) is satisfied. Amongst the relevant circumstances are likely to be the ten specific factors identified by Lord Nicholls at 205A-D. This approach reflects the ECHR jurisprudence under Article 10 of the Convention and is designed to enable a proper balance to be struck between on the one hand the cardinal importance of freedom of expression by the media on all matters of public concern, and on the other the right of an individual to his good reputation. Neither right is absolute but the former, particularly in the field of political discussion, is of a higher order, a constitutional right of vital importance to the proper functioning of a democratic society. That is why 'Any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved' (per Lord Nicholls at 200F-G), and why 'Any lingering doubts [as to how the balance should be struck] should be resolved in favour of publication,' (per Lord Nicholls at 205F)

  23. So far so good. At the end of the day the court has to ask itself the single question whether in all the circumstances the "duty-interest test, or the right to know test" has been satisfied so that qualified privilege attaches. If, of course, it does, then, unless the claimant can prove malice, the defamatory publication is protected irrespective of whether it turns out to be true or false. So much at least of any analysis of Reynolds one might have thought to be uncontentious. There would then remain for determination the critical question as to what precisely these tests involve or, as Gray J put it when granting permission to appeal, "what standard the courts should apply when deciding whether there was a duty to publish defamatory words to the world at large". Before reaching that question, however, it is necessary to deal first with a wider argument advanced by Lord Lester of Herne Hill QC for the appellants: the submission that this court should "develop and clarify Reynolds" and "acknowledge that the traditional duty/interest test has been replaced by the following test:

    (1)

    whether, in all the circumstances other than the conduct of the newspaper, the subject matter of the communication is in the public interest ("the right to know"), giving rise to a prima facie occasion of qualified privilege; and

    (2)

    whether the newspaper failed to comply with the ethics of responsible journalism so as to abuse the occasion of privilege.

  24. In support of this argument Lord Lester subjects Reynolds to a powerful and sustained critique, citing at length from the New Zealand Court of Appeal's decision in Lange v Atkinson [2000] 8 BHRC 500 (the case having been remitted to that court by the Privy Council in Lange v Atkinson [2001] NZLR 257 specifically to allow for its reconsideration in the light of Reynolds). The New Zealand Court declined to follow Reynolds, first because "the blurring, perhaps even the removal, of the line between the occasion and its abuse in Lord Nicholls' non-exhaustive list must add significantly to [the] uncertainty [in both the principles of defamation law and their practical application]", and secondly, because "it reduces the role of the jury in freedom of speech cases." The essence of the decision is to be found in paragraph 38 of the judgment:

    For reasons which can be briefly restated we would not strike the balance differently from the way it was struck in 1998. First, the Reynolds decision appears to alter the structure of the law of qualified privilege in a way which adds to the uncertainty and chilling effect almost inevitably present in this area of the law. We are not persuaded that in the New Zealand situation matters such as the steps taken to verify the information, the seeking of comment from the person defamed, and the status or source of the information, should fall within the ambit of the inquiry into whether the occasion is privileged. Traditionally such matters are not of concern to that question in the kind of setting presently under discussion.

  25. The New Zealand Court of Appeal then redefined the concept of actual malice to provide a stronger safeguard against abuse, stating that "while carelessness will not of itself be sufficient to negate the defence, its existence may well support an assertion by the plaintiff of a lack of belief or recklessness. In this way the concept of reasonable or responsible conduct on the part of a defendant in the particular circumstances becomes a legitimate consideration." Malice, of course, here as in New Zealand, is an issue falling for determination by the jury.

  26. Powerful though this reasoning may appear, its effect can only be to accentuate the very different approaches which have been adopted in the two jurisdictions. We, of course, are bound to follow that favoured by the House of Lords in Reynolds. Complain as he may that their approach conflates a two part test and effectively pre-empts the jury's role in deciding malice, Lord Lester must recognise the constraints of binding authority. The most we can do is attempt to illuminate the single composite test which Reynolds undoubtedly dictates and to identify certain of the crucial considerations likely to influence its application.

  27. Having now set out the parameters within which this court must operate, we think it helpful next to consider how the law of qualified privilege stood before the House of Lords in Reynolds came to determine how the defence should apply where matters of public interest and concern are published to the world at large.

  28. The origins of the common law defence of qualified privilege are to be found in Toogood v Spyring (1834) 1 CM & R 181, where at p.193 Parke B said this:

    In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another ..., and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

  29. Lindley LJ's judgment in Stuart v Bell (1891) 2QB 341, 350 illustrates the principle in operation:

    I take moral or social duty to mean a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal. My own conviction is that all or, at all events, the great mass of right-minded men in the position of the defendant would have considered it their duty, under the circumstances, to inform Stanley [the plaintiff's employer who in the light of the communication dismissed him] of the suspicion which had fallen on the plaintiff. My own opinion is clear and strong that it was his moral or social, although not his legal, duty to do so; in other words, the occasion was privileged, and the judge should have directed the jury to this effect.

  30. As Lord Nicholls observed, Lord Atkinson's dictum in Adam v Ward [1917] AC 309, 334, is much quoted:

    .... a privileged occasion is .... an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

  31. Although, as Lord Nicholls explained at pp195-197 of his speech in Reynolds, the common law has for many years recognised that on occasion the public interest may require that privilege be attached to publication even to the world at large, such instances are few and far between. Blackshaw v Lord [1984] QB 1, a decision of this court extensively cited and discussed by Brooke LJ in his helpful judgment in Loutchansky (No.1), may have been, as Lord Cooke subsequently pointed out in McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 301, "somewhat discouraging" for newspapers contemplating this defence. Stephenson LJ at p.27b had put the possibility no higher than that:

    There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there is danger to the public from a suspected terrorist or the distribution of contaminated food or drugs .... 

  32. Although Lord Cooke in Reynolds at p224C spoke of the Court of Appeal in Blackshaw v Lord having "adopted substantially the right approach", and said at p.225F that "in Blackshaw v Lord ... and now the present case the law is being developed to meet the reasonable demands of freedom of speech in a modern democracy ....", it is difficult to recognise in the approach to the defence conventionally adopted in the earlier jurisprudence the particular form of qualified privilege created by the House of Lords in Reynolds. Whatever else may be said about the decision of the New Zealand Court of Appeal in Lange v Atkinson, it was surely right to have recognised the striking departure which Reynolds made from the earlier approach. Reynolds privilege (as we shall call it), although built upon an orthodox foundation, is in reality sui generis.

  33. Whereas previously it could truly be said of qualified privilege that it attaches to the occasion of the publication rather than the publication, Reynolds privilege attaches, if at all, to the publication itself: it is impossible to conceive of circumstances in which the occasion of publication could be privileged but the article itself not so. Similarly, once Reynolds privilege attaches, little scope remains for any subsequent finding of malice. Actual malice in this context has traditionally been recognised to consist either of recklessness i.e. not believing the statement to be true or being indifferent as to its truth, or of making it with the dominant motive of injuring the claimant. But the publisher's conduct in both regards must inevitably be explored when considering Lord Nicholls' ten factors i.e. in deciding whether the publication is covered by qualified privilege in the first place. As May LJ observed in GKR Karate (UK) Ltd v Yorkshire Post Ltd [2000] 1 WLR 2571, at 2580:

    If the judge decides that the occasion is not privileged, the issue of malice does not arise. If the judge decides that the occasion was privileged, he must have decided that, in all the circumstances, at the time of the publication, including the extent of .... enquiries, the public was entitled to know the particular information available .... without [the journalist] making further enquiries. It is a little difficult to see how the same enquiries which objectively sustained the occasion as privileged would be capable of contributing to a conclusion that subjectively she was recklessly indifferent to the truth or falsity of her publication.

  34. Similarly in Al-Fagih, when deciding that verification may well not be necessary or even appropriate in a case of neutral reportage, we concluded that the reckless form of malice could not run. Although that left outstanding the claimant's plea of malice on the basis that the publisher's dominant motive had been to injure him, it may be doubted whether in truth there remains room for such a principle in a case of Reynolds privilege. Once the publication of a particular article is held to be in the public interest on the basis of the public's right to know, can the privilege really be lost because the journalist (or editor?) had the dominant motive of injuring the claimant rather than fulfilling his journalistic duty? It is a surprising thought.

  35. The relevance of these observations to the present appeal is this. Once Reynolds privilege is recognised, as it should be, as a different jurisprudential creature from the traditional form of privilege from which it sprang, the particular nature of the "interest" and "duty" which underlie it can more easily be understood.

  36. The interest is that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed. The vital importance of this interest has been identified and emphasised time and again in recent cases and needs no restatement here. The corresponding duty on the journalist (and equally his editor) is to play his proper role in discharging that function. His task is to behave as a responsible journalist. He can have no duty to publish unless he is acting responsibly any more than the public has an interest in reading whatever may be published irresponsibly. That is why in this class of case the question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises. Unless the publisher is acting responsibly privilege cannot arise. That is not the case with regard to the more conventional situations in which qualified privilege arises. A person giving a reference or reporting a crime need not act responsibly: his communication will be privileged subject only to relevance and malice.

  37. Consider what Lord Diplock said in Horrocks v Lowe [1975] AC 135, 150:

    .... indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a vigorous search for all available evidence and a judicious assessment of its probative value. In greater or less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more.

  38. Reynolds privilege could not arise in such circumstances. "Carelessness, impulsiveness or irrationality" would cost a journalist dear in the evaluation of his claim to privilege under several of the Reynolds factors, perhaps most notably factors 3, 4, 6, 7 and 8. As Lord Nicholls said at p.202C:

    [It] is for the court to have regard to all the circumstances in deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject matter. This solution has the merit of elasticity .... It can be applied appropriately to all information published by a newspaper, whatever its source or origin.

  39. This court in Al-Fagih adopted the approach suggested by Lord Hobhouse in Reynolds at p.239E, namely to ask:

    .... what it is in the public interest that the public should know and what the publisher could properly consider that he is under a public duty to tell the public.

  40. Simon Brown LJ suggested that that approach seemed:

    properly to reflect on the one hand the importance of keeping the public informed and on the other the need for responsible journalism to guard against needless misinformation. A publisher could not properly consider that he was under a public duty to communicate the information to the public unless in deciding to do so he reasonably believed that he was acting responsibly.

    It may be that the words "reasonably believed that he" towards the end of that formulation are best omitted: they were intended, perhaps unnecessarily, to emphasise the objective nature of the test. In the final analysis it must be for the court, not the journalist, to decide whether he was acting responsibly. That appears clearly from several passages in Reynolds: in rejecting the newspaper's commended "reliance upon the ethics of professional journalism", Lord Nicholls at p.202B referred to "the sad reality ... that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence". Lord Cooke at p.220D-E suggested that "experience of libel litigation is apt to generate a suspicion that" the restriction of freedom of speech thought necessary to give reasonable protection to personal reputation tends rather to chill the publication of untruths than of material which may be true but cannot be proved to be true. Lord Hope too spoke of situations in which the "chilling" effect of the law "is a necessary protection for the individual". Perhaps one need look no further than Lord Nicholls' dictum in Reynolds at p.202E-F:

    The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or disproportionate.

  41. In deciding in any given case whether the standard of responsible journalism has been satisfied, the following considerations are likely to feature prominently in the court's thinking:

    (i)

    If the publication is held privileged, that, to all intents and purposes, will provide the publishers with a complete defence. In this class of case, as already observed, a finding of privilege will effectively pre-empt a finding of malice. Lord Nicholls described malice as "notoriously difficult to prove" (p.201G), Lord Cooke as "a dubious safeguard" (p.219H), and Lord Hope as "very difficult, if not impossible, [to prove] if the sources of the information cannot be identified." Accordingly, if the defence is established, that, as Gray J pointed out in paragraph 16 of his judgment below, has "the effect of denying any remedy, whether by way of compensation or other vindication to a person who has been libelled". The damaging consequences of that, not merely for the aggrieved individual but for society at large, are highlighted by Lord Nicholls in Reynolds at p.201A-C:

    Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely.

    (ii)

    Setting the standard of journalistic responsibility too low would inevitably encourage too great a readiness to publish defamatory matter. Journalists should be rigorous, not lax, in their approach. It is in the interests of the public as well as the defamed individual that, wherever possible, truths and not untruths should be told. This is in the interests of the media too: once untruths can be published with impunity, the public will cease to believe any communications, true or false.

    (iii)

    Setting the standard too high, however, would be no less damaging to society. This would deter newspapers from discharging their proper function of keeping the public informed. When determining in respect of any given article whether or not it should attract qualified privilege, the court must bear in mind the likely impact of its ruling not only upon the case in hand but also upon the media's practices generally. Qualified privilege ordinarily falls to be judged as a preliminary issue and before, therefore, the truth or falsity of the communication is established. The question to be posed is accordingly whether it was in the public interest to publish the article, true or false, rather than whether it was in the public interest to publish an untruth. Even, moreover, when the untruth of the article is established (or when, as here, it is not formally disputed), it is important to remember that the defence of qualified privilege tolerates factual inaccuracy for two purposes: first so as not to deter the publication sued upon (which might have been true); and secondly so as not to deter future publications of truthful information.

  42. Such being, in our judgment, the correct approach to determining whether Reynolds privilege attaches, it is time to consider how the matter was dealt with below. In paragraphs 15-34 of his judgment, variously under the headings The Law, Human Rights Jurisprudence, and The Considerations for Determining Privilege, Gray J conducts what is for the greater part an admirably clear and succinct survey of the development of the law to its present state. For the moment we quote only paragraphs 23 and 24:

    23.

    Although Reynolds has rightly been perceived as enlarging the ambit of qualified privilege, the conceptual foundation for the defence remains the existence of a reciprocity of duty and interest on the part of the publisher and the publishees respectively. This dual requirement was confirmed by all the members of the House of Lords in Reynolds (see for example Lord Hobhouse p.1061C-D). Brooke LJ at paragraph 23 of his judgment on an interlocutory appeal in the present case reiterated the existence of this dual requirement.

    24.

    It follows that the mere existence of a legitimate interest on the part of the readership of a newspaper to have the information imparted to them will not of itself suffice to establish the privilege. It is possible to visualise cases where it can be said that the readership has a legitimate interest in knowing the information (perhaps because of the status or nature of the information in question) but where the claim to privilege will fail because the requisite duty to publish is not made out (perhaps because of the newspaper's failure to report the gist of the answers of Dr Loutchansky to the accusations against him).

  43. Having then in paragraph 35 recorded the jury's answers to the fifteen questions of primary fact put to them, the judge turned to consider with regard to each of the two articles in turn the application of the ten Reynolds factors. Unsurprisingly in the circumstances of the present case, the longest section of this part of the judgment (paragraphs 46-73) concerns "(3) The reliability and motivation of the sources of the information", and certain passages in it are for one reason or another critical of Mr Lister. So too are various views expressed by the judge with regard to "(6) The urgency of the matter", "(7) Whether comment was sought from the claimant", and "(8) Whether the article contained the gist of the claimant's side of the story". The judge then came to his conclusions and held in respect of each of the articles (respectively in paragraphs 107 and 119) that the appellants "were not under a duty to publish the article" so that the defence of qualified privilege was not available to them.

  44. But for one particular paragraph in the earlier section headed The Law, we would not have felt able to disturb that conclusion. Argue about it as one might, and as, indeed, Mr Spearman QC sought to do, it followed upon a masterful analysis of a great deal of material (including evidence from Mr Lister over five days) and was in no way demonstrably wrong. Paragraph 18 of the judgment, however, appears to us to be critical and it needs to be set out in full:

    'Duty' in the sense in which that term is used in this context has been judicially defined by Lindley LJ in Stuart v Bell (1891) 2 QB 341, at 350 to mean:

    a duty recognised by English people of ordinary intelligence and moral principle, whether civil or criminal. Would the great mass of right-minded men in the position of the defendant have considered it their duty under the circumstances to make the communications? In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of questions of public policy.

    It is for the Judge to determine whether an occasion is privileged and therefore to decide whether the defendant was under a duty to make the communication. The judge will have no difficulty in determining whether there was a legal duty to make the communication, but there is no sure and unfailing criterion of what does or does not constitute a moral or social duty; as was pointed out by Erle C.J. in Whiteley v Adams (1863) 15 CB (NJ) 352 at 418. 'Judges .... have all felt great difficulty in defining what kind of social or moral duty will afford a justification.'

    I take that form of duty, albeit one not owed in law, to be a duty such that a publisher would be open to legitimate criticism if he failed to publish the information in question.

  45. The first point to note about paragraph 18 is that for whatever reason it substantially misquotes Lindley LJ's judgment in Stuart v Bell. The first part of the 'quotation' falls to be contrasted with the accurate citation in paragraph 29 above. So far from "duty" being "judicially defined" in the formulation of the question: "Would the great mass of right-minded men in the position of the defendant have considered it their duty under the circumstances to make the communications?", one sees that Lindley LJ was merely emphasising his own clear view on the facts of that particular case. The second part of the quotation is in fact not from Stuart v Bell but from James v Baird [1916] SC (HL) 158, 163-164, and the last part is from Gatley on Libel and Slander (9th Edn), para.14.6, p.331

  46. Secondly, however, and altogether more importantly, paragraph 18 then sets out Gray J's understanding of the test to be satisfied before the defence of qualified privilege can be invoked: the duty owed is "such that a publisher would be open to legitimate criticism if he failed to publish the information in question."

  47. True it is, as Mr Browne QC points out, that the judge never explicitly comes back to this test in any subsequent part of his judgment: all he does is to refer in paragraph 24 (already quoted above) to "the requisite duty to publish", and to conclude in paragraphs 107 and 119 that the appellants "are not under a duty to publish" either article. But can the criticism of paragraph 18 therefore be discounted, as Mr Browne suggests, merely as a "linguistic quibble"? In our judgment not. The fact is that already, in two subsequent cases, Eady J appears to have had no doubt as to the test Gray J was applying. In Lukowiak v Unidad Editoriale SA (unreported, 6 July 2001) Eady J said this:

    A cross-check that is sometimes useful to carry out in such cases, as suggested by Gray J in Loutchansky, is to ask whether the particular defendant could have been the subject of legitimate criticism if the material had not been published.

  48. Three days later, in Baldwin v Rusbridger [2001] All ER (D) 106, Eady J again applied the same test "by way of additional check".

  49. To apply the test merely as a "cross-check" is unexceptionable where the test is satisfied. If, indeed, the publisher would have been open to legitimate criticism had he not published, his claim to privilege will be indisputable. But the converse is not true. That would be to impose too stringent a test. There will undoubtedly be occasions when one newspaper would decide to publish and quite properly so, yet a second newspaper, no less properly, would delay or abstain from publication. Not all journalists can be or should be expected to reach an identical view in every case. Responsible journalism will in certain circumstances permit equally of publication or of non-publication.

  50. We therefore conclude that Gray J applied the wrong test to the question whether there was a duty upon the appellants to publish these defamatory articles to the world at large. He was right to grant permission to appeal to clarify the standard. The standard required is that of responsible journalism in accordance with the principles earlier explained. The judge's findings of fact will accordingly need to be re-examined with this standard in mind. In our judgment there is no good reason why this exercise should not be performed by the same judge and every possible reason, in terms of expense and proportionality, why it should. We shall so order.

    THE INTERNET SINGLE PUBLICATION APPEAL

  51. We have set out the facts giving rise to this appeal in the introduction to this judgment. It results from the judge's refusal to allow the Appellants to re-amend their defence in the second action to rely on S.4A of the Limitation Act 1980 in respect of continuing publication of the offending articles on the internet.

  52. S.4A provides that:

    no action for libel or slander, slander of title, slander of goods or other malicious falsehood shall be brought after the expiration of one year from the date on which the cause of action accrued.

  53. This section is subject to the provisions of s32A of the same Act which provides:

    (1)

    If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

    (a)

    the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and

    (b)

    any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

    the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.

    (2)

    In acting under this section the court shall have regard to all the circumstances of the case and in particular to-

    (a)

    the length of, and the reasons for, the delay on the part of the plaintiff;

    (b)

    where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A-

    (i)

    the date on which any such facts did become known to him, and

    (ii)

    the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and

    (c)

    the extent to which, having regard to the delay, relevant evidence is likely-

    (i)

    to be unavailable, or

    (ii)

    to be less cogent that if the action had been brought within the period mentioned in section 4A.

  54. The argument before the judge turned on how these provisions should be applied in the case of publication on the Internet. The amendment sought by the appellants was designed to enable them to advance the case that the limitation period would begin to run as soon as the allegedly defamatory article was first posted on the website and that subsequent occasions upon which the website was accessed did not give rise to separate causes of action, each with its individual limitation period. As stated, the judge refused leave to amend because he considered that this argument was unsustainable. Before us, Counsel for the appellants have elaborated the submissions rejected by the judge.

  55. Lord Lester opened this part of the appeal on behalf of the appellants, having provided the Court in advance with lengthy written submissions. He accepted that the amendment that the appellants sought to plead would only succeed if the Court were prepared to make new law. He submitted, however, that this area of the common law had developed to suit traditional hard copy publication and was inimical to modern conditions. He urged that the law should develop to reflect those conditions and to accommodate the requirements of the Human Rights Act 1998 and the Convention.

  56. We propose first to consider the law as it now is, then the change that the appellants submit should be made to the law and finally whether the appellants have made out their case for effecting this change.

  57. It is a well established principle of the English law of defamation that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period. Duke of Brunswick v Harmer [1849] 14 QB 185 provides a striking illustration of this principle. On 19 September 1830 an article was published in the Weekly Dispatch. The limitation period for libel was then six years. The article defamed the Duke of Brunswick. Seventeen years after its publication an agent of the Duke purchased a back number containing the article from the Weekly Dispatch's office. Another copy was obtained from the British Museum. The Duke sued on those two publications. The defendant contended that the cause of action was time barred, relying on the original publication date. The Court of Queen's Bench held that the delivery of a copy of the newspaper to the plaintiff's agent constituted a separate publication in respect of which suit could be brought.

  58. In Godfrey v Demon Internet Ltd [2001] QB 201 the respondent brought an action in defamation against the appellants who were internet service providers. They had received and stored on their news server an article, defamatory of the respondent, which had been posted by an unknown person using another service provider. The issue was whether the appellants had a defence under s1(1) of the Defamation Act 1996. The Judge held that they did not. He observed at p.208:

    In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the defendants' customers accesses soc.culture.thai and sees that posting defamatory of the plaintiff there is a publication to that customer.

  59. This decision was consistent with the Duke of Brunswick case and Lord Lester did not suggest to the contrary.

  60. In Berezovsky v Michaels [2000] 1 WLR 1004 the issue was whether England was the appropriate forum for bringing an action in defamation for injury done to reputation in England as a result of a defamatory article in an American business magazine. In the course of his speech Lord Steyn observed at p.1012 that it was one of the distinctive features of English law that each communication is a separate libel, citing Duke of Brunswick v Harmer. Lord Hoffman also referred to that decision in the following passage at p.1024:

    There was a good deal of interesting discussion at the bar about whether an internationally disseminated libel constituted a number of separate torts in each country of publication or whether it should, at least for some purposes, be viewed as a 'global tort'. In this country the point is settled in the former sense by the decision in Duke of Brunswick v Harmer, 14 Q.B. 185. Dean Prosser has described the rule, which may lead to a multiplicity of suits, as possibly appropriate to 'small communities and limited circulations' but 'potentially disastrous today': see 'Interstate Publication', 51 Michigan L.Rev. 959, 961. In the context of the present case, this discussion is entirely academic. There is no question here of a multiplicity of suits. It is the plaintiffs who are for practical purposes treating the publication as a 'global tort' by calling upon the English court and only the English court to vindicate their reputations.

  61. Lord Hope at p.1026 also observed that it was plain that separate causes of action arose in respect of each copy of the magazine, citing Duke of Brunswick v Harmer. The law of Scotland was to the same effect.

  62. The outcome in Berezovsky was not founded on these observations, indeed Lord Hoffman and Lord Hope formed a dissenting minority. They underline, however, how firmly entrenched the principle in the Duke of Brunswick is in our law. Why do the appellants suggest that that law should be changed? The answer appears from the following passage in their skeleton argument:

    The difficulties which [the multiple publication] rule poses for the new technology of the internet, and in particular for website publication by newspapers of back numbers, are obvious. Above all, every day during which a back number remains on a website potentially gives rise to a new publication of that issue, and therefore a new cause of action, whether by actual accessing of a defamatory article by an internet user, or (as the claimant argued was open to it) by reliance on an inference that someone must have accessed the article. The continuous and indefinite nature of that publication has the consequence that s4A of the Limitation Act 1980 (which provides for a one year limitation period in cases of libel and slander) is rendered nugatory, and that the maintainer of the website is liable to be indefinitely exposed to repeated claims in defamation. If it is accepted that there is a social utility in the technological advances which enable newspapers to provide an internet archive of back numbers which the general public can access immediately and without difficulty or expense, instead of having to buy a back number (if available) or visit a library which maintains a collection of newspaper back numbers, then the law as it had developed to suit traditional hard copy publication is now inimical to modern conditions, and (as has always been the strength of the common law) must evolve to reflect those conditions. As is developed below, it must evolve also to accommodate the requirements of the European Convention and of the Human Rights Act 1998.

  63. How is it that the appellants suggest that the law should evolve? They focus on the provision of s4A of the Limitation Act 1980 that no action shall be brought after the expiration of one year from the date on which the cause of action accrued. They contend that the words italicised should be interpreted to mean the date of the initial publication. The route by which they seek to achieve this is explained in the next paragraph of their skeleton argument as follows:

    The defendant seeks to adapt to an English context the rule known in the US as the 'single publication rule', whereby the distribution of a work involves only one publication, on the date of its first publication in a particular format. Hence, for example, the statute of limitations would start running on a libel in a book on the date of its first publication, even if it continued to be sold for months afterwards. Only one action for damages could be maintained, all damage suffered in all jurisdictions could be recovered in one action, and a judgment on the merits would bar any other actions for damages between the same parties in all jurisdictions. However, if a new edition is published, or a softback edition, or even a re-printing, time starts to run again.

  64. Some time was taken during the appeal in exploring, with the help of American authorities, the nature of the 'single publication rule' in the United States. We take the following clear statement of that rule from the judgment of District Judge Holtzoff sitting in the United States District Court for the District of Columbia in Ogden v Association of the United States Army (1959) 177 FFsupp 498 at 502:

    From the foregoing discussion the conclusion is inescapable that the modern American law of libel has adopted the so-called 'single publication' rule; and, therefore, this principle must be deemed a part of the common law of the District of Columbia. In other words, it is the prevailing American doctrine that the publication of a book, periodical or newspaper containing defamatory matter gives rise to but one cause of action for libel, which accrues at the time of the original publication, and that the statute of limitations runs from that date. It is no longer the law that every sale or delivery of a copy of the publication creates a new cause of action.

  65. While the authorities suggest that the single publication rule was initially introduced to combat the problem of a multiplicity of suits in different States arising out of a single dissemination of a libel, the rule was also justified on the basis that it gave effect to the purpose of limitation provisions as statutes of repose designed 'to spare the courts from litigation of stale claims and the citizen from being put to his defence after memories have faded, witnesses have died or disappeared and evidence has been lost': Chase Securities Corp v Donaldson 325 U.S. 304 at 314. It was for this reason that the Court of Appeal of New York in Gregoire v G.P. Putnam's Sons (1948) 81 N.E.2d 45 at p.48 held that the rule extended to the publication of a book:

    We conclude that the reasons mentioned above, which underlay the purpose of Statutes of Limitations are as compelling when applied to cases involving the modern dissemination of printings or impressions of a book as when applied to cases involving the dissemination of issues of a newspaper or magazine. Otherwise, although a book containing libellous material may have been the product of but one edition or printing 50 years ago, if by sale from stock or by display, a publisher continues to make unsold copies of the single publication available to the public today, such conduct would amount to a re-publication of any libel the book contains and thereby would become actionable. Under such a rule the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the Legislature.

  66. In Berezovsky v Michaels in the Court of Appeal the Appellants sought to persuade the Court to approach the case as if it involved a single global cause of action to be pursued in whatever jurisdiction was the most appropriate. The single publication rule was invoked by way of analogy. This argument was not advanced in the House of Lords and Lord Steyn observed at p.1012 that it was 'contrary to the long established principle of English libel law that each publication is a separate tort'. In the present case the appellants do not suggest that the English courts should apply the single publication rule where a libel has been disseminated in more than one jurisdiction. They contend, however, that the rule should be applied when the issue is one of limitation in relation to an action commenced in this jurisdiction.

  67. The reasons advanced by the appellants for introducing this novel concept into our law are very similar to those adumbrated in the passage from Gregoire which we have cited above. S4A of the Limitation Act 1980 imposes an unusually short limitation period in defamation cases. The object of this is to ensure that defamation claims are initiated promptly. If claims are brought within a year of the initial publication, the appellants will be able to marshal any available defence and data available. Lord Lester argued that these benefits will be defeated if, long after the initial publication, a respondent can base a claim on access by a single person to a copy of the publication in question.

  68. This was always true of documents in an archive or a library, as the Duke of Brunswick case demonstrates. Lord Lester argued, however, that the position was much more acute where archives were provided on a website and thus very much more readily accessible.

  69. Lord Lester accepted that situations could arise where application of the single publication rule in the context of limitation might give rise to injustice. An obvious example is the situation where a respondent does not become aware of the initial publication until over a year has elapsed. Lord Lester submitted, however, that as s32A of the 1980 Act gives the Court a discretion to allow an action to proceed out of time that removes any risk of injustice in such circumstances.

  70. Lord Lester buttressed these arguments by reference to the Human Rights Act 1998 and the Convention. He submitted that to permit defamation actions to be commenced more than a year after the initial publication was a restriction on the writer's freedom of expression enshrined in Article 10 of the Convention. S12 of the Act required the Court to have particular regard to the importance of the Convention right to freedom of expression. To be justified, any curtailment of freedom of expression has to be convincingly established by a compelling countervailing consideration, and the means employed had to be necessary and proportionate to the ends sought to be achieved.

  71. Maintaining an archive of past press publications was a valuable public service. If a newspaper defendant which maintained a website of back numbers was to be indefinitely vulnerable to claims in defamation for years and even decades after the initial hard copy and Internet publication, such a rule was bound to have an effect on the preparedness of the media to maintain such websites, and thus to limit freedom of expression.

  72. In answer to these submissions Mr Browne started by emphasising that the principle in the Duke of Brunswick that every publication of a libel gives rise to a separate cause of action is a well established principle of English law that was recognised by the House of Lords in Berezovsky. He submitted that this principle was not at odds with the Human Rights Convention. Article 10 recognised that the right of freedom of expression could properly be restricted 'for the protection of the reputation or rights of others'. The rule in the Duke of Brunswick was part of the system of English law that balanced the right of freedom of expression against the entitlement to protection of one's reputation. If the appellants were exposed to liability in the second action they had only themselves to blame for persisting in retaining the offending articles on their website without qualifying these in any way.

    OUR CONCLUSION

  73. S.4A of the Limitation Act 1980 provides for a year within which to commence proceedings starting from the date on which the cause of action accrues. The appellants' submissions recognise that if they are to establish that the claims in the second action were time barred they must, when applying s.4A, displace the rule in the Duke of Brunswick and replace it by the American single publication rule. They must also establish that under that rule, placing a publication on their website constitutes a single publication that occurs at the time it is placed on the website regardless of the period during which it remains there. The latter is by no means clear, but it is at least arguable. In our judgment the crucial question in relation to this part of the appeal is whether the appellants have made good their assertion that the rule in the Duke of Brunswick is in conflict with Article 10 of the Human Rights Convention because it has a chilling effect upon the freedom of expression that goes beyond what is necessary and proportionate in a democratic society for the protection of the reputation of others.

  74. We do not accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.

  75. Turning to the appellants' wider argument, it is true that to permit an action to be based on a fresh dissemination of an article published long ago is at odds with some of the reasons for the introduction of a 12 month limitation period for defamation. But the scale of such publication and any resulting damage is likely to be modest compared with that of the original publication. In the present case, as the Judge observed, the action based on the internet publication is subsidiary to the main action.

  76. The change in the law of defamation for which the appellants contend is a radical one. In our judgment they have failed to make out their case that such a change is required. The Internet Single Publication appeal is therefore dismissed.

    THE INTERNET QUALIFIED PRIVILEGE APPEAL

  77. The Judge struck out the defence of qualified privilege in the second action on the ground that he would be bound to hold that the privilege was not available. He gave six reasons for having reached this conclusion, which we shall summarise:

    (i)

    When the appellants published the articles on the internet they knew that they were not in a position to justify them.

    (ii)

    They did not qualify the articles on the internet by stating that they could not justify them or indicating that the respondent challenged them.

    (iii)

    The appellants had accepted that they had no basis for asserting that the respondent was even reasonably suspected of criminal activity and that they simply did not know if such suspicions were justified.

    (iv)

    The first article alleged that the respondent was, or was possibly, involved in the Bank of New York money laundering scandal. This allegation was based on information from a single anonymous source that the respondent was being investigated on that account, not that he had been involved.

    (v)

    The second article was based on information supplied by Mrs Chernoi, but no reliance had been placed upon her in the pleaded claim of qualified privilege.

    (vi)

    Mr Alastair Brett, the appellants' in-house solicitor, had made a statement that could be taken to be definitive as to the appellants' state of mind. That statement contained no assertion on the part of the appellants of any honest belief in the truth of what was published about the respondent.

  78. The reasoning of the judge, as explained in his short extempore judgment, was as follows:

    To succeed in a defence of qualified privilege the defendants had to show that they had been under a duty to publish the articles on the internet. Only in exceptional circumstances can such a duty arise if the publisher has no honest belief in the truth of the matter published. No such special circumstances attended the publications on the internet. Mr Brett had conceded that the defendants had no honest belief in the truth of what they had published. This was fatal to a defence of qualified privilege.

  79. We do not consider that a newspaper that is raising a defence of Reynolds qualified privilege has the onus of establishing an honest belief in the truth of the matter published. Nor do we consider that the Judge was correct to deduce from the fact that Mr Brett made no positive assertion of honest belief that he lacked such belief. For these reasons we have concluded that the primary reason given by the Judge for striking out the qualified privilege defence in the second action was not well founded. It does not, however, follow that he was wrong to strike out the defence. A subsidiary reason given by the Judge for striking out the defence was that the appellants had repeatedly republished on the internet defamatory material that was the subject of a defamation action in which they were not seeking to justify the truth of the allegations without publishing any qualification to draw to the reader's attention the fact that the truth of the articles was hotly contested. The Judge considered that the republication of back numbers of The Times on the internet was made in materially different circumstances from those obtaining at the time of the publication of the original hard copy versions in September and October 1999. We agree. The failure to attach any qualifications to the articles published over the period of a year on The Times' website could not possibly be described as responsible journalism. We do not believe that it can be convincingly argued that the appellants had a Reynolds duty to publish those articles in that way without qualification. It follows that we consider that the Judge was right to strike out the qualified privilege defence in the second action although not for the primary reason that he gave for so doing. For these reasons the Internet Single Publication appeal is also dismissed.

    THE RUSSIAN PUBLICATION APPEAL

  80. This appeal is against the Judge's ruling that damages for the Russian publication of the libels would be recoverable under Russian law. In other words the appellants say that the judge was wrong to rule that the Respondent was able to satisfy the double actionability test so that damages could be recovered for the Russian publication in the first action.

  81. Whether or not the judge was right depends upon a proper understanding of a joint experts' report from Russian lawyers who had been asked to provide the answers to a number of questions. These experts did not give oral evidence and in some respects their report is unclear and apparently contradictory. However, there is no doubt that libel is actionable under Russian civil law. The argument is about remedy. The primary remedy is refutation (apology). But the claimant has the additional right to claim compensation for financial losses and "moral damage" resulting from the publication. Article 151 of the civil code says that:

    If an individual has sustained moral damage (physical or moral suffering) as the result of acts .... infringing upon other non-material benefits belonging to such individual .... the courts may order the Defendant to pay monetary compensation for such damage.

    Non-material benefits include the dignity of the person, honour and good name.

  82. The appellants' argument is that moral damage has to be proved in much the same way as English law requires proof of special damage to found an action for slander. This, they say, is a matter of substantive Russian law and the Respondent has not pleaded or proved any such damage.

  83. The experts' report says that the claimant must prove his claim for moral damage. However, in answer to the question "Does a claimant have to prove actual harm to his reputation and, if so, what loss or harm does he have to prove (In this case the Claimant claims to have suffered injury to his reputation and his feelings)?" the experts said:

    As stated above the claimant does not have to prove actual harm to his reputation or good name, i.e. the claimant does not have to call any witnesses to testify that, in their eyes, the statement published has lowered the claimant's reputation. Russian courts are more actively involved in the proceedings than is the case in common law jurisdictions and more often than not they draw their own conclusions as to the damage inflicted on the claimant's reputation by the defamatory publication.

  84. The judge relied on this last answer in the ruling which he made. However, after referring to other passages in the experts' report he went on to say:

    What the joint report appears to me to be saying is that damages can be recovered for moral harm consisting in injury to the honour, good name and dignity of the claimant. It appears to be agreed that there is no need for third party witnesses to be called to establish such damage. I accept that there may still be a measure of disagreement between the experts as to the manner in which such damage has to be proved, but I consider that (counsel for the respondent) is right when he says that that is a procedural rather than a substantive question and so falls for decision according to the lex fori, namely English law.

  85. Mr. Parkes who argued this appeal for the appellants, submits that the judge failed to appreciate that, unlike English law, Russian law does not presume injury to reputation and feelings as a result of the publication of a libel. We think there is substance in this point. There is, it appears, no right to general damages under Russian law for loss of reputation. If financial compensation is to be awarded it must be for actual physical or financial loss which the claimant has proved, or for moral damage. However, in the light of the experts' report, proof of moral damage cannot be regarded as a matter of substantive law. There is obviously some doubt as to what evidence is required, but, in an earlier report, the Appellants' expert said :

    The claimant must produce evidence as to the physical or moral suffering he endured. The evidentiary standard is far from clear however, and court practice varies widely in this respect. Any damages awarded are intended solely to compensate the Claimant for physical or moral suffering ....

  86. Therefore, it seems to us that as a matter of Russian law, this is a procedural rather than substantive question as the judge held. All matters of procedure are governed by the law of the lex fori, in this case, English law. Furthermore, the respondent in his witness statement says in terms that publication of the two articles made him extremely upset. There is nothing in the experts' report to suggest that a claimant need provide any further proof in order to establish a claim for moral damage. In the course of argument Mr. Browne, QC agreed to limit the respondent's claim for damages in respect of the Russian publication to injury to feelings, so as to make it clear that the respondent was not asking for general damages for injury to his reputation in Russia.

  87. On this basis and for these reasons the Russian Publication appeal is dismissed.

    THE SUMMARY DISPOSAL APPEAL

  88. On 8 February 2001 Gray J dismissed an application by the respondent for trial by judge alone. However, as the trial date approached it became obvious that there would not be enough time to try liability and quantum in the time available before the end of the legal term at Easter. So, on 16 March 2001 the Judge ordered a split trial. The trial on liability started three days later. The jury were empanelled on 26 March after a week of legal argument. It was common ground that this jury could not be retained to deal with quantum if the need arose. The judge entered judgment for the respondent for damages to be assessed in the second action on 27 March and in the first action on 27 April. The respondent then applied for his claim for damages in each action to be summarily disposed of under section 8 of the Defamation Act 1996 and the Judge made an order to this effect on 11 May.

  89. As well as arguing that he had no jurisdiction to make such an order, the appellants said that it would be wrong for the judge to proceed summarily in any event. They wanted the issue of damages to be tried by a jury on oral evidence which, together with legal argument, the judge thought would take at least five days and could probably not be heard until the end of the year. Summary disposal could be done largely, if not exclusively, on paper and would probably last no more than a day or so. Of this state of affairs the judge said:

    If ever there was an issue which calls for expeditious, proportionate and economic disposal it is the issue of damages in this case. In case management terms the advantages of having damages summarily assessed are overwhelming.

    This conclusion is not challenged on appeal. The issue is simply whether the Judge had jurisdiction to make the order which he did on 11 May 2001. It turns entirely upon the proper construction of the statute.

  90. Section 8 of the 1996 Act says :

    (1)

    In defamation proceedings the court may dispose summarily of the plaintiff's claim in accordance with the following provisions.

    (2)

    The court may dismiss the plaintiff's claim if it appears to the court that it has no realistic prospect of success and there is no reason why it should be tried.

    (3)

    The court may give judgment for the plaintiff and grant him summary relief (see section 9) if it appears to the court that there is no defence to the claim which has a realistic prospect of success, and that there is no other reason why the claim should be tried.

    Unless the plaintiff asks for summary relief, the court shall not act under this subsection unless it is satisfied that summary relief will adequately compensate him for the wrong he has suffered.

    (4)

    In considering whether a claim should be tried the court shall have regard to-

    ....

    (c)

    the extent to which there is a conflict of evidence;

    (d)

    the seriousness of the alleged wrong (as regards the content of the statement and the extent of publication); and

    (e)

    whether it is justifiable in the circumstances to proceed to a full trial.

    (5)

    Proceedings under this section shall be heard and determined without a jury.

  91. Section 9 defines summary relief to mean "as may be appropriate" a declaration of falsity, an order that the defendant publish an apology, damages not exceeding 10,000, or an injunction. For the purposes of summary disposal the respondent agreed to limit his damages in each action to 10,000. However, at the hearing before the judge on 11 May counsel made it clear that he would also be asking for an order that the appellants publish an apology.

  92. Section 10 enables rules of court to be made for summary disposal of defamation claims including provisions authorising a party to apply for summary disposal, the court to treat any application as an application for summary disposal or the court of its own notion to make an order for summary disposal "at any stage of the proceedings".

  93. In his judgment on this issue the judge accepted that the wording of section 8 reflected the fact that the summary disposal procedure was primarily designed for the early disposal of small claims at or shortly after their commencement. But he said that section 8 had to be read in conjunction with section 10 and its reference to "at any stage of the proceedings". He concluded:

    I accept that the word "claim" which is to be found in s.8 (1) and elsewhere in the section will often be synonymous with "cause of action", i.e. that it will embrace both liability and damages. But it is, in my judgment, important not to lose sight of the fact that s.8 does not speak of the determination of a claim but, rather, of its "disposal". A claim is not disposed of by the court until both liability and quantum have been decided.

    Bearing in mind the policy of the Act and the wording of s.10, it appears to me that the meaning to be ascribed to the term "claim" where it appears in s.8 is "so much of the plaintiff's claim as remains to be disposed of when the application under s.8 is made".

  94. Mr. Spearman starts by reminding us that any party to a libel action has a constitutional right to trial by jury subject to the limited exception provided by section 69 (1) of the Supreme Court Act 1981. This right can, he says, only be restricted by clear statutory language. He submits that the summary disposal jurisdiction is to be found in section 8 and not section 10 of the 1996 Act and that section 8 is clearly concerned and concerned only with cases in which the court is asked to make a determination before there has been a trial on liability. The jurisdiction is to "dispose of the Plaintiff's claim in accordance with the following provisions". Those provisions make it clear that the claim is not only the cause of action, but also one which is being considered prospectively by the court before a trial on liability has taken place. Thus, there can be no question of assessing the prospects of success of a claim or deciding whether there is any reason for it to be tried after there has been a trial on liability (subsection (2)). Likewise. the court cannot give a judgment or decide whether there is a defence to a claim which has a realistic prospect of success or that there is some other reason why the claim should be tried after liability has been decided (subsection (3)). The judge's construction, Mr. Spearman submits, would produce anomalous results. If a party was able to ask for summary disposal after a trial on liability, he could obtain a declaration of falsity or an apology under section 9 which he could not have got at trial.

  95. Mr. Browne supports the judge's conclusions and relies, as did the judge, on the decision of this court in Burstein v Times Newspapers Ltd [2001] 1 WLR 579. There, the claimant complained of an article accusing him of organising bands of hecklers to wreck performances of modern atonal music. It was conceded that the article was defamatory and at trial the judge struck out the defendant's only defence of fair comment. This meant that the claimant had established liability. The defendants then applied for summary disposal of his claim for damages. The judge refused this application because he thought that 10,000 might not be adequate compensation. The defendant's appeal against this decision was dismissed on the basis that it was within the judge's discretion, but the court clearly proceeded on the basis that an order for summary disposal could have been made after liability had been determined. However, as Mr. Spearman says, there was no argument about jurisdiction so this case is of little assistance

  96. Mr. Spearman is obviously right that the court's jurisdiction to dispose of claims summarily is only to be found in section 8. Section 10 is simply an enabling provision. Subsections (2) and (3) of section 8 are, as the Judge said, primarily directed at the early disposal of small claims before any trial on liability has taken place. But does this mean that the word "claim" is used exclusively in this sense or does it have a wider meaning so as to include so much of the Plaintiff's claim as is still to be determined ? Subsection (1) points to the following subsections to see what the jurisdiction is so one must look at these provisions to see if the word "claim" can be given this wider meaning.

  97. As to subsection (2) a court can obviously assess a claimant's prospects of success after a trial on liability or rulings which effectively dispose of the defence, albeit the task is a simple one. Likewise the court can consider whether there is any reason why a claim for damages should be tried (as opposed to summary disposal) after liability has been determined. As to subsection (3) on an application for summary disposal of a quantum claim the court can give judgment on that claim and grant summary relief. It might have to consider a causation or remoteness defence. Obviously there is no difficulty in giving the wider meaning to "claim" as it is used in subsection (4). For these reasons we think that "claim" in section 8 is capable of bearing the wider meaning.

  98. The question then is was it Parliament's intention that it should have this wider meaning ? We think it was. The section could obviously have been more clearly drafted, but its purpose was to establish a procedure for dealing with small claims in a time and cost effective way. We can see no reason in principle why Parliament should have limited the jurisdiction in the way the appellants contend. If it is appropriate to have a summary procedure for disposing of issues of liability and quantum there is no reason why that procedure should not also be available in a suitable case for disposing of quantum alone once liability has been determined or admitted. The statute does not expressly limit the jurisdiction in this way and giving its language a purposive construction we do not think it was intended to do so. After all, as the judge said, a claim is not disposed of by the court until both liability and quantum have been decided.

  99. Summary disposal does of course give the claimant a right to ask for a declaration of falsity and an order that the defendant should publish an apology. Such remedies are not available ordinarily, so, in this case, the respondent would not be able to obtain an order for an apology if his claim for damages was not disposed of summarily. This is an anomaly but it is an anomaly which applies to any summary disposal at whatever stage this takes place. The defendant's position however will always be protected by the fact that the judge has a discretion as to whether to make such an order.

  100. In this case there must be a strong suspicion that one of the reasons the respondent applied for summary disposal was to enable him to ask the court to order the appellants to publish an apology. The judge does not refer to this in his judgment and nothing he said indicates that he would be prepared to make such an order. In these circumstances and while the appellants honestly maintain their belief in the truth of what they have published, we do not think there is any prospect of the judge ordering them to publish an apology if and when he summarily disposes of the respondent's claims.

  101. For these reasons we dismiss the Summary Disposal appeal.

    CONCLUSION

  102. The First Action Liability appeal is allowed to the extent that the case will be remitted to Gray J. to enable him to reconsider the appellants' claim to qualified privilege in the light of this judgment. All the other appeals are dismissed.


Cases

Reynolds v Times Newspapers Ltd [2001] 2 AC 127; Loutchansky v Times Newspapers Ltd (No. 4) [2001] EMLR 898; Loutchansky v Times Newspapers Ltd [2001] 3 WLR 404; Duke of Brunswick v Harmer (1849) 14 QB 154; Berezovsky v Forbes [2000] 1 WLR 1004; Al-Fagih v H.H. Saudi Research & Marketing (UK) Ltd (unreported, 5 November 2001); Lange v Atkinson [2000] 8 BHRC 500; Lange v Atkinson [2001] NZLR 257; Toogood v Spyring (1834) 1 CM & R 181; Stuart v Bell (1891) 2QB 341; Adam v Ward [1917] AC 309; Blackshaw v Lord [1984] QB 1; McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277; GKR Karate (UK) Ltd v Yorkshire Post Ltd [2000] 1 WLR 2571; Horrocks v Lowe [1975] AC 135; James v Baird [1916] SC (HL) 158; Lukowiak v Unidad Editoriale SA (unreported, 6 July 2001); Baldwin v Rusbridger [2001] AllER (D) 106; Godfrey v Demon Internet Ltd [2001] QB 201; Berezovsky v Michaels [2000] 1 WLR 1004; Ogden v Association of the United States Army (1959) 177 FFsupp 498; Chase Securities Corp v Donaldson 325 U.S. 304; Gregoire v G.P. Putnam's Sons (1948) 81 N.E.2d 45; Burstein v Times Newspapers Ltd [2001] 1 WLR 579

Legislations

Limitation Act 1980: s.4A, s.32A

Defamation Act 1996: s.8

Authors and other references

Gatley on Libel and Slander (9th Edn)

Representations

Mr Desmond Browne QC & Mr Hugh Tomlinson for the Respondent (instructed by Olswang) 

Lord Lester of Herne Hill QC, Mr Richard Spearman QC, Mr Richard Parkes & Mr Brian Kennelly for the Appellants (instructed by Reynolds Porter and Chamberlain)


all rights reserved