England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MORISON)

		Royal Courts of Justice The Strand London
		28 July 1995

1. LORD JUSTICE HIRST: The court has heard successively two appeals in this action in which the plaintiff, Mr Nigel Watts, who is an author and who is hereinafter invariably referred to as "the plaintiff", claims damages for libel in respect of three publications in the Sunday Times against its publishers Times Newspapers Ltd (TNL), its then editor Mr Andrew Neil (the second defendant) and in respect of one of the three publications Mr Richard Palmer (the third defendant). The publications are:

(1) A diary item in the Sunday Times dated 16 April 1992 which referred to "An Extraordinary Series of Coincidences" between the plaintiff's novel "The Life Game" and an autobiographical novel by Ann Hemming entitled "To Hell or to Connaught". "The Life Game" had previously been awarded the Betty Trask Literary Award.

(2) A longer article of which the third defendant was the author, published in the Sunday Times on 3 May 1992, which developed the theme of the diary entry under the heading "Fiction prize winner is accused of plagiarism". Unfortunately this article was accompanied by a photograph of a different Mr Nigel Watts who is a property developer and who is hereinafter invariably referred to as "Mr Watts". It is from this mistake that all the subsequent trouble has stemmed.

(3) The critical publication so far as the present proceedings are concerned, namely an apology published in the Sunday Times dated 14 June 1992 in the following terms:

"Nigel Watts

Our article (May 3) about the remarkable similarities between Mr Nigel Watts' novel 'The Life Game' and an unpublished novel by Ann Henning was accompanied by a photograph of a different Nigel Watts (above), a property consultant of Tunbridge Wells, Kent, thus suggesting that he had plagiarised the novel and dishonestly won the Betty Trask Literary Award. We accept that this is without foundation and apologise to him and his family for any distress or embarrassment this error may have caused."

2. On 17 May 1992, in between publications Nos. 2 and 3, the defendants published a letter from the plaintiff denying plagiarism and describing in detail the significant dates of the first draft and of the subsequent composition of his own novel.
3. Following publication No. 2 Mr Nigel Watts, through his solicitors Messrs Schilling and Lom (hereinafter called "S & L"), complained by letter dated 11 June 1992 that he had been defamed thereby and required publication of an apology in terms to be agreed as part of an overall settlement of his claim, including also a payment of agreed damages and costs. On 12 June TNL replied and offered a draft apology in the following terms:

"Nigel Watts

Our article (May 3) about the remarkable similarities between Nigel Watts' novel 'The Life Game' and Ann Henning's unpublished novel 'To Hell or to Connaught' was accompanied by a photograph of Nigel Watts, the property developer. We apologise to that Nigel Watts and his family for any distress or embarrassment this error may have caused."

4. This first draft was rejected by S & L who submitted a redraft, inserting after the first sentence the words "The article together with the photograph alleged that Mr Watts had plagiarised the novel and as a result had dishonestly won the Betty Trask Literary Award." TNL accepted this insertion, subject to the slight syntactical amendment as shown in the final published version.
5. The plaintiff's present proceedings were begun by a writ issued on 29 September 1992. By their defence the Sunday Times contend inter alia that the apology is protected by qualified privilege. This was considered as a preliminary issue by Morison J who, on 21 December 1993, ruled against the defendants and held that the apology was not so protected. This forms the subject matter of the first appeal which is brought by the defendants with the leave of Morison J himself.
6. Meanwhile, by a Third Party Notice dated 2 December 1992, the defendants joined S & L as third parties, claiming from them contribution on the ground that S & L were jointly and severally liable for the publication of the apology, having regard to the part they had played in drafting it. By summons dated 14 January 1993 S & L applied for an order that the third party proceedings should be dismissed pursuant to Order 18, r19(1) and/or under the inherent jurisdiction of the court. This application came before Tucker J on 18 March 1993 and was dismissed. This forms the subject matter of the second appeal which is bought by S & L with the leave of the single Lord Justice.
7. The grounds of S & L's appeal, so far as presently relevant, are that they were not responsible for the publication of the apology and therefore not joint tortfeasors and that their publication was in any event protected by qualified privilege.
8. Since qualified privilege is raised in both appeals it is convenient to consider it comprehensively. I shall defer until later in the judgment consideration of the joint tortfeasor issue.
9. The defendants' plea of qualified privilege in paragraph 11 of their defence is in the following terms:

"(1) The second publication was accompanied by a photograph of an individual described as the plaintiff. In fact, the photograph was of another individual, also called Nigel Watts (Mr Watts). On 5 May 1992 a letter of apology was sent to Mr Watts by the Deputy Picture Editor of the Sunday Times.

(2) On Thursday 11 June 1992 Schilling and Lom, a firm of solicitors acting on the instructions of Mr Watts, faxed a letter before action to the second defendants seeking inter alia the publication of an apology and damages for libel.

(3) The following day 12 June the defendants' in-house solicitor, Patricia Burge, faxed a letter to Schilling and Lom offering to publish an apology in the following terms."

10. That is then also quoted.

"Ms Burge's letter also made it clear that if the apology was to appear in the following Sunday's newspaper the final wording of the apology would have to be agreed by close of business that very day.

(4) Schilling and Lom duly responded with a faxed letter accompanied by a redrafted apology in the following terms."

11. That is then also quoted.

"(5) In response Ms Burge sent a further fax to Schilling and Lom that afternoon containing a slightly shorter version of their redrafted apology. When no reply was received a further fax was sent to sent to Schilling and Lom at 4.45 p.m. that afternoon. Schilling and Lom responded by a telephone call, the substance of which was confirmed by fax, agreeing to the publication of Ms Burge's revised version of Schilling and Lom's redrafted apology.

(6) The defendant's revised version of Schilling and Lom's redrafted apology was duly published in that Sunday's edition of the newspaper, the third publication. As is apparent from its terms the third publication comprises an apology couched substantially in the specific terms required by Schilling and Lom as a prerequisite of any settlement of Mr Watts' claim. In the event no proceeding were issued by Mr Watts. Moreover the defendants were able to dispose of the matter on payment of a modest sum in damages and costs.

(7) In the premises the defendants published the said apology in good faith and in pursuance of their legal and/or social and/or moral duty to apologise to Mr Watts, the readers of the Sunday Times having a corresponding interest in reading such an apology."

12. S & L, who have of course not pleaded to the Third Party Notice, allege that a solicitor acting to vindicate his client's reputation from public attack is, like his client, protected by qualified privilege.
13. The general principle on which common law qualified privilege is founded is the public interest frequently expressed as "The common convenience and welfare of society" or "The general interest of society" (MacIntosh v Dunn [1908] AC 390). The first classic exposition of this doctrine is to be found in the judgment of Parke B in Toogood v Spyring [1834] 1 CM & R 181 at page 193. Baron Parke held that a defamatory publication will be protected by common law privilege in cases where:

".... the occasion of the publication affords a defence in the absence of express malice. In general, an action lies for the malicious publication of statements which are false in fact and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious unless it is fairly made by a person in 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 of 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 narrowly limits ....

The business of life could not well be carried on if such restraints were imposed upon this and similar communications, and if, on every occasion in which they were made they were not protected unless strictly private."

14. In Adam v Ward [1917] AC 309, at page 334, Lord Atkinson stated the test as follows:

"It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a 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. Nor is it disputed that a privileged communication -- a phrase often used loosely to describe a privileged occasion and vice versa -- is a communication made upon an occasion which rebuts the prima facie presumption of malice arising from a false and defamatory statement prejudicial to the character of the plaintiff, and puts the latter to proof that there was malice in fact."

15. In Horrocks v Lowe [1975] AC 135 Lord Diplock, in a speech with which Lords Wilberforce, Hodson and Kilbrandon all agreed, stated as follows:

".... as a general rule English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomever he has defamed, except where publication is oral only, causes no damage and falls outside the categories of slander actionable per se. The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated as a competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit -- the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege."

16. The categories of common law privilege are not closed. Where the court has to consider whether a particular occasion is privileged, it is necessary to take into account "every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained," (London Association for Protection of Trade v Greenlands [1916] AC 15 at page 23, per Lord Buckmaster LC).
17. One circumstance, of particular importance in the present case, where it has been recognised that such a duty or interest exists, is where the defamatory statement is made in order to rebut or defend oneself against a defamatory attack. A classic instance of such a case is that of Adam v Ward (supra). In that case the plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing the charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the defendant, to write a letter to General Scobell, which was released to the press, vindicating him and containing defamatory statements about the plaintiff. This letter was held to be protected by qualified privilege. Lord Loreburn stated at page 320:

"I understand the law to be as follows: It is for the judge alone to rule whether or not there is an occasion of privilege, and the rule on that subject was laid down many years ago in the case of Toogood v Spyring. Subsequent decisions have illustrated the rule, but the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. To say that foreign matter will not be protected is another way of saying the same thing."

18. At page 339 Lord Atkinson stated:

"These authorities (and he cited the main previous authorities) in my view clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true or necessary for the purpose of his vindication, though in fact it was not so."

19. Lord Shaw of Dunfermline stated at page 348:

"Privileged, however, as the occasion might be, it was contended that the communication went beyond the occasion and so was not protected by privilege. I humbly think that this is a more correct way of stating the proposition than is usually adopted. Privilege is a term which is applied in a two senses. There is a privileged occasion, and there is also said to be a privileged communication. The former expression is correct; the latter, strictly viewed, tends to error. What is meant with regard to a privileged occasion is that it was protected as being within the scope of the privilege attaching to the occasion. The occasion is privileged, the communication is protected.

If, accordingly, and in so far as the communication deals with matter not in any reasonable sense germane to the subject-matter of the occasion, the protection is gone: the occasion with its privilege does not reach a communication upon this foreign and totally unconnected matter."

20. This principle was epitomised by Lord Diplock in Horrocks v Lowe (supra) at page 151 as follows:

"The exception is where what is published incorporates defamatory matter that is not really necessary to fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it may be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them so to do. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded."

21. Where the original defamation has been published in the national media the same readers or listeners will generally have a sufficient reciprocal interest to receive the refutation by the person defamed (Laughton v Bishop of Soder and Man [1872] LR 4 PC 495. The question whether the occasion of the publication is privileged is a question of law for the judge. Qualified privilege once established provides a complete defence unless the plaintiff can plead and prove express malice.
22. It is these general principles which we now have to apply in the present case. The problem, of course, only arises when the apology is itself defamatory. As a general rule that means defamatory of a person other than the victim or alleged victim of the original libel.
23. Neither side has been able to find any English case where it has been held that an apology as such is protected by qualified privilege. In at least two decided cases this would have been an obvious defence if it was available, viz Douglas v Kelly's Directories (Times 15 July 1926) and Tracy v Kemsley Newspapers (Times 9 April 1954). I recognise at once, as did Mr Andrew Caldecott QC for the plaintiff, that this is by no means conclusive, since the common law has always adapted itself to new and previously unconsidered situations. As Lord Buckmaster observed in the same passage as that which I quoted above in the Greenlands' case:

"New arrangements of business, even new habits of life, may create unexpected combinations of circumstances which, although they differ from well-known instances of privileged occasions, may nonetheless fall within the plain yet flexible (definition of qualified privilege)."

24. However, in such a well-trodden field as apologies, one might perhaps have expected to find some precedent if the protection of qualified privilege applies.
25. In the current edition of Gatley on Libel and Slander the following statement appears at paragraph 1174 and footnote 20:

"An apology for the publication of defamatory words often explains how they came to be published, even though they were not true; the purpose is to preserve the reputation of the person defamed and the publisher. The publisher should take care in such circumstances not to defame a third party, though the occasion of a proper apology is arguably privileged."

26. Footnote 20 reads:

"There seems to be no authority on this point. The person defamed would have been privileged to reply to the attack and it is arguable that the publisher of untrue defamatory matter has a duty to correct it. Nevertheless the courts might be reluctant to recognise for these purposes a duty created by one's own act."

27. However, Mr Gray QC for the defendants drew our attention to two very recent overseas decisions at first instance, where the point was considered and to which I shall shortly refer.
28. It is also important to note the mechanism provided by Order 82, r5 for the making of apologies by means of a statement in open court, which is protected by absolute privilege, but was not resorted to in the present case. This rule states as follows:

"(1) Where a party wishes to accept money paid into court in satisfaction of a cause of action for libel or slander or malicious prosecution or false imprisonment, that party may before or after accepting the money apply to a judge in chambers by summons for leave to make in open court a statement in terms approved by the judge.

(2) Where a party to an action for libel or slander, malicious prosecution or false imprisonment which is settled before trial, desires to make a statement in open court an application must be made to the court for an order that the action be set down for trial and before the date fixed for the trial the statement must be submitted for the approval of the judge before whom it is to be made.

...."

29. One important feature of this procedure is that the statement must be approved by the judge in chambers before it can be made. Similar provisions have been contained in the Rules of Court for at least the past 75 years (see Gatley paragraph 1179).
30. The two very recent cases cited by Mr Gray are Perry v The Advertiser Newspaper Ltd [1994] 1 AMLR 66 and Overseas Chinese Banking Corporation v Wright [1994] 3 SLR 760. In the former case, a decision at first instance in the District Court of South Australia, the very abbreviated report shows that in an obiter dictum the judge held that an apology was privileged in the circumstances of that case. But since no reasons are quoted Mr Gray rightly places little reliance on it.
31. On the other hand, in the Singapore case ("OCBC"), which is a decision of Chao Hick Tin J at first instance, a much more detailed and helpful analysis is given on which Mr Gray relies. In that case the plaintiff, Mr Wright, was the author of a letter published in the Business Times which defamed the Overseas Chinese Banking Corporation. As a result the bank wrote to the Business Times demanding an apology, which they published. Mr Wright then sued both the bank and the Business Times for libel on the apology.
32. The ratio of the learned judge's decision was that the apology was not defamatory of Mr Wright and consequently his observations on qualified privilege, to which I am about to refer, were obiter. Having cited Adam v Ward and held, rightly in my view, that it was directly in point on the facts before him, (Mr Wright being the original attacker), he stated at page 785:

"In the circumstances of the present case, having regard to the letter of Mr Wright which was published in the BT (Business Times)...., there was clearly a duty, at least moral if not legal, for BT to make the statement in the apology to correct what it felt was an unwarranted attack by Wright on OCBC. Applying the criteria I have set out above, I am of the opinion that the publication of the apology was on an occasion of qualified privilege. The readers have read the attack on OCBC and they certainly have an interest to read the correction. Of course the defence of qualified privilege could be negatived by malice, but by no stretch of the imagination can one seriously allege there was any malice in OCBC causing the publication of or in BT having published the apology.

I agree that the position might be different if BT, having entirely on its own volition published a libel on OCBC, then sought to make a correction wherein it defamed a third party. I can see that in such a situation the court should perhaps be slow to recognise that there is such a duty as to create an occasion of qualified privilege."

33. It is noteworthy that the present case falls into the category mentioned in the last paragraph.
34. At the outset of his argument Mr Gray made it clear that he was not seeking to establish a generic privilege for apologies, but rather to demonstrate that in the particular circumstances of this case this publication was protected by qualified privilege. The circumstances on which he particularly relied were as follows:

(A) The mistaken use of Mr Watts' photograph in the second article was an obvious and indefensible libel on him.

(B) Mr Watts' requirements as to the refutation, which were set out in S & L's letter of complaint and in the terms of the apology finally published, including S & L's added words, were rightly, or at least not unreasonably, regarded by S & L on behalf of their client as necessary to vindicate his reputation.

(C) If Mr Watts was entitled to the protection of privilege for his refutation of the libel on him, it must follow that the defendants had a similar derivative privilege, otherwise Mr Watts would be denied access to the newspaper's readership and so to an effective means of self-defence. In other words, if the occasion of the publication of reputation by Mr Watts or by S & L on Mr Watts' behalf is privileged, the same must be true of the occasion of the publication by the defendants.

(D) Mr Watts was under a duty to mitigate his damage by seeking an apology and a similar duty rested on the defendants to enable him to mitigate his loss by publishing it.

(E) The reason of public interest why privilege should protect such apologies is that where an unlawful act has taken place, the public good requires that a complaint in respect of such unlawful conduct should if possible be disposed of without recourse to litigation.

35. The basis on which the defendants claim privilege was, he stressed, a cumulative one built up on three grounds:

1. The starting point was that Mr Watts had a right to reply to, and to refute, false imputations against him which followed from the mistaken use of his photograph. Consequently, Mr Watts had the right of recourse to the defendants which was indicative of a derivative privilege for the newspaper founded on Mr Watts' right to vindicate his reputation, which would be worthless if the newspaper did not make available their columns for reply. In the circumstances the newspaper had a duty, or at least a legitimate interest to publish Mr Watts' reply to its readers.

2. Furthermore, the newspaper, having been responsible, albeit by a bona fide mistake, for the attack on Mr Watts, were under their own independent duty to right the wrong inadvertently done to Mr Watts, as illustrated by the code of the Press Complaints Commission (PCC), which prescribes

that newspapers and periodicals, whenever it is recognised that a significant inaccuracy, misleading statement or distorted report has been published, should correct it promptly and with due prominence.

3. In addition to these public duties or interests there was a legitimate private interest on the part of the newspaper in publishing the apology, namely the compromise of threatened litigation and a reduction in the newspaper's exposure to damages.

36. He submitted that the approach of the court should be liberal and that in assessing the matter the court should tilt towards the defendants' viewpoint, relying on a dictum of Kay LJ in Stuart v Bell [1890] 2 QB 341 at page 359, where it was stated that ".... the true mode of judging upon the question is to put oneself as much as possible in the position of the defendant."
37. Once the privilege was established, he submitted, the case fell within the ambit of Adam v Ward, and seeing that the offending words referring to plaintiff could not possibly be regarded as foreign and irrelevant to the subject matter, their inclusion did not destroy the privilege.
38. Mr Caldecott, on behalf of the plaintiff, submitted that there was a fundamental question to be answered, namely whether there was, in fact, any need whatsoever to speak in defamatory terms at all of a third party when publishing an apology other than in very exceptional cases. He submitted that the key lay in the last sentence of the first passage quoted above from Lord Diplock's judgment in Horrocks v Lowe at page 149, namely that for some special reason the occasion must justify the publication of the defamatory material, so that if there is no special need to publish the defamatory material there is no qualified privilege.
39. In the present case, where there was an accidental reference to Mr Watts by publication of the wrong photograph, an anodyne apology along the lines of the defendants' original draft, containing a withdrawal of the accidental connection, would have removed the whole sting of the libel, so that there was no need to set out the original charge.
40. In answer to Mr Gray's reliance on Adam v Ward Mr Caldecott submitted that there was a fundamental difference between, on the one hand, that case where the basis of the privilege was the right of the victim of the original attack to rebut it in defence of his own reputation (with ample scope to defend himself if necessary by a counter-attack on his accuser, so long as he did not include wholly unconnected and extraneous matter); and, on the other hand, a case such as the present, where the publisher of a libel wished to withdraw the accusation by means of an apology and where a mere withdrawal will suffice and there is no need for a counter-attack. He submitted in the present case that Mr Watts fell into the former class, whereas the defendants fell into the latter.
41. Dealing with the three formulations of the privilege propounded by Mr Gray, Mr Caldecott submitted:

(1) There could be no derivative privilege, seeing that the right to rebut, on which Mr Watts and S & L relied, did not apply to the defendants, so that the considerable degree of latitude allowed to Mr Watts and S & L was not available to the newspaper, who were in an entirely different position as the perpetrators of the original libel and who had no reputation to defend or slur to rebut.

(2) It followed by similar reasoning that the newspaper did not have an independent duty to publish the defamatory material concerning the plaintiff in the apology.

(3) So far as the alleged private interest was concerned, the commercial considerations relied upon by the defendants could not properly be invoked when they were the authors of the original wrong (see the passage in Gatley quoted above and in particular the case of Griffiths v Lewis [1845] 14 LJ QB 197, which is there cited, and where it was held that the original publisher of a defamatory statement had no privilege to repeat it when asked for an explanation.

42. Mr Caldecott also submitted that there was no reciprocity in relation to this alleged private interest, since the only interest of the readers of the Sunday Times was to see the matter put right. At the end of the day, he submitted, the court had to balance the rival considerations and on any view here the benefit to the newspaper of slightly reducing its financial exposure was far outweighed by the gravity of the injury to the plaintiff.
43. Mr Caldecott also relied on some more general considerations of policy to which I shall refer later in this judgment.
44. Mr Desmond Browne QC, on behalf of S & L, submitted, as is now common ground, that S & L stood in the shoes of Mr Watts, since they had a professional duty to protect the interests of their client by doing the best they could in support of his cause (Baker v Carrick [1894] 1 QB 838; Boxsius v Goblet Freres [1894] 1 QB 842); otherwise he adopted Mr Caldecott's argument and in particular he submitted that S & L's case fell within the principles laid down in Adam v Ward entitling them to considerable latitude, provided they did not include wholly extraneous and unconnected matter.
45. When Mr Gray came to reply to Mr Browne's submission he had perforce to adopt a somewhat Janus-like posture, which Mr Browne submitted was impermissible, wrongly, in my judgment, since the rule against approbation and reprobation only arises where the party concerned has made a firm election in favour of one course of action, which does not apply at the present stage of these proceedings (Express Newspapers v News (UK) Ltd [1990] 1 WLR 520).
46. Mr Gray repeated his earlier argument mutatis mutandis and submitted that in any event he had a complete answer, in that the occasion which gave rise to the privilege was one and indivisible, so that the defendants and S & L must stand or fall together. In other words, either the occasion was privileged, in which case both were protected, or it was not, in which case neither was protected.
47. In considering these arguments I shall first address this last point which is of great importance since it lies at the very root of both Mr Caldecott's and Mr Browne's arguments that the position of the newspaper and S & L respectively must be considered quite separately. Mr Gray is correct in saying that throughout the history of the development of the doctrine the protection has always been described as arising where "the occasion of the publication affords a defence in the absence of express malice" (Toogood v Spyring (supra)). On the other hand, no authority has been cited that the occasion must be regarded as a single and indivisible one where two or more defendants are involved. Where all the defendants share the same circumstances and origin for the publication (e.g. newspaper, editor and journalist), no difficulty arises. However, where there are, as here, two parties with very different circumstances and very different origins of their respective publications, it would in my judgment be impossible to do justice, or to meet the general interest of society as a whole, if they were not entitled to separate consideration. This seems to me to be borne out by the speech of Lord Atkinson in Adam v Ward at page 334, which I have already quoted but which I repeat again, this time with emphasis added:

"It was not disputed in this case on either side that a privileged occasion is in reference to qualified privilege an occasion where the person who makes a communication has an interest or a duty ...."

48. The same wording is to be found as far back as Toogood v Spyring which, as already noted, is the fons et origo of this branch of the law, where Baron Parke said: ".... unless it is fairly made by a person in the discharge of some public or private duty ...."
49. In my judgment the word "occasion" connotes the origin and circumstances of the publication of each individual defendant or third party, which Greenlands' case obliges the court to take into account, and that in carrying through this exercise the position of each individual person involved in the publication requires separate consideration. The facts of the present case are a vivid illustration of the injustice which would follow if the position were otherwise. For these reasons I reject Mr Gray's submission on this important point and proceed to give separate consideration to the positions of the defendants and the third party respectively.
50. So far as the defendants are concerned, the following circumstances associated with the origins and publication of the apology by them are, in my judgment, relevant in addition to those cited by Mr Gray under (A) to (E) inclusive above, continuing the same numbering:

(F) The defendants themselves were entirely responsible for the accidental though negligent publication of the wrong photograph which constituted the libel on Mr Watts and gave rise to the need for an apology.

(G) They had already libelled the plaintiff twice and had published his letter refuting the accusation.

(H) They themselves were not replying to an earlier attack on them.

(I) Although they had no doubt a legitimate private commercial interest in reducing the damages, the financial implications were extremely modest for a national newspaper.

51. In my judgment these circumstances collectively, including those particularly that are relied upon by Mr Gray, must be viewed in the round and I do not accept that the defendants' angle, important though it is, should be given any special preference.
52. The duty to mitigate argument I find unconvincing since this duty only extends to the taking of reasonable steps to mitigate, thus begging the question whether from the newspaper's point of view the insertion of the offending words was reasonable. Nothing in the PCC's code requires more than a suitably prominent correction.
53. The OCBC case in my judgment tells against Mr Gray's argument in view of the contrast drawn in the two paragraphs quoted above, with the present defendants falling into the second class.
54. Having regard to all the relevant circumstances, I am satisfied for the reasons fully developed by Mr Caldecott as recorded above, which I accept and which are closely in line with the reasoning of the learned judge, that Mr Gray's case cannot succeed on any of its three grounds, which I shall consider separately:

(1) So far as derivative privilege is concerned the defendants' case fails in limine since in contrast to Mr Watts they were not rebutting an attack upon themselves and therefore fell outside the Adam v Ward class. It is not open to them to invoke a doctrine which depends on circumstances which they as the perpetrators of the libel did not share. There is no proper reason in my judgment for equating the culprit and the victim.

(2) So far as the alleged separate duty is concerned there was in my judgment no need for the defendants to do any more than publish a retraction in the terms which they originally offered and which they themselves clearly regarded at the time (in my judgment rightly) as adequate when they offered it, and which was wholly innocuous vis-a-vis the plaintiff. There was no need from their point of view, or indeed objectively, to embellish the apology by inserting the attack on the plaintiff in a way which undermined his letter of refutation which they had so recently published.

(3) I am satisfied that their very modest commercial interest does not suffice as a foundation for protection on a number of grounds: first, there is no reciprocity with the readers for the reasons given by Mr Caldecott; secondly, I do not think this can properly be invoked where, as here, the problem stems from their own original wrong; thirdly, on carrying out a balancing exercise, which Mr Gray accepts is appropriate, this interest is far outweighed by the damage caused to the plaintiff by an apology in this form.

55. Applying the test laid down in Greenlands it follows that I am not satisfied that, having regard to the origin and circumstances of the publication of this apology, the necessary conditions are satisfied by which protection should be obtained. Put another way, based on Toogood v Spyring, I do not think that so far as the defendants are concerned this apology with these inserted defamatory words was fairly warranted by any reasonable occasion or exigency.
56. This conclusion is reinforced by two more general considerations advanced by Mr Caldecott. First, the mechanism of a statement in open court was readily available with its valuable built-in safeguard for third parties that the statement must be approved by the judge before it is read out in court. Mr Gray submits that in the present case this would have involved undue expense. It is also true that under the present rules the procedure is only available when all other aspects, including damages, have been agreed. But in my experience practitioners have always regarded this as the appropriate procedure when the interests of third parties are involved. This very problem arose in the case of Barnet v Crozier [1987] 1 WLR 272 where the merits of this particular procedure were described by Ralph Gibson LJ at page 276. In approving the statement he observed at page 282:

"The statement itself has been drafted with care to avoid any unnecessary reference to or imputation against the first defendant (who objected to the statement). The plaintiff and the second defendants have agreed further minor changes in the course of argument which have marginally improved it.... The court should be vigilant to see that the benefit of the procedure of making a statement in open court is not used to the unfair disadvantage of a third party. There will, no doubt, be cases in which, on balancing the interest of all the parties where one or more defendants continue in the action after a settlement by plaintiff with one or more of them, the court will conclude that the facts are such that the making of a statement must be postponed until after the trial of the remaining issues. The judge held that this was not such a case and, for my part, I must agree with him."

57. Furthermore, Mr Caldecott informed us that on more than one occasion the judge in chambers, either of his own motion or at the request of the third party, has heard representations from a third party before approving a statement. In the very sensitive circumstances of the present case, so far as the plaintiff was concerned, in my judgment a statement in open court would undoubtedly have been the appropriate medium for an apology, with the opportunity for an independent scrutiny by the judge of the draft, including in particular of the words attacking the plaintiff in the manner described by Ralph Gibson LJ in Barnet v Crozier in the passage just quoted above.
58. Secondly, by section 7 and the schedule to the Defamation Act 1952 newspapers and other media are accorded a statutory qualified privilege in relation to certain defined categories of information. In Blackshaw v Lord [1984] 1 QB 1 it was observed obiter by this court that the extension of common law qualified privilege to newspapers in circumstances outside the ambit of the 1952 Act categories should be approached with considerable caution (per Stephenson LJ at page 25, with whom Dunn LJ agreed). Although, as Mr Gray rightly pointed out, the circumstances of the publication in Blackshaw were closely analogous to, but not strictly within, one of the statutory categories, the note of caution sounded in that case is, in my judgment, generally sound in principle. For my part I would be most reluctant to sanction this new category of common law qualified privilege, which might apply in so many different circumstances, without clear evidence of a pressing need for such an extension in the public interest. As Morison J pointed out, no such need has been demonstrated in the present case. Furthermore, neither the Porter Committee (whose report preceded the Defamation Act 1952) nor the Faulks Committee (1975 CMD 5909), both of which considered in detail the topic of qualified privilege, made any recommendation to this effect. So far as the latter Committee is concerned, to the best of my recollection as a member of the Committee, none of the many witnesses (including several from the media) who gave evidence ever suggested that apologies should be protected.
59. Finally, I should note briefly that Mr Gray in his skeleton argument suggested that the placing of the onus of proof on the defendant in establishing qualified privilege offended against the provisions of Article 10 of the Convention on Human Rights which the House of Lords has held to be co-extensive with the English law of freedom of expression (Derbyshire CC v Times Newspapers Ltd [1993] AC 534 per Lord Keith of Kinkel at page 550). However, he did not press the point strongly and I do not consider that the incidence of the burden of proof in the context of qualified privilege is an infringement of that freedom.
60. For all these reasons I would dismiss the defendants' appeal. I now turn to the third party proceedings in which it is first necessary to consider a point which I have not so far addressed, namely whether Mr Watts, and therefore also S & L as his solicitors, were joint tortfeasors with the defendants. The test is very well established. Gatley states at paragraph 236 that

"Liability for a publication arises from participation or authorisation. Thus, where a libel is published in a newspaper or book, everyone who has taken part in publishing it, or in procuring its publication, or has submitted material published in it, is prima facie liable."

61. In Duncan and Neill on Defamation, 2nd Edition, the test is stated as follows at paragraphs 8.12 and 8.14:

"Every person who takes part in the publication of defamatory matter is prima facie liable in respect of that publication....

In certain circumstances the publisher of defamatory matter may be liable not only in respect of the original publication but also in respect of the republication of such matter made by someone else. These circumstances can be considered under the following headings:

(a) where the defendant authorised or secured the repetition;

...."

62. Mr Gray submits that S & L's role on behalf of Mr Watts in first demanding an apology and then in particular requiring the insertion of the offending words clearly met this test.
63. Mr Browne, on the other hand, submits that since the final decision whether or not to publish rested with the editor, as is common ground, and since the apology by its very nature was addressed to the person defamed, it must be the sole responsibility of the party apologising, namely the newspaper. I am unable to accept this submission. It seems to me plain almost beyond argument that Mr Watts, and therefore S & L, fell within the established test and were therefore joint tortfeasors.
64. However, the position of Mr Watts, and therefore S & L, on qualified privilege is entirely distinguishable from that of the defendants, for reasons already extensively canvassed earlier in this judgment. Mr Watts was the victim of the attack and therefore falls fair and square in the Adam v Ward category of case, giving him a right to reply in order to rebut the accusation against him and to do so with a considerable degree of latitude, so long as he did not overstep the bounds and include entirely irrelevant and extraneous material. The offending words inserted on his behalf, even though in my judgment unnecessary for the reasons already given, clearly fell within these bounds since they were not unconnected with the theme. These being the circumstances associated with the origin and publication of the defamatory matter by S & L, I have no doubt, applying the Greenlands' test, that in their case the necessary conditions are satisfied by which the protection of qualified privilege should be obtained by S & L as Mr Watts' representative; or, put another way based on Toogood v Spyring, I am satisfied that so far as they were concerned the insertion of those words were fairly warranted by the exigency of the occasion.
65. Tucker J, in concluding that this point was arguable, relied on the footnote in Gatley, paragraph 1174 (quoted above), but with all respect I do not consider that the footnote was apposite in S & L's case seeing that they were not the original wrongdoers. Indeed, Mr Gray did not contend to the contrary in his argument in this court. For these reasons it is, in my judgment, plain and obvious that S & L's publication is protected by qualified privilege. Since there can be no question of their having been actuated by malice, this furnishes them with a complete defence to the third party proceedings. I would therefore allow S & L's appeal and make an order striking out the third party proceedings.
66. LORD JUSTICE HENRY: I agree.
67. SIR RALPH GIBSON: I agree, for the reasons given by my Lord, Hirst LJ that the appeal of the defendants from the decision of Morison J on the preliminary issue should be dismissed; that the appeal of Schilling and Lom, the third parties, from the refusal of Tucker J to strike out the third party notice should be allowed; and that an order should be made as proposed by my Lord.
68. Mr Watts was wrongly identified by his photograph, which was carelessly used by the Sunday Times, as the man who had been guilty of plagiarism. It is obvious, as I think, that he was entitled, provided that he acted in good faith and without malice, to repeat the libel to the Sunday Times for the purpose of asking for an apology for and withdrawal of the allegation against him, to be published in the Sunday Times, without risk of being sued for libel by any person named therein. It is common ground that Mr Watts, and Schilling and Lom on his behalf, acted in good faith and without malice in so doing. The occasion of the demand for the apology and withdrawal was an occasion of qualified privilege so far as concerned Mr Watts, as he had an interest to make the communication which he did make by Schilling and Lom to the Sunday Times and the Sunday Times had a corresponding interest or duty to receive them (See Adam v Ward [1917] AC 309, per Lord Atkinson at page 334).
69. The Sunday Times then published the apology in the terms required by Schilling and Lom on behalf of Mr Watts. If Mr Watts was not entitled to the protection of qualified privilege in respect of his part in the publication of the apology to the readers of the Sunday Times, then for my part, and as my Lord has said, I see no escape from the conclusion that he was liable to the plaintiff (that is Mr Watts, the author) for any defamatory assertion therein, subject to rights of contribution, because Mr Watts had intended to bring about the publication. I cannot accept the argument that in the context of these events the ordinary rules should be disapplied so that the publication by the Sunday Times is to be treated as the act of the Sunday Times alone in respect of which Mr Watts played no part.
70. Is Mr Watts, then, to be liable to the plaintiff because without malice he asked the Sunday Times to publish an apology for and withdrawal of the allegation made against him by the Sunday Times and the Sunday Times then did publish as he had asked? In my judgment, for the reasons which follow, it is clear that he is not to be held liable because he is protected by qualified privilege and if he is so protected, then also are Schilling and Lom, his solicitors. Mr Watts was entitled within his qualified privilege to intend and require publication of the apology to him to the readers of the Sunday Times, if the Sunday Times was willing to do so, because it had been to those readers that the libel upon him had been published. It was open to the Sunday Times, in publishing that apology, to make it plain to the readers, if that is what the Sunday Times wished to do, that in thus exonerating Mr Watts from the charge of plagiarism, the Sunday Times was neither saying nor repeating anything against anyone else, and in particular the plaintiff. The Sunday Times did not do so.
71. Mr Gray has argued that if the occasion on which the apology to Mr Watts was published at his request is held to be an occasion of qualified privilege for him as against the plaintiff, then that occasion must also be held to be one of qualified privilege for the Sunday Times as against the plaintiff, because, it is said, it is the occasion which determines the existence of qualified privilege and the occasion was the same for both. It is therefore submitted, in effect, that the law must choose between two unjust results. Either the law must deny the protection of qualified privilege to Mr Watts, who is clearly entitled to that protection in principle, or it must allow the protection of qualified privilege to the Sunday Times in making or repeating an allegation of dishonest plagiarism against the plaintiff, when there was, as I think, no necessity to make or repeat the allegation against him in order to withdraw it against Mr Watts. Mr Gray's submission is, in my judgment, wrong.
72. In its simple form an occasion of qualified privilege is one on which one party A makes a statement to the second party B, which statement is defamatory of the third party C. Only one party makes the statement and requires the protection of the privilege. Such was the position in Toogood v Spyring [1834] 1 CM & R 181, which is accepted as the origin of this principle of law. There A, the tenant of the farm, required some repairs to be done to the farmhouse and B, the landlord's agent, directed C to do the work.
73. Later A (the tenant) told B (the agent) that C had been negligent in his work, had got drunk and had broken open the cell door. In holding that the complaint by A to B was a privileged communication made bona fide and without malice, Parke B used the words in the passage which my Lord has already read out. I will repeat only the last sentence of that passage:

"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."

74. In this case the exchange between Mr Watts, by his solicitors, and the Sunday Times began with an occasion of qualified privilege in its simple form. By his solicitors Mr Watts referred to the terms of the libel published about him and required the withdrawal and apology. He was repeating the allegation which had been intended to be made about the plaintiff and requiring that it be withdrawn as against Mr Watts in the pages of the Sunday Times. In the next stage, upon publication of the withdrawal and apology, the communication was made by the Sunday Times to its readers in the terms requested or required by Mr Watts. That publication was, in one sense, on one occasion, but the question whether the part in the making of that publication, which had been played by the Sunday Times on the one hand, and by Mr Watts on the other hand, was in either case "fairly warranted by any reasonable occasion or exigency", must, in my view, be answered by examining the circumstances of each of them separately and not by seeking a description of the occasion which will embrace them both. There is, in my view, no rule of law and no authority has been cited which lays down such a rule, that, where a complainant, who is fairly warranted by his circumstances, in asking for the publication, by the party who has falsely charged him, of a statement and apology exonerating him from a false accusation, and such publication is fairly made, the entitlement of that complainant to qualified privilege with reference to his part in the publication shall be either dependent on, or co-extensive with, the right to such privilege in the party whose false accusation was the original cause of the request that the exoneration be published. If the party who publishes that exoneration and apology is to be entitled to qualified privilege, such right must be founded upon the fact that his circumstances "fairly warranted" the making of the publication.
75. For the reasons which my Lord has fully explained, I agree that Mr Watts was entitled to qualified privilege with reference to his part in the publication of the apology to him and the Sunday Times with reference to their part in that publication was not.
76. MR CALDECOTT: My Lord, in relation to my client I would ask for the appeal to be dismissed with costs? There are two matters I want to raise further. The first is that there should be an order for the costs to be taxed and payable forthwith in the special circumstances of this case. Secondly, I would ask your Lordships, having regard to the lateness of the date and the term, and the delay since the order was originally made for this preliminary issue on 7 October 1993 when the main summons for directions was adjourned, I would hope to persuade your Lordships to make some simple further directions for the onward course of the trial.
77. My Lord, could I deal first of all with the question of an order that the costs be taxed and payable forthwith, that being the costs of the preliminary issue? Your Lordship's jurisdiction is dealt with on page 1061 --
78. LORD JUSTICE HIRST: I think we know we have certainly got jurisdiction. 1061?
79. MR CALDECOTT: My Lord, it is Order 62, rule 8. My Lord, subrule (1) sets out the normal order that they are not to be taxed until the conclusion of the cause or matter, but subrule (2):

"If it appears to the court when making an order for costs that all or any part of the costs ought to be taxed at an earlier stage it may, except in exceptional case to which (3) applies order accordingly...."

(3) does not apply here. Then (4) -- this is in relation to your Lordships' jurisdiction to review the order made by Morison J to which I will come:

"In the case of an appeal the costs of the proceedings giving rise to the appeal as well as the costs of the appeal may be dealt with by the court hearing the appeal."

80. My Lord, I made such an application to Morison J at the conclusion of the hearing of the preliminary issue and was unsuccessful. As your Lordship knows, that hearing took place on 21 December 1993 and plainly the proceedings have been in abeyance pending this appeal.
81. My Lord, one other matter, if I might just raise it, is this. We opposed this preliminary issue when it was first ordered by Drake J on the grounds that it would unnecessarily delay the trial and was likely to increase the time and costs of the action rather than reduce it.
82. LORD JUSTICE HIRST: You might say your prophecy has been borne out.
83. MR CALDECOTT: My Lord, it has been borne out. Your Lordship will of course appreciate that if we had succeeded on malice, interesting though this debate has obviously been, this whole question of qualified privilege would, at least from my client's point of view, have been academic. But be that as it may, it was obviously a discretionary order within the discretion of the judge and that was the view that he took. I do say it is material that we opposed the preliminary issue and the defendants sought it.
84. My Lord, the special other factors I would simply ask your Lordships to have in mind are these. The plaintiff is a man of modest means. He is still an author and his books -- I hope he will not mind me saying so -- are not in the money-spinning league. As I say, he opposed the preliminary issue. There is an enormous disparity of means between him and the defendants.
85. Fourthly, and importantly perhaps, he must in any event now win some damages in this action because it is quite clear that the plea of justification, which is merely as to grounds for suspicion, cannot possibly meet the sting of the apology, and I think I can tell your Lordships that there has never been any money in court in this action.
86. My Lord, fifthly, the issue on the preliminary issue --
87. LORD JUSTICE HIRST: You have got something very near a concession, that it was difficult for the newspaper to say that the first two articles did not bear the full meaning rather than the suspicion?
88. MR CALDECOTT: My Lord, that is right.
89. LORD JUSTICE HIRST: I saw your instructing solicitor writing it down rather carefully.
90. MR CALDECOTT: My Lord, that is right, but I cannot obviously say that one can strike that out as meaning a jury could not possibly find.
91. LORD JUSTICE HIRST: No.
92. MR CALDECOTT: My Lord, lastly the preliminary issue so far as taxation is concerned is entirely discrete. The argument is sometimes made against such an order that: oh well, taxation can take so long but it comes after the trial anyway. My Lord, that may be, but of course the order is in the form that the costs can alternatively be agreed and one would hope that they could be. My Lord, to have some money in hand for my client in his position so that he can progress this trial without hardship, having regard to its particular history, is something that we invite your Lordships to have regard to.
93. LORD JUSTICE HIRST: Thank you very much. I think we will deal with this point first and leave aside the other points. I am also going to suggest that we deal with your battle on this topic with the newspaper first and then we will deal with any questions about the third party proceedings quite separately, if that is convenient to you?
94. MR CALDECOTT: My Lord, yes.
95. LORD JUSTICE HIRST: Yes, Mr Barca?
96. MR BARCA: My Lord, can I just deal with that discrete point on costs? Of course I take on board the fact that Morison J did not make such an order because, in my submission rightly, there are no circumstances justifying a departure from the usual rule, which is stated in clear terms, that the costs of any proceedings should not be taxed until the conclusion of the cause or matter. For these purposes the cause or matter is the libel action as a whole as between the plaintiff and the defendants. The fact remains that the court thought that the issue of qualified privilege could be discretely tried as a preliminary issue. Drake J made such an order and that is not something which should be thrown at the defendants' door as a reason for which costs should be taxed and paid forthwith as an exception to the usual rule.
97. As your Lordships have seen, in the event the defence of qualified privilege turned on a point of law which has taken some considerable time to argue, and considering a great number of authorities stretching back in some cases well over a century. So my Lord in my submission it was quite proper for the court at first instance to take the view that that was a distinct issue that involved considerable points of law that needed to be discussed.
98. My Lord, my learned friend Mr Caldecott takes the view that this effectively disposes of the action once and for all. Of course that is far from being the case. There is a substantive plea of justification to the meaning essentially that there were reasonable grounds to suspect that the plaintiff was a plagiarist.
99. LORD JUSTICE HIRST: You are on a sticky wicket so far as the apology is concerned on that meaning.
100. MR BARCA: My Lord, with respect, there has been no concession outright that the apology is defamatory.
101. LORD JUSTICE HIRST: I appreciate that. I am saying to you: you are on a sticky wicket. One must face realities.
102. MR BARCA: My Lord, yes. There are two points to bear in mind. Firstly, no complaint was made of the (inaudible) before action. Your Lordship may feel that the jury make may take the view that the publication of the apology in the context of the original two articles which lay forth the detail of which the allegation was made, if the jury were to take the view that the justification is made out, it is not inconceivable that the damages awarded for the publication of the apology, which is something of a technical publication, would be derisory. It is not an inconceivable result, in my submission, if the defendants were to succeed in a plea of justification as regards the other publications.
103. My Lords, for those reasons it would be quite wrong, in my submission, for the court to take the view that this case is now effectively settled in favour of the plaintiff because of course qualified privilege was only one of the substantive defences raised. Of course your Lordships have not had to consider to any degree the merits of the substantive plea of justification and the extent to which there are grounds for thinking that the plaintiff may be a plagiarist as regards his novel and that of Mrs Henning.
104. My Lords, for all those reason I say that it would be quite wrong to take the view that this effectively disposes of matters and the action will inevitably proceed towards a judgment for the plaintiff. That is far from being the case.
105. My Lord, can I then raise a separate question? That is the purpose of having a taxation forthwith. In my submission it can only add costs to have a separate taxation now because of course there will have to be a taxation at the conclusion of the main trial. In that regard I would invite your Lordships to go back to the White Book and to the notes under Order 62, r2. I would ask your Lordships to look at page 1,063, note 62/8/7, which has the heading 'Costs of Application'. I make reference there to the notes referring to Stephens v Economic House Builders.
106. LORD JUSTICE HIRST: Yes.
107. MR BARCA: My Lord, what one has in the present case is an analogous scenario because if it turns out at the trial that the jury is impressed with the defence of justification, that they do think there is something (to put it colloquially) "smelly" about the plaintiff so far as the allegation of plagiarism is concerned, they may take the view that only a derisory award is appropriate in terms of the apology. Of course, the consequences of a derisory order of damages may be that the plaintiff gets no costs, or conceivably even that the defendants may get their costs, or part of them, in relation to the trial of the main action. My Lord, in those circumstances of course her would be a set-off. I do not dispute for a moment that the plaintiff will get his costs of the appeal and in relation to the issue -- at least as matters presently stand in relation to the issue of qualified privilege in any event. But, of course, if the defendants are successful to any significant degrees at the trial, there will be a set-off. In my submission it is only increasing costs now to have a separate taxation if there is to going to be a taxation all over again at the end of the trial. My Lord, the appropriate way forward in order keep to keep the running up of costs to a minimum -- your Lordships know very well that taxations are an expensive undertaking -- the appropriate step is to wait until the conclusion of the trial when the overall position on costs can be considered and there can be one taxation, one exercise to put before the costs draughtsman on each side and the matter dealt with in that way as a form of set-off.
108. My Lord, my learned friend has made comments about the plaintiff's means and so on. There is no affidavit evidence before the court. My friend of course says it on instructions, but that of itself would not be a reason to start making orders for taxation forthwith unless the matter was gone into in some detail. It was raised before the learned judge at first instance and it was rejected. That was at a time when Morison J gave leave to appeal. I am just taking notice of the Statement of Issue. It was clearly foreseeable that there would be a considerable delay.
109. My Lord, as matters presently stand the delay between now and any trial would be minimal, in my submission. Your Lordships may take judicial notice of the fact that the jury list is in a fairly healthy state. I do not think that Mr Caldecott would dissent from the proposition that once a case is set down it will come on for trial pretty much within 28 days, subject to the question of fixtures and so forth.
110. My Lord, for all those reason I would argue that this is not a case where costs ought to be taxed and paid forthwith.
111. LORD JUSTICE HIRST: Thank you very much. We will consider this first. Have you had any discussion with Mr Caldecott about orders as to the future progress of the case?
112. MR BARCA: Mr Caldecott did mention to me that he would like directions to be dealt with now. Unfortunately, because of the vacation, I was not frankly anticipating to have consequential directions dealt with now. I cannot make contact with the newspaper itself. I would ask that the parties try and agree orders as to further directions.
113. LORD JUSTICE HIRST: We will retire for a moment and consider this first important point.

(The court adjourned for a short time)

114. LORD JUSTICE HIRST: This is an application by Mr Caldecott, on behalf of the successful plaintiff in this appeal, that the costs to which he is undoubtedly entitled in this court and also the costs which he was awarded below should be taxed and paid forthwith. This was a preliminary issue which was opposed by the plaintiff when the defendants asked for it to be treated as such. Although it is perfectly true, as Mr Barca has stated, that the court acceded to that and therefore we would be quite wrong to say it was in any way improper, the fact is that it has created a considerable burden of costs on the successful plaintiff and has also imposed, through the difficulties of listing, a very constable delay since Morison J's judgment 18 months or so ago. In the exercise of our discretion therefore we have come to the conclusion that it is proper to apply the power which we have under Order 62 r8 (2) and (4) and to order that the costs should be taxed and paid forthwith, both in respect of the costs before Morison J and the costs before this court.
115. What about directions, Mr Caldecott? Mr Barca says there is nobody here, but they could have been here.
116. MR BARCA: My Lord, there is one matter which I have not dealt with. I have instructions to ask for leave to appeal to the House of Lords.
117. LORD JUSTICE HIRST: I will let you deal with that in a moment. Would you like to tell us what directions you have in mind?
118. MR CALDECOTT: Yes, my Lord. I certainly hope that the directions I am going to ask for --
119. LORD JUSTICE HIRST: I should think they are pretty innocuous, are they not?
120. MR CALDECOTT: They are very innocuous. I am going to err on the side of generosity so far as August is concerned for obvious reasons.
121. LORD JUSTICE HIRST: Yes.
122. MR CALDECOTT: My Lord, I was going to ask for 28 days for discovery. May I say we have given full voluntary discovery a long time ago, but the newspapers have confined themselves to discovery in relation to the preliminary issue.
123. LORD JUSTICE HIRST: Yes.
124. MR CALDECOTT: Seven days inspection thereafter; 21 days after inspection for witness statements; and setting down, not before 14 days after witness statements and not later than 28 days, so as to give a two-week period. Trial, jury, London and -- this is an estimate which can always be reviewed after exchange of witness statements -- three to five days.
125. LORD JUSTICE HIRST: Preliminary estimate.
126. MR CALDECOTT: Preliminary estimate three to five days.
127. LORD JUSTICE HIRST: Do they not sound fairly innocuous, Mr Barca?
128. MR BARCA: My Lord, can I just briefly take instructions?
129. LORD JUSTICE HIRST: Of course you may. Do not feel under time pressure.
130. MR BARCA: I am grateful. My Lord, can I canvass one matter? The problem with the vacation so far as witnesses are concerned is that inevitably a lot of them are not going to be around, particularly so far as journalists and so forth are concerned. For the defendants, I think we would be content with orders for discovery and inspection, but we are slightly troubled at being hamstrung on the witness statements --
131. LORD JUSTICE HIRST: If we give 28 days for that, that is 35, plus 28. That takes you into October. That surely is not too hard?
132. LORD JUSTICE HENRY: We are counting it on basis that time runs in August.
133. MR CALDECOTT: My Lord, I think my learned friend -- it seems it was 28 days for discovery --
134. LORD JUSTICE HIRST: From today would that be?
135. MR CALDECOTT: From today. I quite agree it runs in August. Then one has seven days inspection and 21 days thereafter. If one makes it 28 days, it goes very roughly to the first week of October.
136. LORD JUSTICE HIRST: 28, plus 7, plus 21.
137. MR CALDECOTT: My Lord, it will be 28, plus 7, plus 28 with your Lordships' revised 28 days.
138. LORD JUSTICE HIRST: That would give you enough time, would it not?
139. MR BARCA: My Lord, again I speak from simply not knowing what the position would be. I would ask for 35 rather than 28 days.
140. LORD JUSTICE HIRST: For the witness statements?
141. MR BARCA: My Lord, yes.
142. LORD JUSTICE HIRST: We will say 28 for discovery -- all from today and all counting in August. Seven days thereafter, inspection; 28 days after inspection, witness statements; set down not less than 14 or not more than 28 days after the exchange of witness statements. Trial by jury in London and provisional estimate of time, three to five days.
143. MR CALDECOTT: Can I mention one very small point? When your Lordship made a costs order, you said "to be taxed". Can I just ask that the inevitable words "if not agreed" be included?
144. LORD JUSTICE HIRST: That goes without saying. You are quite right. I hope they can be. Now, you wanted to apply for leave to appeal to the Lords?
145. MR BARCA: My Lord, yes. In a difficult case like this one tries to absorb as much as possible of a judgment that has not been handed down.
146. LORD JUSTICE HIRST: If it had been handed down, you would not have got it until October.
147. MR BARCA: I am not complaining. All I am seeking to do is to try and consider the ramifications as quickly as one can. It does seem to us, with respect, that the ramifications of this judgment, in so far as it goes beyond the facts of the instant case, is that it will become fairly difficult, if not impossible, for a newspaper ever to argue as a result of your Lordships' judgment to put forward an argument for privilege for an apology in a newspaper in any circumstances. Your Lordship did, if I may respectfully echo some of the words used, advert to the fact that one should not equate the culprit with the victim. Your Lordship did place heavy emphasis on the fact that the newspaper was the author of its own problem, so to speak. My Lord, that is a factor which one can see in future is going to be raised time and time again --
148. LORD JUSTICE HIRST: The answer is: do not defame anyone in the apology.
149. MR BARCA: My Lord, that is as may be, but it might be used for a wider proposition, in my respectful submission. It may be said that what the Court of Appeal was getting at was not just dealing with the facts of Watts itself, but the Court of Appeal was saying: "We can see no circumstances, nor could the court foresee any justification for a newspaper relying on a defence of qualified privilege when it itself was the author of the publication, which again gives rise to the need to apologise. My Lord, it is not difficult to see, in my respectful submission, that that argument will be raised by plaintiffs, so that effectively defendants will face the wrath of your Lordships' decision in any attempt to raise a defence of qualified privilege. My Lord, it is with that in mind that the defendants, as your Lordships appreciate, as one of the major national newspaper publishers in the country, do feel that this is a matter of wider significance and public interest for the future and for that reason we would ask for leave to appeal to the House of Lords.
150. LORD JUSTICE HIRST: I am afraid you will have to go to the House of Lords. We do not grant leave. You are, of course, free to go to the Appeal Committee.
151. Miss Roper, you have been very patient.
152. MISS ROPER: Thank you for the order that the third party action be dismissed. Therefore I ask for the costs of that third party action.
153. LORD JUSTICE HIRST: You are asking for the costs of the appeal and also that the third party proceedings be dismissed with costs? MISS ROPER: That is right, my Lord. Also the costs of the hearing before Tucker J.
154. LORD JUSTICE HIRST: Thank you very much indeed. Mr Barca?
155. MR BARCA: My Lord, I do not think I can resist that. The third party proceedings have come to an end, and therefore it follows.
156. LORD JUSTICE HIRST: Thank you very much. So the order there will be: third party proceedings dismissed with costs here and below. Is that satisfactory to you?
157. MISS ROPER: Yes, my Lord.
158. LORD JUSTICE HIRST: Thank you all very much indeed for the very clear arguments. Would you please pass that on to the leaders who are not here today also and I do not think we have done badly disposing of the whole thing in one week even without the Monday.
159. MR BARCA: My Lord, there is one other matter which I can deal with quickly. That relates to the adjournment on Monday for which none of the parties in court was responsible. We do not know the reasons for it, but plainly the reason for it must lie with the Lord Chancellor's Department or the Court Services Agency. One injustice that will follow from this is that the defendants are going to be saddled with the costs of the wasted appearance on Monday. As your Lordships know, it did take some time to resolve. We were here for a fair part of the morning, I think until about eleven if not beyond, trying to work out what had happened. My Lord, whatever one may say about the merits of the appeals, it cannot be right, in my submission, that the defendants should not have an opportunity at least to argue that the costs should not be borne by another party -- in this case the Court Services Agency.
160. Your Lordships have in mind the recent house of Lords' decision in Holden where it was ruled that the courts have no power to order costs out of central funds by virtue of section 51 of the Supreme Court Act, but I would wish to reserve the defendants' position to argue that that can be distinguished where one can point to a specific party rather than just the Treasury generally because one cannot think of anyone better to pay. If one can point to a specific party who ought to pay the costs, be it the Department, then the party would have leave to apply. My Lord, we have not had a chance to explore the reasons for the abortive hearing on Monday, but plainly that will feature in the costs of both the plaintiff and the third party when they come to tax their bills. In my submission there ought to be an opportunity for --
161. LORD JUSTICE HIRST: You cannot add a great deal. It is also to be noted that we finished the hearing in two days rather than the estimated three.
162. MR BARCA: My Lord, that is right. I do not propose to ask your Lordships to deal with that.
163. LORD JUSTICE HIRST: No, we are not going to make any order to that effect.
164. MR BARCA: My Lord, I am grateful.