England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENF 96/1752/1

COURT OF APPEAL (CIVIL DIVISION ) QBENF 97/0149/1

(MR JUSTICE FRENCH )

Royal Courts of Justice

The Strand

London

Wednesday 8 July 1998

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

LORD JUSTICE HIRST

and

LORD JUSTICE ROBERT WALKER

B E T W E E N:

ALBERT REYNOLDS TD Plaintiff/Appellant

- v -

(1) TIMES NEWSPAPERS LTD

(2) ALAN RUDDOCK

(3) JOHN WITHEROW Defendants/Respondents

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(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

Telephone 0171 421 4040

Official Shorthand Writers to the Court)

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MR ANDREW CALDECOTT QC and MR BEN HINCHCLIFF (instructed by Messrs

Crockers Oswald Hickson, London EC4 3EX) appeared on behalf of

THE APPELLANT

LORD LESTER OF HERNE HILL QC, MR JAMES PRICE QC and MS EMMA DIXON

(instructed by Messrs Theodore Goddard, London EC1A 4EJ) appeared on behalf of THE RESPONDENTS

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J U D G M E N T

(As Approved by the Court )

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THE LORD CHIEF JUSTICE:

This is the judgment of the court to which all members have substantially contributed.

This is an appeal by the plaintiff, Mr Albert Reynolds, seeking a new trial in a libel action which was heard by French J sitting with a jury. The outcome was that Mr Reynolds was awarded 1p damages and was ordered to pay the defendants’ costs as from the date of a payment into court. The defendants (Times Newspapers Ltd as publisher of the Sunday Times and the individuals who were at the material time editor and Irish editor of that newspaper) have a cross-appeal raising important issues as to qualified privilege, and a further cross-appeal relating to costs down to the time of the payment-in. The libel action was concerned with the political crisis in Dublin in November 1994 which culminated in the resignation of Mr Reynolds as Taoiseach (prime minister) and leader of Fianna Fail. Before going further into the issues in the appeal and cross-appeals it is necessary to summarise the course of the political crisis and also the course of the proceedings in the libel action.

Mr Reynolds had been a member of the Dail Eireann since 1977. In February 1992 he became Taoiseach, heading a coalition of his own party (Fianna Fail) and Labour under Mr Dick Spring. Mr Spring was Tanaiste (deputy prime minister) and minister for foreign affairs. As is well known, during the course of this coalition Mr Reynolds and Mr Spring together did much to promote the Northern Ireland peace process. The future of the coalition was a matter of public interest in Great Britain as well as in Ireland.

However the coalition had its tensions and difficulties. The final difference, which developed into the political crisis at the centre of this case, was over the Attorney-General, Mr Harold Whelehan S.C., and the inaction of his office in the matter of an extradition warrant. Mr Whelehan had been appointed as Attorney-General in September 1991 and had become a rather controversial figure. (Under the Irish Constitution the Attorney-General acts as an impartial legal adviser to the government; he regularly attends cabinet meetings but does not sit in the Dail and is not a member of the government.) Since about October 1993 Mr Reynolds and Mr Spring had been discussing forthcoming vacancies in the senior judiciary, including an expected vacancy in the office of the President of the High Court (the second highest judicial office in the Republic) if, as in fact occurred, the incumbent President was appointed as Chief Justice. Mr Reynolds favoured the appointment of Mr Whelehan. Mr Spring was initially against the appointment but then took the position that he would not oppose it if there was a comprehensive review of the system of judicial appointments and a new Court of Appeal.

The fragile understanding over the appointment of Mr Whelehan was then shaken and destroyed by the Smyth affair. Father Brendan Smyth was a Roman Catholic priest wanted by the Royal Ulster Constabulary on charges of sexual abuse of children in Northern Ireland. An extradition warrant prepared by the R.U.C. had been in the Attorney-General’s office for seven months without any substantive action being taken on it. The matter was exposed in the Irish press in October 1994. It received wide publicity and caused wide public concern. It raised a new issue as to the suitability of Mr Whelehan for appointment as the Republic’s second senior judge.

The appointment was to have been discussed at a meeting of the coalition cabinet on Thursday 10 November, but a terrorist incident at Newry preoccupied the cabinet on that day and a further meeting was arranged for Friday 11 November. Before that meeting Mr Reynolds had obtained from Mr Whelehan a written memorandum dated 9 November in which Mr Whelehan sought to explain the handling by his office of the request for the extradition of Fr Smyth. That memorandum (which ran to some ten pages) stated that Mr Whelehan himself had been unaware of the warrant, that the matter did not appear to be urgent, and that there were several legal issues to be considered, including paragraph (bbb) of section 50(2) of the Republic’s Extradition Act 1965 (that paragraph having been added by the Extradition (Amendment) Act 1987). The memorandum stated,

“This provision .... had never had to be applied until this case. My interpretation of its meaning and effect would establish the criteria which would be applied in this office for future requests, whether for simple burglary or for serious subversive offences.”

At the cabinet meeting on Friday 11 November Mr Reynolds supported Mr Whelehan’s appointment as President but Mr Spring and his Labour colleagues opposed it. When Mr Reynolds persisted and said that he intended to invite Mrs Maire Geoghegan-Quinn, the minister for justice, to move Mr Whelehan’s appointment, Mr Spring and the other Labour ministers withdrew from the meeting (so ensuring that their absence would be minuted; an adverse vote in the cabinet would not be minuted). Despite their withdrawal the Fianna Fail members of the cabinet decided on the appointment and Mr Whelehan (who was in attendance at the cabinet meeting but not present for the discussion of his appointment) was that evening appointed as President of the High Court by Mrs Mary Robinson, the President of the Republic. He was not however sworn in on that day. Mr Eoghan Fitzsimons S.C. was appointed as the new Attorney-General.

Two significant events occurred during the course of the weekend. On the Sunday evening there was a meeting of the Labour parliamentary party at which the Labour deputies decided to attack Fianna Fail over the Smyth affair and the lack of accountability in the Attorney-General’s office. The meeting was followed by a press conference. On the same day (and either in anticipation or in consequence of the Labour decision) Mr Reynolds, through Mrs Geoghegan-Quinn, asked the new Attorney-General to undertake a full and urgent investigation of the Smyth file, and Mr Fitzsimons telephoned some of the officials in the Attorney-General’s office in order to put the investigation in train first thing on Monday.

The political crisis developed and reached its climax during the next three days (and nights): Monday 14, Tuesday 15 and Wednesday 16 November. In brief summary (more detail will have to be added in considering the Judge’s summing-up) Mr Fitzsimons discovered on the Monday that there was an earlier case in which section 50(2)(bbb) had been considered, and moreover had been considered by Mr Whelehan. This was the Duggan case, although the new Attorney-General did not know (or could not recall) its name until prompted by Mrs Geoghegan-Quinn from notes which she had. This information was conveyed orally to Mr Reynolds on the same day but without any clear advice as to its significance. Mr Fitzsimons indicated that a senior civil servant in his office was taking a different view from that which he (the new Attorney-General) was disposed to take. Mr Reynolds said that he did not want ‘on the one hand, on the other hand’ advice and asked Mr Fitzsimons to discuss the matter with Mr Whelehan and to produce definitive written advice. Mr Fitzsimons was told of potentially grave consequences for Mr Whelehan and was asked to request Mr Whelehan to postpone his swearing-in as President of the High Court. Mr Fitzsimons saw Mr Whelehan that evening. He declined to postpone his swearing-in.

On the Tuesday morning Mr Fitzsimons did further work on the Smyth and Duggan cases and prepared an answer (to the question ‘Was this the first time that the section was applied?’) to be given in the Dail by the minister for justice, Mrs Geoghegan-Quinn. His morning’s work was interrupted by his attendance at Mr Whelehan’s swearing-in at the Four Courts. Mr Whelehan gave Mr Fitzsimons a letter setting out his (the former Attorney-General’s) position. Mr Fitzsimons delivered his written advice and the draft answer to the Taoiseach’s office, but by then (about 2.25p.m.) Mr Reynolds had left his office for the Dail chamber.

On the Tuesday afternoon Mr Reynolds, who had not himself received Mr Fitzsimons’ written advice, made a statement in the Dail which was broadly supportive (although by no means wholly uncritical) of Mr Whelehan. Mr Reynolds said that he was giving a full account. He spoke of a failure in “the system” within the Attorney-General’s office. He made no reference to the Duggan case. Then on the Tuesday evening after the debate was over Mr Reynolds read Mr Fitzsimons’ written advice. On reading it he was agitated and upset (in his own words, he ‘hit the roof’). He decided that he must make a further statement to the Dail. Mr Fitzsimons was asked to visit Mr Whelehan again and invite him to resign as President of the High Court. The President declined to resign. Mr Fitzsimons joined Mr Reynolds for discussions and drafting which lasted for most of the night. Meanwhile a motion of confidence had been put forward for debate on the following day and urgent negotiations had been taking place between senior members of the Fianna Fail and Labour parliamentary parties in the hope of saving the coalition.

The Dail was to have sat at 10.30 a.m. on the Wednesday morning to debate the motion of confidence. A few minutes before then Mr Spring signed a note recording that on the basis of a prepared statement being incorporated into the Taoiseach’s speech he would lead his ministerial colleagues back into government. The Dail sat briefly but adjourned until about noon. During that adjournment Mr Spring had a meeting with Mr Fitzsimons, as a result of which Mr Spring decided that he would not continue in a coalition headed by Mr Reynolds. The meeting is described in a memorandum which Mr Fitzsimons prepared soon after the events in question:

“He asked me about the Duggan case. I gave him details. He asked me when the file was found. I informed him that it was found on Monday. He then asked me when the Taoiseach was told but also said that I needn’t tell him if I did not wish to do so. I informed him that he was the Tanaiste and that I would tell him. I then told him that the Taoiseach was informed of the Duggan case on Monday. I expressly recall Dick Spring’s response to this information.

He said:

‘Oh Lord, Eoghan, we will both be back in the Law Library’.”

Mr Spring declined the suggestion of a meeting at which the Smyth and Duggan cases could be further explained or discussed. When the debate was resumed Mr Reynolds’ speech was much more critical of Mr Whelehan. It included the three sentences which had been agreed on during the earlier negotiations. But the coalition had effectively collapsed. In his speech at the end of the debate Mr Spring said of the Duggan case,

“It was immediately apparent that the Taoiseach should have included this vital information in the statement he made to the House yesterday, if he wished to give a full explanation of all these events. Had he done so, it would have completely altered the thrust of his speech, and had a profound effect on the subsequent debate and questioning”.

Mr Reynolds resigned as Taoiseach on the morning of 17 November, and as leader of Fianna Fail soon afterwards. The new President of the High Court also resigned.

At this point it is appropriate to set out the basic facts of the Duggan case, while emphasising that the timing of their coming to the knowledge of different people, and the significance which different people attached (or should have attached) to them, were matters of acute controversy at the heart of the libel action. Section 50(2)(bbb) of the Extradition Act 1965 as amended provided that the High Court or the minister might direct the release of a person detained with a view to extradition where

“by reason of lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence or other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up.”

The Duggan case concerned a request for the extradition of Mr John Duggan to England on charges of indecent assault on a male person and conspiracy to pervert the course of justice. Mr Duggan was described in the Dail as an ex-monk but that was, it seems, incorrect. Draft warrants prepared by the West Mercia Crown Prosecution Service were received by the Chief State Solicitor’s office in Dublin in March 1990. The two alleged offences of indecent assault were stated to have taken place at dates not earlier than 1 August 1986 and 9 June 1988. The Chief State Solicitor identified certain defects in the draft warrants. The file was received in the Attorney-General’s office on 12 April 1990 and directions were given and communicated to the West Mercia C.P.S. in July and August 1990 (that is, before Mr Whelehan became Attorney-General). Then on 4 February 1992 the case was raised again in a fax from the English Attorney-General’s office, which itself raised the issue of delay. On 13 February 1992 a civil servant in the Irish Attorney-General’s office prepared a submission to the effect that neither the lapse of time nor any other exceptional circumstances would render the extradition of Mr Duggan unjust, oppressive or invidious. The written submission referred expressly to s.50(2)(bbb). Mr Whelehan (who had then been Attorney-General for about six months) approved the memorandum on the same day. The actual warrants then reached the Attorney-General’s office on 2 March 1992, and were dealt with by the civil servant and Mr Whelehan within a day. Mr Duggan was extradited to England and the file was put away in the registry, which did not at that time have any retrieval system by reference to subject-matter.

The lapse of time in the Smyth case was longer than in the Duggan case. Fr Smyth was charged with offences on unknown dates between March 1964 and March 1971, and with further offences between December 1982 and December 1988. The Smyth file was dealt with by a different (and more senior) civil servant in the Attorney-General’s office, Mr Matthew Russell, who explained his lack of urgency to Mr Whelehan (in the words of the latter’s memorandum of 9 November 1994),

“In the first place the nine alleged offences had been committed between 29 and 5 years before, against four children in the same extended family. The facts supplied by the United Kingdom authorities were that the offences had ceased some 22 years, 17 years, 8 years and 6 years respectively before the request.

There was nothing to suggest that offences were continuing, or were likely to continue, either here or in Northern Ireland.”

It is also convenient to identify at this point certain contemporary documents which are of some importance, not least because it has been submitted that the Judge confused some of them in the course of his summing-up. The documents are identified in chronological order of their production (but some, it must be noted, were revised before reaching their final form).

(i) Mr Whelehan produced a two-page report on the Smyth case at some date early in November 1994. This report was generally regarded as inadequate and it was not put in evidence; it is identified here simply for completeness.

(ii) Mr Whelehan then produced the ten-page memorandum dated 9 November to which reference has already been made.

(iii) At some stage on Monday 14 November Mr Fitzsimons produced a two-page report consisting of typescript with manuscript amendments in Mr Fitzsimons’ own hand. This document was sometimes referred to during the trial as “the red-ink document”. It refers to (but does not wholly accept) the views of Mr Russell. It appears that Mr Fitzsimons had this document with him during at least one of his meetings with ministers on Monday 14 November, but it is common ground that Mr Reynolds did not see it until after his resignation.

(iv) There was a letter dated 15 November from Mr Whelehan to Mr Fitzsimons. This was handed by the former Attorney-General to the new Attorney-General at the swearing-in which took place that morning at the Four Courts. It maintained that the memorandum of 9 November was accurate in that the section had never before been applied, and that the full consequences of the amendment had to be considered for the first time in the Smyth case.

(v) There was the letter of advice dated 15 November which Mr Fitzsimons had delivered to the Taoiseach’s office just after Mr Reynolds had left for the debate. It stated Mr Fitzsimons’ view that “it would be absolutely incorrect to inform the Dail that this was the first time that the section was considered. It was considered - though not in a profound manner in the Duggan case”. The letter was accompanied by the draft parliamentary answer of which the letter said candidly, “The reply is the best I can do. It does not in fact answer the question.” Although the letter was intended to convey definitive advice (and was delivered signed) it was altered by Mr Fitzsimons in the early hours of 16 November, retyped, and signed again. One of the amendments was the omission of a paragraph (originally the last paragraph) referring to the letter received that morning from Mr Whelehan. For that reason the Judge referred to it to the jury as “the shrinking letter”.

(vi) Mr Fitzsimons’ letter was accompanied by his draft answer to the question ‘Was this the first time that the section was applied?’ So far as the draft answered the question at all, it described the Smyth case as “the first case giving rise to delays of this magnitude”. It did not refer to the Duggan case.

On Sunday 20 November 1994 the Sunday Times published in the World News section of its British mainland edition an article headlined “Goodbye gombeen man” with the subsidiary headline

“Why a fib too far proved fatal for the political career of Ireland’s peacemaker and Mr Fixit”.

It occupied most of one page. The authors of the article were stated to be Mr Alan Ruddock (the newspaper’s Irish editor) and Mr John Burns. It later became apparent, but only when Mr Burns gave evidence, that he had had no responsibility for the article and the judge gave leave for the case against him to be discontinued. On the same day the Irish edition of the newspaper (which circulates in Northern Ireland as well as in the Republic) published a three-page article headlined “House of Cards”. Its authors were (correctly) stated to be Mr Vincent Browne and Mr Burns, two experienced Irish journalists. The article in the Irish edition contained a more detailed and more factual account of the crisis which Mr Reynolds, in his evidence, accepted as being very largely accurate and on the whole unobjectionable. He learned of the British mainland edition article through a telephone call from one of his daughters, Mrs Fogarty, who lived in Scotland.

Mr Reynolds took strong exception to the article but delayed action during an inquiry into the affair by a Dail Select Committee (evidence given during hearings of the Select Committee was recorded in transcripts and video recordings parts of which were subsequently admitted at trial under the Civil Evidence Act 1968). His solicitors wrote to the editor of the Sunday Times on 24 March 1995 seeking an apology and proposals as to damages. That approach was promptly rejected. A writ followed on 18 August 1995.

The statement of claim complained of the two headlines, of three selected passages from the first 26 paragraphs of the article, and of the entirety of the next 10 paragraphs. It is not necessary to set out these passages at length. It is sufficient to set out most of the last three paragraphs of the matter complained of. After referring to Mr Fitzsimons having discovered a “replica case” and after describing the meeting between Mr Spring and Mr Fitzsimons the article stated,

“Spring was thunderstruck. Reynolds had known all along that Whelehan’s excuse did not hold water, yet in the dail on Tuesday he had backed his promotion to the High Court.

At 11.40 a.m. Spring and three Labour lieutenants made the short journey to Reynolds’s offices in government buildings to tell a shaken man that the deal was null and void. “There was no question in our minds that Reynolds had misunderstood what Fitzsimons had told him. The deal was all based on a lie”, said one of Spring’s colleagues.

The coalition government, formed so unexpectedly less than two years earlier, was over. When the dail resumed on Wednesday afternoon, Reynolds went ahead with his volte face, to gasps of astonishment in the house, but to no avail. Spring’s hand had been dealt. At 6.35 pm. Spring rose to address a hushed house and in a masterly speech, he demolished Reynolds’ reputation, exposed the lies he had been told and announced that his party would resign its cabinet posts and vote against the government. He sat down, drained by the occasion, to spontaneous applause from the opposition benches. Neither Reynolds nor Whelehan had any choice but to resign”.

It was pleaded that the words complained of meant and were understood to mean (i) that Mr Reynolds had deliberately and dishonestly misled the Dail on Tuesday 15 November by suppressing vital information; (ii) that he had deliberately and dishonestly misled his coalition cabinet colleagues, especially Mr Spring, by withholding that information from the Monday afternoon until the Wednesday morning; and (iii) that he had lied to them about when the information had come into his possession.

The original defence put in issue the meaning of the words complained of; it pleaded that they were published on an occasion of qualified privilege at common law, or alternatively qualified privilege under section 7 of the Defamation Act 1952; it also pleaded defences of fair comment and justification. In reply the defences of qualified privilege and fair comment were met with a plea of express malice. In the course of the trial the defendants abandoned reliance on statutory qualified privilege and fair comment, and those changes in the defendants’ position appear from the amended defence. So by the time it came to the closing speeches and the summing up there were essentially five issues for the Judge and jury: (i) meaning; (ii) qualified privilege at common law; (iii) justification; (iv) malice; and (v) damages.

The trial began on Monday 14 October 1996. Its course was on any view not particularly smooth. One juror had to be discharged because of illness on the seventh day of the trial (when Mr Reynolds was spending his sixth and penultimate day in the witness box) and several other days were lost (some in the middle of the Judge’s summing up) as the result of illness and other difficulties encountered by members of the jury. Apart from Mr Reynolds’ evidence there were few other witnesses who gave oral evidence. Mr Reynolds’ daughter Mrs Fogarty was the only other witness for the plaintiff. Mr Ruddock, Mr Burns and Mr Witherow gave oral evidence for the defendants. But there was a large volume of Civil Evidence Act material put before the jury, including the video recordings already mentioned. Both sides relied on parts of the recorded evidence of Mr Spring, Mr Fitzsimons, Mr Whelehan, Mr Noel Dempsey (then the government chief whip and minister of state at the department of the Taoiseach) and Dr Michael Woods (then the minister for social welfare). Diary entries made by Dr Woods during the week of the crisis were referred to in the course of the trial and are of some importance in this appeal. The plaintiff also relied on recorded evidence of Dr Martin Mansergh (then the Taoiseach’s special adviser on Northern Ireland and other political matters) and Mr Bertie Ahern (then the minister for finance, and Mr Reynolds’ successor as leader of Fianna Fail). The defendants also relied on recorded evidence of Mr Brendan Howlin, then minister for health and a Labour member of the coalition government.

The Civil Evidence Act material (partly in the form of video recordings and partly in the form of transcripts) was viewed by or read to the jury on 28 October and 4 November 1996, with four days lost between those two dates. Closing speeches were made on 5 and 6 November. The Judge began his summing up on Friday 8 November. It continued on Monday 11 November. Two more days were then lost through illness of a member of the jury (which was already down to eleven members); part of the lost time was taken up with legal submissions. The summing up occupies about 170 pages of transcript together with about 60 further pages of submissions made, at intervals during the summing up, in the absence of the jury. The summing up was concluded on Thursday 14 November and the jury retired at about 1 p.m.

On the morning of Friday 15 November the jury asked for transcripts of the whole of Mr Reynolds’ evidence. This request was refused. The foreman said in response to a question from the Judge that they were particularly interested in why the Duggan case was not mentioned in the Dail on Tuesday 15 November 1994. Passages in the evidence of Mr Reynolds dealing with that matter were identified and read to the jury. The jury had not reached a verdict by Friday evening. On Monday 18 November they resumed their deliberations. In the course of the morning they asked for a dictionary. That request also was refused. The foreman explained that they were concerned with the meaning of ‘true in substance’ and with any difference between ‘fib’ and’ lie’. They were told that these were matters for them to decide. On the Monday afternoon the Judge directed the jury as to a majority verdict.

On the afternoon of Tuesday 19 November the jury returned and gave a majority verdict (10-1) on the five questions put to them. The questions which had been posed, and the jury’s answers, were as follows.

1. Is the allegation complained of by the plaintiff true in substance? - No.

2. Was Mr Ruddock (the journalist and Irish editor) acting maliciously in publishing the words complained of? -No.

3. Was Mr Witherow (the editor) acting maliciously in publishing the words complained of ?- No.

4. How much do you award the plaintiff by way of damages? - Zero costs.

5. Do the words complained of correctly report Mr Spring’s stated reasons for withdrawing from the coalition government? - Yes.

After some questions from the Judge the foreman corrected his answer to the fourth question to ‘zero damages’ The fifth question had been included because it was a disputed issue of fact thought to be relevant to the plea of qualified privilege.

The Judge then heard submissions on the legal significance and effect of the jury’s verdict and gave judgment for Mr Reynolds for the sum of 1p. He awarded the defendants their costs as from the date of the payment into court but made no order as to costs down to the date of payment in. He then heard further lengthy submissions on the issue of qualified privilege, the defendants’ counsel contending for a wide qualified privilege at common law for ‘political speech’. The Judge decided that issue in favour of the plaintiff and awarded the plaintiff his costs of the argument on that issue. He did not grant leave to appeal from his refusal to award the defendants their costs down to the date of the payment in, but leave for the defendants to appeal on that point was granted by a single Lord Justice.

IV

It is plain from the foregoing summary that the events in issue in this action very largely occurred within a single week beginning on 11 November 1994. There were relatively few contemporary documents, and relatively few witnesses were called to give oral evidence. The crucial issue in the action concerned Mr Reynolds’ honesty, in what he said to the Dail on 15 and 16 November and in what he told his Labour colleagues in the coalition. On this level the action could be portrayed as relatively simple. But over the period in question events moved quickly. On Monday 14 November, for example, the new Attorney General had four meetings with Mr Reynolds. Of the documents brought to the jury’s attention, some made no reference to Duggan; and some did not come to Mr Reynolds’ notice until later. The evidence disclosed differences of legal opinion which, however intelligible to a lawyer, would be less readily so to others. Some of the evidence called before the jury was relevant to one issue but not to others. Much of the evidence adduced by way of Civil Evidence Act notices was likely to make less impact than oral evidence would have done. The underlying issue on justification was, at any rate arguably, more elusive than a stark choice between honesty and dishonesty might suggest. The case was one which called for a clear account of the chronology, so as to enable the jury to make a judgment on Mr Reynolds’ state of mind at relevant stages; a clear definition of the issues; and a clear summary of the evidence relevant to those issues.

In any case of this kind the evidence will be followed by submissions on behalf of both parties. In submission, each advocate will, inevitably and properly, concentrate on the strengths of his own client’s case and the weaknesses of his opponent’s, seeking to persuade the jury of the soundness of the case for the plaintiff or the defendant as the case may be. The judge in summing up is not seeking to persuade the jury of anything. He has three main tasks:

1. To ensure so far as he can that the jury understand and apply the law relevant to the decision they have to make. It is not necessary, nor indeed desirable, that he should attempt a complete exposition of the relevant law. He should give a statement of the governing principles (dealing with such matters as the functions of judge and jury, the burden of proof, the standard of proof, etc) and a summary of the law, put as succinctly and simply as possible, so far as relevant to the jury’s decision. This account of the law should be “bespoke”, not “off the peg”. (In this appeal no criticism has been made of the judge’s summary of the relevant law).

2. To summarise the factual narrative relevant to the jury’s decision, identifying the facts which are not in dispute and (even more importantly) identifying the significant factual issues between the parties. In almost every case some facts are uncontroversial, and sometimes the facts in issue are very limited. It is necessary to identify these issues, so that the attention of the jury is focused on the area of factual dispute.

3. To summarise the significant admissible evidence (oral and documentary) relevant to each issue the jury have to determine in a clear, accurate and fair manner. The way in which evidence is adduced ordinarily means, almost inevitably, that the evidence of one witness, or the evidence contained in one document, relates to more than one issue, and sometimes evidence admissible on one issue is not admissible on another. In a case of any complexity, the jury is very greatly assisted in its task if the evidence is analysed and broken down by the judge so that the jury have in mind the evidence which they should consider in relation to each of the questions they have to decide.

This is of course a counsel of perfection, and there is no such thing as a perfect summing up. A new trial will not be ordered because the trial judge has in some minor or immaterial respect deviated from these high standards. RSC Order 59 rule 11(2) provides that “The Court of Appeal shall not be bound to order a new trial on the ground of misdirection .......unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned”. This is an exacting test for an appellant to satisfy. But it is argued for Mr Reynolds that it is satisfied here. That submission, strongly contested by the defendants, is based on a number of general and specific criticisms of the summing up. It is convenient to consider first the specific complaints, related to the issues of meaning, justification, malice and damages.

Mr Reynolds complained of the words published in the sense already mentioned. The defendants, in paragraph 5 of their amended defence, justified the words as meaning “that the collapse of the coalition Government led by the Plaintiff and his resignation as Taoiseach and leader of Fianna Fail were occasioned by the fact that he knowingly misled the Dail and his coalition partners in relation to the appointment of Mr Whelehan as President of the High Court”. During the trial the point was made for Mr Reynolds that although the article had made reference to “a lie” the defendants had not sought to justify that stark meaning. In summing up to the jury the judge failed to remind them of that point and counsel for Mr Reynolds asked him to do so.

In response to counsel’s request, the judge said to the jury:

“There is another matter which, in fairness, I should deal with. The defendant is concerned that I should point out to you that the plaintiff, in his statement of claim, does not allege that the words complained of mean that the plaintiff lied to the Dail. The plaintiff alleges the meaning (or meanings) are somewhat different and may be thought less harsh than the use of the word “lying” - and that is a matter for you to consider”.

The judge then read to the jury the meanings pleaded by the plaintiff, which he had already done earlier in his summing up, and added:

“That assertion in (3), that the words meant that the plaintiff had lied to his coalition Cabinet colleagues is confined to the coalition Cabinet colleagues and does not extend to telling lies to the Dail. That I understand to be the nub of the point which I am asked to stress to you.”

In ground 9 of his notice of appeal Mr Reynolds complains that in the first of these passages the judge referred to the defendant when he meant the plaintiff and referred to the statement of claim when he meant the defence and either misunderstood or failed accurately to express the point made to him. Plainly this is so. But the point had been very clearly made by Mr Reynolds’ counsel in his closing speech, and the judge was not asked to correct the error at the time. It seems unlikely that the jury were misled. In our judgment this point is in itself of little significance.

VI

Justification

1. When, in the course of the trial, the defendants abandoned their defence of fair comment, the defence was amended to delete that plea. By an understandable oversight, however, the defendants failed to amend a heading which read “Particulars of justification and of the facts and matters on which the comment was based”. Following the amendment there should have been no reference to the facts and matters on which the comment was based. In summing up to the jury the judge made reference to “the particulars which the defendants supply of justification and of the facts and matters upon which the comment was based” and to “the particulars of justification upon which the comment was based, that comment being what was set out in the particulars of meaning which I read to you at the start.”

Later in his summing up, when commenting on the evidence given by the defendant journalists, the judge observed that he did not understand the distinction which they drew between an opinion piece and a feature piece, adding that perhaps the distinction did not matter very much.

In ground 2 of his notice of appeal Mr Reynolds complains that the jury may have been misled into thinking that the words complained of could be defended as fair comment. We do not accept this criticism. The judge erred in making any reference to comment, but the defence of fair comment was never opened or explained to the jury and it was made quite plain that the central issue they had to decide was whether the words complained of were true. The first question framed for the jury’s decision was unambiguously directed to that issue. There is in our judgment no risk that the judge’s inadvertent reference to comment may have misled the jury.

2. In ground 3 of his notice of appeal Mr Reynolds complains of a passage in the summing up where the judge said:

“One important question which you may think, though it is only a suggestion of mine and does not bind you, is: Did the plaintiff know on Monday 14 November 1994 that there had been an extradition case, the Duggan case, a couple of years before the Smyth case and which was or might be relevant to the Smyth case? Did he know that this was so because the Attorney General, Mr Fitzsimons, had told him on that Monday afternoon, or was the first time that he really appreciated the significance of the Duggan case at about 9 p.m. on that Tuesday, Tuesday 15 November, after he had returned to his office, well after the Tuesday’s proceedings in the Dail were over, having had a wash and a meal, at about 9 o’clock on that Tuesday? You may think, though again I emphasise that it is a matter for you and not for me, that that question lies at the heart of the case .........”

It is complained that in this passage the judge mis-stated the issue before the jury, since it was common ground that Mr Reynolds did learn of the Duggan case on Monday 14 November and did appreciate that it might be relevant to the Smyth case: hence his request to the new Attorney General to investigate the matter and report back, and his request to Mr Whelehan that he should defer his swearing in as President of the High Court until the matter had been clarified. It was, however, Mr Reynolds’ case that it was only on receipt of Mr Fitzsimons’ written advice on the Tuesday evening after the debate in the Dail was over that he appreciated what was then thought to be the true significance of the earlier case. It is accordingly argued that the judge invented a false dichotomy and wrongly failed to direct the jury’s attention to the first major issue for their decision, which was whether, given his knowledge and state of mind on the Monday evening, Mr Reynolds knowingly misled the Dail in his speech on the Tuesday.

The defendants argue that in this passage the judge posed a true dichotomy. They further argue that any defect is in any event cured by a later passage in the summing up where the judge said:

“Monday, 14 November is an important date, and it is a matter for you, but you may think in some ways the events for that day are at the centre of a good deal of the dispute that arises. The key question, you may think, though I emphasise it is a matter for you, is did the plaintiff learn or did he not learn on that Monday the fact that the Duggan case had involved a consideration by Attorney General Whelehan of the “lapse of time” provision in the legislation which deals with extradition? The plaintiff, Mr Reynolds, answered that question in the negative, but a qualified negative, because, as we shall see, Mr Reynolds did agree that there was some mention of the Duggan case by Mr Fitzsimons on that Monday. The defendants, on the other hand, answered that question with a very positive “yes, he did know.” That is one of the matters that you will have to consider, and consider, of course, in the light of the very hectic events which took place on Monday and on Tuesday and indeed Wednesday, and of course, I will remind you of those.”

In our judgment the passage complained of was a misdirection. It was clear beyond argument that Mr Reynolds did know on the Monday of the Duggan case and did appreciate that it “might be relevant” to the Smyth case. He learned that from Mr Fitzsimons on the Monday afternoon. But it was also common ground that he did not receive clear written advice on the significance of the case until he received Mr Fitzsimons’ letter on the Tuesday evening. We do not consider that this defect was rectified by the passage on which the defendants rely, and the suggestion in that passage that Mr Reynolds had been hesitant to agree that the Duggan case had been mentioned on the Monday was not a fair reflection of his evidence on the point, which was very clear. It is true that in his summing up the judge recited at great length the evidence given by Mr Reynolds, but that does not in our view make good the judge’s mis-statement of the issue for decision, which was the more serious because of the emphasis which the judge gave to it.

3. In the course of his summing up the judge reminded the jury of events on Friday 11 November when Mr Reynolds and his fellow Fianna Fail ministers resolved to go ahead with the appointment of Mr Whelehan as President of the High Court despite the objection of the Labour ministers, who left the meeting. The judge then continued:

“The new Attorney General, Mr Fitzsimons, was asked by the plaintiff to investigate further the Father Brendan Smyth matter and report. That he duly did and we have the report on pages 37 and 38 of our bundles. You see at the top of page 37 Mr Fitzsimons records the advice given to the Attorney General by Mr Russell, who I am sure you will remember was a very senior official in the Attorney General’s office.”

The judge then quoted the advice of Mr Russell, as set out in the document, and the written comments of Mr Fitzsimons on it. The judge told the jury that they would no doubt wish to consider the whole of that advice in due course and would take the document with them when they retired to consider their verdict. Having quoted further from the document and referred again to the recommendation on Friday 11 November that Mr Whelehan be appointed, the judge continued:

“The plaintiff told you that he was not satisfied with the explanation that had been given. On the other hand, the cabinet were satisfied that the Attorney General had done nothing worthy of criticism. Of course, in this context the Attorney General is still Mr Whelehan. The Attorney General had not seen the file, nor had he been told about the Duggan file. Mr Russell, the senior official, had handled the matter. Then the plaintiff referred to the long report, pages 20-30, which he had asked Mr Whelehan to prepare. He regarded that report as inadequate. He asked for a fuller report when he spoke to Mr Fitzsimons. He requested a fuller report than the 2-page report that we have just been looking at. “So far as I remember”, said Mr Reynolds, “I gave back the short report”. He said: “On the Friday 11th I had given to Mr Spring a copy of the Whelehan report. No one thought Whelehan had seen or been told of the Duggan file. There was no question of bad faith. This was the last issue on the agenda. We discussed it for about an hour and a half, and Mr Whelehan left when the question of his appointment to President of the High Court was raised.””

In ground 4 of his notice of appeal Mr Reynolds criticises this part of the summing up as seriously inaccurate and misleading. It is true that the new Attorney General, Mr Fitzsimons, was asked to investigate further the Smyth case, but that request was made through the Minister of Justice on Sunday 13 November at Mr Reynolds’ behest, and not on Friday 11 November as the judge’s chronology might suggest. Mr Fitzsimons did investigate the Smyth case, but the report at pages 37 and 38 of the jury’s bundles was the red ink document which Mr Reynolds never saw until after his resignation. The document was introduced into evidence simply to show how uncertain Mr Fitzsimons was about the Duggan case and its significance at his meetings with Mr Reynolds on Monday 14 November, and the judge gave it exaggerated significance by suggesting that the jury might wish to take the document with them and consider it, without reminding them of its limited relevance. Mr Reynolds’ expression of dissatisfaction with the explanation that had been given related to Mr Whelehan’s 10-page memorandum dated 9 November, and that referred back to the Friday. Mr Reynolds did not ask Mr Fitzsimons for a fuller report than the 2-page report which the jury had just been looking at, since Mr Reynolds had never seen that document (the red ink document). He had asked Mr Whelehan for a fuller report than the 2-page report on the Smyth case which Mr Whelehan had produced early in November 1994, and it was in response to that request that Mr Whelehan had written his 10-page memorandum. We understand that it was his 2-page report which Mr Reynolds gave back. It is argued that these errors could seriously have misled the jury, since they could have gained the impression that Mr Reynolds had the red ink document (which made express reference to the Duggan case) on the Friday, when in truth the evidence was quite clear that the first mention of it to him was on Monday 14 November.

Counsel for the defendants accepted that this passage was open to criticism but submitted that in the context of a long case and a long summing up there was no risk that these errors could have been prejudicial to Mr Reynolds. He furthermore relied on a passage some 10 pages later in the summing up where the judge recited the evidence given by Mr Reynolds that he did not see the 2-page report prepared by Mr Fitzsimons at page 37 of the bundle on either the Tuesday or the Wednesday of the relevant week.

In a case which very largely turned on what Mr Reynolds knew and thought at different times, it was in our judgment essential that the factual narrative, most of which was not in issue, should be very clearly understood. The passages complained of in this ground can only have served to confuse the jury, and may well have been misleading. Standing alone, this misdirection might not vitiate the judge’s summing up. Its significance must, however, be judged in conjunction with such other complaints, if any, as Mr Reynolds can make good.

4. After further reference in his summing up to events on the Friday and the Sunday, the judge continued:

“The plaintiff’s case [after] that is that he received no advice from the Attorney General following the disclosure to him on the Monday. As we read a few minutes ago as part of the plaintiff’s speech in the Dail, he recalls being told on the Monday that there was another case. That may be explained though I do not think (I shall be corrected if I am wrong) the plaintiff specifically relied on this as a reason for not recalling that remark by the new Attorney General, Fitzsimons, but he did imply that the hectic events of the night of Tuesday/Wednesday may well have put the matter out of his mind. The defendants’ case is that he could not possibly have overlooked the possible significance of the Duggan case, and that it was the question to Fitzsimons: “When did the Taoiseach first know about the Duggan case?” and the reply which Mr Fitzsimons gave “On Monday”, that let, so far as that was concerned, the cat out of the bag.”

In ground 5 of his notice of appeal Mr Reynolds complains of this passage as an incorrect summary of his evidence. The defendants accept that the reference should have been to Monday/Tuesday and not Tuesday/Wednesday, but submit that the judge’s summary was not an unfair reflection of Mr Reynolds’ evidence and of his case. They rely in particular on the following passages of his evidence:

“The Duggan case wasn’t uppermost in anybody’s mind in Ireland, my colleagues or anybody else, on the Tuesday .....”

“Q. When you say that the Duggan case was not uppermost in your mind as you were speaking in the Dail on Tuesday, are you trying to persuade the jury that you had forgotten about it?

A. I’m not trying to persuade the jury I had forgotten about it. I am trying to say to the jury precisely and truthfully what was in my mind on the Tuesday. I had dealt with the Duggan case on the Monday, and it had not been brought back in front of me up to that stage. That’s what I am trying to say to the jury - the truth of what happened.”

“And I can assure you, it is my honest opinion and I am quite certain that was clearly in my mind at the time, if there’s anything said about anything like that, but basically put that aside, I had cleared my mind on Monday that until the day the Attorney General came back with the legal definitive position on which I could act I was not going to move but as soon as I got it I would move. That was my decision and that’s the one I took and that is the truth.”

“As of Tuesday I gave a straightforward endorsement of Harry Whelehan’s ability or his integrity and everything based on everything I knew up to that. Every factual position that I had in front of me. As I said, I put the Duggan case out of my mind; that was not the focus of the day for anybody. I waited on the Duggan case to come back, and in the light of that, I could not do less.”

We do not consider that the summing up fairly reflected Mr Reynolds’ evidence. There was nothing to suggest a failure to recall what he had been told by the Attorney General. His case clearly was that he first heard of the Duggan case on the Monday, that he then received no clear advice on the significance (if any) of that case in relation to the Smyth case, that he asked the Attorney General to give him a definitive legal opinion on the significance of the Duggan case and that he resolved to await that opinion before taking any further action or saying anything about it. It was of course for the jury to decide whether and to what extent they accepted Mr Reynolds’ evidence, in so far as it was in dispute; but he was entitled to have his case fairly put, and in this passage the judge did in our view unwittingly misrepresent it. Moreover, the vivid reference to letting the cat out of the bag came at the very end of the first day’s summing up, and may have had a considerable impact on the jury.

5. Among those attending meetings with Mr Reynolds on Monday, Tuesday and early on Wednesday morning was Dr Michael Woods, the minister for social welfare, who made contemporaneous notes of some of what was said. The admission of those notes into evidence was at first resisted on behalf of Mr Reynolds, but they were eventually admitted in evidence in circumstances which we describe more fully below. In his closing speech for Mr Reynolds counsel placed heavy reliance on parts of these notes, in particular as corroborating Mr Reynolds’ evidence that the advice given by Mr Fitzsimons on Monday had been very unclear, that Mr Fitzsimons had been instructed to do a full investigation and report back as soon as possible and that Mr Reynolds’ immediate reaction to the receipt of Mr Fitzsimons’ considered advice on the Tuesday evening had been that he should include it in his speech in the Dail on the following day. Counsel made detailed reference to certain paragraphs in the “House of Cards” article in the defendants’ Irish Edition where these matters had been accurately reported.

In his summing up the judge read to the jury in full the passages in Dr Woods’ evidence to the Irish Select Committee on which the parties respectively relied. He did not, however, remind the jury of Dr Woods’ contemporary notes, or of the points which Mr Reynolds’ counsel had made on them and on the “House of Cards” article. During a break in the summing up Mr Reynolds’ counsel asked the judge to do so, reminding him of some of the references in the “House of Cards” article. The judge did then refer to Dr Woods’ notes and made reference to the “House of Cards” article. Complaint is made that the references to the notes were incomplete, and that some of the references to the “House of Cards” article were to the wrong passages.

In our judgment this complaint, made in ground 6 of the notice of appeal, is of little substance. The jury had the notes. They had heard the points made on them by Mr Reynolds’ counsel. It was not incumbent on the judge to attempt to remind the jury of every point made by counsel on either side. We attach no significance to this ground.

6. Relatively early in his summing up the judge read to the jury in full the letter of 15 November 1994 in which Mr Fitzsimons had advised Mr Reynolds on the significance of the Duggan case in relation to the Smyth case. Mr Reynolds in his evidence placed particular reliance on one paragraph of this letter in which Mr Fitzsimons advised that it would in his view be “absolutely incorrect” to inform the Dail that the Smyth case was the first case in which the relevant legislation had been considered. The judge drew particular attention to this paragraph, which he described as “the vital paragraph”, a fair description since Mr Reynolds relied on this paragraph as explaining his change of position from defending Mr Whelehan on Tuesday to criticising him on Wednesday. There was another paragraph in the letter on which the defendants relied as suggesting that the Duggan case had not prompted any deep legal study of or research into the relevant legislation, enabling them to suggest that Mr Reynolds’ change of front was prompted not by Mr Fitzsimons’ advice but by considerations of political expediency.

Following submissions by counsel, the judge read these two paragraphs to the jury again, but mistakenly suggested that Mr Reynolds had invited him to stress the paragraph on which the defendants relied and that the defendants had invited him to remind the jury of the paragraph on which Mr Reynolds relied. It is plain that in this later passage the judge mistakenly transposed his references to plaintiff and defendant. But the error was not pointed out at the time, when it could have been very easily corrected. It seems to us most unlikely that the jury were misled, and we attach no significance to this ground (numbered 7 in the notice of appeal).

7. When summarising the evidence of Mr Reynolds the judge said:

“He [Mr Reynolds] did not, as I am sure you remember him saying, receive it, (and this is common ground) until 9 o’clock on the Tuesday, and by “it”, of course, I mean the statement of Mr Fitzsimons which apparently had been in the Taoiseach, Mr Reynolds’, office since the morning of Tuesday. He said on 15 November he spoke on the information available to him at that time, but it is a matter that you may wish to ask yourselves: Why was it that, not having received the report which he had asked Mr Fitzsimons to prepare for him and not having seen it during the morning of the Wednesday 16 before going to the Dail, he did not say: “Please can I have this report?” and then he would have had the answer: “Well, I left it in your office this morning”. It is for you to consider and decide whether it was the pressure of other events, perhaps, which prevented the plaintiff from making such an inquiry, and it is for you to decide what you make of that matter.”

Mr Reynolds complains of that passage in ground 8 of his notice of appeal. It is pointed out that the advice was delivered to Mr Reynolds’ office in the early afternoon and not during the morning, and that it was on the Tuesday, not the Wednesday. The thrust of the complaint is, however, that it was unfair to criticise Mr Reynolds for failing, by midday on Tuesday, to chase up a report which he had on Monday afternoon asked to be delivered as soon as possible. This was not, it seems, a criticism which the defendants ever made.

It does not seem to us that Mr Reynolds could fairly be criticised for acquiescing in delay, but this complaint would perhaps, if standing alone, be of little significance. If, however, the chronology summarised by the judge (see paragraph 3 above) left the jury with the impression that Mr Reynolds had been alerted to the Duggan case on Friday 11 November, this criticism might carry some weight and might lead the jury to conclude that Mr Reynolds was unconcerned by the Attorney General’s delay in reporting to him. Even though the judge suggested a reason why Mr Reynolds might have failed to enquire after the progress of the report, it seems to us unfortunate that he raised the question at all.

8. Reference has already been made to the contemporaneous notes of Dr Woods. These were not in the agreed bundle of documents before the jury because Mr Reynolds’ advisers objected to their inclusion. During his cross-examination counsel for the defendants showed Mr Reynolds the notes and asked him if he had seen them before. He said he had not. Counsel asked the judge if the document might be handed to the jury. The judge asked if there was any objection. Mr Reynolds’ counsel did object, pointing out that it was not Mr Reynolds’ document, that he had never adopted it, and that it was not admissible as an exhibit. The judge accepted that submission. The defendants’ counsel then put it to Mr Reynolds that because of a quirk of English law the document could not be shown to the jury unless he consented. Mr Reynolds’ counsel objected to that line of cross-examination, and submissions were made in the absence of the jury. The judge ruled that the defendants’ counsel was entitled to put the content of the document to Mr Reynolds, but could not put the document itself before the jury. The defendants’ counsel asked if he could ask Mr Reynolds whether he consented to the document going to the jury, but the judge answered that to do so would be to take advantage of a layman who could not be advised on the matter. When the jury returned the defendants’ counsel cross-examined Mr Reynolds very closely on the contents of the document, and the following exchange took place:

“A ......as I say, I haven’t seen the document before now and I haven’t discussed it with any colleagues and I certainly will in relation to it because I want the whole truth to come out here, every aspect of the truth to come out, every aspect. Q. In this court? A. Yes. Q. Do you not think it would help the truth to come out if the jury were to look at this note? A. It’s not for me to say, I leave that to the legal people in this court, ......”

That exchange took place on Mr Reynolds’ third day in the witness box. On the following day the judge ruled, in the light of answers which Mr Reynolds had given concerning the notes, that the document should be before the jury. On the next day of Mr Reynolds’ evidence, Monday 21 October 1996, the following exchange took place during cross-examination:

“Q. Mr Reynolds, last week you said to this jury that you wanted every aspect of the truth to come out in this trial. Think about your answer before you give it. Is that true? A. I was being questioned last week as I recall it on a document that a colleague of mine made, Dr Woods. We had a document of his before us on which there was a particular note. There was a whole list of notes, but a particular note. I said that I did not recall what I had said to him or that I had seen him taking notes. But I was quite happy, if somebody appeared in the course of the evidence, some of my colleagues, to say I said it, I said: “Fine”. In relation to that particular issue I made it clear that was my position to your Lordship. Q. I see. I just want to be clear about that. So that answer that you gave to the jury: “I want every aspect of the truth to come out in this case” ....A. On that issue, yes. Q. That was confined to that issue? A. Well, that is the issue we were referring to at the particular time....... The Judge: Just a moment. “I want every aspect of the truth to come out” referred only to the note .... A. That is the only issue we were discussing at that time. The colleague of mine’s note, his memory as against mine. J. I just want to get your evidence right. A. That is the issue we were on at that time. J. That really refers only to the document of Mr Woods. A. That is as I understood the question on that day and that is the answer I gave.”

Counsel then went on to question Mr Reynolds about a speaking note, to which objection had also been taken, prepared by Mr Spring for his meeting with Mr Reynolds on Wednesday 16 November.

In his closing speech for the defendants counsel hyperbolically described this as “one of the most astonishing exchanges ever heard in a court of law” and criticised Mr Reynolds very strongly on the basis that he was only willing for the truth to emerge when it helped him. In his summing up to the jury the judge said:

“Another matter which Mr Price put to the plaintiff was when he said at one stage in his evidence: “I want every aspect of the truth to come out”. Then, as Mr Price said, he qualified that by saying this remark, “I want every aspect of the truth to come out”, referred only to Mr Woods’ diary. You remember that in Mr Woods’ diary he recorded that observation”.

Mr Reynolds complains in ground 12 of his notice of appeal that the judge acted unfairly in leaving this issue to the jury as he did. It seems to us that the judge should, at the very least, have given the jury some guidance on their approach to this matter. Objections to the admissibility of evidence had been taken not by Mr Reynolds but by very experienced leading counsel on his behalf. When the issue arose, Mr Reynolds had been in the witness box for days on end, bereft of legal advice. Given the judge’s initial ruling, which has never been challenged, we very much question whether counsel was entitled to pursue his cross-examination of Mr Reynolds to the lengths he did. In any event, Mr Reynolds was (as we think) entitled to point out that his answer was given in the context of questioning about a specific document. We can understand why a layman would be wary of agreeing that all documents should go before the jury in the absence of legal advice. Given the strength of the defendants’ criticism of Mr Reynolds on this point, we consider that if the judge chose to deal with this point at all he should in fairness to Mr Reynolds have reminded the jury of the context in which the answers were given.

9. The journalists responsible for the publication complained of were called as witnesses at the trial not to give evidence of the truth of the facts stated in the article, which they were in no position to do, but to rebut the allegations of malice made against them. To that end they testified to their belief in the truth of the facts stated in the article. It is accepted that they were fully entitled to do so and that their evidence was directly relevant to the issue of malice, but complaint is made in ground 13 of the notice of appeal that the judge failed to direct the jury in sufficiently clear terms that their evidence was relevant only to malice and was wholly irrelevant to the issue of justification.

In his direction the judge said:

“So far as the defence were concerned, of course, the only live witnesses you heard were Messrs. Ruddock, Burns and Witherow, and they were really dealing not so much with the facts of what occurred in Eire; they were concerned with the reasons for publishing, and so forth, and I will remind you of that in due course. But it is entirely for you to decide what evidence you believe and what evidence you do not”.

On the second day of his summing up the judge returned to this aspect:

“Members of the jury, so much for a review of the evidence called by and on behalf of the plaintiff. I now turn to the defendants’ evidence. The live evidence given from the witness box on behalf of the defendants consisted solely of what one might call people who could speak from an editorial point of view, people who because they were not there did not know the facts of what went on in the Dail and so forth. For witnesses on whom the defendants could rely for evidence regarding the events in and surrounding the Dail in November 1994 they had to rely on witness statements tendered under the relevant statute just as the passages I have read were tendered to you under the relevant statute. The logical course seems to me to be for me to remind you of those statements before proceeding to remind you of the evidence of Messrs. Ruddock, Burns and Witherow”.

In due course the judge summarised the effect of the journalists’ evidence, reminding the jury of the reliance they had placed on their Irish sources. He reminded the jury that

Mr Ruddock had said:

“I understood that ministers had been informed on the Monday of the Duggan case and had realised its significance. I chose to reject the Fianna Fail ministers’ version of events. My judgment was that they knew of the Duggan case on the Monday.”

He also reminded them of Mr Witherow’s evidence:

“I do not consider that the article vilified the plaintiff. Mr Spring felt that Reynolds had lied.”

It is unfortunate that the judge did not give the jury an unambiguous direction that they should pay no regard whatever to the evidence of the journalists, to which he had referred, when considering the issue of justification. What the judge did say to the jury may have conveyed that message. It is impossible to be sure. We are, however, concerned that the summing up as delivered may have caused the jury to slip from accepting the journalists’ evidence of their own belief in the truth of the article into treating that evidence as going to show that the article was true.

VII

The judge gave a textbook direction on the law of malice, and no criticism is made of it. Mr Reynolds does, however, complain in ground 14 of his notice of appeal that the judge wholly failed to sum up to the jury Mr Reynolds’ factual case on malice. In his closing speech to the jury Mr Reynolds’ counsel addressed this topic more than once, with precision and clarity. He laid particular emphasis on the difference between the articles published in England and Ireland, relying on the Irish “House of Cards” article to show that the defendants knew the true facts of the matter. When, after completing his summing up, the judge had failed to deal with the factual aspects of malice at all, counsel raised the matter with him. Following this intervention, the jury returned into court and the judge said:

“On the aspect of malice, Lord Williams asks me to remind you of this. When Mr Ruddock was in the witness box he was asked this question by Lord Williams: Q. Did you know when you wrote your article that Fitzsimons’ letter of advice had not reached Mr Reynolds until 9 p.m. on Tuesday night? A. I honestly don’t recall specifically whether I knew that or not. Q. If you had been aware of it, it would have been very dishonourable, dishonest, I suggest? A. Yes. Q. To put that sentence in context, Reynolds had known all along that Whelehan’s excuse did not hold water, would it not? A. Yes.”

This is a point of some significance, since it was clearly acknowledged in the “House of Cards” article that Mr Reynolds had not received Mr Fitzsimons’ advice until after the debate in the Dail on the Tuesday. But the judge did not remind the jury of the significance which Mr Reynolds attached to this point, nor did he refer to any of the other factual matters relating to malice on which Mr Reynolds relied. He simply added, later:

“You can bear in mind malice if in your judgment that has been proved, but that is a matter for you.”

In answer to this complaint the defendants question how far, in the light of the jury’s verdict, malice matters; they contend that the jury could not have overlooked the points made on behalf of Mr Reynolds in counsel’s closing speech; and they suggest that counsel should have raised the matter with the judge if dissatisfied with his direction. These answers do not in our judgment begin to meet this complaint. Mr Reynolds was entitled to have his factual case on malice squarely put before the jury by the judge. It is idle to speculate what the effect (if any) on the jury’s thinking would have been had the judge done this. He did not. His failure to do so must have led the jury to conclude that it was an aspect of the case to which he attached little importance, and this could well have affected the jury’s thinking. Counsel did, repeatedly, invite the judge to make good omissions from his summing up. He expressly raised this issue of malice. There is in our view a limit to what counsel can reasonably be expected to do and we do not think he could reasonably do more. A proper direction on the facts relevant to malice was of importance, both in relation to qualified privilege and in relation to the calculation of damage. The judge did not deal with this adequately, and we regard this as a significant deficiency in his direction.

VIII

1. In ground 15 of his notice of appeal Mr Reynolds complains of the judge’s direction on damages. His initial direction was to this effect:

“When you have got to question 4 I would advise you, indeed request you, to keep your feet on the ground. One way of checking whether you are in fact doing that is, as the higher court has said (one can now use these matters as a means of comparison) you can compare awards in damages for personal injury as being a check on whether the figure that you come to at the end of your deliberations is a sensible decision. Quadriplegia, that is to say, complete paralysis of all four limbs; for that insult to the body of a human being the awards are in the region of £110,000 to £130,000. Let me make it clear what I mean by that. I do not mean that such a figure would include loss of earnings or cost of caring for somebody who was in that appalling situation. That award, £110,000 to £130,000 is simply for being left as a human being in that completely incapacitated state. So the suggestion is that you should use that as a check; compare it with the insult if such you find it was to the plaintiff. Compare it with the sufferings you think he has undergone as a result of being called a liar and having been accused of misleading the Dail and so forth. Another comparator, which you may think you can use by way of a check, is loss of arm at the shoulder. Awards are in the order of £50,000 and of course, as they go down the scale of seriousness, the awards are decreased. Mr Price gave you, perfectly properly and accurately, some examples lower down the scale. These are matters for you to consider and you should award, if you get as far as damages, such sum as would justly and sensibly compensate the plaintiff for the words being wounding and untrue if you do not find that in substance they are true.”

After the jury had retired, counsel invited the judge to give a further and fuller direction on damages, drawing attention to such matters as vindication; the circulation and readership of the newspaper; the hurt to the plaintiff’s feelings; malice; persistence in a plea of justification; and matters relating to the conduct of the trial. It was submitted that those were matters worthy of being summed up to the jury. When the jury returned to court, the judge said:

“Then I was asked to deal with certain matters on the question of the amount of such damages if in the end your deliberations take you that far. The purpose of damages is to compensate and not to punish. It is right you should bear in mind what the sum you come to would produce by way of interest, what income, in other words, would the sum generate; secondly, that it goes to vindicate the reputation of the plaintiff and, if the libel should be repeated at a later date, it would enable him to point to the sum awarded in the instant case, the one we are dealing with. You have in your folders at tab 6 the numbers of circulation and the numbers of readership; you have them there and I need not repeat to you. You can bear in mind malice if in your judgment that has been proved, but that is a matter for you. You can bear in mind the persistence in the plea of justification, should you find that it is not warranted, and you can bear in mind to the extent that you think right the matters which were put in cross-examination, principally the beef export credit guarantee matter and the Saudi Arabian passport matter. Mr Price invites you to bear this in mind, that if there is some truth in it then you can reduce your award of damages accordingly and only award damages for the extent to which the truth is exceeded in the article. Secondly, the story was not published in Eire at all and that is the country where the plaintiff lives and where no doubt more people know him than know him in this country. Thirdly, any newspaper if it were reporting the news correctly, would be bound to report the collapse of a government and the reasons for it. Members of the jury, having reminded you of those helpful additions, would you now please retire to consider your verdict.”

The defendants contend that the judge’s initial direction, although short, was to the point. They further question how far Mr Reynolds’ complaints carry weight in light of the jury’s decision to award him nothing. In any event, they argue, the judge’s supplementary direction dealt with the matters which Mr Reynolds’ counsel asked him to cover.

In our judgment the judge’s initial direction was inadequate. It was incumbent on him to explain to the jury the purpose of damages in a libel action, and to tell them of the matters which they might properly take into account when seeking to assess an appropriate award. It was of course appropriate for the judge to make reference to personal injury awards as sanctioned by John v MGN Limited [1997] QB 586, but not in substitution for a conventional direction on the proper approach to awards of damages. The judge’s supplementary direction did to some extent make good his earlier omission, but his treatment of this important matter remained perfunctory and its introduction as an afterthought can only have served to diminish the significance of this aspect in the eyes of the jury. Without knowing why the jury decided to award no damages, we cannot usefully speculate what, if any, effect a proper direction on damages would have had.

2. In ground 16 of his notice of appeal Mr Reynolds complains of the judge’s direction, already quoted, that it was material to have regard to the fact that a newspaper would be bound to report the collapse of a government and the reasons for it. This is not, standing alone, a point of great weight. But we do not accept the defendants’ contention that there is little difference between an article stating that Mr Spring felt he had been deceived and an article asserting as a fact that he had been deceived. There is a clear distinction, and the jury should have been alerted to it.

3. In ground 17 of his notice of his appeal Mr Reynolds complains that, when directing the jury on damages, the judge made no reference to the evidence of Mr Reynolds and his daughter. The judge had of course, some days earlier, recited the evidence of both Mr Reynolds and his daughter. But he did not, when directing the jury on damages, in any way relate their evidence to that issue. In our judgment he should have done so.

4. Mr Reynolds complains (ground 18 of his notice of appeal) that the judge failed to emphasise to the jury that the effect of other articles on Mr Reynolds’ reputation could not be relied on to reduce damages. Since reference had been made at the trial to several damaging articles published in Ireland, it is argued that this direction should have been given. We do not agree. The action concerned an article published, and only published, in Great Britain. No reference was made to any other article published here. We regard this criticism as misconceived.

IX

Mr Reynolds contends (ground 1 of his notice of appeal) that given the disruption to which this summing up was unfortunately subject, particular care and thoroughness were called for. Complaint is made (ground 11 of the notice) that the judge read large tracts of the Civil Evidence Act evidence respectively relied on by the parties with no attempt to summarise it or relate it to the issues or highlight the more significant passages. It is contended (ground 10 of the notice of appeal) that the judge’s summing up was so confusing and unstructured that the jury made a request for a transcript of the whole of Mr Reynolds’ evidence. This request was properly refused, but the judge did (in response to a narrower request by the jury) read to them the passages identified to him by the respective parties concerning Mr Reynolds' reasons for not mentioning the Duggan case to the Dail on 15 November.

We see considerable force in these criticisms. The summing up was indeed long, and the judge did little to relate the evidence to the specific issues. It cannot have been an easy direction to assimilate. We have considerable sympathy with the jury in their task of seeking to analyse large tracts of undigested material. But defects of form or presentation would not entitle Mr Reynolds to the relief he seeks unless the misdirections complained of, singly or cumulatively, lead us to the opinion that “some substantial wrong or miscarriage has been thereby occasioned”. In approaching that question our task is not to decide whether the jury gave the right answers to the questions put to them but to consider whether the misdirections complained of, singly or cumulatively, were such as to deny Mr Reynolds a fair trial of his claim. With very great regret, because we are mindful of the consequences, we conclude that the misdirections which we have identified above were, cumulatively, such as to have that effect. Having reached that conclusion, we have no effective alternative but to set aside the verdict, finding and judgment of the court below and order a new trial of this action. The costs of the first trial must await the outcome of the re-trial or further order, save for the costs of the qualified privilege argument, on which we invite submissions if the parties cannot agree.

The defendants’ cross-appeal on costs challenged the Judge’s decision not to award to the defendants their costs of the action up to the date of the payment-in on 20 September 1996 (over a year after the issue of the writ, and about three weeks before the start of the trial). The Judge made his ruling on costs on 21 November 1996. He referred to some authorities which had been cited, of which the most recent - and most important - was the decision of this court in Roache v News Group Newspapers Limited (19 November 1992 - then unreported but since reported at [1998] EMLR 161).

Roache was a libel action in which the plaintiff, having decided not to take out either the original payment-in of £25,000 or the sum of £50,000 in court as the result of a further payment-in, was awarded exactly £50,000 damages by the jury. The trial judge decided that he should have all his costs because at trial he also obtained an injunction against republication of the libel. This court allowed an appeal by the defendants and gave the defendants their costs from the date of the second payment-in. Had the plaintiff decided to take out the £50,000, in all probability he could readily have obtained an undertaking against republication, so that what he obtained at trial was not (in the expression used by Simon Brown LJ at page 178) “something of value”.

After citing passages from all three judgments in Roache the Judge said,

“The plaintiff has of course secured from the jury a verdict of, “No,” in answer to [the] question: “Is the allegation complained of by the plaintiff in substance true?” But that verdict, so the defendants submit, is not properly to be considered in isolation; it has to be read in conjunction with the answer, “Zero pounds,” [sic] which the jury gave to the fourth question. It was one, as is rightly submitted, roundly given and quite inconsistent with any suggestion that the answer to Question 1 could be regarded as a vindication of the plaintiff in any real sense of that word.”

Nevertheless, the Judge went on, Mr Reynolds had obtained something of value in the answer which the jury had given to the first question.

Mr Price submitted that the Judge was clearly right about the absence of vindication (which, counsel said, was wholly inseparable from damages) and that the Judge’s conclusion was inconsistent and wrong in principle. Mr Caldecott accepted that there was some ‘tension’ in the Judge’s reasoning, but submitted that the Judge was entitled to look at the litigation as a whole, and that his discretion could not be closely confined by general rules. He drew attention to what Sir Thomas Bingham M.R. said in Roache at page 168,

“The Judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won ?”.

He submitted that success on the first question, even with no award of damages, could be seen as establishing that Mr Reynolds had not acted dishonestly, and therefore as some sort of victory.

Since this court is ordering a retrial, and the costs below will be at the discretion of the judge at the retrial, it is not necessary for us to express a definite view on this cross-appeal. However we are of the clear opinion that, had the Judge awarded the defendants the whole of their costs, it would not have been right to interfere with such an order; and we are doubtful whether, in the light of the jury’s answers, the way in which the Judge actually exercised his discretion could be supported. The Judge did not give any subsidiary reasons relating to the conduct of the trial. The only reason which he gave, that the plaintiff did obtain something of value from the jury’s answer to the first question, seems to be contradicted by Mr Reynolds’ failure (as the Judge recognised) to obtain any real vindication. But we should of course be hesitant to disturb such a pre-eminently discretionary decision.

The correctness of the Judge’s decision to award 1p in place of the jury’s ‘zero’ damages has become academic and this court has not heard any developed argument on it. But we think it right to say that in our judgment the Judge was correct in his ruling that a plaintiff who is successful in a libel action must be awarded some damages, even if they amount to no more than the smallest coin of the realm. Proof of actionable libel necessarily imports a finding of some damage: see Wisdom v Brown (1885) 1 TLR 412; Martin v Benson [1927] 1 KB 771, 772. For a jury to find that a plaintiff has been libelled but to award no damages whatsoever would be contrary to both principle and authority.

XI

We heard full argument on the issue of qualified privilege raised in a notice of appeal served by the defendants. Lord Lester of Herne Hill QC challenged the judge’s ruling in favour of Mr Reynolds; Mr Andrew Caldecott QC supported the judge’s decision. It is necessary that we give our decision on the argument we have heard, since the defendants’ notice raises a substantive issue and we must decide whether or not the defendants may rely on qualified privilege in the re-trial we have ordered.

The basic principles of the common law of qualified privilege are succinctly and conveniently outlined in Duncan and Neill on Defamation (2nd edn) paragraphs 14.04 - 14.05 as follows:-

"From the broad general principle that certain communications should be protected by qualified privilege in ´the general interest of society' the courts have developed the concept that there must exist between the publisher and the publishee some duty or interest in the making of the communication. In 1855 in Harrison v Bush (1856) 5 E & B 344 at 348, Lord Campbell CJ stated the law as follows:

‘A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege, would be slanderous and actionable’

And in Pullman v Hill & Co [1891] 1 QB 524 at 528, Lord Esher MR said:

´An occasion is privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it, and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.'

In Adam v Ward [1917] AC 309 at 334 Lord Atkinson emphasised the importance of reciprocity in the following words:

´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 the 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.'

And in Watt v Longsdon [1930] 1 KB 130 at 147, Scrutton LJ, after considering the earlier cases, restated the law in terms which (with one important exception), are generally accepted as authoritative. He expressed the opinion that qualified privilege existed where there was either:

´(1) A duty to communicate information believed to be true to a person who has a material interest in receiving the information, or

(2) an interest in the speaker to be protected by communicating information, if true, relevant to that interest, to a person (honestly believed to have) a duty to protect that interest, or

(3) a common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient.'"

The authors' reservation relates to the words in brackets in sub- paragraph (2): see paragraph 14.06.

Lord Lester's central submission, as set out in his opening speech, was that qualified privilege protects a publication to the public at large, arising out of discussion of political matters, including the manner in which a public representative or senior public officer has discharged his public functions, or relating to his public views and conduct in relation to those functions, or his fitness for political office. Such a qualified privilege arises, he submitted, in particular, where the plaintiff is an elected politician and where the defamatory words complained of relate to his conduct in his public role and not to his private life or to anything he has said or done in a purely personal capacity. He contended that the need to recognise such a qualified privilege arises because of the well-recognised chilling effect of the threat of libel actions on freedom of expression. Thus, he defined the important point of law for determination by the court in this case to be whether, in the circumstances attending this publication, the defence of qualified privilege applies to the publication in good faith by the publisher of The Sunday Times and its co-defendants to its readers of defamatory and factually untrue words arising out of political discussion and reflecting upon the reputation of Mr Reynolds as Taoiseach, and as an elected member of the Dail in the discharge of his public functions, so as to require Mr Reynolds to prove express malice as an essential element in his cause of action.

Lord Lester advanced a good working definition of what he meant by "political discussion" as "information, opinions and arguments concerning government and political matters that affect the people of the United Kingdom", following a definition adopted in relation to the people of Australia by the High Court of Australia in the case of Lange v Australian Broadcasting Corporation (1997) 145 ALR 96.

In support of his argument Lord Lester placed much reliance on the very recent decision by the Court of Appeal of New Zealand in the case of Lange v Atkinson and Australian Consolidated Press NZ Ltd unreported, 25 May 1998, where, in an action by a former New Zealand Prime Minister, the Court upheld a similar defence of qualified privilege on similar grounds.

He also relied, by suggested parity of reasoning, on the recent decision of the House of Lords in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, where it was held that it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation. He further submitted that the principle on which he relies was foreshadowed in earlier election cases, (in particular Braddock v Bevins [1948] 1 KB 580, protecting statements by an election candidate during an election campaign defamatory of his opponent and his supporters) and that his central submission is in harmony with the jurisprudence of the European Court of Human Rights under Article 10 of the European Convention on Human Rights.

In the course of his argument Lord Lester referred to a number of official reports in England and also to relevant English statutes. He also referred us to the well known principles laid down by the United States Supreme Court in New York Times Co v Sullivan (1964) 376 US 254 and to the Australian decision in Lange referred to above, though he did not invite us to adopt the full amplitude of the doctrine laid down in the former case, nor did he espouse the latter in view of the limitations imposed by the Australian High Court which are described below.

In this judgment we propose first to undertake a historical examination of the relevant English authorities (reserving the election and the Derbyshire cases for separate chapters), to summarise the English official reports and statutes, and then to trace through the ECHR, Commonwealth and U.S. jurisprudence, before reaching our conclusions.

XII

The starting point is the classic decision of Parke B in Toogood v Spyring (1834) 1 CM & R 181 at 193 which is quoted and amplified in the judgment of Lindley LJ in Stuart v Bell [1891] 2 QB 341 at 346 as follows:-

"´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 unauthorized communications, and affords a qualified defence depending on 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.' This passage has been frequently quoted, and always with approval.

The reason for holding any occasion privileged is common convenience and welfare of society, and it is obvious that no definite line can be so drawn as to mark off with precision those occasions which are privileged, and separate them from those which are not."

This statement of principle has since been repeatedly applied in numerous cases at all levels, including the House of Lords. See for example Wason v Walter (1868) LR 4 QB 73 (fair and accurate reports of parliamentary proceedings), Campbell v Spottiswoode (1863) 3 B & S 769, Adam v Ward [1917] AC 309 (HL) (reply to public attack), London Association for Protection of Trade v Greenlands Limited [1916] 2 AC 15, Watt v Longsdon [1930] 1 KB 130, and the other cases cited in Duncan and Neill as quoted above.

In Campbell v . Spottiswoode Cockburn CJ stated as follows at 777:

"It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honour and character, and made without any foundation."

In the Greenlands case, having cited Toogood v Spyring and Stuart v Bell as cases which in his opinion could not be improved upon, Lord Atkinson stated at page 33 as follows:-

"These are, apparently, the tests by which, in the learned judge's opinion, it may be determined whether defamatory matter has been published under circumstances which rebut implied malice. In the latter part of the passage he gives the reason why a publication which fulfils these tests is protected, and that reason is ´the common convenience and protection of society'. But Parke B. never meant, I think, to lay it down that implied malice is to be taken to be rebutted where those tests have not been fulfilled, although the common interest and protection of society might be served by the publication of the defamatory matter in question."

In several of the cases qualified privilege was held to protect publications to the general public in the particular circumstances of the case, the most prominent examples being Cox v Feeney (1863) 4 F & F 13, Allbutt v The General Council of Medical Education and Registration (1889) 23 QBD 400, Perera v Peiris [1949] AC 1, and Webb v Times Publishing Company Limited [1960] 2 QB 535.

In Cox v Feeney (supra) the plaintiff, who was a distinguished doctor, complained of the publication in a newspaper of the report of an inspector of charities under the Charitable Trusts Act, reflecting on the plaintiff in his management of a college. Cockburn CJ ruled that the occasion was one of qualified privilege, since the matter was one of public interest, which the defendant had published fairly and from an honest desire to afford information to the public at large.

Cox v Feeney was approved by the Court of Appeal (Lord Coleridge CJ, Lindley and Lopes LJJ) in Allbutt v The General Council of Medical Education and Registration (supra) where it was held that qualified privilege attached to the publication by the defendants of an adjudication reached bona fide and after due enquiry that the plaintiff had been guilty of infamous conduct in a professional respect. Lopes LJ, giving the judgment of the court, stated at page 412 that the case was even stronger than Cox v Feeney , since the report was a bona fide report of proceedings within the jurisdiction of the council, where the facts had been ascertained relating to a matter of a public nature, in which the public were interested and in respect of which they were entitled to information.

Lopes LJ also distinguished Purcell v Sowler (1877) 2 CPD 215, where the Court of Appeal had held that a report of proceedings at a meeting of poor law guardians, at which charges of misconduct were laid against a medical officer, was not privileged, the basis of the decision being that these were ex parte charges and not a final adjudication.

In Perera v Peiris ( supra), the Judicial Committee of the Privy Council considered the publication in the Ceylon Daily News of extracts from an official report of a Bribery Commission which had been set up under statutory powers by the Governor of Ceylon to enquire into questions relating to allegations of corruption against certain members of the then existing State Council of Ceylon. Lord Uthwatt, giving the judgment of the Board, having cited numerous earlier authorities including Stuart v Bell and Wason v Walter , concluded that on the review of the facts, the public interest of Ceylon demanded that the contents of the report should be widely communicated to the public, since it contained the reasoned conclusions of a commissioner acting under statutory authority who had held an inquiry and had based his conclusions on evidence before him; and that the subject matter was a grave matter affecting the public at large, namely the integrity of members of the State Council of Ceylon. Consequently it was held that the proprietor and printer of the newspaper and the public had a common interest in the contents of the report and its wide dissemination.

In Webb v Times Publishing Co Ltd ( supra) The Times published a report of the trial in a Swiss court of Brian Donald Hume, who had been charged with criminal offences in Switzerland. Hume had previously been charged with and tried in England for murder, and, having been acquitted on that charge, had subsequently pleaded guilty to being an accessory after the fact to the murder and been sentenced to a term of imprisonment in England for that crime. The plaintiff had at the time of the English trial been Hume's wife. Pearson J considered the three previously cited cases, ( Cox, Allbutt and Perera), and held that there was no qualified privilege of a general or blanket character attaching to fair and accurate reports of judicial proceedings in foreign courts, but that qualified privilege did attach to this particular report, seeing that its subject matter was closely connected with the administration of justice in England, and was therefore of legitimate and proper interest to the English newspaper-reading public.

These four cases are all instances where, applying the well established principles of English common law qualified privilege, the particular circumstances of the publication taken as a whole warranted its dissemination to the public at large.

In Silkin v Beaverbrook Newspapers Limited [1958] 1 WLR 743, Diplock J, summing up to the jury, directed them as to the law as follows, at page 746, in what has become a classic statement:-

"Let us look a little more closely at the way in which the law balances the rights of the public man, on the one hand, and the rights of the public, on the other, in matters of freedom of speech. In the first place, every man, whether he is in public life or not, is entitled not to have lies told about him; and by that is meant that one is not entitled to make statements of fact about a person which are untrue and which redound to his discredit, that is to say, tend to lower him in the estimation of right-thinking men.

..................

[Diplock J said that the second and very important requirement was that the subject of the comment should be a matter of public interest. In the present case the plaintiff's attitude to Germany and the Germans was a matter of public interest, not a mere matter of private interest, and he so directed the jury. He continued:] What are the limits of the right of comment? Quite rightly they are very wide. First of all, who is entitled to comment? The answer to that is ´everyone'. A newspaper reporter or a newspaper editor has exactly the same rights, neither more nor less, than every other citizen, and the test is no different whether the comment appears in a Sunday newspaper with an enormous circulation, or in a letter from a private person to a friend or, subject to some technical difficulties with which you need not be concerned, is said to an acquaintance in a train or in a public-house. So in deciding whether this was fair comment or not, you dismiss from your minds the fact that it was published in a newspaper, and you will not, I am sure, be influenced in any way by any prejudice you may have for or against newspapers any more than you will be influenced in any way by any prejudice which you may have for or against Lord Silkin's politics. Those are matters which you will, I am sure, all of you, dismiss from your minds.

I have been referring, and counsel in their speeches to you have been referring, to fair comment, because that is the technical name which is given to this defence, or, as I should prefer to say, which is given to the right of every citizen to comment on matters of public interest. But the expression ´fair comment' is a little misleading. It may give you the impression that you, the jury, have to decide whether you agree with the comment, whether you think it is fair. If that were the question you had to decide, you realize that the limits of freedom which the law allows would be greatly curtailed. People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate or prejudiced, provided - and this is the important thing - that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?"

Silkin v Beaverbrook was of course a fair comment case, but Diplock J's analysis is nonetheless relevant to the present discussion because it is the right of fair comment (or honest opinion, as the right has been aptly re-christened in New Zealand) which has, up to now, provided the main protection of free political discussion in places and on occasions not attracting the protection of privilege.

In London Artists Limited v Littler [1968] 1 WLR 607 (subsequently approved by the Court of Appeal in Blackshaw v Lord [1984] QB 1) Cantley J ruled as follows at page 615:-

"Mr Duncan has submitted that the principle on which Pearson J decided Webb's case is a principle of general application, namely, that there is qualified privilege for any publication giving the public information on a subject of proper and legitimate interest to the public, unless it can be shown that the publication was not made bona fide with a view to giving the public such information.

If that principle were to be true without further qualification, it would indeed be a charter to persons including those whom Mr Ackner classified as the obstinate, the stupid and the unreasonable to disseminate any untrue defamatory information of apparently legitimate public interest, provided only that they honestly believed it and honestly thought that it was information which the public ought to have. If that were the law few defendants would ever again need to plead the defence of fair comment and take upon themselves the burden of proving that their comment was founded on facts and that the facts were true.

Mr Duncan further submitted that, even if there is no general right under the protection of privilege to publish information of interest to the public, the defendant in the present case was himself vitally interested in the subject-matter and the public had a corresponding interest in receiving the information which he gave them. Even if the principle be restricted to publication by a person who has himself some legitimate interest in the matter to which the publication relates, it gives him a startling licence to defame and on a grand scale, unless he has further to show that he was under a legal, social or moral duty to give the information to the public, or that such publication was necessary for the proper defence of his own interests, or that the publication was strictly confined to those persons who indeed have a corresponding interest with him."

Finally in this catalogue of cases, in Blackshaw v Lord ( supra) itself, the Court of Appeal rejected a plea of, inter alia, common law qualified privilege in a case of a newspaper report of proceedings of the Public Accounts Committee of the House of Commons concerning grants payable under a Department of Energy Scheme.

Fox LJ stated as follows at page 42:-

"It is necessary to a satisfactory law of defamation that there should be privileged occasions. But the existence of privilege involves a balance of conflicting pressures. On the one hand there is the need that the press should be able to publish fearlessly what is necessary for the protection of the public. On the other hand there is the need to protect the individual from falsehoods. I think there are cases where the test of ´legitimate and proper interest to English newspaper readers' would tilt the balance to an unacceptable degree against the individual. It would, it seems to me, protect persons who disseminate ´any untrue defamatory information of apparently legitimate public interest, provided only that they honestly believed it and honestly thought that it was information which the public ought to have.' See London Artists Ltd v Littler [1968] 1 WLR 607, 615'.

If, as in my opinion the law requires, it is necessary for the defendants to establish that they had a duty to publish the article if they are to be entitled to common law privilege in respect of it, I do not think that the defendants have done so. Mr Smith was not prepared to give the authority of the Department of Energy to the naming of the plaintiff. In so far as the article implied that the plaintiff had been reprimanded or forced to resign from the civil service it was based upon inference or conjecture derived from insufficient knowledge of the facts. In my opinion the defendants were under no duty to the public to publish the article in the form in which it appeared having regard to the actual degree of knowledge available to them. Accordingly, in my view the defence of common law privilege fails."

It seems to us on the strength of this very powerful and consistent line of authority, that the ultimate question in each case is whether the occasion of the particular publication, in the light of its particular circumstances, contains the necessary ingredients to give rise to the privilege, always bearing in mind that the rule is an aspect of public policy as epitomised in Baron Parke's statement in Toogood v Spyring that the protection must be "fairly warranted by any reasonable occasion or exigency". In this context we should note that Lord Lester at one stage submitted that those words were used in the context of malice and not of privilege, but we are quite unable to accept that proposition, which goes against the grain not only of Toogood's case itself, but also of the subsequent authorities.

Lord Lester also stressed, rightly, that the circumstances that constitute a privileged occasion "can themselves never be catalogued and rendered exact" (per Lord Buckmaster L.C. in the Greenlands case ( supra) at page 22), but this in our judgment signifies that the established principles must be applied to the particular circumstances of individual cases in their infinite variety, not that the principles themselves are unduly elastic.

It follows that in our judgment, when applying the present English common law of qualified privilege, the following questions need to be answered in relation to any individual occasion:-

1. Was the publisher under a legal, moral or social duty to those to whom the material was published (which in appropriate cases, as noted above, may be the general public) to publish the material in question? (We call this the duty test).

2. Did those to whom the material was published (which again in appropriate cases may be the general public) have an interest to receive that material? (We call this the interest test).

3. Were the nature, status and source of the material, and the circumstances of the publication, such that the publication should in the public interest be protected in the absence of proof of express malice? (We call this the circumstantial test).

We make reference to “status” bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect: see Perera v Peiris at p.21; Webb v Times Publishing Co Limited at p.568; Blackshaw v Lord at pp. 26 and 35; and also the judgment of Eady J in Youngerwood v Guardian Newspapers Limited (13 June 1997, in chambers, unreported). The higher the status of a report, the more likely it is to meet the circumstantial test. Conversely, unverified information from unidentified and unofficial sources may have little or no status, and where defamatory statements of fact are to be published to the widest audience on the strength of such sources, the publisher undertakes a heavy burden in showing that the publication is “fairly warranted by any reasonable occasion or exigency”. In Blackshaw v Lord (at p.27) Stephenson LJ gave some examples which put the requirement quite high:

“There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that the publication of suspicion or speculation is justified: for example, where there is a danger to the public from a suspected terrorist or the distribution of contaminated food or drugs; but there is nothing of that sort here.”

So far as malice is concerned it is important to bear in mind the heavy burden resting on the plaintiff, as authoritatively stated by Lord Diplock in Horrocks v Lowe [1975] AC 135.

There have since the Second World War been three official reports and two statutes, the Defamation Act 1952 and the Defamation Act 1996.

In the Report of the Committee on the Law of Defamation (Cmnd. 7536, 1948) presided over by Lord Porter, a number of recommendations were made, not including any alteration in the general principles of common law qualified privilege (save in regard to malice on the part of joint defendants), and this report led to the Defamation Act 1952, which in its schedule listed a number of specific categories of statements in newspapers having statutory qualified privilege, reflecting in many instances previous court rulings, and in some instances subject to explanation or contradiction, e.g. fair and accurate reports of public meetings held in the United Kingdom.

In the Report of the Committee on Defamation (Cmnd.5909, 1975) presided over by Mr Justice Faulks, consideration was given to a proposal, which was opposed by several witnesses from the media, including Lord Goodman the Chairman of the Newspaper Publishers’ Association, that a statutory privilege should be created not dissimilar to that laid down in the United States in New York Times v Sullivan . This was rejected by the Committee, on the ground inter alia that it would upset the balance of the law of defamation against the defamed plaintiff.

At the outset of this report, the Faulks Committee (in paragraph 19) stated as follows:-

"The law of defamation has two basic purposes: to enable the individual to protect his reputation, and to preserve the right of free speech. These two purposes necessarily conflict. The law of defamation is sound if it preserves a proper balance between them."

This important principle, which is especially pertinent in the present context, we shall refer to in future as ´the proper balance'.

In 1991 the Supreme Court Procedure Committee sitting under the chairmanship of Lord Justice Neill, in their Report on Practice and Procedure in Defamation, recommended as follows:-

"It has been suggested to us by some media representatives that we should consider the introduction of a defence similar to that applied in the United States in the light of the decision of the Supreme Court in New York Times v Sullivan (1964) 376 US 254. As is well known, this decision and its offspring were designed to protect those rights under the Constitution which guaranteed freedom of [the] press. The process has led to a fundamental distinction between defamation law, as applied within that jurisdiction, and its English counterpart.

In relation to ´public figures', a concept which has been expanded with the passing years, it is necessary to show not only that the words published were defamatory but that they were actuated by malice.

Standards of care and accuracy in the press are, in our view, not such as to give any confidence that a ´Sullivan' defence would be treated responsibly. It would mean, in effect, that newspapers could publish more or less what they liked, provided they were honest, if their subject happened to be within the definition of a ´public figure'. We think this would lead to great injustice. Furthermore, it would be quite contrary to the tradition of our common law that citizens are not divided into different classes. What matters is the subject-matter of the publication and how it is treated, rather than who happens to be the subject of the allegations.

In our view the media are adequately protected by the defences of justification and fair comment at the moment, and it is salutary that these defences are available to them only if they have got their facts substantially correct."

The Neill committee's recommendations were broadly followed in the Defamation Act 1996, which enacted a further list of categories of statutory qualified privilege, again in many cases enshrining in statutory form principles foreshadowed in earlier rulings (e.g. reports of foreign court proceedings along the lines laid down in Webb's case).

In both statutes the categorisation follows the same approach as the common law viz. instancing specific occasions (defined by their subject matter) to which the protection extends.

XIV

In Braddock v Bevins ( supra) the facts are described in the headnote as follows:-

"The plaintiffs were Mrs. Braddock, Labour M.P. for Exchange Division of Liverpool, and three other persons all interested in the labour movement in Liverpool, the third having been candidate in the municipal election for Abercromby ward, part of Exchange Division, where he was defeated by the Conservative candidate, the first defendant. The plaintiffs brought proceedings for damages for libel in respect of two passages in the first defendant's election address issued to the electors only."

Giving the judgment of the Court, (Lord Greene MR, Asquith and Evershed LJJ), the Master of the Rolls first relied upon the passage quoted above from Scrutton LJ in Watt v Longsdon ( supra) as laying down the general principle, and then proceeded as follows at page 590:-

"In principle, and quite apart from such assistance as can be derived from authority, we should have thought it scarcely open to doubt that statements contained in the election address of one candidate concerning the opposing candidate, provided they are relevant to the matters which the electors will have to consider in deciding which way they will cast their votes, are entitled to the protection of qualified privilege. The electors clearly have an interest in receiving a communication of that kind. Indeed, the task of the electors under democratic institutions could not be satisfactorily performed if such a source of relevant information bona fide given were to be cut off by the fear of an action for libel. As will be seen, there is a good deal of authority for the view that qualified privilege extends to communications by one elector to another in relation to a candidate at an impending election. It would be curious if the interest and duty subsisting between one elector and another were to be rated higher in this respect than the interest and duty subsisting between an elector and a candidate, and we are unable to see any ground for such a distinction. A candidate cannot in this connexion be regarded as a meddler, or, to use Scrutton LJ's words in Watt v Longsdon a mere ´stranger or volunteer'. Even if it be thought that he has no common interest with the electors to have what is honestly believed to be the truth communicated - and in a democratic country to deny the existence of such a common interest may to some appear illogical - we make bold to assert that he has a duty towards the electors to inform them honestly and without malice of any matters which may properly affect their choice in using their suffrages."

Four years later, in section 10 of the Defamation Act 1952, Parliament enacted as follows:-

"A defamatory statement published by or on behalf of a candidate in any election to a local government authority or to Parliament shall not be deemed to be published on a privileged occasion on the ground that it is material to a question in issue in the election, whether or not the person by whom it is published is qualified to vote at the election."

This led Lord Denning MR in Plummer v Charman [1962] 1 WLR 1469, another election case, to conclude that Braddock v Bevins was no longer good law, at least in relation to statements by candidates, though he left open the possibility that it might still hold good for communications between individual electors.

Diplock LJ in his judgment stated as follows at page1474:-

"I need hardly say that there is no privilege known to the law which entitles persons engaged in politics to misstate a fact about their opponents provided they say it honestly even though untruthfully. They can comment upon the conduct of persons in public life, provided they do so honestly and without malice."

We shall return later to these cases, on which Lord Lester places strong reliance, submitting that, once one discards the temporal and geographical limitations implicit in Braddock v . Bevins (as he submits is inevitable in the light of modern political conditions, communications and information technology) they are in effect authority for his central submission. We would only note at this stage that, in reaching his conclusion, Lord Greene M.R. in citing Watt v Longsdon was expressly applying classic principles of common law qualified privilege; he was not, as we understand him, enunciating some special rule only applicable to politicians.

XV

As is very well known, the House of Lords held that, since the threat of a civil action for defamation would place an undesirable fetter on freedom to express criticism of a democratically elected government body, it was contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation. Lord Keith of Kinkel, with whom the other members of the Appellate Committee agreed, stated as follows at page 548, starting with a citation from City of Chicago v Tribune Co (1923) 139 N.E. 86:-

"´It follows, therefore, that every citizen has a right to criticize an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely'.

These propositions were endorsed by the Supreme Court of the United States in New York Times Co v Sullivan (1964) 376 U.S. 254, 277. While these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as ´the chilling effect' induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public."

So far as individual councillors were concerned, Lord Keith commented at page 550:-

"A publication attacking the activities of the authority will necessarily be an attack on the body of councillors which represents the controlling party, or on the executives who carry on the day to day management of its affairs. If the individual reputation of any of these is wrongly impaired by the publication any of these can himself bring proceedings for defamation."

It is common ground that the so called "chilling effect" was part of the ratio decidendi of that decision, and that this effect essentially arose from the need on the defendant's part to prove justification. Lord Lester argued that, by parity of reasoning, the publication of criticism of an individual politician will be chilled in exactly the same manner, and that therefore the corollary of the Derbyshire decision must be to accord a defence of qualified privilege in actions by individual politicians or public servants. However, in our judgment, on a proper reading, the Derbyshire case leaves this question completely open, and we think it dangerous to speculate how their Lordships would have decided the present question had it fallen for decision.

In this context Lord Lester relied on passages from Lord Justice Neill's Goodman Lecture (1994), where, having cited inter alia Derbyshire, he noted the conclusion of Brennan J in New York Times v Sullivan that one could not sidestep the obstacle against bringing libel proceedings in respect of criticisms of governments by transmuting those criticisms into personal criticism of a responsible official. The Lord Justice then proceeded:-

"For my part I would regard this as a welcome development because of the importance of freedom of speech and a free press. The words of the First Amendment (which was adopted in 1791) are clear and simple: ´Congress shall make no law abridging freedom of speech or of the press.' And the investigative journalist would cherish the words of Brandeis J: ´Sunlight is the most powerful of all disinfectants.' On the other hand there are dangers, as Mr Conor Cruise O'Brien reminded us in an article in the Independent in January 1994. He wrote about ´The Abuse of Power for Fun' and gave a telling description of the neologism ´infotainment' as ´the art and business of entertaining the public while informing it, or pretending to inform it'.

I am not satisfied, however, that ´ fair information on a matter of public interest' is a suitable banner under which to advance the defence of qualified privilege. As I have indicated, it seems to me that one must first establish that the information is of a nature that the public has a right to know it; it may then be possible to say that those in possession of the information have a duty or at least a right to communicate it.

I anticipate that, if any such development takes place, it will come gradually and may be prompted by some events of major importance. Furthermore, it is essential to distinguish between the facts which the public ´ought to know' and facts which it might be interested in knowing."

We do not think Lord Justice Neill’s measured extra-curricular observations carry Lord Lester's case very far.

XVI

Article 10 of the European Convention on Human Rights provides so far as relevant as follows:-

"Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, .......for the protection of the reputation or rights of others. ......."

This is thus another classic recognition of the proper balance described in the Faulks Report.

In the leading case of Lingens v Austria (1986) 8 EHRR 407, the Court considered the application of Article 10 to a private prosecution for criminal defamation brought by the Austrian Chancellor against the publisher of a magazine containing defamatory articles which accused him of protecting former members of the Nazi S.S. for political reasons. The court held that there had been a breach of Article 10, and gave its reasons as follows (at 418-9, 420-1):-

"These principles (in Article 10) are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia , for the ´protection of the reputation of others', it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. In this connection, the Court cannot accept the opinion, expressed in the judgment of the Vienna Court of Appeal, to the effect that the task of the press was to impart information, the interpretation of which had to be left primarily to the reader.

Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.

The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues .......

In the Court's view, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The Court notes in this connection that the facts on which Mr Lingens founded his value judgments were undisputed, as was also his good faith.

Under paragraph 3 of Article 111 of the [Austrian] Criminal Code, read in conjunction with paragraph 2, journalists in a case such as this cannot escape conviction for the matters specified in paragraph 1 unless they can prove the truth of their statements.

As regards value judgments this requirement is impossible of fulfilment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention."

This again vividly exemplifies the importance both of freedom of speech and of maintaining the proper balance, though no doubt tilting the latter in favour of the newspaper in publications concerning politicians. It is also noteworthy how carefully the distinction is drawn between, on the one hand, respect for the truth in statements of fact, and, on the other, the widest possible scope for criticism and comment (cf Lord Diplock's classic statements quoted above). These same two themes are repeated in subsequent cases, such as Oberschlick v Austria (1995) 19 EHRR 389, Barfod v Denmark (1991) 13 EHRR 493, De Haes & Gijsels v Belgium (1998) 25 EHRR 1 and Oberschlick v Austria No.2 (1998) 25 EHRR 357.

In our judgment there is nothing either in Article 10 itself or in the ECHR cases cited above which is inconsistent with the principles of English common law qualified privilege, and Lord Lester did not argue to the contrary; his submission was that the extension of qualified privilege to political speech, in the circumstances of this case, would give proper recognition of the wider limits of acceptable criticism as laid down in Lingens v Austria , where open discussion of political issues is concerned.

For completeness we should record that Lord Lester also cited the case of Thorgeir Thorgeirson v Iceland (1992) 14 EHRR 843, which concerned a prosecution for criminal libel of a magazine editor who had criticised unidentified police officers. But we gain no assistance from that case, where the decision of the court turned primarily on the unreasonableness of requiring the defendant to prove the truth of a statement which did not implicate any specified police officer.

XVII

The Lange case in New Zealand is the sheet anchor of Lord Lester's arguments, in which he relied both on the first instance decision in the High Court of Elias J ([1997] 2 NZLR 22) and on the very recent and as yet unreported judgment of the New Zealand Court of Appeal dated 25 May 1998.

The plaintiff, Mr Lange, is a member of the New Zealand Parliament, the Leader of the Opposition and a former Prime Minister, and he sued on an article which presented a critical review of his performance as a politician including his premiership, and which also cast doubt on his recollection of certain events. In considering qualified privilege, the court in the plurality judgment (Richardson P. and Henry, Keith and Blanchard JJ) reviewed the English authorities, and held that there was a “need to avoid any strict concept of reciprocity" in this area of the law, because (inter alia) of the "infinitely various combinations of circumstances" in which the privilege might apply. They expressed the view that the interest or duty is not on a narrow one to one basis, but rather a broader one shared with or common to many others in the wider community.

The court also expressed the view that the subject matter of a report on a matter of public interest could per se create a common interest between a newspaper and the general public in the publication of a report and its wider dissemination. This point was perhaps most clearly illustrated in a passage from the concurring judgment of Tipping J, in which he stated as follows:-

"The law of qualified privilege is based essentially on the proper interest of the recipient in receiving the publication. That interest is deemed to be more important than the interest of persons defamed in their reputations. The proper interest in the recipient to receive the communication is what justifies the immunity from suit afforded to the speaker or writer. It is the proper interest in the recipient which gives to the speaker or writer what has traditionally been described as an interest or duty to publish the statement in question. There can be little doubt that in a modern parliamentary democracy electors have a proper interest in being informed about the activities of their elected representatives when those activities are relevant to their performance as such and their fitness to hold their representative office. That being so, members of the news media and others have a proper interest, some would say duty, in informing electors as a whole of relevant activities of individual politicians."

Later the plurality considered the Derbyshire case and Article 10, and concluded that the solution they favoured was in accordance with both those sources of authority, the latter being closely reflected in the equivalent New Zealand human rights code. They then considered and rejected the suggestion that the proposed development of the law should be left to Parliament, and also rejected the requirement of reasonableness as incorporated in the comparable Australian jurisprudence (see below). The ultimate ruling of the court as contained in the plurality judgment was as follows:-

"Our consideration of the development of the law leads us to the following conclusions about the defence of qualified privilege as it applies to political statements which are published generally:

(1) The defence of qualified privilege may be available in respect of a statement which is published generally.

(2) The nature of New Zealand's democracy means that the wider public may have a proper interest in respect of generally published statements which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected public office.

(3) In particular, a proper interest does exist in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.

(4) The determination of the matters which bear on that capacity will depend on a consideration of what is properly a matter of public concern rather than of private concern.

(5) The width of the identified public concern justifies the extent of the publication.

(As appears from para (3) above this judgment is limited to those elected or seeking election to Parliament.)"

We have selected what seem to us to be the salient features of this judgment, recognising that we may not have done full justice to its very extensive analysis of the law,which merits a most careful study.

It goes without saying that we fully recognise the desirability of comity, which was so strongly urged upon us by Lord Lester. While agreeing with much that is said by the members of the New Zealand Court of Appeal, however, we cannot unreservedly and fully adopt their analysis of English common law qualified privilege, inasmuch as the duty test is unwarrantably elided with the interest test, reciprocity is downgraded, and no weight is accorded to the circumstantial test which, by exclusion of the Australian reasonableness test, is in effect set aside. It also seems to us that undue weight is accorded to the Derbyshire case, and that no or at least insufficient weight is given to the proper balance, despite its recognition by the ECHR.

We do not therefore think, even approaching the matter on an incremental basis, that this important New Zealand decision represents, or should represent, the English common law.

In the Lange case in the High Court of Australia, ((1997) 145 ALR 96, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ 8 July 1997) the self-same privilege is accorded as follows:-

"Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter."

This is, however, subject to the very important qualification, derived from section 22 of the Defamation Act of New South Wales, that the newspaper is required to prove reasonableness. This is described in the judgment as follows:-

"Having regard to the interest that the members of the Australian community have in receiving information on government and political matters that affect them, the reputations of those defamed by widespread publications will be adequately protected by requiring the publisher to prove reasonableness of conduct. The protection of those reputations will be further enhanced by the requirement that the defence will be defeated if the person defamed proves that the publication was actuated by common law malice to the extent that the elements of malice are not covered under the rubric of reasonableness. ........

Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond."

For much the same reasons as we have given in relation to New Zealand, we would not wholly adopt the Australian solution as such, but we attach considerable importance to their adoption of the reasonableness test.

XVIII

The constitutional privilege accorded in this landmark decision of the United States Supreme Court to defamatory statements concerning public officials, and extended much more widely by subsequent Supreme Court decisions, was essentially based on the First Amendment to the U.S. Constitution, and is therefore, as Lord Lester recognised, not directly in point here. But he of course emphasises and commends the liberality of the Court’s approach to the public interest considerations which underlie its decision, and which were reflected in the Derbyshire case and the subsequent New Zealand and Australian decisions.

XIX

We do not for an instant doubt that the common convenience and welfare of a modern plural democracy such as ours are best served by an ample flow of information to the public concerning, and by vigorous public discussion of, matters of public interest to the community. By that we mean matters relating to the public life of the community and those who take part in it, including within the expression “public life” activities such as the conduct of government and political life, elections (subject to section 10 of the 1952 Act, so long as it remains in force) and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure. Recognition that the common convenience and welfare of society are best served in this way is a modern democratic imperative which the law must accept. In differing ways and to somewhat differing extents the law has recognised this imperative, in the United States, Australia, New Zealand and elsewhere, as also in the jurisprudence of the European Court of Human Rights. It would be strange if the law in this country - the land of Milton, Paine and Mill - were to deny this recognition, and the history recited above in our judgment makes plain that it does not.

As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognised as its duty. The cases cited show acceptance of such a duty, even where publication is by a newspaper to the public at large. In modern conditions what we have called the duty test should, in our view, be rather more readily held to be satisfied.

Corresponding to the duty of the media to inform is the interest of the public to receive information. Article 10 of the Convention lays down a right to receive information. We have no doubt that the public also have an interest to receive information on matters of public interest to the community (as opposed, of course, to information about matters in which the public may happen to be interested). The cases have accepted that the public generally may have an interest to receive information published in a newspaper, so satisfying that we have called the interest test. In modern conditions the interest test should also, in our view, be rather more readily held to be satisfied.

It would, however, in our judgment, run counter to English authority and do nothing to promote the common convenience of our society to discard the circumstantial test. Assuming in each case that a statement is defamatory and factually false although honestly believed to be true, it is one thing to publish a statement taken from a government press release, or the report of a public company chairman, or the speech of a university vice-chancellor, and quite another to publish the statement of a political opponent, or a business competitor or a disgruntled ex-employee; it is one thing to publish a statement which the person defamed has been given the opportunity to rebut, and quite another to publish a statement without any recourse to the person defamed where such recourse was possible; it is one thing to publish a statement which has been so far as possible checked, and quite another to publish it without such verification as was possible and as the significance of the statement called for. While those who engage in public life must expect and accept that their public conduct will be the subject of close scrutiny and robust criticism, they should not in our view be taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice. We question whether in practice this is a test very different from the test of reasonableness upheld in Australia.

The view of the law which Lord Lester has urged upon us is in our view both too broad and too narrow. It is too broad because it exposes those who are properly the subject of political speech to false and defamatory factual statements about them with no protection save on proof, which will often be difficult or impossible, that the publisher lacked an honest belief in the truth of the statement. It is too narrow because confined to political speech or discussion. For understandable forensic reasons, Lord Lester framed his submission in terms wide enough to cover this case but no wider. That does not, however, absolve us from the need to state the law in terms which are clear and workable and serve the common convenience and welfare of society. If a businessman were said to have corrupted a serving politician, Lord Lester’s “political speech” qualified privilege would, in the absence of malice, protect the publisher in a suit by the politician. But what of a suit by the businessman? If, as we understood him to accept, the same privilege would apply in a suit by the businessman, it would seem unlikely that the privilege could be confined to political speech. But if the privilege could be and were so confined, we question whether the common convenience and welfare of society would be thereby served: there are, after all, many matters which affect the public interest and the health of society much more profoundly than the small change of political controversy.

It is also plain that Lord Lester’s rule would emasculate, in the area of political speech, the defence of fair comment. While, as we have shown, this defence permits the expression of very strong opinions, so long as they are honest, it does require (subject to section 6 of the 1952 Act) that the facts commented upon be true. If Lord Lester’s rule were adopted, the defence of fair comment would be unnecessary in political cases, as Cantley J pointed out in the Littler case, supra; the important safeguard of truth would effectively disappear.

In his reply Lord Lester sought to demonstrate that his rule would have the positive virtue of discouraging irresponsible journalism by imposing a salutary discipline on the editor and journalists involved, since, absent a plea of justification, the focus of a trial would shift from the conduct of the plaintiff to the conduct of the newspaper, which in answer to a plea of malice would need to vindicate the conscientiousness of its investigation and of its conduct leading up to the publication. In our view, application of the circumstantial test would exert the same beneficial influence; and we remind ourselves that the law of defamation is concerned primarily to maintain the proper balance, not to regulate the practice of journalism.

For all these reasons we reject Lord Lester’s proposed rule and adhere to the existing tests of qualified privilege, applied in the way we have described.

It is well settled that the question whether the occasion of publication is protected by qualified privilege is a question of law to be decided by the judge, but before he can reach that decision it may be necessary for the jury to make findings on any issues of fact in dispute upon which the answer to the question depends (Duncan and Neill, op cit paragraph 14.07, Hebditch v MacIlwaine [1894] 2 QB 54 at page 58 per Lord Esher MR, and Adam v Ward ( supra) per Lord Finlay L.C. at page 318).

As already noted, in the present case there was only one issue of fact which was pertinent to qualified privilege left to the jury, namely whether the words complained of correctly reported Mr Spring's stated reasons for withdrawing from the government. This question was answered in the defendants’ favour, and is not the subject matter of the plaintiff's appeal. We can therefore proceed on the footing that this answer was correct, and that otherwise the relevant facts are not in issue.

The circumstances in which Mr Reynolds’ government fell from power were matters of undoubted public interest to the people of Great Britain. We think it clear that the defendants had a duty to inform the public of these matters and the public had a corresponding interest to receive that information. So the duty and interest tests were, in general, satisfied. We cannot, however, regard the circumstantial test as satisfied:

1. The allegation that Mr Reynolds had lied was attributed in the article to an unidentified colleague of Mr Spring. This source was later identified, as a result of the exchange of witness statements, as a Mr Finlay, who was not a deputy but was described in the Dail as “Mr Spring’s programme manager”. There was no evidence before the jury that Mr Spring authorised Mr Finlay to accuse Mr Reynolds of lying, and Mr Finlay (although present in court for part of the trial) was never called as a witness. In the bitter aftermath of these events, a member of the staff of one of Mr Reynolds’ leading political opponents could scarcely be judged an authoritative source for so serious a factual allegation.

2. Mr Spring did not in terms accuse Mr Reynolds of lying to the Dail. He did, in his speech on Wednesday 16 November, strongly criticise Mr Reynolds for failing to disclose what he had known on Tuesday 15 November about the Duggan case; but his criticism was consistent with an honest but mistaken omission on Mr Reynolds’ part.

3. The defendants wholly failed to record Mr Reynolds’ own account of his conduct, as described by him when addressing the Dail in the Wednesday debate.

4. The defendants did not, between the debate on Wednesday and publication on Sunday, alert Mr Reynolds to their highly damaging conclusion that he had lied to his coalition colleagues and knowingly misled the Dail so as to obtain his observations on it.

5. The defendants failed to resolve whether Mr Reynolds was a victim of circumstance, as conveyed to Irish readers in the “House of Cards” article, or a devious liar, as conveyed to readers on the mainland of Britain. It should have been obvious that he could not be both.

Given the nature, status and source of the defendants’ information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice.

MR CALDECOTT: My Lord, one or two consequential matters. First, the question of costs. My Lord, can I divide it up in this way? First of all, we ask that the costs of arguing the qualified privilege issue before the judge should remain the plaintiff's costs in any event.

THE LORD CHIEF JUSTICE: I think that was always agreed, was it not?

MR CALDECOTT: My Lord, it was agreed that my learned friend would not seek costs against us here if he won or against us before the judge if he won. Since we won we got our costs before the judge and we say that order should stand.

THE LORD CHIEF JUSTICE: Does anybody resist that?

LORD LESTER: My Lord, I do resist that.

THE LORD CHIEF JUSTICE: You ask, Mr Caldecott, that the plaintiff should have those costs?

MR CALDECOTT: Before the judge of arguing the qualified privilege issue, as he ordered. My Lord, as to the costs of the first trial, we respectfully agree with what your Lordship says in the judgment, that it should abide the retrial or further order.

THE LORD CHIEF JUSTICE: We have already ordered that.

[Discussion omitted ]

THE LORD CHIEF JUSTICE: Yes. So far your application is that the costs of the qualified privilege issue before the judge should be the plaintiff's costs?

MR CALDECOTT: My Lord, yes.

THE LORD CHIEF JUSTICE: That is your first application?

MR CALDECOTT: My Lord, yes. My Lord, my second application is that the costs of our appeal for a retrial should be ours in any event as following the event. Thirdly, and trying to be pragmatic about it, your Lordship knows that there was one-and-a-half hours' argument on the morning of 10 June about the one penny and about French J's order as to costs.

LORD JUSTICE HIRST: It is almost diminuendo.

MR CALDECOTT: My Lord, it is very diminuendo. Your Lordships can take two views about that: either that it is so small that it should not really be the subject of a separate order; or if it should, no order would be another approach to it. My Lord, we can argue that it is academic because we won the main appeal anyway, but my learned friend could say that your Lordships, while not finding in his favour, gave a sympathetic indication on the order as to costs that French J made. It is, of course, entirely academic because of the retrial, but I should mention it.

THE LORD CHIEF JUSTICE: Yes.

MR CALDECOTT: My Lord, obviously any question of leave to appeal, it is, first of all, for my learned friend to make application rather than for me to comment.

THE LORD CHIEF JUSTICE: Yes.

MR CALDECOTT: My Lord, that is all that we have to say.

THE LORD CHIEF JUSTICE: Now, who is the prime spokesman?

MR PRICE: My Lord, I do not think I would term myself the prime spokesman, but if I can leave Lord Lester to deal with the qualified privilege aspect, which I think does form a compartmentalised, separate matter, I will deal with the two matters arising on your Lordships' order of a retrial.

Despite the fact that we were facing a large number of grounds of appeal, some of which succeeded and some of which did not, I cannot resist an order for the costs of the appeal. The only point that I would make is this. As regards the costs of the appeal, some time was clearly spent in preparing skeleton arguments on that and some short time in arguing it.

THE LORD CHIEF JUSTICE: On the 1p question?

MR PRICE: Really on the costs.

LORD JUSTICE HIRST: They were linked, were they not, really?

MR PRICE: Well, I am not sure because I think your Lordships indicated that the judge was probably right to change it to one penny. Your Lordships indicated that, although it was not necessary to decide it, your Lordships may have been sympathetic to the costs of the action -- that we should have the costs up to the date of the payment in.

THE LORD CHIEF JUSTICE: We have sat pretty squarely on the fence.

MR PRICE: Your Lordships have characterised the judge's reasoning on that as contradictory --

THE LORD CHIEF JUSTICE: Yes.

[Discussion omitted ]

LORD LESTER: My Lord, so far as the costs of qualified privilege is concerned, as your Lordships have been reminded by my learned friend, the position is that the Times agreed that if we won on qualified privilege Mr Reynolds should not have to pay the costs. Of course, we have lost on qualified privilege. The question is whether the normal order should apply or some different order.

Scholars will spend some time arguing as to whether your Lordships' judgment is Liberal-Conservative or Liberal; whether there is a half-way house built by your Lordships between the traditional law as stated in Gatley, and Australian and New Zealand law. But we would submit that, on any reading, what your Lordships have done is to declare the law in a way close to authority, but it is not the way put by either party.

In extending the position so far as duty and interest is concerned, the statement in Gatley about the position of the media at paragraph 14.81 is no longer an accurate statement of English law. Clearly there has been a change but, as I say, it is not a change which either party was putting in the forefront of their argument. It therefore seems to us that the appropriate order would be no order as to costs on qualified privilege. Alternatively, it must be open to the newspaper to adduce new evidence at the retrial on qualified privilege on the basis of your Lordships' test, and so far as the costs of the qualified privilege at trial are concerned, they should be costs in cause on the retrial. We would therefore respectively submit that either of those would meet the justice of the case: either no order; or costs in cause so far as the costs of the qualified privilege at trial are concerned, to await any fresh evidence.

Would your Lordships then like me to deal with leave to appeal at this stage?

THE LORD CHIEF JUSTICE: Yes, if you wish to ask for it.

LORD LESTER: My Lord, we would certainly wish to ask for it. The normal practice of your Lordships' court is to leave it to the House of Lords to decide.

THE LORD CHIEF JUSTICE: Yes.

LORD LESTER: I wish to persuade your Lordships briefly why in this case there is such a compelling case for leave to appeal being granted by your Lordships that one should depart from the usual practice.

THE LORD CHIEF JUSTICE: You can take it, Lord Lester, that we are not in any doubt about the significance of the principle that we are discussing. The difficulty that I think you do face is in persuading us that this is a suitable case in which to challenge those principles. After all, what we are doing is ordering a retrial. There remains the possibility that a jury will think the words were true.

LORD LESTER: Of course. But your Lordship has rightly made clear that your Lordships have given a final ruling on the law of qualified privilege, having heard full argument --

THE LORD CHIEF JUSTICE: Yes, we have, and it is not obiter.

LORD LESTER: It is not obiter. Your Lordships have effectively said to the newspaper: you must now face a strict liability test rather than qualified privilege at trial on the facts that have been found or agreed between the parties. So the position is that we have lost on qualified privilege in that way and, although it is open to us to call fresh evidence, plainly your Lordships' judgment on law is binding, unless overturned by the House of Lords. So this is a true threshold question.

Your Lordships will have noted that all the authorities in your Lordships' judgment on qualified privilege -- all the recent authorities -- are of this court or lower jurisdiction. There has been no decision of the House of Lords.

LORD JUSTICE HIRST: There was a spate of them earlier on.

LORD LESTER: But certainly none in recent modern times. The House of Lords have never considered this question. That is really the first point: it comes as a fresh question for the House of Lords.

The second point is that in the New Zealand case it appears that there will be a petition for leave to appeal to the Privy Council against the judgment of the Court of Appeal of New Zealand. Your Lordships have departed from the New Zealand approach, but if, as seems at least possible (and may be probable), the New Zealand case will go to the Privy Council, we would submit that it is very important that English law should be authoritatively determined by the Law Lords as well as New Zealand law. This is for the obvious reason that so far as possible one should seek certainty for newspapers, especially when they publish transnationally.

THE LORD CHIEF JUSTICE: Of course, the days when the Privy Council thought that a law that was good enough for England was good enough for New Zealand have gone and the Privy Council is very ready to say that the common law in New Zealand is different from the common law in England.

LORD LESTER: I am not suggesting otherwise. What we seek is finality in the sense that one does not have the possibility of a different view being taken by the House of Lords. That, we would submit, is an important factor.

THE LORD CHIEF JUSTICE: Yes.

LORD LESTER: The third point is that we now have a situation in which there are not least four models in this area of defamation law in common law jurisdictions.

THE LORD CHIEF JUSTICE: The Supreme Court of the United States, New Zealand and Australia?

LORD LESTER: The United States, Australia, New Zealand and the United Kingdom all adopting different approaches. This is a matter of weighing up legal policies really in deciding where the public interest lies. We would submit that those are matters which ought to be decided by the House of Lords.

The other point is that, as your Lordships know, by the time that this went to the House of Lords the Human Rights Act would be on the Statute Book and there would then be an obligation on the House of Lords to have regard to Article 10 of the European Human Rights' Convention in declaring the contours of common law. Therefore it might well be looked at through somewhat different spectacles --

LORD JUSTICE HIRST: We did deal with that very fully.

LORD LESTER: I do not press that, my Lords, because I realise your Lordships have treated the Convention as relevant, almost as though we had given rights to that already in force.

THE LORD CHIEF JUSTICE: We rather hoped that what we said was Convention proof. We did not want it to have a six months' shelf life.

LORD LESTER: No. My Lord, obviously the other point -- and one always hesitates to mention this because it is so unattractive (but true) -- is that we are exhausting our domestic remedies and therefore would need to go to the House of Lords in order so to do before going to the European Court of Human Rights if it were necessary.

My Lord, finally I would say this. This, in my respectful submission, is an obvious case for determination by a final court. If that is right then one asks why the parties, when one needs a speedy retrial, should have any further delay -- the petition for leave, the costs of that and so on and so forth -- when we could seek an expedited hearing in the House of Lords if your Lordships granted leave today. Otherwise we will have to put in a petition and probably not get a decision on the petition for leave until October. It is very important if there is to be a retrial that it should happen sooner rather than later and your Lordships can do real justice in this case by granting leave for that reason. Those are our submissions on the application.

THE LORD CHIEF JUSTICE: Thank you very much, Lord Lester. Mr Caldecott, do you oppose the grant of leave?

MR CALDECOTT: My Lord, I recognise the issue is important for obvious reasons. Mr Reynolds is very concerned that this is an action on reputation, not a commercial case. He is concerned about the retrial and the delay in going to their Lordships' House who at the moment I happen to know have a very busy schedule, is bound to be further delayed. I have to say that I am extremely concerned to hear this notion of re-introducing qualified privilege on some different factual basis before the judge. What is then going to happen is: one is going to have one new basis running before the judge and another basis going to the House of Lords. I do not accept incidentally that it can be dealt with by merely adducing fresh evidence. The whole plea has to be re-introduced. Your Lordships have effectively said that the present plea is bad. It is not merely a question of evidence.

My Lord, of course what the House of Lords say is not going to create unanimity between these four models. It will no doubt be of interest to Australia and to America, but it is not going to create the unanimity to which my learned friend refers, desirable as it may be.

My Lord, I do see some force in the point -- and there is always this point to be made -- there will be some delay if their Lordships' approval has to be asked.

LORD JUSTICE HIRST: We are only arguing about three months.

MR CALDECOTT: We are arguing about three months and I doubt that this retrial is going to be heard in that period anyway. If the House of Lords are minded to grant leave, I would hope they would be able to accommodate it as an expedited hearing. But in view of the exhaustive review of the authorities, we say it should be left to their Lordships to decide whether further review on the facts of this case -- and I do stress that. There is always the danger, when one is dealing with broad matters of principle, that one does forget that the lis before your Lordships is on the facts of this case. That is what Mr Reynolds is here to vindicate his reputation about. If one looks at the very concluding part of your Lordships' judgment, those facts are not going to go away. In particular, some of it plainly cannot be cured by fresh evidence because they simply derive from what was in or not in the two articles, one in Ireland and one in England. There are dangers with allowing broad principle, where a personal litigant is concerned, to outweigh doing justice in a particular case. Their Lordships, of course, may take the wider view, but that would be a matter for them, with respect.

THE LORD CHIEF JUSTICE: Yes.

MR CALDECOTT: My Lord, on the costs could I just say this about the suggestion that the qualified privilege argument before the judge should be costs in cause? My Lord, it is a discrete argument of law. So far as factual matters on malice were raised, they of course will go with the costs of the retrial. We are not seeking to get the factual matters -- it is the discrete argument of law -- before the judge and we say that has gone. We have won here and below and it should follow the event.

MR PRICE: My Lord, could I raise one matter -- it is a small point -- in relation to this? It is obviously desirable that the law of qualified privilege should be settled in the House of Lords before the retrial otherwise there is a risk of another retrial to decide malice. So if your Lordships were minded to grant leave to appeal, we would ask that the retrial await the outcome of the appeal. If your Lordships were not minded to grant leave to appeal, we would ask that your Lordships order that the retrial await the hearing of the petition for leave by their Lordships.

LORD LESTER: My Lord, I forgot to say this. If Mr Reynolds had lost on qualified privilege and had sought leave to appeal, I would certainly not have resisted an application for leave to appeal on the grounds being put forward by my learned friend. I am being consistent therefore in our approach to this.

So far as your Lordships' decision on fact is concerned, that must be based upon the facts that are before your Lordships now. Your Lordships cannot have meant to preclude further evidence -- and I will not go into the kind of evidence there could be -- from being adduced at the trial. Your Lordships will know that the test that your Lordships have propounded in this case was not the test that was contended for by either party. Nor was it pleaded. Indeed the reasonable test was not pleaded as part of the defendant newspaper's defence and therefore if it stays at this level of appeal it must be open, in our submission, to the newspaper to be able to argue qualified privilege even on your Lordships' test on the basis of fresh evidence. If that can be clarified, one would be grateful for it. It is an important point.

So far as my friend's other points are concerned on the application for leave, I think I have made all my submissions on that and I cannot add to them usefully.

So far as the point that is it only three months is concerned, three months is quite a long time when one is concerned with a retrial and when there is a procedural delay which is unnecessary, we would submit that the sooner one can get the case decided by the House of Lords, the better.

THE LORD CHIEF JUSTICE: Thank you very much.

J U D G M E N T :

THE LORD CHIEF JUSTICE: The defendants must pay the costs of this appeal. The judge's order on the qualified privilege issue argued before him will stand. A significant argument has been advanced to us in support of the grant of leave to appeal against our decision on qualified privilege. Lord Lester submits -- and we accept -- that our judgment on this question raises important questions affecting the liberty of the press, the duty of the press to inform and the right of the public to know. We furthermore accept, as submitted by Lord Lester, that for present purposes at least we have given a final and binding ruling which is not obiter. Lord Lester points out that this is a question which the House of Lords have not had the opportunity to consider in recent years and he further urges that in the light of a pending appeal in the Judicial Committee of the Privy Council in the New Zealand case to which we make extensive reference, it is desirable that the House of Lords' Judicial Committee should similarly have the opportunity to review the English law on this subject. He points out that different juridical models have been developed in the United States, in New Zealand, in Australia and in our judgment, and submits that it is important that the House of Lords should have the opportunity to review these varying models. He furthermore draws attention to the impending incorporation of the European Convention on Human Rights and the potential significance of Article 10 and the need for the defendants to exhaust their domestic remedies before seeking resort to the Court in Strasbourg.

Mr Caldecott on behalf of the plaintiff resists the grant of leave to appeal. He urges that his client's personal interests lie in a retrial of the action in his endeavour to vindicate his reputation which so far as he is concerned is what this action is all about. Mr Caldecott expresses concern as to the delay which may afflict the retrial should we now grant leave.

We fully accept and recognise the force of the points that Lord Lester has made and have been in a little doubt as to whether we should grant leave or not. We certainly do not refuse leave on the basis that these are points of merely local or parochial or transient importance. On balance, however, we conclude that it is preferable that their Lordships should decide for themselves whether they consider that this is a question they should entertain. No doubt Lord Lester will draw attention to the remarks I have just made in support of any application that he makes to the House. So far as we are concerned, however, we think it best in all the circumstances that we refuse leave and leave the decision to their Lordships. We would, however, order that any retrial await the outcome of any petition for leave to the House of Lords, while stipulating that such petition should be lodged promptly.

LORD LESTER: There is just one further point -- I am sorry to mention it -- the issue of whether your Lordships intended to rule out fresh evidence at the retrial if leave were refused. I assume that your Lordships did not so intend?

THE LORD CHIEF JUSTICE: I do not actually think that our judgment is at all obscure on the point.

MR PRICE: When does your Lordships propose to deal with the issue which your Lordships wish to hear in chambers?

THE LORD CHIEF JUSTICE: No, no, I think it should be heard by the trial judge in chambers.

MR PRICE: I am grateful.

LORD JUSTICE HIRST: In advance of the hearing.

ORDER: (Not part of judgment)

Appeal allowed; case to be retried; leave to appeal refused; Retrial to await outcome of petition to House of Lords, which should be lodged promptly; defendants to pay costs of appeal; costs of arguing qualified privilege point to be plaintiff's; costs of first trial to await outcome of retrial or further order.

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