England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE Case No.QBENI 97/1670/E

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday 28th October 1998

B e f o r e :

LORD JUSTICE STUART-SMITH

LORD JUSTICE HIRST

and

LORD JUSTICE TUCKEY

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GADDAFI Respondent

- v -

TELEGRAPH GROUP LTD. Appellant

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(Handed down transcript of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 421 4040 Fax: 404 1424

Official Shorthand Writers to the Court)

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Mr. G. Robertson QC and Mr. G. Bussuttil (instructed by Messrs. Farrer & Co.) appeared on behalf of the Appellant.

Mr. J. Price QC (instructed by Messrs. Eversheds) appeared on behalf of the Respondent.

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J U D G M E N T

(As approved by the court)

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©Crown Copyright

LORD JUSTICE HIRST:

This is a libel action brought by the plaintiff Saif Al Islam Gaddafi, who is the 26 year old son of Colonel Gaddafi, the Libyan leader, against the defendant Telegraph Group Ltd. in respect of two articles published in the Sunday Telegraph on 26 November and 3 December 1995 respectively, the latter following a complaint by the plaintiff.

The first article was trailed on page 1 of the Newspaper under the heading "Gaddafi Son's" "Sting" followed by the words:-

"Said Gaddifi, 23 year old elder son of the Libyan leader, has been linked to a plan to flood Iran with fake currency. The scheme involving black market oil deals was foiled by the Egyptian authorities".

The article itself was headed "Gaddafi's son linked to sting on Iran" and was accompanied by a photograph of the plaintiff captioned:-

"The rial sting: Saif Gaddafi in Tripoli. Egyptian bankers were wary of his name behind a plan to convert billions of dinars into US dollars".

The plaintiff attributes the following natural and ordinary meanings to the article as follows:-

That the plaintiff:-

(a) had masterminded or alternatively had actively participated in an outrageous international criminal conspiracy to defraud Iran and to flood that country with fake currency; and

(b) had thereby shown himself to be a thoroughly dishonest unscrupulous and untrustworthy maverick against whom the international banking community had been warned to be on its guard.

The second article published in the Mandrake column referred to an alleged invitation to the author of the article, Mr. Con Coughlin, to fly to Tripoli and meet the plaintiff, hinting that there was a much more sinister plan such as stringing him up from the nearest Tripoli lamp post.

The plaintiff attributes to the second article the same two meanings by way of innuendo, coupled with the meaning that the plaintiff had attempted, through his henchmen, to lure Mr. Coughlin to Libya with the object or at least the probable object of murdering him in revenge for an article published in the previous week's Sunday Telegraph.

By its defence the defendant first of all, somewhat optimistically, contends that neither article bears the meanings complained of or any defamatory meaning. It then puts forward the following substantive defences:-

A. In relation to the first article:-

(1) Justification of the following Lucas-Box meanings:-

(a) that the plaintiff was involved in a plan to evade the UN sanctions imposed on Libya because of its terrorist activities by arranging for Libyan currency to be laundered through Egyptian banks. The plaintiff's intention was to defy the international community by obtaining tradeable foreign currency needed by the regime to which he belongs for its purposes (which include the support and/or protection of terrorism);

(b) that the plaintiff was a loyal servant of a thoroughly dishonest, unscrupulous, untrustworthy and maverick regime against which the international banking community and the international community in general would be well advised to be on its guard.

(2) Qualified Privilege

B. In relation to the second article:-

(1) Justification in the same Lucas-Box meanings by way of innuendo, coupled with the meaning that the plaintiff was a leading member of a regime which brutally and lawlessly murders and/or intimidates its opponents in Libya and in the UK and elsewhere, and is a person capable of inviting Mr. Coughlin to Libya in order that the revenge might be taken upon him there such revenge possibly taking the form of murder.

(2) Fair Comment.

On 23 January 1997 Butterfield J upheld in part an application by the plaintiff under Order 18 rule 19 and struck out:-

(i) parts of the defendant's Lucas-Box meanings and of their particulars of justification in relation to both articles.

(ii) the plea of qualified privilege in relation to the first article in its entirety.

The defendant now appeals against all these rulings, and the plaintiff for his part cross appeals against the judge's refusal to strike out other parts of the particulars of justification, and also the plea of fair comment.

The most important issue in this appeal concerns the plea of qualified privilege in relation to the first article, which has been radically affected by the very recent decision of the Court of Appeal on 8 July 1998 (Lord Bingham of Cornhill CJ, Robert Walker LJ and myself) in Reynolds v . Times Newspapers Ltd and ors. [1998] 3AER 961.

The section of the judgment dealing with this topic is to be found at page 988 onwards to the end.

I shall be returning to this case in greater detail later, but suffice it to say for the present that, following a comprehensive review of all the relevant common law authorities and statutory provisions both here and in the Commonwealth, and of the relevant ECHR jurisprudence, the Court declined to depart from the time honoured criteria of common and corresponding duty and interest between the publisher and the publishee, which was restated (and to some degree reformulated) as follows at page 994 to 995:-

"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)."

The court went on to stress that, in modern conditions, both the duty and the interest tests should be rather more readily held to be satisfied than hitherto, and that, in applying the circumstantial test, the question was whether the circumstances of the publication were such as to make it proper in the public interest to afford the publisher immunity from liability, in the absence of malice, for the publication of, ex hypothesi, false and defamatory statements of fact concerning the plaintiff.

This reformulation of the old test has led Mr. Geoffrey Robertson QC on behalf of the defendant to seek leave to make significant amendments to the plea of qualified privilege, which, he submits, at least arguably bring him within the Reynolds criteria.

Mr. James Price QC on behalf of the plaintiff, on the other hand, submits that the new plea is as doomed to failure as the old one.

We have to decide whether the new plea is at least arguably sustainable, or whether as the plaintiff submits it is plainly and obviously so hopeless that it should be struck out.

In this context it is most important to bear in mind that at the present juncture we are obliged to assume that the factual assertions in the defendant's particulars are true, even though they are strenuously denied by the plaintiff.

Crucially, in this context, the defendant contends that the plaintiff is a key official of the Libyan government, and both the agent and heir apparent of his father.

The plaintiff denies this in an affidavit which, though not strictly admissible, it is only fair to him that I should quote:-

"I have not had and do not have any role of any kind linking me with my father's position or with Libyan government affairs. I am simply one of my father's sons. I am not the heir apparent. I am a supporter of my father only in the same sense that any son loves his father and I am not a beneficiary of the Libyan government although I do have some privileges (and restrictions and drawbacks) due to my father's position."

He describes his career as follows:-

"My own recent history is that having completed my secondary education I joined the Architectural and Urban Planning Department of the Faculty of Engineering at Al Fateh University in Tripoli, and graduated in 1994 with a B.Sc. degree in engineering science. Since then I have worked in the Industrial research Centre (in lieu of military service). I have also taken a computer course and courses in English and French, because I hope to go to a European university for higher studies in architecture. I have never taken part in any business activities of any kind."

It goes without saying that the assumption which we are obliged to make at the present stage is in no way conclusive against the plaintiff, who will have full opportunity to place his version before the jury at the trial.

The issues which arise on the pleas of justification and fair comment are questions more of detail than of basic principle.

The plaintiff did not apply to strike out the particulars of justification relating to U.N. sanction-busting, nor the biographical details concerning the plaintiff. He did, however, apply to strike out both in the Lucas-Box particulars and in the particulars of justification more general references to terrorist activity by Libyans who were said to have been sponsored by the regime and to the generally oppressive nature of the regime, together with specific allegations against third parties in which the plaintiff was not alleged to have been involved. As already noted, the judge acceded to most though not all of these detailed applications, and the question is whether, as the defendant contends, they were legitimate background material properly to be placed before the jury for consideration in relation to the general allegations in the first article, or whether as the plaintiff contends all the passages to which they object should go.

On fair comment the question is whether the words complained of in the second article were of their nature comment at all, or whether, as the plaintiff contends and the judge held, they are essentially assertions of fact.

I have already set out the text of the trailer on page 1 of the article and the headline of the article itself. It then proceeded as follows, adding for convenience numbers to each paragraph:-

"1. LIKE father, like son. Barely in his twenties, the eldest son of the Libyan leader, Muammar Gaddafi, is winning himself a reputation as an untrustworthy maverick after being linked to an outrageous plan to flood Iran with fake currency.

2. Had it not been for the vigilance of the Egyptian banking authorities, the Iranian economy would now be awash with fake rials, the national currency, and the perpetrators of the sting would be enjoying the fruits of a multi-million dollar fortune.

3. The plan was foiled only after Egyptian officials discovered that Saif Gaddafi was behind a plan to convert billions of Libyan dinars, one of the world's less attractive currencies, into more widely accepted American dollars.

4. Although young Gaddafi himself had done nothing wrong in trying to set up the banking deal in Cairo, residual Egyptian suspicions about anything to do with the Gaddafi regime persuaded the bankers to pass up a golden opportunity to earn themselves a lucrative commission.

5. By so doing, they inadvertently ruined a bizarre scheme to purchase millions of dollars worth of fake rials that would, in turn, have been sold back to Iran's ayatollahs, further destabilising the country's battered economy.

6. ´If they'd been successful, this operation would have made the Great Train robbery look like a teddy-bears' picnic', said a British banking official who acted as a consultant to the Egyptians. ´If the Egyptians had agreed to go through with the deal the next step would have been to use it for an elaborate operation to flood Teheran with fake rials.'

7. The operation involved the Vienna headquarters of Bandaran, an Iranian import-export company that tries to sell Iran's surplus oil supplies on the international black market.

8. Bandaran is run from Teheran by Dr. Abbaspour Tehrani Fahd, one of President Rafsanjani's closest advisers and the man responsible for Iran's crushingly expensive programme to develop chemical weapons.

9. To finance the project, Dr. Fahd is given large quantities of oil that is surplus to Iran's Opec oil quota. The oil is sold on the black market and the profits are used by Bandaran to finance the purchase of equipment for the chemical weapons programme.

10. Bandaran's Vienna office is the main outlet for the oil sales, which generate vast sums of cash.

11. In one transaction alone, which was negotiated earlier this year, Bandaran made more than £100 million from the sale of a cargo of 80 million barrels of oil on the black market.

12. The Vienna office plays a vital role in helping the mullahs to alleviate the harsh effects of economic sanctions.

13. Like Iran, Libya is also suffering the effects of economic sanctions imposed because of Colonel Gaddafi's refusal to hand over two suspects wanted in connection with the Lockerbie bombing seven years ago.

14. As part of a ploy to generate much-needed dollars, Gaddafi authorised Saif to negotiate a complicated deal with bandaran, whereby the Iranians and Libyans agreed to work together on a multi-million-dollar money-laundering deal.

15. The first step in this complicated formula was to draw the equivalent of $8 billion from a group of banks in Cairo, in return for which the Libyans agreed to pay the Egyptians an equivalent sum in Libyan dinars.

16. At first the Egyptians, who stood to make a handsome profit, were tempted by the deal. But before they granted authorisation, the bankers made some discreet inquiries about who was behind the scheme.

17. When they discovered that Gaddafi's 23-year old son was involved, they decided the venture was too risky and pulled out.

18. One of the reasons they decided to abandon the deal was that, in the course of their investigations, the bankers discovered that an Iranian businessman intended to use the vast amounts of money involved in the deal to launder fake Iranian currency.

19. For reasons that have still not been satisfactorily explained, billions of dollars of fake Iranian rials have been produced in the Far East.

20. The Iranian middleman, most probably without young Gaddafi's knowledge, intended to purchase large quantities of these fake rials. The next step in the sting operation required Bandaran to sell a multi-million-dollar consignment of black market oil.

21. Once the transaction went through, the Iranian intended to substitute the fake rials, while pocketing the dollar payment himself.

22. If the plan had worked he would have made enough money never to have to worry about working again, while Dr. Fahd would unwittingly have polluted the Iranian economy with fake currency.

23. The Iranian's dreams of making a killing have been ruined, for the moment at least, because of the resourcefulness of the Egyptian bankers.

24. Now the international banking community has been warned to be on its guard in case another attempt is made to exploit the desperation of both Iran and Libya to acquire foreign earnings.

25. In particular, they have been told to be on the look-out for enterprising young Gaddafis bearing gifts."

It will be noted that the two sides are wholly at odds as to the sting of this article. The plaintiff concentrates on the imputation of the fake rial conspiracy, and makes no complaint concerning the imputation of UN sanction busting; the defendant, on the other hand, concentrates entirely on the latter meaning. Mr. Robertson disowns the former meaning on the footing that the article in paragraph 20 exculpates the plaintiff, and it will of course be an important question for the jury to decide whether the antidote in paragraph 20 removes the bane.

Mr. Price, although not seeking to strike out the defendant's sanction-busting meaning, submits that, as the judge held at one stage in his judgment, the words are in truth incapable of bearing that meaning, and that his abstention from seeking to strike it out is charitable; I disagree, since it seems to me to be very strongly arguable that paragraphs 13 to 15 do carry this imputation, which is also reflected in paragraph 24 and in part of the caption to the photograph; here again, it will ultimately be a matter for the jury to decide whether this meaning is made out.

The Particulars of Justification .

These have gone through numerous metamorphoses, culminating in a final version which was presented to us in the course of the hearing, and which removed a number of the allegations concerning third parties to which the judge had objected, and with which we no longer need to be concerned.

The text of this final version is as follows, with the passages to which Mr. Price objects either in support of the judge's decision or by virtue of his cross-appeal being bracketed:-

"i) [The plaintiff is a key official of a terrorist regime, being the close assistant, agent and heir apparent of his father Colonel Gadaffi, dictator of Libya and instigator and an abettor of numerous acts of terrorism, murder and crimes against humanity in the UK and elsewhere.]

ii) Libyan government takes the form of a dictatorship in which all power emanates from or is responsible to the plaintiff's father, [who suppresses opposition at home and abroad by (inter alia) directing assassinations and intimidation by his army and extensive security services. Libyans do not have the ability to change their government, political parties are banned, and any who criticise the dictator or his family and his close associates (i.e. any who criticise the plaintiff) are at risk of detention without trial, torture, execution or long periods of imprisonment or (if overseas) of assassination. The plaintiff is a beneficiary, supporter and functionary of this undemocratic and brutal regime, and hence is associated with his father's repeated public calls for terrorist violence against the family's opponents.]

iii) The plaintiff is the eldest son of the dictator's second marriage. His mother is Safiya Farkash. As befits his role as heir apparent in a dynastic dictatorship, the plaintiff

a) graduated with the rank of Major from the Military Training Academy of libya, and has taken part in training Libyan troops;

b) currently heads the ´Drugs and Narcotic Action Group', an officially designated Government department;

c) has been given by his father special authority to oversee the country's main industries, namely petroleum and electronics;

d) has been appointed by his father to conduct various foreign assignments of great importance to the regime, including re-negotiation of the nations's debt with Bulgaria (approximately US$500 million); representation of Libya at the birthday celebrations of Sheikh Zayed bin Sultan, ruler of the United Arab Emirates and at visits to Iranian President Ali Akbar Hashemi Ratsanjani; and the sanctions-busting operation which is referred to in the articles of which complaint is made;

e) has helped to negotiate multi-million pound contracts for the importation into Libya of gas turbines and computer equipment;

f) wields, in consequence of his father's support, great political power and influence in the governance of Libya. In 1955, for example, Minister of Information Ahmed Ibrahim was dismissed because he disagreed with the plaintiff over a printing contract for the international distribution of an official Libyan newspaper al-Fair al-Jadeed (´New Dawn')

iv) [The regime of which the plaintiff is an important and enthusiastic part has been and remains the instigator and/or abettor of acts of international terrorism in Britain and elsewhere, which acts have destroyed thousands of innocent lives. The defence will instance]

a) [the arms, explosives, finance and training provided to the IRA;]

b) [the shooting of WPC Yvonne Fletcher outside the ´Libyan Peoples Bureau' in London in 1984 and the regime's refusal, to this day, to apologise or accept responsibility for this atrocity, in consequence of which diplomatic relations between the United Kingdom and Libya were severed;]

c) [the 1988 conspiracy by person including Lamen Khalifa Fhimah and Abdel Basset Ali Al-Megrahi, intelligence officers of the regime to place a bomb aboard Pan Am Flight 103, which exploded over Lockerbie causing the death of 270 passengers and crew, and its harbouring of these two named conspirators in defiance of international law and the United Nations;]

d) [the conspiracy in 1989 to explode a bomb aboard UTA Flight 772, which caused the death of all passengers and crew;]

e) [assassination of a Libyan oppositionist while resident in the United kingdom, namely, Ali Mehmed Abuzeid (London 1995) who was, to the plaintiff's knowledge murdered at the direct instigation of the father whom the plaintiff loves and unquestioningly serves;]

f) [the massive and continual support - in funding, equipment, housing, training, intelligence and misuse of diplomatic privileges to smuggle passports, guns and bombs - provided since 1986 to Abu Nidal and his terrorist network.]

g) [the activities of Khalifa Ahmed Bazelya, head of the Libyan interest section of the Saudi Embassy in London, ordered to leave the UK in December 1995 because on the orders of the regime of which the plaintiff is a part he engaged in spying and intimidation of Libyan dissidents resident in the UK.]

v) In 1992 the United Nations Security Council repeatedly condemned Libyan involvement in international terrorism (Resolutions 731 and 748). [The United Kingdom representative, Sir David Hannay, pointed out that ´the Libyan authorities, by their own admission, continue to give direct assistance to terrorists'] Resolution 748 imposed limited sanctions unless and until the Libyan regime renounced terrorism. Resolution 883 (adopted by the Security Council on 11 November 1993) extended these sanctions and imposed a freeze on Libyan assets held outside that country, ie that no funds or financial resources owned or controlled, directly or indirectly, by official Libyan interests can be made available to or to the use of such interests. These resolutions were last reviewed and renewed on 21 March 1996.

vi) As a consequence of the economic sanctions identified above, the plaintiff's regime was at all material times in need of hard currency. To this end, on its behalf and to the knowledge of the plaintiff in or about June 1995 the mother sought to raise American dollars through the agency of the Arab Investment Bank of Cairo in an exchange of one billion Libyan dinars as a rate of 38 units to the US Dollar, the deposit to take place in Teheran.

vii) The Arab Investment Bank declined to proceed with the transaction, whereupon Colonel Al-Gaddafi authorised the plaintiff to negotiate a similar and larger transaction through banks in Geneva. [The plaintiff's actions were supported by the regime's external security services, headed by Moussa Koussa, who had been ordered to leave the UK in 1980 for conspiring to assassinate enemies of the regime.]

viii) The plaintiff commenced negotiations on behalf of the regime, using the Geneva branch of Safaforex SA (a Liechtenstein company) located at 3 Rue des Alpes 1201 as a vehicle for disguising Libyan government involvement. The said branch is managed by Abdullah Safa a Bolivian national associated with the plaintiff.

ix) At the plaintiff's instigation, Safaforex approached UBS Bank in Geneva with a request to procure the purchase of US$ 800 million (the first of proposed purchases of US$ 8 billion) from a syndicate of Egyptian banks in Cairo, including the Arab Investment Bank, by advancing an amount of Libyan dinars which would more than cover the purchase, allowing the bank (and the Egyptian syndicate of banks it might put together for the proposed total deal) a handsome profit.

x) The proposal made to UBS by Safaforex envisaged that the required amount of Libyan dinars would be paid in four tranches at weekly intervals, these funds to be guaranteed by Bandaran, a Vienna-based Iranian company represented by Mehdi Farshi which is controlled from Teheran by Dr. Abbaspour Fahd, chief security adviser to President Rafsanjani. The main purpose of Bandaran is to sell on the black market oil which is surplus to Iran's OPEC requirements.

xi) In order to secure the co-operation of Bandaran in the project, the plaintiff attended a meeting with Mehdi Farshi at the Wilson Hotel (now the President Wilson Hotel) in Geneva in August 1995. The plaintiff was accompanied by Mohammed Umar Saleh al-Baba, a senior Libyan intelligence officer [whose previous duties have included the arranging of Libyan funding for the IRA.] An official of the Iranian Central Bank, and other Iranian government official, also attended. The Iranian delegation agreed to assist the plaintiff (ie the Libyan government) in the sanctions-busting transaction.

xii) The syndicate of Egyptian banks investigated the proposed transaction when informed of it by their Geneva office. On discovering that members of the Gaddafi family were involved, they determined to have nothing further to do with it.

xiii) [Farshi was minded to use Bandaran's involvement in the plaintiff's transaction as a cover for his own scheme to steal hard currency earned by Bandaran and to account for his theft by sending back to Iran an equivalent amount in rials, which would in fact and to his knowledge be counterfeit.]

xiv) [Farshi was recalled to Teheran for interrogation about his involvement in the production of counterfeit rials.]

xv) [In or about July 1995 the plaintiff sought permission to enter the United Kingdom, which permission was refused by the government on the grounds that his presence would not be conducive to the public good. The plaintiff has not sought to challenge this determination, by way of judicial review or otherwise.]

Clearly the resolutions of the United Nations Security Council referred to in sub-paragraph (v) are of great importance, and we were furnished with the texts of two of them during the course of the hearing which so far as relevant are as follows:-

Resolution 731 dated 21 January 1992:-

"The Security Council,

Deeply disturbed by the world-wide persistence of acts of international terrorism in all its forms, including those in which States are directly or indirectly involved, which endanger or take innocent lives, have a deleterious effect on international relations and jeopardize the security of States.

Deeply concerned by all illegal activities directed against international civil aviation, and affirming the right of all States, in accordance with the Charter of the United Nations and relevant principles of international law, to protect their nationals from acts of international terrorism that constitute threats to international peace and security.

Reaffirming also its resolution 635 (1989) of 14 June 1989, in which it condemned all acts of unlawful interference against the security of civil aviation and called upon all States to cooperate in devising and implementing measure to prevent all acts of terrorism, including those involving explosives.

Recalling the statement made on 30 December 1988 by the President of the Security Council on behalf of the members of the Council strongly condemning the destruction of Pan Am flight 103 and calling on all States to assist in the apprehension and prosecution of those responsible for this criminal act.

Deeply concerned over the results of investigations, which implicate officials of the Libyan Government and which are contained in Security Council documents that include the requests addressed to the Libyan authorities by France, 1/, 2/ the United Kingdom of Great Britain and Northern Ireland 2/, 3/ and the United States of America 2/, 4/, 5/ in connection with the legal procedures related to the attacks carried out against Pan American flight 103 and Union de transports aerens flight 772.

Determined to eliminate international terrorism.

1. Condemns the destruction of Pan American flight 103 and Union de tranports aerens flight 772 and the resultant loss of hundreds of lives;

2. Strongly deplores the fact that the Libyan Government has not yet responded effectively to the above requests to cooperate fully in establishing responsibility for the terrorist acts referred to above against Pan American flight 103 and Union de tranports aerens flight 772;

3. Urges the Libyan Government immediately to provide a full and effective response to those requests so as to contribute to the elimination of international terrorism;

4. Requests the Secretary-General to seek the cooperation of the Libyan Government to provide a full and effective response to those requests;

5. Urges all States individually and collectively to encourage the Libyan Government to respond fully and effectively to those requests;

6. Decides to remain seized of the matter."

Resolution 883 dated 11 November 1993:-

"The Security Council,

Reaffirming its resolutions 731 (1992) of 21 January 1992 and 748 (1992) of 31 March 1992,

Deeply concerned that after more than twenty months the Libyan government has not fully complied with these resolutions,

Determined to eliminate international terrorism,

Convinced that those responsible for acts of international terrorism must be brought to justice,

Convinced also that the suppression of acts of international terrorism, including those in which States are directly or indirectly involved, is essential for the maintenance of international peace and security,

Determining, in this context, that the continued failure by the Libyan Government to demonstrate by concrete actions its renunciation of terrorism, and in particular its continued failure to respond fully and effectively to the requests and decisions in resolutions 731 (1992) and 748 (1992), constitute a threat to international peace and security,

Taking note of the letters to the Secretary-General dated 29 September and 1 October 1993 from the Secretary of the General People's Committee for Foreign Liaison and International Cooperation of Libya (S/26523) and his speech in the General Debate at the forty-eighth session of the General Assembly (A/48/PV.20) in which Libya stated its intention to encourage those charged with bombing of Pan Am 103 to appear for trial in Scotland and its willingness to cooperate with the competent French authorities in the case of the bombing of UTA 772, ...

Acting under Chapter VII of the Charter,

1. Demands once again that the Libyan Government comply without any further delay with resolutions 731 (1992) and 748 (1992);

2. Decides, in order to secure compliance by the Libyan Government with the decisions of the Council, to take the following measures, which shall come into force at 00.01 EST on 1 December 1993 ..."

[There then follow the detailed sanction provisions.]

The main thrust of Mr. Price's argument is that his objective is to ensure that the trial is not diverted from the plaintiff's own activities, and he concedes that if the plaintiff is indeed a top official in the Libyan government his case will be blown out of the water: what he wants to avoid is the diversion of the trial into controversial areas relating to the activities of the Libyan government generally, which he submits will prejudice the plaintiff in the eyes of the jury.

He relies particularly on the well known passages from O'Connor LJ's judgment in Polly Peck v. Trelford [1986] QB 1000 at pages 1021H and 1032F:-

"... The trial of the action should concern itself with the essential issues and the evidence relevant thereto and that public policy and the interest of the parties require that the trial should be kept strictly to the issues necessary for a fair determination of the dispute between the parties......."

"In all cases it is the duty of the court to see that the defendant, in particularising a plea of justification or fair comment, does not act oppressively. Whether the particularisation of the plea is oppressive depends not only on the facts of each case, but also on the attitude of the plaintiff. I say this because a plaintiff can limit the extent and cost of inquiry at trial by making timely admissions of fact."

Most particularly, Mr. Price objects to any reference to the plaintiff involving himself in terrorism, which, he submits, reflects a meaning which the article is not capable of bearing. I cannot accept this submission, since I am quite satisfied that, in the light of recent history, any jury would inevitably associate the Libyan regime led by Colonel Gaddafi with terrorism, not least because of the very well known terms of the two UN resolutions which I have just quoted. Furthermore the article itself in paragraph 13 specifically mentions the Lockerbie bombing.

If indeed the article is right in implicating the plaintiff in the activities of the Libyan regime (NB for example the opening words of the article "Like father like son"), it seems to me quite unrealistic to suggest that he can be entirely disassociated from its general conduct.

It follows that in my judgment the two Lucas-Box meanings, and sub-paragraphs (i), (ii), (iv) (a) (b) (c) (d) and (e) of the particulars should remain intact.

It is noteworthy, and I would stress, that (a) (b) and (c) all relate to activities directly connected with the UK, and moreover items (c) and (d) are the subject-matter of the two UN resolutions.

Paragraph 4 (e) survives because Ali Abuzeid also figures in the particulars of qualified privilege.

(iv) (f) and (g), however, seem unduly remote, and akin to a number of the previous allegations concerning terrorism abroad which the defendants have now dropped; I would therefore rule those two paragraphs out on Polly-Peck principles.

In (v) I would retain the reference to Sir David Hannay's speech in the Security Council, which seems to me part and parcel of the Security Council's proceedings, and therefore not an imputation, which, as the judge held, should be struck out on the ground that it is hearsay.

The remaining paragraphs, apart from (xiii) and (xiv), seem to me unobjectionable, and in particular I would not rule out the reference to Mr. Al Baba's alleged role in relation to the IRA which seems to me directly material.

On the other hand, (xiii) and (xiv) are, for similar reasons to those given above to (iv) (f) and (g), objectionable on Polly-Peck principles.

I have already cited the three tests laid down in Reynolds, which of course govern our decision in the present case.

Immediately following this passage, the judgment proceeds as follows at page 995:-

"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 ... 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'".

Later, in an important passage under the heading "The General Principle Analysis and Conclusions" the judgment states as follows:-

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 s 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 extent 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 laid 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 s 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 Littler's case; 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."

The main body of the plea of qualified privilege in its new amended form is as follows:-

"Further or alternatively, the said words were published on an occasion of qualified privilege, it being the duty of the defendant to alert the general public to attempts being made by the Plaintiff and others on behalf of the Libyan and Iranian regimes to evade sanctions imposed as punishment for terrorism and other breaches of international law, such duty being reasonably discharged by publication to the readers of ´The Sunday Telegraph' who as citizens of a country which supports these sanctions and as potential innocent victims of State-supported terrorism had a corresponding and legitimate interest in being so alerted. The nature, status and source of the information expressed by the said words, and the circumstances in which they came to be published, were such that the publication is deserving of protection in the public interest."

This plea is of course primarily directed towards the duty and interest test.

The particulars which follow are framed to meet the circumstantial test, and they fall into two parts.

Paragraph 1 in effect repeats the particulars of justification.

Paragraphs 2 to 9 set out in detail the background to and the circumstances of the compilation of the article and are as follows:

"PARTICULARS

2) The defendant newspaper has won many awards for its coverage of international affairs and is widely recognised as an appropriate media vehicle for dissemination of such information to an interested general readership in Britain and beyond to the international community, including organs of the United Nations, and international law enforcement agencies and financial regulators.

3) The author of the first article, Con Coughlin, was at all material times the defendant's Chief Foreign Correspondent. He had been employed by the defendant since 1980, after earning a degree in modern history and completing professional training as a journalist. Since then he has specialised in analysing the domestic and international politics of the Middle East and North Africa, travelling widely throughout the region and operating inter alia from Libya and Iran. He reported extensively on the Lockerbie bombing and its aftermath, and is widely recognised as an expert on international terrorism. He has twice earned the British Press Awards commendations for his Middle-East reporting, and has published two books, "Hostage - the complete story of the Lebanon captives" (Little Brown, 1992) and "A Golden Basin Full of Scorpions - The Quest for Modern Jerusalem" (Little Brown, 1997). Prior to his work on the first article he had been engaged in investigating the attempts being made by Iran to obtain components for nuclear and chemical weapons. In the course of a distinguished career he has professionally cultivated many sources in this country and abroad in senior political, security, intelligence, military, diplomatic and business positions, as well as academics and members of dissident groups: confidentiality is a recognised obligation of his relationships with many of these sources.

4. The genesis of the first article was a luncheon meeting on 19 October 1995 between Mr. Coughlin (with several other members of the Defendant's staff) and the then Foreign Secretary, the Right Honourable Malcolm Rifkind, and two senior diplomats. The Foreign Secretary briefed them, inter alia , on the danger to world peace of certain Middle-East countries and notably Iran obtaining components for nuclear, chemical or biological weapons, as a result of the clandestine arrangements they were making to obtain ´hard' currency (i.e. US dollars) to fund such purchases. The Foreign Secretary encouraged Mr. Coughlin to continue investigating such arrangements, which were breach of economic sanctions imposed by the United Nations.

5. Mr. Coughlin over the next fortnight set up meetings with persons in security agencies who might have special knowledge of the subject. He had lengthy meetings on 25 and 31 October 1995 with one such person (Source A) whom he had known for some years, knew to be in a senior position, and whose information had always proved reliable. Source A informed him of the activities of the Vienna-based company Bandaran, which was raising hard currency for Iran to fund its weapons programme by selling Opec surplus oil on the international black market. Source A provided details of Mr. Mehdi Farshi's connection with Bandaran, and his connection with a man named Felber who had been convicted and imprisoned in the United States for attempting to purchase components for chemical weapons for Iran, on Farshi's behalf.

6. Mr. Coughlin confirmed the information which appeared in the first article about Bandaran, Farshi and Dr. Abbaspour Tehrani Fahd from a number of other sources, both in London (after a meeting with Hussein Aberdini, spokesman for the National Council Resistance of Iran) and from a number of contacts in the USA including a customs investigator who worked on the Felber case, prosecution and defence lawyers, and others. He obtained documentary evidence that Bandaran, Farshi and Fahd were engaged in UN sanctions-breaking to obtain for Iran components for weapons of mass destruction, including records from the U.S. District Court in Oregon relating to the prosecution of Manfred Felber which indicated that the money for Felber's unlawful purchase (namely components for chemical weapons) had been supplied by Farshi.

7. In early November Mr. Coughlin visited Israel to cover the aftermath of the assassination of Yitzhak Rabin: he obtained further corroboration from security sources there.

8. On 21 November 1995 Mr. Coughlin had a private luncheon meeting with Source A, who introduced him to another senior security official (Source B) whom he described as having expertise in Middle-East banking and finance, and as possessing particular knowledge of Egypt. In the course of this meeting Source B explained the plaintiff's connection with Farshi and Bandaran and with the failed money-laundering plan to obtain ´dollars for dinars'. Source B explained that Farshi (who is the ´businessman' or ´middleman' referred to in the article) had intended to exploit his connection with the plaintiff to pull off the ´rials sting', and may well have succeeded had he (Source B) not tipped off one of the banking consortium about the ´Gaddafi connection'. Source B made these disclosures under the guarantee from Mr. Coughlin of complete confidentiality.

9. Mr. Coughlin said that he wished to examine the matter in more detail, for which purpose a four-hour meeting was convened the following day, 22 November. Sources A and B attended. At this lengthy meeting, Mr. Coughlin was told that the Plaintiff had been authorised by his father to enter into a money-laundering deal with Farshi and Bandaran, using the Geneva branch of an international finance company (Safaforex) to disguise Libyan government involvement. They would procure the purchase of US$ 8 billion in ´clean' US dollars from a consortium of Egyptian banks in Cairo (including the Arab Investment Bank) in consideration of the equivalent in ´dirty' Libyan dinars together with a generous commission. He was given further details of the complicated transaction, which he attempted to summarise in the article; he was told it would have culminated, probably without the plaintiff's knowledge, in a private plot by Farshi to substitute counterfeit rials from the Far East for currency to be repatriated to Iran, Mr. Farshi's scheme failed because the Egyptian banks who were to sell the dollars to Safaforex in exchange for the Libyan dinars, upon learning that a member of the Gaddafi family was behind Safaforex, pulled out of the deal. In this way, the Egyptian bankers ´advertently' foiled the money-laundering part of the scheme, whilst ´inadvertently' foiling Mr. Farshi's ´fake rial' plot'.

10. Mr. Coughlin regarded the information provided to him on 22 November as credible in view of the status of his sources and their detailed knowledge displayed in answer to his questions. However he was concerned to examine first-hand evidence, and had a further lengthy meeting with the sources on 23 November, in the course of which he was permitted to view documents which included copies of banking records evidencing business links between the plaintiff and Bandaran. He was not permitted, under the confidentiality condition of these meetings, to take away or copy the said documents. As a result of his own assessment of information provided by his sources, he became convinced that what he wrote abut the plaintiff in the first article was true. He commenced writing it after the meeting on 23 November. There was a mistake made by sub-editors in paragraph 18, which wrongly suggests that the Egyptian bankers became aware of the ´fake rials' scheme: as paragraph 5 makes clear, this was not the case.

11. Mr. Coughlin believed that the information in the first article was of great public interest and should be published as soon as possible, preferably in the next edition of ´The Sunday Telegraph' on 26 November. He was concerned to be fair to the plaintiff, although direct contact with him was impracticable - Mr. Coughlin had been deported from Libya after his last visit and believed himself to be ´persona non grata' with the regime. Since the Libyan regime had no embassy in London, as a consequence of the expulsion of its diplomats after the murder of W.P.C. Yvonne Fletcher, Mr. Coughlin telephoned the Libyan Interests Section at the Saudi Arabian embassy and was put through to a person who described himself as ´Mr. Issa' and claimed to be responsible for dealing with media enquiries relating to persons in Libya. Mr. Coughlin explained that he wished to contact the plaintiff urgently to discuss the article with him. Mr. Issa promised to make the relevant enquiries and to call Mr. Coughlin by early afternoon: when he failed to do so Mr. Coughlin called the Libyan Interests Section again, and was told that nobody named ´Mr. Issa' worked there. Mr. Coughlin concluded from this incident and from past experience in attempting to get through to Libyan government personalities, that obtaining any comment would in the circumstances be impractical.

12. In writing the article without the benefit of questioning the plaintiff, Mr. Coughlin endeavoured to be fair to him by making clear that he had nothing ´wrong' in the banking transactions themselves and that ´the middleman' had acted ´most probably without young Gaddafi's knowledge' in advancing the ´fake rials' sub-plot.

13. The defendant was, as a matter of policy, prepared to publish a letter from the plaintiff commenting on the article, or to interview him about it. On November 28 1995, two days after publication, Mr. Coughlin was telephoned on behalf of the plaintiff by a Mr. Hashin Ibrahim, who issued an invitation to meet the plaintiff in Tripoli to ´correct certain statements'. Mr. Coughlin counter-offered to meet and interview the plaintiff in a country other then Libya, but that offer received no response. It was repeated by the defendant's solicitor on 29 December but by letter of 6th February the plaintiff's solicitors rejected it. On 29 February they wrote ´our client is not interested in clearing his name by giving his version of the facts'.

14. In the premises, the nature status and source of the material in the first article, and the circumstances attending its publication were such as to attract qualified privilege."

Mr. Robertson in his skeleton argument characterized the circumstantial test as novel, and undoubtedly in its reformulation it acquires much greater prominence than hitherto. However, its origin is to be found as far back as the judgment of Parke B in Toogood v. Spyring [1834] 1 CR M & R 181, quoted on page 90 of Reynolds, and in particular his statement that "...if fairly warranted by any reasonable occasion or exigency , and honestly made such communications are protected ...".

It seems to me manifest that, provided the defendants establish their case that the plaintiff is a prominent member of the Libyan regime, the duty and interest tests are arguably met. Indeed Mr. Price did not press any argument to the contrary. If on the other hand the defendant fails in this respect, the whole bottom will fall out of its defence of qualified privilege, and indeed of its defence as a whole.

The argument therefore focused on the circumstantial test, and in particular whether the sources relied upon by Mr. Coughlin in the particulars are adequately identified to demonstrate that, at least arguably, they had the status exemplified in Reynolds.

In his opening submissions, Mr. Price submitted that, in the particulars as presently drafted, their precise status was left up in the air. Was the security agency to which Source A and Source B belonged a government agency, or a commercial agency, or a dissident group? Where did Source B glean his information? Was the information allegedly obtained paid for?

These questions had been raised by him in a request for further and better particulars to which the defendants had so far declined to respond.

At this juncture, towards the end of the first day of the hearing, the court expressed its disquiet to Mr. Robertson, and invited him to be more specific.

In response, at the opening of the sitting on the second day, Mr. Robertson stated that, on instructions, he was able to confirm that the security agency to which both Source A and Source B belong is a Western Government Security Agency, and that no money was paid by the defendants to either Source A or Source B. Further than that he said that he was unable to go since any more detailed information (e.g. of the actual Western Government in question) might well lead to the precise identification of the two individuals themselves, and thus imperil their safety in face of a hostile foreign government.

Mr. Price responded that this was not good enough, and said that the plaintiff's advisers were apprehensive lest further information may be (to use his words) drip fed by the defendant either in subsequent witness statements or at the trial itself: The defendant should be compelled to disclose its bottom line here and now, and leave to amend should be made conditional on it identifying the Western Government, and also the origin of Source B's information. Without this information, Mr. Price submitted, he would be unable to give his client the advice to which he was entitled on the prospects of the qualified privilege plea.

Mr. Robertson replied that it is inconceivable that the position will change between now and the trial, since it is highly unlikely that the two sources will release Mr. Coughlin from his undertaking to preserve their confidentiality and thus expose themselves to obvious risks, unless a radical improvement occurs in Libya's relations with the West.

Mr. Robertson then cited a number of authorities and statutory provisions which enshrine the journalist's right to protect his sources, which he submitted, should prevail in the present case viz:-

(i) In British Steel Corporation v. Granada Television [1982] AC 1096 Lord Fraser stated as follows at page 1197-8:-

"The claim of the press to be in a special position is rested on two grounds. The first is the so-called newspaper rule, the effect of which was described thus by Bankes LJ in Lyle-Samuel v. Odhams Ltd. [1920] 1 KB 135, 143:

´All I say is that this is an action of libel against the publishers of a newspaper, that it is well established that in the case of newspapers there is an exception to the rule requiring a defendant to disclose the source of his information where he pleads either privilege or fair comment.'

I would make the following comments on the newspaper rule.

1. The rule applied only to libel actions. It has recently been extended in Broadcasting Corporation of New Zealand v. Alex Harvey Industries Ltd. [1980] 1 NZLR 163 to slander of title, but the present case has nothing to do with libel or slander of title.

2. The rule applied only at the interlocutory stage of discovery. The reasons for the rule are obscure as judges have often pointed out: see for example Scrutton LJ in Lyle-Samuels v. Odhams Ltd. [1920] 1 KB 135, 144 and Scott LJ in South Suburban Co-operative Society Ltd. v. Orum [1937] 2 KB 690, 703. It has sometimes been held that the same informant was irrelevant: see Parnell v. Walter (1890) 24 QBD 441 and Adams v. Fisher (1914) 30 TLR 288. But that reason cannot apply in a case where the defendant pleads privilege: see Elliott v. Garrett [1902] 1 KB 870 and Lyle-Smith's case [1920] 1 KB 135. I agree with Lord Hailsham of St. Marylebone that the rule must have been based on public policy: D v. National Society for the Prevention of Cruelty to Children [1978] AC 171, 228. The reasons of public policy, and the limits of the rule, were explained by Dixon J in the Australian case of McGuiness v. Attorney-General for Victoria, 63 CLR 73, 104, when he said:

´But although all authority is against the existence of any rule of evidence under which an editor or journalist is protected when called as a witness on the trial of an action from the necessity of deposing to the source of the information contained in his publication or to statements made in confidence to him in the exercise of his calling, yet a special exception is made in favour of publishers, proprietors and editors of newspapers as defendants in actions of libel from the general rule that discovery by affidavit of documents and answer to interrogatories must be made of all relevant matters.

By a long line of cases a practice is recognised of refusing to compel such a defendant to disclose the name of the writer of an article complained of as a libel or of the sources of information he has relied upon. The foundation of the rule is the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matters contained in their journals, and the desirability of protecting those who contribute to their columns from the consequences of unnecessary disclosure of their identity. The cases are collected in Lyle-Samuel v. Odhams Ltd. [1920] 1 KB 135 and South Suburban Co-operative Society Ltd.v. Orum [1937] 2 KB 690, which are the latest authorities upon the application of the rule. The appellant stands upon these decisions and says that they disclose a development which, in reason and logic, should not stop at discovery, but should supply a general justification for withholding the names of contributors and the sources of information at all stages of any legal proceeding. The answer is that it is not a rule of evidence but a practice of refusing in an action of libel against the publisher, &c., of a newspaper to compel discovery of the name of his informants. It ´rests not on a principle of privilege but on the limitations of discovery' ...'"

(ii) RSC Order 82 rule 6 provides as follows:-

"In an action for libel or slander where the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant's sources of information or grounds of belief shall be allowed."

(iii) Section 10 of the Contempt of Court Act 1981 stipulates as follows:-

"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."

(iv) In Secretary of State for Defence v. Guardian Newspapers Ltd. [1985] 1 AC 339 Lord Diplock stated as follows at page 347:-

"Section 10 is concerned solely with the power of a court of justice (or by virtue of the extended definition in section 19, any other tribunal or body exercising the judicial power of the State) to order a person to disclose the source of information contained in a publication for which he is responsible; a power which is exercisable only where the identity of or nature of such sources is relevant to some issue that falls to be determined by the court in the particular proceedings. The section confers no powers upon the court additional to those powers, whether discretionary or not, which already existed at common law or under rules of court, to order disclosure of sources of information; its effect is restrictive only. As I have pointed out, the disclosure of sources of information with which the section deals is not, like the old ´newspaper rule' at common law, limited to disclosure upon discovery where disobedience to the order for discovery would fall into the category of a civil contempt; it applies also to disclosure in response to a question put to a witness at the trial, where a refusal to answer the question if ordered to by the judge to do so would constitute a contempt committed in the face of the court and thus as criminal contempt."

Later he proceeded as follows at page 349:-

"The nature of the protection for the removal of compulsion to disclose in judicial proceedings the identity or nature of the source of any information contained in the publication, even though the disclosure would be relevant to the determination by the court of an issue in those particular proceedings; and the only reasonable inference is that the purpose of the protection is the same as that which underlay the discretion vested in the judge at common law to refuse to compel disclosure of sources of information; videlicet - unless informers could be confident that their identity would not be revealed sources of information would dry up.

The words with which the section starts, before it comes to specifying any exceptions, impose a prohibition on the court itself that is perfectly general in its terms: ´No court may require a person to disclose ... the source of information contained in a publication for which he is responsible ...'. This prohibition is in no way qualified by the nature of the judicial proceedings, or of the claim or cause of action in respect of which such judicial proceedings, if they are civil, are brought.....

Again, what the court is prohibited from requiring is not described by reference to the form the requirement takes, but by reference to its consequences, viz. disclosure of the source of information. If compliance with the requirement, whatever form it takes, will, or is sought in order to enable, another party to the proceedings to identify the source by adding to the pieces already in possession of that party the last piece to a jigsaw puzzle in which the identity of the source of information would remain concealed unless that last piece became available to put into position, the requirement will fall foul of the ban imposed by the general words with which the section starts. I therefore, with respect, do not share the doubts expressed by Shade LJ as to whether section 10 of the Act of 1981 to resist delivery up of a document the person responsible for its publication must establish by affirmative evidence that compliance will (not just may) compel him to reveal a source of information. If he can show that there is a reasonable chance that it will do so, then (subject always to the exceptions provided for later in the section) this will suffice to bring the prohibition into effect."

(v) The European dimension of this rule was laid down by the ECHR in Goodwin v. U.K. 22 EHRR 123 at page 143 in paragraph 39 as follows:

"The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.

Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.

These considerations are to be take into account in applying to the facts of the present case the test of necessity in a democratic society under Article 10(2)."

This part of the case has caused me considerable anxiety since undoubtedly, in the new climate created by Reynolds, it is very important that the plaintiff should have adequate particulars not only of the matters relied upon under the duty and interest test, but also those relied upon under the circumstantial test, in order to evaluate the prospects of the defence of qualified privilege succeeding.

However, I am satisfied that in the present case there is no realistic prospect of the defendants elaborating or refining the particulars as presently drafted, for the reasons given by Mr. Robertson, and I also consider that to accede to Mr. Price's request would infringe the important principles just cited. Consequently I would allow the amendment as it stands.

The second article was in the following terms:-

"REFUSAL

SOME offers are just too easy to refuse. After my colleague Mr. Con Coughlin wrote last week about the strange business activities of Saif Gaddafi, the Libyan leader's errant son, he received a call from one of his henchmen. Young Gaddafi, it seems, was very upset about the adverse publicity he had received and wanted to set the record straight.

Would Mr. Coughlin, he inquired, be prepared to fly to ~Tripoli to meet Gaddafi fils so that he could ´make the correction'? This offer was made it should be remembered, just hours after Ali Mehmet Abuzeid, a leading figure in the National Front for the Salvation of Libya, the London-based opponents of Gaddafi, was brutally stabbed to death at his grocery shop.

What kind of ´correction' did the Libyans have in mind? Did they merely desire to challenge the article's factual accuracy (in which case Mr. Coughlin would be happy to oblige)? Or was there a much more sinister plan, such as stringing up the hapless hack from the nearest Tripoli lamp-post?

The henchmen were eager to stress Mr. Coughlin had nothing to fear. ´You will be our guest. We just want to make the correction,' they said by way of reassurance. Having carefully weighed up all the options, my colleague has decided to take his chances and stay in London.

I have already quoted the defendants' Lucas-Box meanings.

The judge struck out the words "was a leading member of a regime which brutally and lawlessly murders and/or intimidates its opponents in Libya and in the United Kingdom and elsewhere ...", but for reasons already given in relation to the first article, it seems to me clear that those words should stand.

The particulars of justification in paragraph (i) repeat the particulars of justification of the first article. The ensuing particulars, in which I have bracketed the passages struck out by the judge, are as follows:-

i) The particulars to paragraph 5 hereof are repeated.

ii) [In September 1995, after 30 dissidents had been killed by his security forces, Colonel Al Gaddafi publicly stated that his regime would kill its opponents. He said ´We will corner the traitors here, and we will trample them underfoot, and we will physically liquidate them. With their blood, we will wash off the disgrace they have left on our soil']

iii) In London in November 1995 Ali Mehmet Abuzeid, a prominent opponent of Gaddafi's family and its rule, was stabbed to death by Libyan agents.

iv) [In Libya, law No. 71 of 1972 mandates the death penalty for any person associated with a group ´opposed to the principles of the revolution.']

v) [By exposing the plaintiff's attempts on behalf of the regime to evade United Nations sanctions, Mr. Con Coughlin would or would be considered a candidate for punishment under law No. 71 of 1972.]

vi) [In the event of being apprehended for such offence in Libya, Mr. Coughlin would not be permitted to retain a private defence counsel, since private practice of law is illegal. He would not be tried by an independent court or an established Islamic court, but by one of the ´special' revolutionary courts established in 1980 to try political offences. These courts usually sit in secret, and sometimes in the absence of the accused. If convicted, the regime could order his execution to be shown on television.]

vii) [Mr. Coughlin could, if apprehended in Libya, be detained indefinitely without trial, a fate which had befallen approximately 500 political prisoners in 1995. He could be tortured and forced to confess on television to being a US spy, a fate visited upon three political detainees (including leukaemia victim Miftah Zarrum al-Wirfali in March 1995.]

viii) [If not arrested by the security forces, Mr. Coughlin may nonetheless become the target of a local revolutionary cadre, which cadres haver been incited by the regime to take extrajudicial action against suspected opponents. Such action has in the past included hanging the suspect from lamp posts and other makeshift public gallows.]

ix) [Foreign nationals are not protected from the actions described above. In recent years many foreign nationals have been held in custody without trial, tortured and then deported, while several have been extrajudicially executed. There is no British embassy to protect UK citizens in Libya, as diplomatic relations ceased after the murder of WPC Yvonne Fletcher by Libyan diplomats in London in 1984.]

x) [At or about the time the said words were published, the plaintiff's regime had commenced a policy of discrimination against foreign nationals, expelling tens of thousands of foreign workers and residents without notice or reason or any rights of appeal, defaming them as unlawful entrants and as spreader of the ´AIDS' virus, and detaining them for weeks or months in insanitary camps.]

xi) On 28 November 1995 Mr. Coughlin was telephoned on behalf of the plaintiff by a Mr. Hisham Ibrahim, who said that the plaintiff issued an invitation to meet him in Tripoli to correct certain statements in the article. The plaintiff declined, by his subsequent silence, Mr, Coughlin's counter-offer to meet in a country other than Libya.

xii) On 29 February 1996 the plaintiff's solicitor wrote to the defendant that ´our client is not interested in clearing his name by giving his version of the facts.' It may be inferred from this that the plaintiff's invitation to Mr. Coughlin to Tripoli was not for the reason stated, but for some ulterior purpose.

As in the case of the first article, Mr. Price objects that this is a theme which indicts the regime rather than the plaintiff himself, but once again, on the assumption that he is a key figure in that regime, it seems to me that the defendants must be entitled to give instances of punishment by the Libyan regime of dissidents and of its opponents, subject always to the Polly Peck rule. On this basis, drawing the line as best I can, I would retain sub paragraphs (ii) to (vi) inclusive, the first ten words of sub paragraph (vii), the whole of sub paragraph (viii), and the first and third sentences of sub paragraph (ix).

I would however disallow the remainder of paragraph (vii), the second sentence of paragraph (ix), and the whole of paragraph (x), on Polly-Peck grounds.

The plea of fair comment is as follows:-

"Further or alternatively the words set out in paragraph 5 of the statement of claim were fair comment on a matter of public interest, namely on the lawless and brutal nature of the regime of which the plaintiff is par, and its record for murdering, torturing and otherwise abusing its opponents, in Libya and in London and elsewhere, upon the Plaintiff's brazenness and hypocrisy in issuing an invitation to Mr. Coughlin to travel to Libya as a guest well knowing that once there Mr. Coughlin could be murdered for writing critically of the Plaintiff in the Sunday Telegraph.

The judge held, after considerable hesitation, that this plea was just sustainable.

However, quite apart from the fact that I find it very difficult to see how the second article could qualify as comment, despite its publication in the Mandrake column, it is manifest

that this plea will fail if the facts on which it is based, namely the particulars of justification, are not proved; conversely, if those facts are proved, the plea of fair comment will become superfluous.

So long as the plea of fair comment remains, the judge will be required to give, and the jury required to heed, the usual somewhat elaborate direction as to the ingredients of the defence which will add a further and unnecessary dimension to the heavy burden which they already have to bear in this case.

I would therefore strike out the plea of fair comment.

For all these reasons I would allow both the appeal and the cross-appeal to the extent, but only to the extent, set out above.

LORD JUSTICE TUCKEY: I agree.

LORD JUSTICE STUART-SMITH: I also agree.

Order: Appeal allowed in part;

cross-appeal allowed in part as per judgment;

appellants to have 50% of costs here and below.