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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Regan v Taylor [2000] EWCA Civ 68 (9 March 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/68.html
Cite as: [2000] EMLR 549, [2000] EWCA Civ 68
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Case No: 1999/0539/1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 9th March 2000
LORD JUSTICE HENRY
LORD JUSTICE CHADWICK
and
LORD JUSTICE MAY
- - - - - - - - - - - - - - - - - - - - -
SIMON REGAN |
Appellant | |
- and - |
||
THOMAS DAVID BARTON TAYLOR |
Respondent |
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
David Price Esq (Solicitors Advocate)(instructed by David Price & Co for the Plaintiffs)
Andrew Caldecott Esq, QC and Rupert Elliot Esq
(instructed by Russell Jones & Walker for the Defendant)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE MAY:
Introduction
1. This is an appeal by the claimant, Simon Regan, against the order of Gray J. of 29th April 1999, when the judge dismissed his action for libel against the defendant, Mr Taylor. The date on which the order was made is significant, since the application to which the judge acceded was made on the first day of what would have been the hearing of the action before a jury. That was the first day upon which the Civil Procedure Rules 1998 came into force. The application was made under Part 24.2 of the CPR. This enables the court to give summary judgment against a claimant if it considers that the claimant has no real prospect of succeeding on the claim. It was accepted that the Civil Procedure Rules should apply to the application and to the future conduct of the action.
2. The judge said that it was plain that the hurdle to be surmounted by a party making an application under Part 24.2 of the CPR is substantially lower than was the hurdle on an application to strike out under the provisions of Order 18 rule 19 of the former Rules of the Supreme Court. Mr Regan's advocate, Mr David Price, did not challenge this before this court. In addition, it was open to the judge to have regard to witness statements prepared for the trial and verified by a statement of truth. Nevertheless, as the judge correctly said, at least one of the issues would be for the decision of the jury at the trial and a degree of caution was appropriate before removing such an issue from the jury.
3. The judge held that the words complained of were published on an occasion of qualified privilege and that there was no case to go to the jury on the issue of malice. He gave limited permission to appeal. The judge's decision on the issue of malice is not appealed. The appeal has proceeded only on his decision as to qualified privilege. As a consequence of the judge's ruling, the pleaded defences of fair comment and justification have not been tried.
Narrative
4. Mr Regan was the editor of a magazine called Scallywag. Mr Taylor is a solicitor experienced in defamation practice. Between July 1993 and December 1994, Mr Taylor represented a retired police superintendent, Gordon Anglesea, who brought libel proceedings against H.T.V., the Observer, the Independent on Sunday and Private Eye arising from the publication by them of allegations that, while he was a serving police officer, he had committed grave sexual assaults on young boys in a children's home in North Wales. Mr Anglesea ultimately succeeded in his libel action and recovered very substantial damages. Mr Taylor acted for him throughout these proceedings. He had given Mr Taylor a general authority to deal with the media in connection with his libel proceedings. In his witness statement in the present proceedings, Mr Taylor asserted that he considered that it was his duty to take all reasonable steps to protect Mr Anglesea's legal interests, particularly his interest in having a fair trial of his libel actions. In the Spring of 1994, there was a distinct possibility of Mr Anglesea's libel proceedings being tried in June 1994, although they were eventually tried in November 1994.
5. In its Issue Number 22 Scallywag published an article which repeated and extended allegations against Mr Anglesea of child sexual abuse which were the subject of his libel proceedings. The article also alleged that he was being prosecuted for raping a minor. This allegation was untrue. The published allegations against Mr Anglesea were extremely serious. It is contended on behalf of Mr Taylor that the attack by Scallywag on Mr Anglesea could hardly have been more serious because of its gravity, its timing and potential prejudice on the imminent libel trial; the soon to be admitted falsity of the allegation that Mr Anglesea was under prosecution for raping a minor; the potential effect on Mr Taylor's client who was facing a trial which would place him under great stress; and the risk that the allegations would be picked up by other sections of the media.
6. On 8th April 1994, Mr Taylor received a telephone call from a journalist from Wales on Sunday. Mr Anglesea was on holiday at the time and was then unaware of the Scallywag article. The journalist referred to the article and asked whether Mr Anglesea was indeed being prosecuted for raping a minor. Mr Taylor denied this on behalf of Mr Anglesea. The journalist asked whether Mr Anglesea would take proceedings against Scallywag. Mr Taylor replied that this was doubtful because the magazine had no money. He added that "somebody ought to give some thought to locking these people up" and referred to the possibility of proceedings for criminal libel, saying that if "someone would pay me half my fee, I'll have a go at it".
7. On 25th May 1994, Mr Taylor received a call from a freelance journalist who was writing an article for Scallywag about libel reform and wanted to know Mr Taylor's views. Mr Taylor refused to comment saying that he was advising a client on a criminal libel action against Scallywag.
8. On 31st May 1994, Mr Taylor received a call from a journalist on the UK Press Gazette asking for the name of the client on whose behalf the criminal libel proceedings were contemplated. Mr Taylor gave the journalist Mr Anglesea's name. On 1st June 1994, Mr Taylor received a call from another U.K.P.G. journalist who raised again the allegation that Mr Anglesea was under prosecution for raping a minor. On 6th June 1994, U.K.P.G. published an article headed "Criminal Libel Jail Threat for Regan", which quoted Mr Taylor's explanation why Mr Anglesea was bringing a criminal libel action as
"There is no purpose in claiming damages for civil libel against Scallywag because they have consistently claimed they have no money. The court will decide whether the libel is such that it requires the imposition of a criminal penalty. It is extremely serious. The allegations are nothing short of scandalous."
9. Mr Regan was quoted in response as saying that his lawyer was relishing the action and felt very confident.
10. On 13th June 1994, Mr Taylor received a telephone call from a journalist on the North Wales Pioneer. The journalist asked why Mr Anglesea had chosen a criminal libel action. Mr Taylor made various observations highly critical of Scallywag's general journalistic and ethical standards. His words were substantially reproduced in an article in the North Wales Pioneer on 16th June 1994. This is the publication which is the subject of these proceedings. The words complained of are:
"There is no purpose in claiming damages for civil libel against Scallywag because they consistently claim they have no money. Criminal libel is the only remedy against this worthless organisation who simply seek publicity for themselves. They are not interested in accuracy, even less in fair reporting, and are a disgrace to the profession of journalism."
11. The Statement of Claim pleads that the words in their natural and ordinary meaning were defamatory of Mr Regan, which they obviously were.
The Issue
12. Mr Taylor's amended defence pleads justification and fair comment, and also a defence of qualified privilege which is particularised at some length. The essence of the application to which the judge acceded was that there was no real prospect of Mr Regan rebutting the defence of qualified privilege. Mr Caldecott QC on behalf of Mr Taylor relied on two separate kinds of qualified privilege: firstly, that which attaches to a reply made by a defendant to an attack on him; secondly, that which attaches to a response to an enquiry made of the defendant where the enquirer has a legitimate interest in making the enquiry. The judge held in favour of Mr Taylor on the first of these grounds, which was sufficient for the order which he made dismissing Mr Regan's claim. The judge held that the second ground of privilege was not so clearly established that it could be said that there was no reasonable prospect of it being rejected at trial. Mr Regan's Notice of Appeal asks this court to set the judgment aside. To achieve this, it would be sufficient to establish that Mr Regan did have a real prospect of defeating the defence against attack kind of qualified privilege. The Notice of Appeal also asks this court in effect to hold that the defence of qualified privilege in each of its forms has no real prospect of success. That issue was not before the judge and, if it were necessary to do so, I would say that it is not open to Mr Regan to ask this court to make an original order which the judge was not asked to consider and which he did not rule upon.
13. With the exception of the one point that this appeal raises, the relevant law relating to the defence of qualified privilege in defamation proceedings is uncontentious and may be briefly stated. The defence of qualified privilege is based on public policy. It is usually analysed in terms of duty and interest. It arises on an occasion where the person who makes the communication has an interest or a duty to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it - see Adams v. Ward [1917] AC 309 at 334. A species of qualified privilege arises where a person whose character or conduct has been attacked is entitled to answer that attack. Defamatory statements which he may make about the person who attacked him will be privileged, provided that they are published in good faith and are fairly relevant to the accusations made. The person replying to an attack is not required to be diffident in protecting himself and is allowed a considerable degree of latitude - see generally Gatley on Libel, 9th Edition, paragraph 14.49. "There is an analogy between the criminal law of self-defence and a man's right to defend himself against written or verbal attacks. In both cases he is entitled, if he can, to defend himself effectively, and he only loses the protection of the law if he goes beyond defence and proceeds to offence." - Lord Oaksey in Turner v. M.G.M. Pictures [1950] 1 All ER 449 at 470-471. Mr Price accepts that Mr Anglesea had been attacked by Scallywag and that the publication in the North Wales Pioneer would have been privileged if the words had been spoken to the journalist by Mr Anglesea himself. The issue is whether privilege extends to publication by Mr Taylor as Mr Anglesea's solicitor.
14. With one qualification, Mr Price accepts that publication by an agent acting on behalf of his principal, will attract equivalent privilege to that which the principal would have had. In the present case, it is accepted that Mr Taylor had a general authority to deal with the media in connection with Mr Anglesea's libel proceedings. It is also accepted that Mr Taylor had instructions from Mr Anglesea to consider initiating criminal libel proceedings against Mr Regan. Mr Price's written submissions went somewhat further in accepting that Mr Taylor had instructions actually to initiate the criminal libel proceedings. I think that that extended concession was properly made, since Mr Taylor's witness statement dated 24th December 1998, which was verified by a statement of truth, confirmed in paragraph 15 that he had instructions from Mr Anglesea that he would bring an action for criminal libel against Scallywag in due course. There was no real prospect of Mr Regan rebutting that evidence.
16. Mr Taylor's case is that the publication was within his implied authority and duty to his client. However, in a letter written on behalf of Mr Taylor after the publication, it was said that the opinions expressed by Mr Taylor were entirely Mr Taylor's. They were not specifically referred to Mr Anglesea in advance as they represented Mr Taylor's opinion rather than Mr Anglesea's, who had not previously read Scallywag. Mr Taylor says in his witness statement that, in answering the journalist's questions:
"... I was acting within the scope of my general instructions to deal with the media on Mr Anglesea's behalf and in response to the serious attack on him contained in Issue 22 of Scallywag. The specific opinions which I expressed about Scallywag were, of course, my own."
17. Mr Price submits, firstly, that qualified privilege accorded to a solicitor defending a client who is under attack does not extend to publication by the solicitor of his own opinions which the client has not adopted and authorised him to publish. There is no public interest in protecting a solicitor from having to justify or establish as fair comment publication of his own opinions. Mr Price submits, secondly, that the public interest is that solicitors who represent clients, particularly those who are involved in litigation, should not make statements to the media which go beyond saying, upon instructions, what their client's case is.
The judge's reasons
18. The judge considered and rejected both these submissions on the facts of this case. He expressed his reasons as follows:
"In my judgement for present purposes, a solicitor is in no different position from any other agent. His retainer, and therefore his authority, may be narrow and limited, or it may be broad and general. To the extent at least that a solicitor is acting within the scope of his retainer, he is properly to be regarded as standing in the shoes of his client, whether it be for the purpose of protecting his client's interest against an attack by responding to that attack, or for the purpose of responding on behalf of his client to an enquiry by someone with a legitimate interest."
19. The judge based that conclusion on Baker v. Carrick [1894] 1 QB 838 and Watts v. Times Newspapers Ltd [1997] QB 650 at 666. In Baker v. Carrick, Lord Esher said at page 840:
"The first matter in dispute is whether as regards the defendant the occasion was privileged. He was acting for clients who alleged that they were creditors of the plaintiff, and he was instructed by his clients to take the necessary steps towards securing payment of the alleged debt, and to see that its recovery was not put in jeopardy. That seems to me to be within the ordinary duties of a solicitor. It is suggested that the solicitor was only authorised to act for his client in the conduct of the action, and would only be protected in respect of such matters. I think, however, that at all events nowadays, the duties of a solicitor go beyond that, and that it is part of his ordinary duty to see that nothing occurs which will affect his client's claim. If so, and if the occasion was one to which privilege would have attached had the clients themselves done that which the defendant did, it is also privileged in the case of a solicitor acting for his clients."
20. The judge in the present case then said:
"As to the legitimacy or otherwise of a solicitor introducing his own opinions or other output when seeking to protect his client's interest, I do not accept that the protection of the privilege is thereby forfeited.
It is nowadays commonplace for solicitors to be called on to answer questions from the media about their clients' affairs, including pending or current litigation. Solicitors sometimes volunteer such information to the media. Provided the other conditions for the existence of privilege are satisfied, I do not consider that privilege is lost because the solicitor introduces opinions of his own or draws on his own knowledge and experience. Indeed it may even be said that in certain circumstances he is under a duty to do so in the discharge of his obligation towards his client."
21. The judge did not regard authorities on which Mr Price had relied as inconsistent with his conclusion. I shall consider those authorities later in this judgment. Of Mr Price's second submission, the judge said:
"I derive little assistance from the Law Society's Code for Advocacy. In the first place the defendant was not an advocate and he had not been briefed in any current matter. There is in the Code no comparable restriction on a solicitor when acting otherwise than as advocate. I would go with the argument and Mr Price on this aspect to this extent: the fact that the solicitor is expressing his own opinions is or may be one of the circumstances which the court should take into account when deciding whether privilege attaches."
Parties' submissions and authorities
22. Mr Price submits that, as a matter of general principle and authority, qualified privilege does not extend to the publication of defamatory personal opinions by an agent. He submits that there are particularly compelling reasons for this conclusion when the agent is a lawyer and the defamatory statements are made to the media and relate to intended or pending criminal proceedings. He submits that privilege should not extend to publications by an agent which go beyond those which are actually authorised or, in the case of a solicitor, those which constitute a statement of what he knows upon instructions to be his client's case. If he expresses his own defamatory opinions, he is no longer acting in the character of an agent. There is no public interest in giving him a licence to libel.
23. Mr Caldecott submits that, provided that addressing the media comes within the solicitor's express or implied duty to his client, the solicitor will be protected by qualified privilege if the same statement by the client would be so protected. In the present case, Mr Taylor's duty expressly encompassed dealing with the media on his client's behalf. It cannot be a pre-condition of the privilege that any statement by the solicitor must be specifically authorised by the client. The limits of any privilege for the solicitor and the limits of his duty to the client are co-extensive, since the privilege derives from the duty. As to expressing his own opinions, Mr Taylor's duty to his client was not narrowly confined to that of a mere conduit for expressing his client's case, or, in this instance, articulating within proper bounds his client's defence to Scallywag's attack. A specialist lawyer is employed so that the client may benefit from his experience. That experience and his opinions may well extend beyond those of the client. It is within the duty of such a solicitor to articulate on behalf of his client his own relevant opinions without the client's specific authority. The attack on Scallywag's general journalistic standards was relevant to refuting the attack by Scallywag on Mr Anglesea. It was legitimate as a means of deterring other republications of the same material. It was relevant as part of a direct reply to the enquiry as to the reasons for taking criminal libel proceedings.
24. Mr Price referred to a number of authorities. In London Association for Protection of Trade v. Greenlands Ltd [1916] 2 AC 15, there was a defamatory publication by a trade association in response to an enquiry by one of its members. The secretary of the association sent the relevant report. It was eventually accepted that the publication by the association was on an occasion of qualified privilege. Of the publication by the secretary, Lord Atkinson said at page 36:
"Now, if the person enquired can himself reply with this protection, it necessarily follows that he can deliver his reply through the mouth of an agent duly accredited by him in that behalf, but if he does so the privilege which the agent's publication will have will be that which his principal would have had if he had replied himself. Nothing less and nothing more, since, presumably, he only gives indirectly the information which he bona fide believes to be true. If the agent should contribute anything from himself, that would alter matters entirely."
25. This last sentence was not necessary to the court's decision, but Mr Price relies on it as strongly suggesting that any personal opinion of the agent would not have been protected.
26. In Adam v. Ward [1917] AC 309, libel proceedings were brought against the secretary to the Army Council for the publication of a letter written on behalf of the Council. The case is a leading authority on the privilege which arises where there is a reply to an attack. It was held that the secretary, who acted on the direction of the Army Council, had the benefit of the privilege of his principal. On page 340, Lord Atkinson said:
"Some argument was directed to the defendant's precise position in relation to this libel, his rights, duties, privileges, his feelings towards the appellant, and his express or implied malice. I think his position is plain. He was the mere agent of the Army Council, bound to obey their orders or resign his post - the mere instrument through whose hands the libel passed for publication. His own personal feelings or privileges are, I think, not involved in the case at all. He had nothing whatever to do with the composition of the libel, or the approval of its contents. In the mere routine of the work of the office, he signed his name to it and passed it on for publication in the way and over the area usual in such cases."
27. Mr Price again submits that this suggests that, if any personal opinion of the agent had been introduced, it would not have been protected. Mr Caldecott submits of both these cases that they concerned a mere agent acting as a postman. The authority of such an agent would not extend beyond that of a postman. By contrast, Mr Taylor was an adviser, the extent of whose authority was quite different.
28. In Crawford v. Dunlop [1900] 2 F. 987, the Court of Session decided a case where the defendant was a solicitor who had written to the contractors in connection with a building dispute a letter critical of the architect pursuer. There was a concession that the solicitor was protected by qualified privilege and the only issue was malice. However, members of the court expressed doubt whether the occasion was indeed privileged. Lord Moncreiff said at page 998:
"The privilege of a law agent depends upon his acting strictly on the instructions, and as the mouthpiece, of his client. As long as he confines himself to doing this, any pertinent statements which he may make in his client's interest will, I assume, be held to be privileged; and in general he will not be held responsible for their truth or accuracy.
But this privilege may be lost, and I think it is lost when the agent, not content with speaking or writing in the name of his client, personally adopts and corroborates the charge which he is instructed by his client to make."
29. Lord Trayner said at page 997:
"If the defender Dunlop had confined himself, in the letters complained of, to a communication of facts or opinions which his client instructed him to communicate, I should have had great hesitation in allowing the issue which the Lord Ordinary has approved. My present opinion is, that in such circumstances I should have refused any issue, on the grounds that the letters and all that they contained were the letters and statements of the client, for which the agent, as the mere channel of communication, was not responsible. But the defender (Dunlop) here has done more than merely communicate the views of his client. He introduces knowledge and experience of his own in support of his client's views. In doing so he went beyond the mere character of agent, and made, or may have made, himself personally responsible for what he wrote."
30. Mr Price relies on these passages. Mr Caldecott submits that this is an elderly Scottish authority which does not cite English cases and which predates Adam v. Ward. He submits that it was decided in a very different social climate and that it exhibits an antiquated approach to the question of privilege in the round. Lord Trayner appears not to treat the law agent as an adviser, rather a "mere channel of communication". Nowadays, a solicitor is not a mere agent in that sense. He submits that the dissenting judgment of Lord Young is more consonant with modern views. Lord Young said at page 996:
"Assuming the relation of agent and client, and the client's instructions to write and send the letters, what is the ground of liability against the agent? It is of familiar occurrence that a law agent has, on his client's employment and instructions, to make communication, by letter or otherwise, to people with whom his client has dealings and comes into conflict in business or other matters, imputing serious misconduct to them - sometimes demanding reparation to his client therefor, sometimes intimating resistance by his client to demands because of the misconduct imputed to the party making them. Is the agent responsible for imputations so made? If he had no authority to make them he is of course responsible, and his client not; but if he had authority and the client admits it, and accepts the consequent responsibility, I repeat the question, How is the agent also responsible?"
31. In Slipper v. Brainsby [1930] N.Z.L.R. 953, the New Zealand Supreme Court upheld the conviction of a solicitor for criminal libel in a letter written on behalf of a client. There was a defence of qualified privilege. Myers, CJ said at page 969:
"Even if a qualified privilege did attach to the letter by reason of the fact that it was written by the appellant as solicitor for the Samoan women, the privilege is lost if the solicitor chooses to introduce a defamatory statement of his own, and it seems to us that that is exactly what he has done in the italicised portion of the letter as set out above."
32. The cases cited in support of this were Crawford v. Dunlop and an Irish case which, as was agreed before us, was not relevant. Mr Caldecott submits that Slipper v. Brainsby is on its facts very much a decision of its time; that the passage which I have quoted was not necessary to the court's decision; that it relies on Crawford v. Dunlop; and that the passage is too restrictive of a modern solicitor's duty to his client which may, in appropriate circumstances, include advancing personal views in protection of his client's interests. Mr Caldecott points out that Gatley treats Slipper v. Brainsby as authority for the proposition that a solicitor is not protected if he introduces a defamatory and irrelevant observation of his own.
33. The judge in the present case considered that these authorities said no more on the issue of privilege than that the introduction of extraneous or irrelevant matter may result in what would otherwise have been a privileged occasion losing that protection. Mr Price submits that they are clearly directed to the specific question of personal statements or opinions of the agent. In both Crawford v. Dunlop and Slipper v. Brainsby, the statements were relevant to the matters on which the agents were writing on their clients' behalf. In both cases, what was said to be objectionable was the fact that they introduced their own personal opinions.
34. Mr Price's second main submission is that, whatever may be the position with agents generally, there is a particular public interest against according qualified privilege to occasions when a solicitor agent expresses his personal opinion. Mr Price submits that it is fundamental to the administration of justice that the legal profession should be independent and act independently. If lawyers were permitted to express their personal opinions in support of their clients' case, it would corrupt the independence of the profession. It is well recognised that advocates should not express their personal opinions on their clients' case before a court or tribunal. Courts decide cases on their own view of the evidence and the law and an advocate's personal view is irrelevant and unhelpful. If lawyers were permitted to express personal opinions and did so frequently, adverse inferences might be drawn in a case where the advocate did not do so. Lawyers would come under pressure to endorse their clients' cases in order to get instructions. The public would tend to assume that lawyers only represent clients with whom they are sympathetic. It is only by maintaining their independence and professional distance from their clients that lawyers can carry out their proper role.
35. Mr Price referred us to specific professional rules of conduct for barristers and solicitor advocates which prevent them from expressing personal opinions to the media on cases in which they are instructed. He pointed out that the only relevant rule of professional conduct governing solicitors who are not advocates is that they should not be party to any contempt of court. He noted that the Lord Chancellor's Advisory Committee on Legal Education and Conduct in their report of May 1997 entitled "Lawyers' Comments to the Media" had suggested that this rule was inadequate. He drew our attention to a section of that report which considered expressions of personal opinion to the media by defence lawyers in criminal proceedings. This was in the context of current practice of the police and the media. The committee was most reluctant to recommend any extension to the current restrictions on solicitors' comments to the media that might prevent them from effectively and legitimately defending their clients' interests. They considered that additional restrictions could only be justified where there was a clear and overriding public interest in doing so. They considered that there was an overriding public interest in prohibiting litigating solicitors from publicly expressing personal opinions on the merits of their clients' cases during the course of any criminal proceedings in which they had been instructed; but that before and after the proceedings themselves, they did not believe that the public interest currently required solicitors to be prohibited from expressing personal opinions. Mr Price drew our attention to the Note of Dissent by Mr David Steel QC disagreeing with the recommendation in the report that the prohibition on a solicitor from expressing a personal opinion on the merits of his client's case should not extend to the pre-charge stage. Mr Price does not submit that a solicitor should never advocate his client's case in the media. However, when a solicitor is called upon to do so, he should limit himself to acting as an advocate, that is, expressing what his client would say.
36. Mr Caldecott correctly pointed out that most of the material relied upon by Mr Price referred to lawyers acting as advocates in litigation or before tribunals. Mr Taylor was not in that position. He was simply acting for his client. Mr Price did not rely on any specific breach by Mr Taylor of a rule of professional conduct. In addition it seems to me that there is no persuasive case for putting lawyers in a special position for the purpose of the law of qualified privilege in defamation or in any position different from that of agents generally. Certainly a public interest underlies the defence of qualified privilege; and a public interest underlies rules of conduct of the legal profession, including those to which Mr Price refers. But they are not the same public interest and it does not seem to me that that which supports rules of professional conduct can readily be transposed into a quite different context to restrict the ambit of qualified privilege in defamation which would otherwise be available to an agent who was not a lawyer.
Discussion
37. In my judgment therefore, the single point which this appeal raises is whether the publication complained of in the North Wales Pioneer, insofar as it expressed Mr Taylor's opinion, was so clearly within the scope of his authority and duty to his client that Mr Regan had no reasonable prospect of rebutting that contention. It is accepted that the publication would have been on an occasion of privilege if it had been published by Mr Anglesea himself. It is accepted that an authorised publication by an agent attracts the same qualified privilege as would the same publication by the principal. The question is the scope of Mr Taylor's authority and duty. That is partly a question of direct fact and partly of inference.
38. Mr Taylor was acting as Mr Anglesea's solicitor in relation to his libel proceedings which were, in 1994, approaching trial. He had been given a general authority to deal with the media in connection with those proceedings. Mr Anglesea had been subjected to a serious attack by Scallywag which had repeated and extended the allegations which were the subject of the libel proceedings. For the reasons which Mr Taylor had given to the UK Press Gazette, Mr Anglesea was contemplating starting criminal libel proceedings against Mr Regan. Mr Taylor had instructions to initiate those criminal libel proceedings. Mr Anglesea was entitled to defend himself against the Scallywag attack and the scope of Mr Taylor's authority plainly extended to advancing a defence to that attack on Mr Anglesea's behalf. The defence was made in answer to a request for information from the media. The journalist asked questions about the intended criminal libel proceedings and Mr Taylor's authority extended to answering them.
39. In my view, a modern solicitor in Mr Taylor's position is not to be seen as a mere channel of communication. He is engaged to advise and to give the client the benefit of his experience. He is engaged to represent his client in the matter in which he is engaged and may often be called on to make communications whose content may in part be derived from his own experience, rather than from direct instructions of his client. The client's own ability and experience may be considerably more restricted that his solicitor's and the proper conduct of the client's affairs may demand input from the solicitor which is his and not that of his client. There is no hard dividing line between fact and opinion (and none is drawn in this case, where the element of Mr Taylor's "opinion" is so expressed for shorthand convenience only). I accept Mr Caldecott's submission that there may be retainers where a solicitor cannot be expected to obtain his client's explicit instructions for every bit of material which he publishes on his behalf. That clearly applied to the occasion of this publication, where Mr Taylor had to deal with a telephone inquiry from a journalist. The publication to the North Wales Pioneer, including that part of it which was Mr Taylor's opinion, was one which Mr Anglesea would obviously in the circumstances have endorsed. I do not think that privilege should in these circumstances depend on whether Mr Taylor obtained specific express authority in advance of the publication. It is also, in my view, significant that the journalist had asked why Mr Anglesea had chosen to initiate criminal libel proceedings, since the matters in the publication which may be seen as being Mr Taylor's opinion are closely related to the reasons for that course. In my judgment, therefore, Mr Taylor was entitled to say, as he did in his witness statement, that the publication was within the scope of his general instructions to deal with the media on Mr Taylor's behalf and in response to the serious attack on Mr Anglesea. It follows that I consider that Gray J. was correct to hold that the occasion was privileged. There were no facts reasonably capable of being disputed which would have affected this decision. It follows that Mr Regan had no reasonable prospect of rebutting the qualified privilege defence.
40. There is no authority binding this court to reach a different conclusion. The passage from Lord Esher's judgment in Baker v. Carrick which I have quoted comes close to supporting it. I am inclined to think that my view of Mr Taylor's duty and authority is not at variance with those expressed in the majority judgments of the Court of Session in Dunlop v. Crawford nor the sentence in Lord Atkinson's opinion in London Association for Protection of Trade v. Greenlands. Those may be seen as depending on the limited extent of the authority of the agent which those views assumed. If that were not correct, I would, if it were necessary, hold that times have changed since those cases were decided and that they do not accord with modern conditions. My view, however, does not so much depend on an assessment of the scope of a modern solicitor's authority generally as on the scope of Mr Taylor's particular authority in this case.
41. A decision to this effect is not, as Mr Price submits, a licence to libel. It is not a licence to agents to publish indiscriminate personal opinions. It is simply an application of the principle, which I do not understand Mr Price to quarrel with, that a person may publish statements by an agent and that the agent who publishes within the scope of his authority will have a privilege coextensive with that of his principal.
42. For these reasons, I would dismiss this appeal.
LORD JUSTICE CHADWICK:
43. I gratefully adopt the analysis of the facts and the law set out in the judgment of Lord Justice May. I agree with his view that the single point raised by this appeal is whether it was so clearly within the scope of Mr Taylor's authority, as solicitor for Mr Anglesea, to make the statement to the journalist on the North Wales Pioneer on 13 June 1994, publication of which is the subject of complaint in the action, that Mr Regan had no reasonable prospect of rebutting that contention at a trial. But I disagree with the conclusion which he has reached on that point.
44. The statement of which complaint is made has been set out by Lord Justice May. There is no dispute that the words in their ordinary and natural meaning are defamatory of Mr Regan. Mr Taylor seeks to rely on qualified privilege. It is accepted on behalf of Mr Regan that there is a well recognised category of privilege which protects a person who has been the subject of an attack in respect of a statement, defamatory of the attacker, which is made in response to that attack; provided that the statement satisfies the test of relevance. It is accepted, also, that that test is satisfied where the statement in response is, in a broad and reasonable sense, germane to subject matter of the attack - see Toogood v Spyring (1834) 1 C.M.&R. 181, 193-4, Adam v Ward [1917] AC 309, 320-1, 339, 348, Horrocks v Lowe [1975] AC 135, 151,and Watts v Times Newspapers Ltd [1997] QB 650, 660H-662E, 671C-D. In the last of those passages Lord Justice Hirst said this:
"Mr Watts was the victim of an attack and therefore falls fair and square in the Adam v Ward [1917] AC 309 category of case, giving him a right to reply in order to rebut the accusation against him and to do so with a considerable degree of latitude, so long as he did not overstep the bounds and include entirely irrelevant and extraneous material. The offending words inserted on his behalf, even though in my judgment unnecessary for the reasons already given, clearly fell within those bounds since they were not unconnected with the theme."
45. With those authorities in mind, Mr David Price, at paragraph 4 of his written submissions on this appeal, accepted on behalf of Mr Regan that:
"Anglesea had a privilege, based on a "reply to an attack", to make defamatory statements of Regan to the North Wales Pioneer. It is also accepted that he was entitled to instruct Taylor to make the reply on his behalf."
46. But Mr Price goes on, at paragraph 5 of those written submissions, to
assert that:
"... as a matter of general principle and authority, ... the privilege does
not extend to the defamatory personal opinions of the agent, and there is no
good reason why it should do so."
47. I am not persuaded that the authorities relied upon by Mr Price - to which
Lord Justice May has referred in his judgment - support any general rule that
the qualified privilege which would otherwise protect a relevant statement made
in response to an attack will be lost because it contains material (whether or
not aptly described as a "personal opinion") which has been introduced by the
agent and so, in that sense, does not originate from the person who has been
the subject of the attack. Nor, in my view, is there any reason in principle
for such a rule. The true position, as it seems to me, may be summarised as
follows: (a) a relevant statement made in response to an attack will be
protected by qualified privilege (i) if made by the person who has been the
subject of the attack or (ii) if made by his agent with his authority and on
his behalf; (b) in such a case the defence of qualified privilege will be
available to the person (whether principal or agent) who makes the statement
and (where the statement is made by an agent) also to the person on whose
behalf it has been made; (c) in such a case it is irrelevant whether the
statement contains only material which has originated from the principal, or
material which has originated partly from the principal and partly from the
agent, or material which has been introduced by the agent on his own initiative
- the relevant question is whether the contents of the statement have been
authorised by the person who has been the subject of the attack which gives
rise to the occasion of privilege; (d) in particular, there is no reason why
the person who has been the subject of the attack should not authorise his
agent to make such response to the attack on his behalf as seems appropriate to
the agent from time to time - and to do on the initiative of the agent and in
terms which have not been referred back to the principal for specific approval;
(e) a defamatory statement made in response to an attack will not be protected
by qualified privilege if it does not satisfy the test of relevance - and, in
that event, the persons liable to be sued will be the maker of the statement
and (where the statement is made by an agent) the person with whose authority
and on whose behalf it is made. Where the statement in response is made neither
by the person who has been the subject of the attack nor by an agent with his
authority and on his behalf - for example, by a third party acting on his own
behalf and on his own initiative - no question of "response to attack"
privilege can arise. In such a case the person who has been the subject of the
attack has no cause to rely on privilege - his answer is that he has no
responsibility for the statement; and the maker of the statement has no ground
upon which he can invoke the privilege - he was not the subject of the
attack.
48. In the present case, therefore, the relevant question in this context is
whether, at the time when he made the statement to the North Wales Pioneer, Mr
Taylor had authority from Mr Anglesea to make such response, through the media,
to the attack which had been made by Scallywag upon Mr Anglesea as seemed to
him appropriate in the interests of his client. It is not suggested that Mr
Anglesea had the opportunity to approve the terms of the statement in advance;
nor that he has done so since. The only issue on this appeal is whether that
question could be answered in favour of Mr Taylor at a summary hearing and on
the limited evidential material which was available. Was the statement made by
Mr Taylor on 13 June 1994 so clearly within the scope of his retainer from Mr
Anglesea that Mr Regan had no reasonable prospect of rebutting that
contention?
49. The relevant pleading is set out in particulars under paragraph 8 of the
re-amended defence. So far as material, Mr Taylor's pleaded case is in these
terms:
"(1) The Defendant is and at all material times was Mr Anglesea's solicitor as
pleaded above. Mr Anglesea formerly served as a Superintendent in the North
Wales Police and he and his family reside in North Wales.
...
(4) ... In response to this question ["Why has Mr Anglesea chosen a criminal
libel against Scallywag?"] the Defendant spoke substantially the words
complained of ...
(5) In publishing those words the Defendant was speaking as Mr Anglesea's
solicitor acting within the scope of his general instructions to deal with the
media on Mr Anglesea's behalf and in response to the serious attack upon Mr
Anglesea which the Plaintiff had made in Issue 22 of Scallywag."
50. In response to a request for further particulars of the allegation in
paragraph 8(5) - asking whether it was the defendant's case that he had
specific authority from Mr Anglesea to state to the media that Mr Anglesea was
planning to bring criminal proceedings against Scallywag - it was said only
that the defendant was acting within the scope of his general instructions to
deal with the media and in response to an inquiry from the media.
51. For my part, I have no difficulty in accepting that it falls within the
scope of a solicitor's instructions to deal with the media, in the context of a
case where there are existing civil libel proceedings on foot against other
parties, to explain why the client is considering criminal libel proceedings
against a particular defendant. But that explanation is contained in the
words:
"There is no purpose in claiming damages for civil libel against Scallywag
because they consistently claim they have no money. Criminal libel is the only
remedy against this worthless organisation ..."
52. The remaining words complained of:
"... who simply seek publicity for themselves. They are not interested in
accuracy, even less in fair reporting, and are a disgrace to the profession of
journalism."
cannot be regarded as an explanation in response to the inquiry "why
proceedings for criminal libel?". It is plain, to my mind, that those remaining
words are there for a different purpose. They are there by way of
counter-attack on the integrity of Scallywag and those responsible for the
material published in that magazine. In particular, the words are an attack on
the integrity of Mr Regan as the person with editorial responsibility for that
material. It is, as I have already indicated, accepted on behalf of Mr Regan
that that purpose would (or, at the least, arguably might) fall within the
generous ambit of the "response to attack" category of qualified privilege if
the words had been spoken by Mr Anglesea himself. The question is whether
"general instructions to deal with the media . . . and in response to the
serious attack upon Mr Anglesea ... made in Issue 22 of Scallywag" authorise a
solicitor - or, in particular, this solicitor - to mount a counter-attack on
his own initiative.
53. In his witness statement, signed on 24 December 1998, Mr Taylor explains
the circumstances in which he came to make the statement to the North Wales
Pioneer on 13 June 1994. He refers to his retainer by Mr Anglesea in these
terms:
"3. Between January 1993 and December 1994, I acted for a retired
Superintendent of Police, Gordon Anglesea, in his actions for libel against two
national newspapers, a national magazine and a regional television company (the
Independent on Sunday, the Observer, Private Eye and HTV respectively).
..."
54. In paragraphs 5 and 6 of that statement, Mr Taylor describes the article in
Issue 22 of Scallywag, which he saw in early April 1994 (some two months after
Mr Anglesea's libel action had been set down for trial). In paragraph 7 he
describes his reaction to that article:
"7 My immediate reaction when I read this article about my client was one of
amazement and shock. It was obviously defamatory of Mr Anglesea. I was frankly
incredulous that any publication could publish such allegations when it was
obviously aware of the forthcoming libel trial. I was very concerned that this
article posed a substantial risk of real prejudice to the fair trial of Mr
Anglesea's libel actions if read by any juror."
55. At paragraph 9 he says this:
"9 As Mr Anglesea's Solicitor, I considered that it was my duty to take all
reasonable steps to protect Mr Anglesea's legal interests, particularly his
interest in having a fair trial of his libel actions. At the time of
publication [of Issue 22] Mr Anglesea was on a family holiday abroad. In view
of the seriousness of this matter, I gave consideration to the possibility of
bringing a prosecution for criminal libel against Scallywag. ..."
56. Mr Taylor sent Mr Anglesea a copy of the Scallywag article and, on Mr
Anglesea's return from holiday, considered it with him (paragraph 11). Mr
Taylor does not say what, if any, specific instructions he received in relation
to that article. In paragraphs 12 and 13 he explains that his investigations
into Scallywag and Mr Regan led him to form the views which he was later to
express to Mr Blease, of the North Wales Pioneer, on 13 June 1994. Paragraphs
19 to 23 describe the conversation on 13 June 1994. Paragraph 24 is in these
terms:
"In answering questions from Mr Blease, I was acting within the scope of my
general instructions to deal with the media on Mr Anglesea's behalf and in
response to the serious attack on him contained in issue 22 of Scallywag. The
specific opinions which I expressed about Scallywag were, of course, my
own."
57. I can identify nothing else in the material before the judge which throws
light on the scope of Mr Taylor's instructions from his client. Indeed, it is
really only the single sentence in paragraph 24 of the witness statement
(reflected in paragraph 8(5) of the re-amended defence and in the reply to the
request for further particulars) which contains the assertion, by inference,
that Mr Taylor had received a general retainer to deal with the media on Mr
Anglesea's behalf.
58. I have already expressed the view that there is no reason in principle why
a client should not give to his solicitor a general retainer authorising him to
make such response to defamatory attacks upon the client as the solicitor may
from time to time think appropriate. Such a retainer may authorise the
solicitor to express his own views or opinions without further reference to the
client; and may authorise the solicitor to mount a counter-attack in the media
in response to an attack which has been made upon the client by an identified
person or publication or, perhaps, in response to any future attacks. Whether
or not such a retainer has been given - and, if so, its terms - must, in my
view, be a question of fact; to be decided on the facts in the particular case.
But it must be kept in mind that a retainer in the wide terms which I have
described may have serious consequences for the client. In the first place, it
may expose the client to proceedings for defamation at the suit of the person
against whom the solicitor thinks it appropriate to mount the counter-attack.
If the solicitor's judgment is sound - and his counter-attack remains within
the bounds permitted by law - the client will have a defence of qualified
privilege to such proceedings. But there is the risk that the solicitor will go
further than the law permits; and there is the risk that, even if he remains
within bounds, the client will be left with the unrecovered costs of a
successful defence. Secondly, it may expose the client to a claim by the
solicitor for an indemnity against the solicitor's own costs of defending
proceedings brought against him. Again, it is no answer to say that the client
will be liable only if the solicitor's defence is successful - even if that
proposition be correct. The costs of a successful defence may prove
irrecoverable from the claimant. Indeed, it is a feature of the allegations
which are the subject of the present proceedings - in particular, the
allegation that Scallywag is a worthless organisation - that, if true, Mr
Taylor will not recover costs from Mr Regan; so would (at least, prima facie)
need to look to Mr Anglesea for indemnity if the allegations were made with his
authority.
59. It is because the retainer on which the solicitor seeks to rely in the
present case has such potentially serious consequences for his client that I
take the view that it should not lightly be implied. I am persuaded that the
judge was wrong to reach the conclusion, on the material available to him, that
the question of authority was so clearly to be answered in Mr Taylor's favour
that there was no reasonable prospect that a court would come to a different
conclusion after hearing evidence - including, perhaps, the evidence of Mr
Anglesea as to his understanding of the position. I should not be taken as
having formed any conclusion, myself, on the question whether or not Mr Taylor
will be able to establish the existence of the authority upon which he relies.
I decide, only, that that is question which cannot properly be resolved at this
stage on the material at present available.
60. For those reasons I would allow this appeal.
LORD JUSTICE HENRY:
61. I agree with the judgment of Lord Justice May, and would dismiss this
appeal. I add a few words out of courtesy to Lord Justice Chadwick, to show
why I differ from him.
62. We are here concerned with the qualified privilege which attaches to a
reply made by a solicitor in response to an attack on his client. Solicitors
acting for their clients in contentious business of any kind frequently have to
write letters which are or may be defamatory of their clients' adversaries. An
early example of such a case is Baker -v- Carrick (which my Lord, Lord
Justice May, has already referred to and cited from). There, the defendant
solicitors were acting for surgeons seeking to recover money owed to them by
the plaintiff Baker. Baker had instructed auctioneers to sell certain goods.
The solicitors accordingly gave the auctioneers notice that their clients had
sued Baker, that Baker had committed an act of bankruptcy, and required them to
hold any proceeds of sale pending the trial of the action. At trial, the judge
found the occasion privileged, and left the question of malice on the part of
the solicitors to the jury, who found for the plaintiff on the basis that
malice destroyed the privilege. On appeal, the court held that the occasion
was privileged, as the defendant was acting "within the ordinary duties of a
solicitor ... to see that nothing occurs which will affect his client's claim"
(per Lord Esher at p841), and:
"It is the duty of a solicitor to do all that he can to protect the interests
of his client, and in my opinion he stands in the same position with regard to
privilege as that in which his client would stand in the light of a similar
action against him." (per Lopes LJ at 841)
63. That remains the proper test for the duty of a solicitor instructed in
contentious matters, as was shown in Watts -v- Times Newspapers Limited
[1997] QB 650 at 666:
"[the solicitors] stood in the shoes [of their client] since they had a
professional duty to protect the interests of their client by doing the best
they could in support of his cause".
64. So for the last century (the period covered by those authorities) where the
occasion of privilege is reply to attack, it is implicit in the solicitor's
retainer in contentious matters that he has a broad retainer to protect the
interests of his client.
65. That view is confirmed by the trial judge with his great and recent
experience of defamation. Lord Justice May has quoted his analysis of the
"modern practice" of the solicitor's general retainer, including being called
upon to answer media questions about their clients, and where he does so,
sharing the client's privilege.
66. As the trial judge pointed out, the actual terms of the retainer may be
narrow and limited, or it may be broad and general. But it seems to me likely
that, when dealing with reply to attack privilege, the attack is likely to be a
surprise, and so not a contingency planned for. Often, the solicitor needs to
act at once to be most effective, and his client may not be available to be
consulted (as Mr Anglesea was not available in this instance). Not everyone
who is attacked may have thought of having expressly given authority to deal
with the media. Therefore I stress the importance of the implied general
authority to do your best for your client.
67. So far I have been concerned with the creation of the occasion for
qualified privilege. But in this case what matters is the destruction of
privilege - see Slade J in Longdon-Griffiths -v- Smith [1951] 1 KB 295
at 304:
"Malice has nothing to do with the creation of privilege, but only with its
destruction."
68. Here the claimant relies on two matters to deny Mr Taylor qualified
privilege on this occasion. First, he alleged malice. The judge found there
was no evidence to support this allegation, and that finding has not been
appealed. Second, Chadwick LJ suggests that Mr Taylor went too far in his
reply to the attack, and in so doing lost his protection. Before we come to
the words used, I set out the judge's findings on malice.
69. The judge was required to make a finding as to whether there was a prima
facie case of malice on the part of Mr Taylor which would defeat any claim of
his for qualified privilege.
70. Here, by way of introduction the trial judge quoted the well-known dicta of
Lord Diplock in Horrocks -v- Lowe [1975] AC 135 at 151A:
"Qualified privilege would be illusory and the public interest that it is meant
to serve defeated if the protection which it affords were lost merely because a
person, although acting in compliance with a duty or in protection of a
legitimate interest, disliked the person whom he defamed or was indignant at
what he believed to be the person's conduct and welcomed the opportunity of
exposing it.
It is only where his desire to comply with the relevant duty or protect the
relevant interest plays no significant part in his motives for publishing what
he believes to be true that express malice can properly be found." (emphasis
added)
71. As the judge commented, that is a relatively heavy burden, and he examined
it in the light of the pleadings in the case and the witness statements. He
applied the overall test approved by this Court in Telnikoff -v
Matusevitch [1991] 1 QB 102 at 120:
"In order to enable the plaintiff to have the question of malice submitted to
the jury, it is necessary that the evidence should raise a probability of
malice and be more consistent with its existence than with its
non-existence."
72. The judge then examined the pleadings and concluded:
"Standing back from the Particulars I ask myself whether the facts and events
which I have summarised, when taken in conjunction with the tenor of the
conversations, transcripts of which are before me, bear out the charge that Mr
Taylor, a solicitor of some standing, was motivated by a desire to maintain or
enhance improperly his reputation as an aggressive and inventive solicitor [the
particularised "dominant motive"] rather than by a desire to protect the
interest of his client.
I do not think so. In my judgment the matters relied on by the claimant in
support of his action for malice insofar as they are supported by evidence fall
far short of what is required for that claim to have a reasonable prospect of
success at trial."
73. Accordingly, the judge struck out the allegation of malice.
74. I come to the words complained of. They are those the judge referred to in
Paragraph 9, sub-paragraph 8 hereof:
"There is no purpose in claiming damages for civil libel against Scallywag
because they consistently claim they have no money. Criminal libel is the only
remedy against this worthless organisation ... [and then come the words which
in the opinion of Lord Justice Chadwick should deprive Mr Taylor of his defence
of qualified privilege] ... who simply seek publicity for themselves. They are
not interested in accuracy, even less in fair reporting, and are a disgrace to
the profession of journalism."
75. As I understand Lord Justice Chadwick's reasoning, it is as follows:
i) Mr Taylor had "general instructions to deal with the media ... and in
response to the serious attack upon Mr Anglesea ... made in Issue 22 of
Scallywag" and in response to an inquiry from the media.
ii) However, for strike out purposes he could not prove that he had "a general
retainer authorising him to make such response to defamatory attack upon the
client as the solicitor may from time to time think appropriate".
iii) That distinction is important because a retainer in the wide terms of ii)
would expose the client to proceedings for defamation at the suit of the person
the solicitor defamed.
iv) His general instructions to deal with the media (set out in i)) entitled
him to explain why his client was contemplating criminal libel proceedings
against Scallywag, but did not entitle him to counter-attack on the integrity
of Scallywag and its editor and contributors. But it is accepted that Mr
Anglesea would or might have retained privilege had he said those words.
76. This was not of course the case as run by the claimants. But the trial
judge had made findings on the following points:
a) The occasion of Mr Taylor's reply was one of qualified privilege on the
basis of the reply to attack: "In dealing with these enquiries, Mr Taylor was
properly concerned both to protect his client's reputation and to avoid
prejudice to the impending libel actions".
b) Mr Taylor was not motivated by malice, and it is not alleged that he
did not honestly believe in the truth of what he said.
c) His answer to the North Wales Pioneer was germane to the questions he was
asked.
d) The reasons he gave for not suing are at least very plausible.
77. Against that background, I ask myself the question determinative of this
appeal as to whether publication of the words complained of in the North Wales
Pioneer were so clearly within the scope of Mr Taylor's authority and duty to
his client that Mr Regan had no reasonable prospect of rebutting that
contention. If not, the appeal should be allowed. It seems to me plain
that:
i) Mr Taylor had been given a general authority to deal with media in relation
to the libel proceedings, in which trial was imminent.
ii) The questions he was asked related to the reasons for the contemplated
criminal libel proceedings;
iii) There was nothing in his general authority obliging him to clear all or
any material with his client in advance before it was published (in the
technical sense)
iv) And in any event, Mr Anglesea would plainly have endorsed what was here
said.
v) The question the journalist asked was why Mr Anglesea had chosen criminal
libel as his remedy. In my judgment the entire answer was germane to that
question. Criminal libel carries with it the power to imprison. Imprisonment
is, in this context, a remedy of last resort. But in the last analysis it is
the only effective remedy against libels committed by those who are not
interested in truth, or accuracy, or fair reporting, and who are protected from
the consequences of their behaviour because to bring an ordinary defamation
action against them is simply to throw good money after bad.
78. In my judgment, the trial judge was right when he found as a fact:
"When telephoned by the journalist from the North Wales Pioneer Mr Taylor
gave an answer which was germane to the questions she was asked. In doing so
Mr Taylor drew on his considerable knowledge of articles previously published.
The reasons he gave for not suing Scallywag for damages are at the very least
plausible".
79. The passage taken as a whole seems to me to be a frank answer to a question
asked (and so reasonable self-defence), and not a counter-charge or
diversionary attack wholly unconnected with the original Scallywag attack on Mr
Anglesea, and irrelevant to his vindication and the preservation of the
integrity of his forthcoming libel action. The answer to the question where to
draw the line between legitimate self-defence and illegitimate, irrelevant
retaliation is one for the trial judge. He was right to conclude that the
occasion remained one of privilege and the claimant had no reasonable prospect
of establishing the contrary at trial.
80. Accordingly, I would dismiss this appeal.