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You are here: BAILII >> Databases >> The Law Commission >> In In the Public Interest: Publication of Local Authority Inquiry Reports (Report) [2004] EWLC 289(5) (15 July 2004)
URL: http://www.bailii.org/ew/other/EWLC/2004/289(5).html
Cite as: [2004] EWLC 289(5)

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PART V

DEFAMATION AND MALICE

1 Introduction

In this Part we consider the law relating to defamation in particular the defence of qualified privilege and the doctrine of malice and explain what we think is wrong with the current law as it applies to ad hoc local authority inquiries. We describe the reforms we propose in Part VI.

2 The elements of defamation

5.2

To succeed in an action for defamation a claimant must demonstrate that a statement made by the defendant:

is defamatory (defamation)

refers to the claimant (identification) and

has been published to a third person (publication).^[1]

Gatley states "the difficulty of producing a comprehensive definition of the meaning of 'defamatory' has often been remarked."

^[2]

^[3]

^[4]

^[5]

^[6]

Some local authority ad hoc reports will inevitably contain defamatory statements. The joint guidelines issued by the Local Government Association and the Association of British Insurers recommend that inquiries limit themselves to findings of fact.

^[7]

^[8]

Publication occurs whenever the statement is communicated to a person other than the claimant.

^[9]

^[10]

^[11]

^[12]

3 Defences

Even though a statement may be "defamatory" defences to an action in defamation are available. The onus is on the defendant to sustain the defence.

5.7

Five broad defences are available.

(1) Truth or "justification". It is a defence for the publisher of the report to establish that the defamatory statement is in fact true.^[13] The danger of relying on justification is that the defendant authority must discharge the burden of proving that the statement was true.^[14] In the context of ad hoc inquiries this may be particularly onerous given that findings of fact in the report may have derived from hearsay rather than direct evidence. The authority will have to establish these facts for itself before justification is made out. Moreover such a plea will involve a full court hearing usually before a jury. This will add uncertainty and delay as well as cost.

(2) Fair comment. It is a defence to a defamation action that the statement is fair comment on a matter of public interest.^[15] This defence is likely to be less relevant for local authority inquiry reports than justification or qualified privilege as it attaches to opinion rather than facts. Ad hoc inquiries although drawing conclusions are primarily means for discovering facts. While some parts of reports may benefit from this defence it will not provide cover for the whole of the report.

(3) Offer of amends. This defence obliges the defendant to pay compensation and/or damages to the aggrieved party and publish an apology to the person defamed.^[16]

(4) Absolute privilege (discussed below).

(5) Qualified privilege (discussed below).

Defences (1) and (4) are absolute: they cannot be defeated by malice which arises where a person makes a statement knowing it to be untrue recklessly (without considering or caring whether or not it was true) or with some indirect or improper motive.

^[17]

^[18]

4 Privilege

Privilege arises where it is in the public interest that a statement though defamatory should be published. Privilege overrides the protection normally afforded to a person's reputation. There are two kinds of privilege: absolute and qualified.

5 Absolute privilege

5.10

Absolute privilege is the highest form of protection. It attaches to matters of the highest public interest and the institutions of democratic power. Thus absolute privilege attaches to defamatory statements made in the course of Parliamentary proceedings

^[19]

^[20]

Specific statutory provisions confer absolute privilege upon reports statements and determinations from those performing investigative or regulatory functions which would not (or might not) otherwise be regarded as of a judicial nature.

^[21]

Were local authority ad hoc inquiries judicial in nature they would benefit from absolute privilege but this would be rare. The authority does not carry out ad hoc inquiries under an express statutory power still less a statutory duty; an inquisitorial rather than adversarial procedure will usually be adopted; the terms of reference will involve a retrospective and prospective element rather than simply reaching a verdict on (for instance) legal liability. Following guidance in Trapp v Mackie

^[22]

6 Qualified privilege

Qualified privilege provides a defence against liability in defamation for a broader range of situations than does absolute privilege. The publisher of a report to which qualified privilege attaches will be protected unless it is shown that any defamatory statement contained in it was made with malice.

5.14

The rationale for the defence of qualified privilege is that it is in the public interest for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end.

^[23]

7 Statutory qualified privilege

8 The defamation act 1996

Section 15 of the Defamation Act 1996 provides qualified privilege for the publication of "any report or other statement" listed in Schedule 1 to the Act.

^[24]

^[25]

^[26]

Part I of Schedule 1 extends qualified privilege to fair and accurate reports of proceedings at various kinds of public meeting or sitting in the UK including "a fair and accurate report of proceedings in public of a person appointed to hold a public inquiry by a government or legislature anywhere in the world".

^[27]

^[28]

In relation to matters listed in Part II of Schedule 1 - which include proceedings at any public meeting of a local authority or local authority committee - qualified privilege will not attach where the defendant was asked by the claimant to publish a letter or statement of explanation or contradiction of any defamatory statement and they failed to do so.

5.18

As to publication of the inquiry report itself there is no category in Schedule 1 to the 1996 Act which would cover the reporting of a local authority ad hoc inquiry. Paragraph 15 of the Schedule permits the Lord Chancellor to designate by Statutory Instrument bodies whose reports will also benefit from the defence of qualified privilege but none has been designated.

^[29]

9 Access to information

The law governing access to information whereby reports must be open to inspection in accordance with the public's right of access to local authority papers

^[30]

^[31]

Further Local Government Act 1972 section 100H(5) grants a defence of qualified privilege to any transmission of an "accessible document." This is defined to include any copy of the whole or part of a report

^[32]

^[33]

The regulations governing access to information and meetings of local authorities under the new executive arrangements for local authorities provide that where information is to be open for public inspection the documents similarly attract qualified privilege.

^[34]

10 Freedom of information

Information supplied to a local authority by a third person and disclosed to another person by the authority in accordance with the Freedom of Information Act 2000 will when section 1 of that Act is in force benefit from qualified privilege.

^[35]

11 Material not open to inspection

Some material need not be open to inspection either because it is subject to the mandatory confidentiality exemption

^[36]

^[37]

These exemptions are most likely to apply where the subject matter is particularly sensitive – for instance inquiries into maltreatment of the elderly or allegations of assault by school teachers. But it is exactly these types of reports that are more likely to contain defamatory statements. A report stating that a person has committed a criminal offence for example assault is defamatory.

^[38]

^[39]

Therefore in relation to those classes of report most likely to contain defamatory statements no statutory defence of qualified privilege is available. (The common law qualified privilege which was not repealed by the 1996 Act

^[40]

12 Comment

In the consultation paper we had not thought that the availability of statutory qualified privilege under the Access to Information provisions would dictate the decision of whether to discuss the matter in public in the first place. The purpose of these provisions is to give the public access to material to be discussed in a public meeting rather than to give the authority statutory protection from an action which could otherwise be taken against them for defamation.

5.27

This however was the approach taken by Newcastle City Council to the report written by the independent inquiry team it appointed to investigate allegations concerning the Shieldfield nursery.

^[41]

It might have been expected that the authority would have discussed the report under the confidential Part 2 of the agenda without the public present.

^[42]

If the council had adopted a different procedure and considered the Review Team's report in private and later decided to publish it it might not have been able to take advantage of the statutory qualified privilege which attaches to documents discussed at a public meeting.

^[43]

A less well-briefed council or indeed one concerned to protect the identities of the adults named in the report from becoming generally known (such as those (other than L and R) who were "smeared" in the Report) would have had to rely on the power to publish contained within section 111 of the 1972 Act (or now section 2(1) of the LGA 2000) coupled with common law qualified privilege. It is quite clear from his judgement that Eady J considered that common law qualified privilege would have covered the council in the Newcastle case.

^[44]

Of course the use of the Access to Information provisions simply to secure the defence of statutory qualified privilege might not survive challenge in different circumstances.

5.32

Even if statutory qualified privilege is available to the local authority it attaches only to publication by the authority not to the inquiry panel. The authority will almost certainly have indemnified the inquiry panel and will therefore be concerned about their potential liabilities. The inquiry panel itself would have to rely on common law qualified privilege.

13 Common law qualified privilege

5.33

In Adam v Ward Lord Atkinson said that:

a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty legal social or moral ^[45] to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.^[46]

This reciprocal duty-interest relationship is at the heart of the common law doctrine of qualified privilege.

^[47]

^[48]

When applying the reciprocal duty-interest test it is important to consider to whom publication has been made.

(1) The making of a statement by a witness to the inquiry panel itself will clearly attract qualified privilege.

(2) When the inquiry panel makes the inquiry report available to the commissioning authority this will also attract qualified privilege as there would be a duty on the panel to report its findings and a corresponding interest on the part of the authority to be informed of the findings. If an officer of an authority or an insurer were troubled by the prospect of the report being made available only to the elected members this would be for the practical reason of fearing that those members might disseminate the information more widely (resulting in a publication to which qualified privilege did not attach) rather than on the legal ground that to do so would be indefensible in law. (In the Newcastle case it was precisely these practical concerns that led to the Report being confined to a few officers in advance of wide publication on 12 November 1998; no elected members were allowed to read it in advance.^[49])

(3) The position is not the same where the report may be made available to a section of the community or the general public. The question of whether publication in this wider sense would attract qualified privilege under the common law is more difficult. For example there could well be a reciprocal duty-interest in a report if it were merely distributed to those living or working in the area of the local authority. In practice it is highly unlikely that an authority could restrict publication to people within a certain area. Too wide a publication to persons who lack the requisite interest in receiving the information is not privileged.^[50] For example circulating copies of the report to care staff in another authority may be justifiable in the interests of spreading best practice but posting the report on the internet may not be. Indeed it will be recalled that it was just this uncertainty that led counsel in his opinion to Clwyd to advise that publication of the Jillings report to the public at large would not be subject to the defence of qualified privilege.^[51]

(4) Nevertheless there are occasions when the publisher can be said to have a duty to publish generally where the general public can be said to have a genuine interest in being informed. In such cases publication to the world at large should be subject to qualified privilege. However under the present state of the law whether a publication is in this wider public interest depends upon the circumstances of the case including the nature of the matter published and its source or status.^[52]

14 The reynolds decision

A leading authority to be considered in this context is that of the House of Lords in Reynolds v Times Newspapers Ltd.

^[53]

Many commentators have thought that the Reynolds decision was limited to the reporting of stories in the press.

^[54]

Bonnick v Morris

^[55]

Jameel and another v Wall Street Journal SPRL

Reynolds

(1) The seriousness of the allegation: The more serious the allegation the greater the care that should be taken in any inquiry process.

(2) The nature of the information and the extent to which the subject matter is a matter of public concern: This would usually be met in the context of establishing an ad hoc inquiry.^[59]

(3) The source of the information: The sources of information provided to an inquiry should normally be identified. Hearsay evidence given to an inquiry should be treated with caution. The motives of the source should have been explored and tested.

(4) The steps taken to verify the information: Steps to verify information given to the inquiry should be taken.

(5) The status of the information: This is tied to the quality of the source of the information. Much will depend on the basis from which the inquiry is working.

(6) The urgency of the matter: Urgency is not so likely to be a factor in the context of ad hoc inquiries.

(7) Whether comment was sought from the plaintiff: The inquiry should usually approach any person who will be criticised by the inquiry for their comment except where this would be impracticable.

(8) Whether the article contained the gist of the plaintiff's side of the story: The report should contain the version of events put forward by the person criticised or their response to criticisms made by others.

(9) The tone of the article: The tone of the inquiry report should be temperate. An inquiry report should also distinguish carefully between what is accepted as a fact (found proved) and what is not. It should ensure that findings of fact are based on evidence presented to the inquiry.

(10) The circumstances of the publication including the timing: The circumstances of publication of an ad hoc inquiry report should be appropriate to the degree of genuine public concern and need to know. Publication should not be handled in such a way as to inflame public anger nor deliberately to humiliate any person.

Helpful though this approach may be for the purposes of this report the fundamental question remains: does the local authority owe a legal moral or social duty to disclose information and more problematic does the public either individual sections of the public or the public in general have a reciprocal interest in receiving it? The difficulty for the authority under the present law lies in knowing where the boundary should be drawn between publication to which qualified privilege attaches and publication to which it does not.

15 Critique: the uncertain scope of common law privilege

5.40

Nothing in the older case law supports the proposition that publication to the world at large is automatically subject to qualified privilege where publication to a section of the public falls clearly within the duty-interest test. In the CP we wrote:

[w]hether a publication is in the public interest depends upon the circumstances of the case including the nature of the matter published and its source or status.^[60] The question is whether the local authority owes a legal moral or social duty to disclose the information and whether the public has a reciprocal interest in receiving it. The difficulty for the authority under the present law lies in knowing where the boundary lies between permissible and impermissible publication.^[61]

We thought there might be scope for development within the common law:

The House of Lords in Reynolds^[62] emphasised that cases should be decided on their individual facts but applying the principles they enumerated. While Reynolds concerns the freedom of expression of the press in particular in relation to investigative journalism as opposed to reporting ^[63] and may not translate simply to the context of local authority inquiry reports (in applying the principles to local authority inquiry reports some of the principles would have to be adapted) there nevertheless seems to be considerable scope for arguing that application of these principles and a proper balancing of the factors in the individual case could well result in a defence of qualified privilege applying to the general publication of a [local authority inquiry] report. Whether it is put as an aspect of the duty-interest test or as a conceptually different approach probably does not matter. Loutchansky demonstrates however that it might not be a straightforward matter and it is not moreover clear how widely a report might be published with the benefit of common law privilege.^[64]

In the Newcastle case

^[65]

Reynolds

an obligation to tell the public (and in particular its own charge payers and the consumers of its public services) what has gone wrong to account for it and to explain how matters are going to be ordered in the future to avoid similar problems: see eg Alexander v Arts Council of Wales [2001] 1 WLR 1840 That is not to say necessarily that common law protection should be available over and above the very wide privilege accorded by the legislature in the Local Government Act.^[66] Nevertheless I believe the public had a right to know what (if anything) had happened at Shieldfield. Having appointed an independent review team to inquire and report at public expense it is difficult to see why the Council should not be protected in publishing the results. If the Terms of Reference can be criticised or the particular Review Team exceeded their terms of reference (if they did) or they made errors or even if they were malicious it does not seem to me that the public is any the less entitled to know what has been going on; or the Council under less of a duty to tell them.

Such an approach goes a long way to reassuring local authorities that publication of ad hoc inquiry reports is subject to qualified privilege. However we think they still have reason to be cautious.

In practical terms an authority might adopt a range of approaches to release of an inquiry report.

(1) It might decide not to make it available to any member of the public at all but merely to circulate it internally or to other council departments or even other public bodies with an interest in the issue. While safe from the point of view of the law of defamation such an approach hardly addresses wider issues about meeting the public interest.

(2) If it decides to go public it might discuss the matter at a meeting open to the public. In such a case statutory privilege will apply.

(3) It might go further than that and hold a press conference. It might send out copies only to those who ask or only to those who can show a genuine reason for being interested or it might at the other extreme put it on the authority's website. (In practice ad hoc inquiry reports are not usually accessible on the websites of local authorities even though they may have been reported in the press on publication.) It is here that the uncertainties that arise from the current state of the law start to show themselves. An authority must consider with care how publication is to be handled because it will be potentially responsible for publication even by people or bodies to whom the authority has not released the document.^[67]

The reason for this is that it is the occasion of publication which attracts privilege not the document itself.

^[68]

that

Further qualified privilege under the common law arises only as a result of the existence of a duty on the part of the publisher to communicate it and a reciprocal interest on the part of the receiver in receiving it. In Watt v Longsdon

^[69]

^[70]

The immediate availability of world-wide electronic communication through the world wide web of a document was not feasible at the time of Horrocks v Lowe. Today a court might take account of the differing ways in which documents can be published and made available to people. However we think that the more indiscriminate the mode of publication the less likely it would be that qualified privilege would apply to the publication.

5.47

A court might take a broader view of who has the required interest in the subject-matter of a report. Local council tax payers clearly have the required interest. In addition as funds are paid to authorities by central government from general taxation the general body of tax payers could have an interest. The notion of who has a genuine interest in the functions of local authorities should not be limited to those who pay for them. Recipients of services also have such an interest. For example a child is neither an elector nor a tax payer but has an interest in how social services functions are carried out.

5.48

There are several reasons why if the point arose a court might find that the common law afforded qualified privilege to the general publication of a local authority inquiry report so long as it was of genuine public interest and publication had not been indiscriminate. But until the point is decided by a court it remains uncertain. In any event such a broad approach would not necessarily be applied to all ad hoc inquiries but might well be dependent on the nature and scope of the inquiry.

16 What respondents said

5.49

In response to the CP while some respondents reported that the fear of a defamation action had not given rise to problems others expressed concern about how far publication would be protected by common law qualified privilege. For example Elizabeth Lawson QC wrote on behalf of the Family Law Bar Association "We endorse all the report says about the lack of clarity in this area of the law in relation to qualified privilege. In our experience it was fear of defamation proceedings rather than invalidation of insurance cover that was the concern."

5.50

Andrew Arden QC took a similar line: "It does however cause me concern that insurance companies enjoy such power over the decision whether or not to publish a report. Insurance companies will invariably opt for the safest course which is confidentiality."

5.51

One respondent specifically referred to restrictions being imposed by the insurance company on the range of recipients: "…as a recent development the Insurers are now requiring … that publication be restricted to the absolute number of interested parties who are required to receive the report and to no one else."

17 Conclusion

5.52

While there may be further developments in the common law it cannot be said with certainty that the common law defence of qualified privilege will be available to the report of a local authority inquiry no matter to whom it is published. The exact nature of the reciprocal duty-interest that must exist between the publisher and the person to whom the document is published is not clear in the existing case law.

18 Malice

19 The doctrine

5.53

The rationale for the defence of qualified privilege lies in the need in the public interest for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. It also arises from the duty or need for the "publisher" to communicate freely on the occasion in question. Qualified privilege is the means by which the law seeks to achieve that end.

^[71]

The point is clearly put by Lord Diplock:

[I]n all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty whether legal or moral on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.^[72]

Malice denotes the circumstances in which the occasion of publication may be said to have been abused. The defence of qualified privilege is defeated by proof that the defendant published the words complained of maliciously. Express or actual malice is ill will or spite towards the claimant or any indirect or improper motive in the defendant's mind

^[73]

^[74]

The leading modern decision is that of the House of Lords in Horrocks v Lowe.

^[75]

In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments their training their intelligence they are swayed by prejudice rely on intuition instead of reasoning leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest' that is a positive belief that the conclusions they have reached are true. The law demands no more.

The relationship between the defence of qualified privilege and malice also arose for consideration in Reynolds. Lord Nicholls stated:

^[76]

If the defendant used the occasion for some reason other than the reason for which the occasion was privileged he loses the privilege. Thus the motive with which the statement was made is crucial. If desire to injure was the dominant motive the privilege is lost. Similarly if the maker of the statement did not believe the statement to be true or if he made the statement recklessly without considering or caring whether it was true or not.

Malice may also arise from a "dominant motive": "For a man who honestly believes what he says may yet be actuated by malice and such malice may be established by other evidence than the inference to be drawn from the falsity of the statement."

^[77]

The traditional approach to malice at least in the quarter of a century since their Lordships' decision in Horrocks v. Lowe is that it is for the claimant in a libel action to prove the defendant "malicious" in the sense of demonstrating either that he had no honest belief in the words complained of or at least that the dominant motive in publishing those words was to damage the claimant's reputation. It was recognised by Lord Diplock that recklessness too had a role to play as in other areas of law. Thus malice could be demonstrated if a claimant proved the defendant to have been genuinely indifferent to the truth or falsity of the defamatory allegations.^[78]

I am not aware of any example of malice having been found (in a case where the judge or jury concluded that the relevant defendant was honest) simply on the basis that the dominant motive was to injure the claimant. It is in the light of Lord Diplock's speech at any rate a theoretical possibility. It may be however that it is an increasingly remote one in the light of recent authorities.^[79]

It is now clear for example in the light of Albert Cheng v Paul [2001] EMLR 777 that in the context of fair comment the issue of malice requires to be judged solely by the test of honesty; there is no room to find malice on the basis of "dominant motive" in circumstances where a claimant fails to demonstrate that the comment was not made honestly. Moreover in the specific context of what is often referred to as "Reynolds privilege" the concept of malice has receded somewhat into the background. That is because issues formerly thought to be relevant only to malice now come into play at the stage of determining whether there is a prima facie case of qualified privilege (in particular the application of Lord Nicholls' ten non-exhaustive tests: Reynolds v Times Newspapers [2001] 2 AC 127 205).^[80]

… the argument merely provides an illustration of how "dominant motive" appears to be nowadays more of an endangered species of malice than ever.^[81]

On the facts before him Eady J found malice proved in its strongest sense: that the Review Team did not have an honest belief in statements made in their report. He did not therefore have to explore in depth whether "dominant motive" still has a role to play in malice in the context of qualified privilege.

5.60

On the basis of the current authorities the law is that where the defendant did not believe that what he or she said was true

^[82]

^[83]

Malice will also be held to exist where a defendant publishes material that is untrue without considering or caring whether it be true or not as the defendant is then treated as if he knew the material to be false. Similarly if a defendant publishes defamatory material recklessly without considering or caring whether it is true or not he is similarly to be treated as if he knew it was false. Publication in such circumstances would not attract qualified privilege.

5.62

However where a publisher has been merely careless or impulsive or indeed irrational this will not be sufficient to lead to a finding of malice.

^[84]

20 Critique of the law

There are arguments that as thus defined malice is too narrow a concept. In particular it is argued that those who have been defamed in an ad hoc inquiry report that has been carelessly written and published may not have an adequate means of redress. For example Lord Hobhouse in Reynolds observed:

The decided cases also show that anyway in English law the doctrine of express malice does not provide an adequate safeguard. It is a very narrow doctrine as explained by Lord Diplock in Horrocks v Lowe [1975] AC 135. The plaintiff has to prove that the publisher did not have an honest belief in the truth of what he was publishing: "the law demands no more" (p 150E). The subjective character of this criterion makes the plaintiff's burden of proof one which it is difficult to discharge in all but the most blatant cases. It is also inadequate to meet the objective requirements of a satisfactory law of privilege.^[85]

In addition the New Zealand Court of Appeal in Lange v Atkinson

^[86]

What constituted malice was restated in Horrocks v Lowe [1975] AC 135 149–150 by Lord Diplock in what have since been regarded as authoritative terms. His reference in that restatement to carelessness impulsiveness or irrationality not being equated to indifference must be read in context. The proposition does not qualify the preceding statements which cover lack of genuine belief and recklessness. Thus while carelessness will not of itself be sufficient to negate the defence its existence may well support an assertion by the plaintiff of a lack of belief or recklessness. In this way the concept of reasonable or responsible conduct on the part of a defendant in the particular circumstances becomes a legitimate consideration.

Lord Diplock gave a helpful description of recklessness in the present field when he spoke of someone who publishes defamatory material "without considering or caring" whether it was true or false. Indifference to truth is of course not the same thing conceptually as failing to take reasonable care with the truth but in practical terms they tend to shade into each other. It is useful when considering whether an occasion of qualified privilege has been misused to ask whether the defendant has exercised the degree of responsibility which the occasion required.

What constitutes recklessness is something which must take its colour from the nature of the occasion and the nature of the publication. If it is reckless not "to consider or care" whether a statement be true or false as Lord Diplock indicated it must be open to the view that a perfunctory level of consideration (against the substance gravity and width of the publication) can also be reckless. It is within the concept of misusing the occasion to say that the defendant may be regarded as reckless if there has been a failure to give such responsible consideration to the truth or falsity of the statement as the jury considers should have been given in all the circumstances. In essence the privilege may well be lost if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement.

No consideration and insufficient consideration are equally capable of leading to an inference of misuse of the occasion. The rationale for loss of the privilege in such circumstances is that the privilege is granted on the basis that it will be responsibly used. There is no public interest in allowing defamatory statements to be made irresponsibly – recklessly – under the banner of freedom of expression. What amounts to a reckless statement must depend significantly on what is said and to whom and by whom. It must be accepted that to require the defendant to give such responsible consideration to the truth or falsity of the publication as is required by the nature of the allegation and the width of the intended dissemination may in some circumstances come close to a need for the taking of reasonable care. In others a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion and to avoid any inference of taking improper advantage of the occasion.^[87]

This might suggest that the circumstances in which malice might be found to exist in New Zealand are somewhat wider than the English case law allows with greater focus on the reasonableness or otherwise of the person who published the document. Indeed in the Newcastle case it was argued before Eady J that in assessing the role of carelessness and the standard of care that should properly be expected of the Review Team he should follow the lead of the New Zealand Court of Appeal.

^[88]

^[89]

Against this proposition it was argued that the exposition of the law in the New Zealand case was of no application in English law.

^[90]

^[91]

^[92]

There are other reported cases decided before Horrocks which suggest the possibility of a broader approach. For example Lord Esher MR gave the issue of malice and whether there was abuse of the occasion of publication careful consideration in Royal Aquarium v Parkinson

^[93]

Lord Esher stated:

Then comes the question whether this was a privileged occasion. Where as in this case a body of persons are engaged in the performance of the duty imposed upon them of deciding a matter of public administration which interests not themselves but the parties concerned and the public it seems to me clear that the occasion is privileged. Therefore though what is said amounts to a slander it is privileged provided the person who utters it is acting bona fide in the sense that he is using the privileged occasion for the proper purpose and is not abusing it. It is sometimes said that he must be acting bona fide and not maliciously; but I do not think that that way of expressing the rule is quite exhaustive or correct. I think the question is whether he is using the occasion honestly or abusing it. If a person on such an occasion states what he knows to be untrue no one ever doubted that he would be abusing the occasion. The jury here appear to have thought that the defendant said what was false knowing it to be false. I cannot agree with that view of the case. If the case depended on a finding to that effect I should be very loth to find it. But there is a state of mind short of deliberate falsehood by reason of which a person may properly be held by a jury to have abused the occasion and in that sense to have spoken maliciously. If a person from anger or some other wrong motive has allowed his mind to get into such a state as to make him cast aspersions on other people reckless whether they are true or false it has been held and I think rightly held that a jury is justified in finding that he has abused the occasion. ... I think that gross and unreasoning prejudice not only with regard to particular people but with regard to a subject-matter in question would have the same effect.^[94]

It is arguable that if the foundation of the concept of qualified privilege is properly understood the defence should fail in circumstances rather wider than lack of honest belief or recklessness/indifference to the truth. We think that there is scope for the common law relating to malice to be developed on lines indicated by the New Zealand Court of Appeal.

^[95]

21 Public policy considerations

Such an approach would be appropriate in the context of local authority inquiry reports for reasons of public policy.

22 A duty on a person acting in an official capacity

5.71

In Lange v Atkinson the New Zealand court referred to the argument that public power should be exercised honestly. This includes not being reckless with the truth. We would submit that an inquiry panel and a local authority are under just such a "duty" in the exercise of their respective powers to investigate and report and to publish.

5.72

In Horrocks v Lowe Lord Diplock referred to people forming their beliefs in the course of "ordinary life" which dictates the standard of reasoning that might be expected. It is arguable that local authority officers or inquiry panel members act in an official capacity exercising powers and duties owed to other people. In that capacity they should exercise a greater standard of care as they affect the rights and interests of others. If this is correct then it may be argued that in order to satisfy the requirements for the defence of qualified privilege and defeating a claim of malice that a review panel member or local authority officer needs to display a greater degree of care with the truth and even a higher quality of reasoning than the ordinary person leading an "ordinary life".

5.73

The degree of care should we would submit shift according to the occasion and the nature of the duty as described in Lange v Atkinson.

23 The local authority's duty of accountability

5.74

Secondly as we said in the consultation paper it is in the public interest that local government is open and accountable. The local authority may have a duty to put information into the public domain as spelt out by Eady J.

^[96]

24 The countervailing need to protect individuals' reputations

Although openness is very desirable there is still a need to protect the reputations of individuals. In Lord Hobhouse's words: "No public interest is served by publishing or communicating misinformation. There is no duty to publish what is not true: there is no interest in being misinformed."

^[97]

I am not sure that privilege would have been upheld a few years ago for communications made outside council meetings or which fell outside a specific statutory veil of protection. But now I believe that public policy would be interpreted in such a way as to protect even a general publication as an exercise in open (local) government. Freedom of communication would prevail. It may be argued that public policy has swung too far in that direction against the interests of those whose reputations may have been damaged in the process. It is always important to remember that there is no public interest in misinformation: see e.g. the words of Lord Hobhouse in Reynolds. But in so far as I can gauge public policy as now expounded in recent judicial decisions I consider that reputation would be regarded as sufficiently protected in circumstances of this kind by the availability of remedies in respect of malicious or in some cases negligent mis-statements.^[98]

25 The lack of other remedies

It is our view that negligence is unlikely to offer an adequate remedy. There will be difficulty in establishing a sufficiently proximate relationship between the inquiry panel and the subjects of the inquiry to establish a duty of care.

^[99]

^[100]

^[101]

As regards negligent misstatement a claimant must reasonably rely on the statement made by the defendant to the claimant's detriment. It is unclear this would be generally applicable to an inquiry report published by a local authority.

5.78

Thus a potential claimant is almost certainly going to have to fall back on malice to protect his reputation where otherwise publication would be subject to qualified privilege. We agree with Lord Hobhouse that too much depends on the ability to prove malice. The situation may arise where a report is published without there being malice in the narrow sense but where it results from such an unfair process or is of such poor quality that it ought not to have been made available to the public.

5.79

In Lillie Eady J found that there was malice because the Review Team were dishonest in that they made claims in the Report which they must have known were not true. He also criticised their reasoning powers. Had he found that their reasoning powers and lack of objectivity were seriously wanting but that there had been no dishonest assertions in the Report he would not have found malice.

^[102]

^[103]

26 Maintaining the quality of inquiries

One respondent an independent journalist challenged our view of the adequacy of inquiries. He thought that even without bad faith there is a likelihood that an inquiry and report will reach unsound conclusions because the inquiry team will be "cocooned" by privilege:

they may construe such privilege as a licence to distort or misrepresent the evidence before them in order to bolster conclusions which have been arrived at more by prejudice than by due process.

…

It is in this perspective I believe that the Shieldfield libel trial should be viewed. Although some might argue that the approach taken by the members of the Shieldfield inquiry was a complete aberration my own impression is that they reacted in a way which is not uncommon among educated and highly intelligent people when emotive subjects such as child abuse are at issue. A key factor here is "noble cause corruption". If it is the case that the more noble the cause the more likely it is to engender dishonesty and deception on the part of normally honest citizens then allegations of child sexual abuse may be particularly prone to lead to just the kind of untruthfulness which was repeatedly exposed in the Shieldfield libel trial.

It is precisely for this reason that it would be dangerous to increase the legal protection already enjoyed by local authority inquiries.

It might be tempting to see the report on the Shieldfield nursery as such a one-off that it can be disregarded. It is certainly very unusual so far as we are aware but it does not follow that the Shieldfield report was an aberration in all respects.

5.81

We suggest that there are two separate stages at which matters went wrong both stemming from the personal conviction of the councillors and the inquiry team that Lillie and Reed had done those things of which they had been acquitted. First there was the failure of the inquiry team to conduct the inquiry fairly; second was the failure of the council to take an objective view of the report. Where there is such prejudice it is quite likely that it will infect the inquiry team as well as the body commissioning it and so the two failures could easily go hand-in-hand.

5.82

The Family Law Bar Association also had serious reservations about the quality of the Part 8 Reviews

^[104]

we recognise that we tend to see only the inquiries where the Part 8 Review has been found to be unsatisfactory. How much that stems from the procedures and how much from the way in which they are applied is difficult to say. There are certainly problems arising from the conflicting aims of such reviews the lack of any powers of coercion and the two tier structure when a high profile case is involved. One of the main problems is often the most basic – the factual accuracy of what is produced. Errors in chronologies which may have been produced in haste and on the base of partial information remain uncorrected. A lot of real injustice can be done in these circumstances.

If qualified privilege were defeasible not only where the defendant publisher (inquiry team or local authority) does not believe the report to be true or is indifferent as to its truth but also where the defendant publisher has failed to exercise the degree of responsibility which the occasion of publication required justice would in our view be better served. As with the extent of qualified privilege under the common law it would be open to the common law to be developed to resolve this problem.

27 Conclusion: the case for reform of the law

5.84

The problem presented to us by Waterhouse was how publication of reports of local authority ad hoc inquiries might be facilitated. Our researches suggested that there was no statutory privilege that would apply where a matter was not discussed at a public meeting and the extent of common law privilege was uncertain. This lack of certainty promoted caution and made insurance companies nervous. Thus publication was likely to be discouraged. Our provisional proposal was aimed at increasing certainty by making qualified privilege available to an appropriate extent in a way that was tied to the quality of the inquiry report.

5.85

The Newcastle case and the comments of respondents have however prompted us to examine the issue from a different angle: the interaction of common law and statutory privilege with malice. Qualified privilege is only defeated where the "publisher" lacks an honest belief however blinkered or acts with an ulterior motive. If the common law "duty-interest" test is satisfied a report which contains defamatory and unsustainable conclusions or which has been compiled through a process which breaches principles of natural justice will benefit from qualified privilege.

5.86

We now see that the issue is not just about facilitating publication. It also relates to concern for the protection of individuals who may be criticised unfairly in public. While different from that of facilitating publication it is not inconsistent with it. The aim should be to facilitate publication of fair reports and not to facilitate publication of unfair reports.

5.87

The courts could reach the position we think should follow through development of the common law. The circumstances in which local authority ad hoc reports attracted qualified privilege could be more clearly defined. And the doctrine of malice could be developed so as to provide a remedy not currently available to those subject to an unfair inquiry process.

5.88

That said it is relatively unlikely that a case will arise at the necessary level within the court system to bring all these points up for consideration. Neither potential claimants nor local authorities will find it easy to find funds for litigation. Even if an appropriate case arose we cannot guarantee that the courts would adopt the views we have expressed in this report. So the situation could remain unchanged for years.

5.89

Until the law does evolve there remain two problems which our proposals for reform of the law seek to address. The first is the problem of uncertainty. While the law is uncertain uncertainty will remain a serious disincentive to publication both for local authorities and their insurers. The second is a question of justice. We are not convinced that the current state of the law of defamation in particular the law of malice strikes the correct balance between the interests of the local authority to publish inquiry reports and the interests of those named in them to be protected from unfounded defamatory statements.

5.90

It is legitimate to propose an alteration of the law limited to local authorities because (a) the report of an inquiry established by a local authority is likely to have a considerable degree of authority in the minds of those members of the public who read it; and (b) a local authority should have some responsibility for satisfying itself that an inquiry conducted on its behalf is conducted properly.

5.91

For both these reasons we conclude that there should be statutory reform.

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Note 1    Carter-Ruck on Libel and Slander (5th ed 1997) p 35.    [Back]

Note 2    Gatley on Libel and Slander (10th ed 2004) para 2.1.    [Back]

Note 3    Parmiter v Coupland (1840) 6 M & W 105 108; 151 ER 340 342.    [Back]

Note 4    Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581 587 CA.    [Back]

Note 5    Sim v Stretch [1936] All ER 1237 1240 per Lord Atkin confirmed in Skuse v Granada TV [1996] EMLR 278 286 per Sir Thomas Bingham MR.    [Back]

Note 6    The relative functions of judge and jury are described in Gatley on Libel and Slander (10th ed 2004) para 2.1.    [Back]

Note 7    The LGA/ABI Guidance “Ad hoc inquiries : Insurance Aspects” para 4.    [Back]

Note 8    Where a defence is available to the local authority a person who claims to have been libelled will not succeed even though the report is “defamatory”. The defences are described at paras 5.6 – 5.8 below.    [Back]

Note 9    Pullman v Walter Hill & Co [1891] 1 QB 524.    [Back]

Note 10    The defence of qualified privilege may attach to publication in this instance: see para 5.13 below.    [Back]

Note 11    See para 5.20 below.    [Back]

Note 12    Note that statutory qualified privilege may be available where information is supplied under the Freedom of Information Act 2000: see below para 5.22.    [Back]

Note 13    There is one exception to this rule: by virtue of s 8 of the Rehabilitation of Offenders Act 1974 if a person’s conviction for an offence is “spent” by the lapse of the appropriate period a malicious reference to it is actionable despite its truth.    [Back]

Note 14    Belt v Lawes (1882) 51 LJQB 359 361.    [Back]

Note 15    Lyon v Daily Telegraph [1943] KB 746; Slim v Daily Telegraph [1968] 2 QB 157.    [Back]

Note 16    Defamation Act 1996 s 2. An offer of amends cannot be run in conjunction with any other defence although a qualified offer of amends may be.    [Back]

Note 17    Horrocks v Lowe [1975] AC 135. See further para 5.56 below.    [Back]

Note 18    The burden on the claimant is higher than proving mere negligence: Milne v Express Newspapers [2002] EWHC 2564 (QB) [2003] 1 WLR 927.    [Back]

Note 19    See Article 9 of the Bill of Rights (1688) and Defamation Act 1996 ss 13(4) and 13(5). The European Court of Human Rights has held that Parliamentary privilege does not breach the European Convention on Human Rights: A v UK [2002] ECHR 35373/97 and Zollmann v UK [2003] Application 62902/00 decided 27 November 2003.    [Back]

Note 20    Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 442 per Lord Esher MR which is said to state the law on this subject accurately: O’Connor v Waldron [1935] AC 76 81 per Lord Atkin (PC).    [Back]

Note 21    For example Local Government Act 1974 s 32(1) confers absolute privilege on matters published by a Local Government Ombudsman. Among others statute has granted absolute privilege to certain documents connected with the Parliamentary Commissioner for Administration the Commissioner for Local Administration in Scotland the Health Service Commissioner the Monopolies and Mergers Commission the Children’s Commissioner for Wales and the Pensions Ombudsman. For a detailed list of these provisions see Gatley on Libel and Slander (10th ed 2004) para 13.49.    [Back]

Note 22    [1979] 1 WLR 377.    [Back]

Note 23    See Reynolds v Times Newspapers Ltd [2001] 2 AC 127 195 per Lord Nicholls.    [Back]

Note 24    The Defamation Act 1996 modified and rationalised the Schedule to the Defamation Act 1952 and extended the situations to which qualified privilege could attach. The Defamation Act 1952 had in turn replaced and repealed earlier legislation that granted statutory qualified privilege. Earlier statutes for example section 4 of the Law of Libel Amendments Act 1888 spelled out the categories of public meetings where reports of the meeting were granted statutory qualified privilege. In the earlier statutes there was a requirement that the defendant was to publish if required a letter or statement of explanation or contradiction as a condition of the privilege. See Gatley on Libel and Slander (10th ed 2004) para 15.2.    [Back]

Note 25    For example because it is an obscene publication.    [Back]

Note 26    McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 295 per Lord Steyn. See also Gatley on Libel and Slander (10th ed 2004) para 15.3.    [Back]

Note 27    Para 3 of Sched 1.    [Back]

Note 28    “A government” is not defined in the Schedule but the term “local council” is used elsewhere in the Schedule so it seems reasonable to assume that “a government” does not include a local council in this paragraph of the Schedule.    [Back]

Note 29    The Schedule to the Act came into force on 1 April 1999: The Defamation Act 1996 (Commencement No 1) Order 1999 SI 1999 No 817. The former Lord Chancellor’s Department did issue a consultation paper in which it included a list of possible bodies for this designation but the Department has no current plans to issue any SI under para 15 of Sched 1.    [Back]

Note 30    The Local Government (Access to Information) Act 1985 inserted a new Part into the Local Government Act 1972 to govern the rights of access of members the press and public to principal local authority meetings and documents. Under the scheme meetings of these authorities must be open to public and press; the agenda reports and background papers must be available to the public and press three clear days before the meeting. Where a local authority discharges its executive functions under the new models new regulations apply to govern access to information and decisions made by members of the executive. For members of the public the regulations do little more than transfer the previous arrangements governing access to meetings and documents. There is however increased access to documents for members of OSCs. The public will have a prima facie right to the report and transcripts of evidence if they are to be debated by the council operating either under the committee structure or the new executive models.    [Back]

Note 31    Defamation Act 1996 Sched 1 Part I para 5.    [Back]

Note 32    1972 Act s 100H(6)(d).    [Back]

Note 33    1972 Act s 100H(6)(e).    [Back]

Note 34    The Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000 SI 2000 No 3272 reg 22(4)(a); Local Authorities (Executive Arrangements) (Decisions Documents and Meetings) (Wales) Regulations 2001 SI 2001 No 2290 (W 178) reg 13(4)(a).    [Back]

Note 35    Freedom of Information Act 2000 s 79. See also other specific statutory provisions listed in Gatley on Libel and Slander (10th ed 2004) para 15.23.    [Back]

Note 36    Set out in Local Government Act 1972 s 100A (2); see CP163 Appendix B paras B.20-B.21.    [Back]

Note 37    Schedule 12A to the 1972 Act lists the types of material that may be exempt from the requirement to grant the public the right of attendance or access to the information to be discussed at the meeting. The Schedule 12A exemptions are discretionary whereas the first type of exclusion based upon confidentiality is mandatory.    [Back]

Note 38    Berry v British Transport Commission [1962] 1 QB 306.    [Back]

Note 39    Skuse v Granada TV [1996] EMLR 278.    [Back]

Note 40    See s 15(4)(b).    [Back]

Note 41    This case is further discussed at paras 5.42 and 5.58 – 5.59 below.    [Back]

Note 42    See above para 5.23.    [Back]

Note 43    See para 5.23 above.    [Back]

Note 44    Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB) para 1450.    [Back]

Note 45    While it is clear that this will encompass legal duties to communicate or receive statements it is less certain how far this extends in the context of moral and social duties. Moral duty was defined by Lindley LJ in Stuart v Bell[1891] 2 QB 341 350. “... to mean a duty recognised by English people of ordinary intelligence and moral principle but at the same time not a duty enforceable by legal proceedings whether civil or criminal …”    [Back]

Note 46    [1917] AC 309 334.    [Back]

Note 47    A recent example is Oliver v Chief Constable of Northumbria. [2003] EWHC 2417. The claimant (a police officer) alleged that a press release relating to the report of an investigation by officers in the Northumbria police force was defamatory. The claimant argued that the text of the press release meant that he had knowingly recklessly or negligently made allegations about an investigation and arrest which were not worthy of belief. On the issue of whether the press release was covered by qualified privilege Gray J at para 10 held that it was an example of the “duty-interest” test. The subject matter was of legitimate public interest (namely the police investigation into apparently suspicious deaths of patients). The media had a social or moral duty to make enquiries and the police had a moral or social duty as a public body accountable to the local citizens to respond to those enquiries. Further the police were entitled to seek to defend the reputation of their officers.    [Back]

Note 48    Kearns v General Council of the Bar [2002] EWHC 1681 [2002] 4 All ER 1075 (professional body and its members); Coxhead v Richards (1846) 2 CB 569; Stuart v Bell [1891] 2 QB 189; Spring v Guardian Assurance [1995] 2 AC 296 (employers); Hunt v Great Northern Railway [1891] 2 QB 189 (employees’ interests in business); Kine v Sewell (1838) 3 M & W 297 302 per Parke B; Cockayne v Hodgkisson (1833) 5 C & P 542; Force v Warren (1864)15 CB (NS) 806; Nelson v Irivine (1897) 24 R 1054 (police and witnesses); Bryanston Finance v De Vries [1975] QB 703; Price Waterhouse In Trust v Wee Choo Keng [1994] 3 SLR 801 (shareholders); Horrocks v Lowe [1975] AC 135 149–50 (councillors); Toogood v Spryng (1834) 1 CM & R 181; Watt v Longsdon [1930] 1 KB 130; Duncan & Neill Defamation Practice (2nd ed 1983) paras 14.01 – 14.04; Gatley on Libel and Slander (10th ed 2004) paras 14.20 – 14.80 (general and further examples).    [Back]

Note 49    In Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB) Eady J seems to have accepted that leaks were quite likely which was the view taken by Council officers: “Past experience showed that the City Council tended to leak like a sieve…” (para 1403). One respondent who has himself chaired inquiries thought “For both proper and improper purposes politicians being public representatives can never be trusted to observe a protocol on publication.”    [Back]

Note 50    Adam v Ward [1917] AC 309 321 per Earl Loreburn. See also Watt v Longsdon [1930] 1 KB 130 in which the claimant succeeded in his action for defamation against his employer for revealing damaging information about him to the claimant’s wife but failed as regards the communication of the same information to the chairman of the company. It was held that while Watt’s wife might well have had an interest in the information there was no reciprocity of interest between her and the defendant.    [Back]

Note 51    See above para 1.13.    [Back]

Note 52    Blackshaw v Lord [1984] QB 1 26.    [Back]

Note 53    [2001] 2 AC 127.    [Back]

Note 54    See D Price Defamation Law Practice and Procedure (2nd ed 2001) Chapter 13; Gatley on Libel and Slander (10th ed 2004) paras 16.21 ff.    [Back]

Note 55    [2002] UKPC 31; [2003]1 AC 300.    [Back]

Note 56    [2004] EWHC 37 (QB).    [Back]

Note 57    There had been an argument that Reynolds had established a new form of privilege for publication by the media and that this was the correct reading of the Court of Appeal decision in Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805; [2002] QB 783. Eady J held: if there were any inconsistency between the judgements in that case and the speeches in Reynolds it would plainly be the duty of a judge at first instance to accord priority to the majority speeches in the House of Lords. Equally however I must strive to construe the Loutchansky judgements as being consistent with Reynolds and Turkington. Jameel v Wall Street Journal SPRL [2004] EWHC 37 para 20.    [Back]

Note 58    [2001] 2 AC 127 205.    [Back]

Note 59    Note similar criteria in statutory qualified privilege under s 15 of the 1996 Act because s 15(3) says that qualified privilege shall not attach to the reports listed in Schedule 1 where the publication is “of matter which is not of public concern and the publication of which is not for the public benefit”.    [Back]

Note 60    Blackshaw v Lord [1984] QB 1 26.    [Back]

Note 61    Para 6.24. See also para 6.33.    [Back]

Note 62    Reynolds v Times Newspapers Ltd [2001] 2 AC 127.    [Back]

Note 63    McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 291 per Lord Bingham of Cornhill.    [Back]

Note 64    Para 6.32.    [Back]

Note 65    See para 5.27 above.    [Back]

Note 66    Which gives privilege to matters discussed at public council meetings: see paras 5.19 – 5.21 above.    [Back]

Note 67    The publisher may be responsible for republication by another in certain circumstances which include those where the republication was the natural consequence of the publication by the authority.    [Back]

Note 68    While Reynolds may have changed matters in relation to investigative media reporting on matters of public interest what is in issue for us is not publication by the media. Unless the common law develops so as to apply Reynolds outside the context within which it arose the authority has to be handled with care: “Reynolds privilege (as we shall call it) although built upon an orthodox foundation is in reality sui generis”: Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805; [2002] QB 783 para 32 per Lord Phillips.    [Back]

Note 69    [1930] 1 KB 130. See n 50 above.    [Back]

Note 70    D Price Defamation: Law Procedure and Practice (2001) 12–06 citing Tench v GW Ry (1873) 33 UP Can QB 8. Consider also Cunningham v Essex CC where although a reference letter attracted privilege for publication to the Assistant Education Officer its “casual onward transmission” meant that it lost privilege when passed to someone else. The court took account of the defamatory nature of the contents and the fact that it was not put in an addressed envelope nor marked confidential: unreported 99/NJ/0457 para 97.    [Back]

Note 71    See Reynolds v Times Newspapers Ltd [2001] 2 AC 127 195 per Lord Nicholls.    [Back]

Note 72    Horrocks v Lowe [1975] AC 135 149.    [Back]

Note 73    See Angel v HH Bushell & Co Ltd [1968] 1 QB 813 831 (where a defamatory letter was motivated by anger not by duty or any interest and a defence of qualified privilege was defeated); Clark v Molyneux (1877) 3 QBD 237 247; Nevill v Fine Arts and General Insurance Co Ltd [1895] 2 QB 156 169; Lewis v Mullaly The Times 3 December 1953 (using an occasion of qualified privilege for an improper motive); Suzor v Buckingham (1914) SC 299 (jealousy); Horrocks v Lowe [1975] AC 135 152 (failure to make any apology or retraction of retraction of the allegation made is not generally good evidence of malice); Broadway Approvals Ltd v Odhams Press Ltd [1965] 2 All ER 523 533 per Sellars LJ (nor is persistence in plea of justification by itself evidence of malice). For motives Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 444 per Lord Esher MR; Stevens v Sampson (1879) 5 Ex D 53 (where a defendant sent a fair report of legal proceedings to newspapers but was found to have acted maliciously). The decision for the claimant was upheld on appeal; Turner v Metro-Goldwyn-Mayer Picture Ltd [1950] 1 All ER 449 (the House of Lords held that being actuated by financial considerations is not necessarily evidence of malice).    [Back]

Note 74    Horrocks v Lowe [1975] AC 135 149-151 per Lord Diplock dealing with malice in relation to qualified privilege. See also Cheng v Tse Wai Chun [2000] HKCFA 86.    [Back]

Note 75    [1975] AC 135.    [Back]

Note 76    Reynolds v Times Newspapers Ltd [2001] 2 AC 127 194.    [Back]

Note 77    Horrocks v Lowe [1975] AC 135 146 per Viscount Dilhorne.    [Back]

Note 78    Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB) para 1090.    [Back]

Note 79    Ibid para 1091.    [Back]

Note 80    He cites here Lord Phillips MR in Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805; [2002] QB 783 paras 33 and 34.    [Back]

Note 81    Lillie and Reed v Newcastle City Council (1st Defendants) and Barker Jones Saradjian and Wardell (2nd–5th Defendants referred to as “the Review Team”) [2002] EWHC 1600 (QB) para 1093.    [Back]

Note 82    Horrocks v Lowe [1975] AC 135 150 per Lord Diplock. A review of the doctrine by the High Court of Australia in Roberts v Bass [2002] HCA 57 194 ALR 161 makes the argument that the real test is not absence of belief in truth or indifference to truth but rather awareness of untruth    [Back]

Note 83    Ibid at p 149–151.    [Back]

Note 84    Horrocks v Lowe [1975] AC 135 at p 150 and 151 per Lord Diplock. The only kind of recklessness that destroys qualified privilege is indifference to the truth or its falsity. This is one explanation of Royal Aquarium and Summer Winter Garden Society v Parkinson [1892] 1 QB 431.    [Back]

Note 85    Reynolds v Times Newspapers Ltd [2001] 2 AC 127     [Back]

Note 86    [2000] NZCA 95.    [Back]

Note 87    Ibid paras 44–48.    [Back]

Note 88    See Lange v Atkinson [2000] NZCA 95 and para 5.71 below.    [Back]

Note 89    In Loutchansky v Times Newspapers Ltd (Nos 2 - 5) [2001] EWCA Civ 1805 Lord Phillips MR remarked (para 25) that the New Zealand Court of Appeal had “redefined the concept of actual malice to provide a stronger safeguard against abuse.”    [Back]

Note 90    Ibid para 1293.    [Back]

Note 91    Ibid para 1295.     [Back]

Note 92    He states that in his preliminary view the New Zealand exposition did not wholly diverge from the English authorities (see ibid para 1294).    [Back]

Note 93    [1892] 1 QB 431 (CA).    [Back]

Note 94    [1892] 1 QB 443 444 per Lord Esher MR. See also Clark v Molyneux (1877) 3 QBD 237 247 per Brett LJ.    [Back]

Note 95    As we note above Eady J was dubious about the view that this reasoning is inconsistent with earlier English authority: see para 5.66 above.    [Back]

Note 96    Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB) para 1450. See para 5.42 above.    [Back]

Note 97    Reynolds v Times Newspapers Ltd [2001] 2 AC 127.     [Back]

Note 98    Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB) para 1451.    [Back]

Note 99    There are cases where it has been argued that a local authority officer or other inspector such as a person employed by the Health and Safety Executive or an auditor owes a duty of care to the person whose livelihood was affected by the negligence of the officer: Welton v North Cornwall District Council [1996] EWCA Civ 516 [1997] 1 WLR 570 (Environmental Health Officer); West Wiltshire District Council v Garland [1995] Ch 297 (auditor employed by the Audit Commission); Harris v Evans [1998] 3 All ER 522 (HSE inspector). The claimant in the first of these succeeded but not in the others. See also Yuen Kun-yeu and other v AG of Hong Kong [1987] 2 All ER 705 (no duty of care between the Commissioner of Deposit-Taking Companies and depositors).    [Back]

Note 100    DeSmith Woolf and Jowell Judicial Review of Administrative Action (5th ed 1995) para 19–043 endorses this line of reasoning.    [Back]

Note 101    By negligently including errors of fact in the case of the inquiry panel or in the case of the local authority by publicising a report without checks on its quality or in the appointment of the members of the panel.    [Back]

Note 102    In Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB) Eady J held: “Yet bias and lack of objectivity are definitely not in themselves to be equated to malice (although they can sometimes provide evidence of indifference to truth)” (para 1267) and commented on the Review Team’s “prejudice and undisciplined mental processes” but added “Such matters standing alone are not to be equated with the concept of express malice” (para 1303).    [Back]

Note 103    The need for redress was argued by a respondent FACT–North Wales: The ability (in theory at least) to sue for defamation is often the only recourse for an individual who has been falsely accused to remedy a wrong. This right should not be discarded lightly or weakened in any way. In the experience of FACT - North Wales the reputations of individuals are very often sacrificed by a system which far too often (although not always) is politically motivated and/or panders to prejudice or vote catching initiatives. FACT–North Wales is the local branch of a national organisation which campaigns against False Allegations Against Carers and Teachers and has branches throughout England and Wales.    [Back]

Note 104    Part 8 Reviews are inter-agency reviews. See para 2.32 above.    [Back]

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