Judgments - Turkington and Others (Practising As Mccartan Turkington Breen) v. Times Newspapers Limited (Northern Ireland)

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    Nor can I see anything incompatible with the Convention right in the enactment of a specific and limited statutory privilege not abridging common law privilege. Section 3(1) of the Human Rights Act is uncompromising and very important. "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." If section 7 and paragraph 9 of the Schedule in the Defamation Act (Northern Ireland) 1955 were the only relevant rules of law, it might well be necessary to stretch their language beyond its natural and ordinary ambit. They are not; the legislation expressly leaves intact the common law privilege, which complies with the Convention; section 3(1) is not needed.

    Common law privilege has not been pleaded in this case. In view of the decision now being given that the meeting was a public one within the meaning of the statute, this may no longer be important. As already suggested, it seems to me that both under the statute and at common law the crucial question might be whether the report is fair and accurate, bearing in mind that it did not report that on questioning from the floor Mr McKay modified the criticism of the solicitors by referring to the advantage of hindsight and saying "No, I don't identify any particular faults at this stage. I'm concerned about areas that weren't looked at at the trial . . . "

    The reasons why qualified privilege at common law was not pleaded as an alternative do not much matter, but at least until Reynolds it would seem that the legal profession in England may not have been fully alive to the possibility of a particular rather than a generic qualified privilege for newspaper reports where the circumstances warranted a finding of sufficient general public interest. Although Blackshaw v. Lord [1984] Q.B. 1 had recognised that possibility, the judgments in the Court of Appeal may have been somewhat discouraging, especially a reference by Stephenson L.J. at 27 to "extreme cases." Blackshaw was a case where information identifying a departmental officer responsible for an administrative blunder had allegedly been extracted from a press officer by a process of questioning by a journalist likened to extracting a tooth. It was far from a plain case of circumstantial qualified privilege. Defences of "public figure " or "public official" privilege as a category have commonly been struck out (see the unreported cases listed in Carter-Ruck on Libel and Slander, 5th ed. (1997) 145, n.4). Reynolds confirms that there is no such general category affording a defence in English common law. The alternative of an approach limited to the particular circumstances seems to have been left largely unexplored in England.

    The legitimacy of such an approach had been recognised in New Zealand in Templeton v. Jones [1984] 1 NZLR 448, 460, but privilege was rejected on the facts of that case. A more important case is Parlett v. Robinson (1986) 30 D.L.R. (4th) 247. There, after attempting unsuccessfully to have the Solicitor-General of Canada order a public inquiry into his allegations of misuse of inmate labour in penitentiaries, the defendant, a Member of Parliament, defamed the plaintiff, a departmental psychologist, in a news conference and later on television. The British Columbia Court of Appeal held, applying Canadian authority partly English-derived, that the publication was not unduly wide and was protected by qualified privilege at common law. The analogy with the present case is obvious. That decision is entirely consistent with Reynolds. It seems to me that Reynolds was less a breakthrough than a reminder of the width of the basic common law principles as to privilege, although undoubtedly it is much more encouraging of their invocation than previous English decisions. If the spirit of Reynolds is followed, there will be less need to try to bring marginal cases within some species of statutory privilege. But, like Lord Bingham and Lord Steyn, I do not see this as a marginal case: it is fairly within the statute.

Judge and Jury

    In Reynolds the question of the respective functions of judge and jury in common law qualified privilege was relevant in deciding the nature of the privilege and the extent of the new trial which was to take place. The question was argued and determined in this House. It was a part of the case on which the opinions delivered were not unanimous. The majority opinion was stated by Lord Nicholls, after giving a list of matters to be taken into account (depending on the circumstances), in the following passage, [1999] 3 W.L.R. at 1027 -

    "This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up."

    Thus it is settled that at common law in England (and Northern Ireland), while issues of primary fact are for the jury in the event of dispute, it is for the judge to rule on issues of public interest. Indeed a judicial value judgment based on the established primary facts is at the heart of Reynolds privilege. The settled principle is the same as regards fair comment. The question arises, however, whether the position is similar under section 7(3) of the Defamation Act (Northern Ireland) 1955, which provides -

    "(3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit."

    In Kingshott v. Associated Kent Newspapers Ltd. [1991] 1 Q.B. 88 the Court of Appeal, in a judgment delivered by Bingham L.J. (as he then was), held that under the equivalent section 7(3) of the Defamation Act 1952 questions of public concern and public benefit were for the jury. The judgment accepted, however, that whether the privilege has been exceeded by the inclusion of extraneous matter was for the judge. On the existence of the privilege the court distinguished the leading common law case of Adam v. Ward [1917] A.C. 309 chiefly on the ground that the predecessor of section 7(3) never fell to be considered in that case and that no reference had been made there to certain earlier cases under the statute in which public concern and public benefit were regarded as for the jury. Boston v. W.S. Bagshaw & Sons [1966] 1 W.L.R. 1126, a case under the section in which a different view was acted upon, was distinguished as having merely reflected received opinion rather than consideration after argument.

    In Reynolds the majority left the statutory question open: I have to refer to my own speech at 1047-1048 where there is some discussion of Kingshott. Contrast Lord Steyn at 1038. The question was not fully explored in argument in the present case. I agree that it should not be determined now. It may be appropriate to record that during the hearing Lord Lester said that after mature consideration the advisers to The Times preferred the view that the evaluation issue is more appropriately for the judge. He also went as far as to say that it would be nonsensical to have the allocation of responsibility differing as between common law and statutory privilege. But your Lordships are not in a position to rule on this question. In any event it may be of no importance in the present case. Even if, under the statute, issues of public concern and public benefit are for the jury, that does not apply if only one answer is open. I agree with Carswell L.C.J. that, if the report is found by the jury to have been fair and accurate, it would be perverse to find that the matter published was not of public concern and its publication not for the public benefit. Reference of those issues to the jury is thus superfluous on any view.

    I add only that this case is yet another instance of the vagaries of juries in libel cases on which I dwelt in Reynolds. The jury's award of damages had to be cut virtually in half.

    I agree with the allowance of the appeal and the order for remission proposed by Lord Bingham of Cornhill.


My Lords,


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