In the case of Loughran v Century Newspapers ( NICA 26) the Northern Ireland Court of Appeal considered a case in which a newspaper relied on the Curistan principle in relation to statutory qualified privilege and decided that a pleaded case of malice was not fit to go to the jury.
Thecase concerned defamation proceedings brought by Sir Gerry Loughran who was Permanent Secretary of the Department of Economic Development in the period 1991 to April 2000 and subsequently Head of the Northern Ireland Civil Service and Secretary to the Northern Ireland Executive. A Writ of Summons was issued on 10 October 2012.
On 21 May 2012, the Northern Ireland Assembly (“NIA”) Public Accounts Committee (“PAC”) produced a report entitled Report on the Bioscience and Technology Institute (the “PAC Report”) The PAC Report concerned the cross-party PAC investigation into the Bioscience and Technology Institute (“BTI”) which had been set up in 1998 as a not-for-profit Company to provide a cutting edge building for new biotech companies to use as a base. It had purchased a building in 2005 which was then repossessed by the bank leading to a loss of public funds.
The plaintiff contended that malicious and defamatory material about him was published by the News Letter in articles on 23 May 2012 page 8 and 9 in its print newspaper, online and in a post on the Twitter account of a journalist employed by the daily newspaper, Sam McBride. The defendant relied on the defence of statutory qualified privilege and / or common law reporting privilege and denying that the tweet was capable of referring to the plaintiff.
The impugned material and comment was based on extracts from the PAC Report and the minutes of evidence which was ordered to be published by PAC. The headlines in the first and second articles were: Call in PSNI over suspected fraud, say MLAs” and “Retired top civil servants involved”. The third article was entitled: “Private investor was the one asking the awkward questions”. A tweet was published by Mr McBride which stated:
“Top Belfast doctors and two former heads of the civil service involved in saga which MLA’s suspect involved fraud”
The first article contained a large number of criticisms of the BTI, Invest NI and officials of DETI for their alleged incompetence and mismanagement of the project. It did not refer to the plaintiff by name but made reference to “the most senior officials” in the department and “the most senior officials responsible”. The first article did not mention the plaintiff.
In the second article it drew attention to the fact that the plaintiff had been Permanent Secretary in the DETI up until April 2000 and had been “named in the . . . Report because of . . . involvement with the BTI project”.
The plaintiff’s case was that the reference to him under the heading and subheading set out in the first article gave rise to the meaning that the plaintiff was responsible for the deficiencies and suspicions outlined in the PAC Report when one read the two articles together. The defendant argues that the first article is protected by statutory qualified privilege and cannot be taken into account. The plaintiff argues that the defendant named the plaintiff and adopted the allegations so that the privilege is lost.
On 13 November 2013 (“the First Judgment”) and on 25 February 2014 (“the Second Judgment”) the parties appeared before Mr Justice Gillen in respect of two interlocutory proceedings and both parties appealed certain aspects of Mr Justice Gillen’s two judgments to Northern Ireland’s Court of Appeal. The first concerned statutory privilege and the second judgment concerned whether allegations of malice could be struck out.
Pursuant to section 15 of the Defamation Act 1996 (“1996 Act”) the publication of any report or other statement mentioned in Schedule 1 of the Act is privileged unless the publication is shown to be made with malice. The section does not apply to the publication to the public or a section of the public, of matter which is not of public concern and the publication of which is not for the public benefit. Schedule 1 of the 1996 Act includes at paragraph 7 a fair and accurate copy of or extract from matter published by or on the authority of a government or legislature anywhere in the World.
The judge determined that the first article in its entirety attracted the statutory protection of qualified privilege and he was satisfied that no reasonably minded jury properly directed could conceivably come to any other conclusion but that the report as set out in the first article was fair and accurate. Furthermore, the first article did not name the plaintiff and there was nothing outside conventional and acceptable editorial discretion in the fact that the first article did not expressly state that the plaintiff was only employed as Permanent Secretary of the DETI until April 2000. He held that only a perverse jury could conclude that the contents of the first article were not in the public interest or of public benefit. It was held that a report of this nature dealing with misfeasance in the realm of public funds was self evidently a matter of public concern and published for the public benefit.
Mr Justice Gillen concluded that the combination of the first and second articles amounted to a hybrid publication attracting the principles set out in Curistan v Times Newspapers Ltd ( QB 231). He held that in spite of the first article having statutory protection the second article was not so protected.
In relation to the second judgment concerning whether to strike out the allegation of malice the trial judge held inter alia:
“..I must be wary of dismissing too readily the notion that this could be one of those rare instances. It is a matter for the judge to determine at the end of the relevant evidence or for the jury to decide at the appropriate stage if, in the event that the defendant did not read the NIAO, this amounted to carelessness or negligence (in which case malice would fail) or whether it was such an obvious failure to make available enquiries from the available documentation that it may be inferred that the defendant was consciously indifferent to the truth or falsity of the subsequent publications. It is a matter for the jury to determine if they wouold find it absurd for the defendant or its journalists to contend either they had failed to read the chronology to obtain the timeline or, having read it, it was mere inadvertence or carelessness to overlook it when asserting the words that were published about the plaintiff in this instance”.
In sum, the judge decided that the issue of malice should be left to the jury.
Court of Appeal Judgment
There were two main issues on the appeal: qualified privilege and malice.
The first was whether the trial judge was wrong to assess in isolation whether the contents of the first article attracted statutory qualified privilege, and ascertain whether the Newsletter had “put meat on the bones” and therefore had to “answer for the whole joint”.
There was no dispute between the parties that:
“unless the plaintiff can establish that there was extraneous matter in the hybrid report as a result of which the report was no longer fair and accurate or that the newspaper had adopted the remarks within the PAC Report the first article was protected by qualified privilege under section 15 of the 1996 Act. It could not be taken into account in those circumstances in determining the meaning of the hybrid report. The position is different where the extraneous material affects the fairness of the report”.
The Court of Appeal held that if at trial the plaintiff’s case were accepted, namely that the second article introduced extraneous material affecting the fairness and accuracy of the coverage of the PAC report by identifying him as responsible (the first article didn’t identify the plaintiff) then:
“…we consider that the privilege under section 15 of the 1996 Act from which the first article would otherwise have benefited would be lost”.
For that reason the Court of Appeal held that the issue of statutory qualified privilege could not be determined until the trial and it upheld the plaintiff’s appeal on this issue.
It suggest, obiter, that no recourse to the concept of adoption need be made if the publisher produces a critically different text which cannot be said to be a fair and accurate report as in that case the shield of qualified privilege is lost in any event.
The second core issue was whether the trial judge was wrong to leave the issue of malice to the jury. The Court of Appeal held that malice only arises in the event that the claim in qualified privilege succeeds. The standard of proof of matters of dishonesty, bad faith and malice in civil proceedings was acknowledged as the balance of probabilities but with a cautionary and rigorous approach to the evidential issues.
In relation to the particulars of malice the plaintiff appeared to be relying on the following:
- The journalist received correspondence from DETI on 21 May 2012 to be read in conjunction with the PAC Report which clarified that the plaintiff was Permanent Secretary until April 2000;
- The second article correctly records that the plaintiff was Permanent Secretary until April 2000;
- A cursory consideration of the Report or the chronology of main events at Appendix 3 of the NIAO Report prepared by the Comptroller and Auditor General would have revealed that the only material event that occurred in the course of the plaintiff’s tenure was a letter of 21 December 1999 and that the NIAO report was published 6 months prior to the PAC Report.
- Misrepresentations as to content and meaning indicate that Mr Mcbride had clearly read the Report;
- Mr McBride knew that the allegations did not constitute a fair and accurate and that the allegations against the plaintiff were untrue or that he was reckless.
- No offer of apology has been made;
The Court held that the first and second points were neutral but the third was tantamount to an allegation of carelessness or lack of enquiry. It held that the fourth failed to include particulars to indicate what precisely it was about the content and meaning which gave rise to the inference and for that reason it rejected that the plaintiff’s particulars advanced a case in malice. The fifth particular was mere assertion and a failure not to provide an apology is not sufficient to ground malice.
As a result, the Court held:
“we consider that these particulars do no more than raise matters which are either equivocal or merely neutral. We do not accept that they are sufficient to raise a case that the defendant was dishonest or had a dominant motive to injure. Accordingly we strike out the pleading in malice”.
In this case the issue of whether the first article’s shield of statutory qualified privilege has been lost by virtue of the contents of the second article has been left open to the jury to determine.
This is a useful judgment in setting out again the parameters of hybrid articles and the scope of the protection for statutory qualified privilege and applying the Curistan principle for the first time in Northern Ireland.
In relation to malice it is a helpful reminder that this is a serious allegation which requires careful particularisation.
The decision is, in the words of a piece on “Hold the Front Page”, “welcome boost for Northern Ireland’s journalists and publishers“.
The libel action by Sir Gerry Loughran has now been settled. On 5 February 2014, Senior Counsel for the defendant read out an agreed statement in which it was said:
“Without prejudice to the defendant’s right to publish matters of high public interest, the defendant nonetheless accepts that some readers may have inferred wrongly from the subject articles that Sir Gerry Loughran, a former head of the civil service, was somehow implicated in the ‘suspected fraud’ referred to in the articles.
It was never the defendant’s intention to suggest any involvement by Sir Gerry in the ‘suspected fraud’ and it unreservedly accepts that Sir Gerry has not been guilty of any wrongdoing or impropriety, and acknowledges his impeccable reputation and many years of public service.
The defendant is happy to make this clear and apologises to Sir Gerry Loughran for any distress caused by these references to him.
As a mark of its regret, the defendant has also agreed to pay appropriate damages and costs to Sir Gerry”.