DEFAMATION

Qualified privilege - duty to publish - newspaper article accusing claimant of criminal activity - duty to act responsibly - jurisdiction to order summary disposal of quantum onlyLoutchansky v Times Newspapers Ltd And Another (No 2); Loutchansky v Times Newspapers Ltd (No 3) [2001] EWCA Civ 1805: CA ( Lord Phillips of Worth Matravers MR, Lords Justice Simon Brown and Tuckey): 5 December 2001In the first action the defendants published articles in a newspaper accusing the claimant of international criminal activities.

The claimant sued for libel and the defendants claimed qualified privilege on the ground that they had a duty to publish and that the public had a right to know the allegations.

The defendants were unable to rely on facts unknown to them at the time of publication: see Loutchansky v Times Newspapers Ltd [2001] 3 WLR 404.

The judge stated that the publisher's duty owed was 'such that [he] would be open to legitimate criticism if he failed to publish the information.' He rejected the plea of qualified privilege and entered judgment for the claimant.

Having also entered judgment for the claimant in a second libel action brought against the proprietor in respect of publication of the same articles on the newspaper's Internet Web site, the judge ordered that the issue of quantum in both actions should be disposed of summarily under section 8 of the Defamation Act 1996.

The defendants appealed those orders, among others.

Lord Lester of Herne Hill QC, Richard Spearman QC, Richard Parkes and Brian Kennelly (instructed by Reynolds Porter Chamberlain) for the defendants; Desmond Browne QC and Hugh Tomlinson (instructed by Olswang) for the claimant.Held, (1) allowing the appeal in the first action and remitting the matter for re-consideration by the judge, that in determining whether qualified privilege at common law attached to a defamatory newspaper publication to the world at large, the court had to ask the single question whether in all the circumstances the 'duty-interest' test, or the 'right to know' test, laid down in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, was satisfied; that a duty to publish could not be established unless the journalist and his editor acted responsibly; that the question of responsible behaviour was for the court to decide; that since the issue ordinarily arose before the truth or falsity of the publication had been determined, the question was whether the newspaper, acting responsibly, had a duty to publish the information, true or false; that if a publisher would have been open to legitimate criticism had he not published, his claim to privilege would be indisputable, but the converse was not true; and that accordingly the judge had applied the wrong test.(2) Dismissing the summary disposal appeal, that the court had jurisdiction under section 8, even after liability had been determined, to order that quantum be disposed of summarily.

(WLR)