Qadir v Associated Newspapers Ltd

Factual and Procedural Background

This libel action concerns two articles published by the Defendant ("ANL") in the Mail on Sunday and Mail Online website, relating to the Plaintiff, a director or banker named in the articles. The first article, published on 8 May 2011, concerned allegations linked to a nightclub dispute ("the Penthouse action"). The second article, published on 19 June 2011, named the Plaintiff in connection with a mortgage fraud case. The Plaintiff denies the allegations and disputes the truth of the articles.

The litigation involves claims of defamation, with the Defendant asserting defences including qualified privilege, absolute privilege, and justification (truth). The court directed a trial of preliminary issues concerning privilege and malice, without addressing the truth or falsity of the allegations themselves.

The articles were published in both print and online forms, with some textual differences. The Defendant relies on statutory privilege under the Defamation Act 1996 and common law privilege. The Plaintiff pleads malice in both cases.

The procedural history includes the Plaintiff’s filing of an Acknowledgement of Service and Defence in the underlying Penthouse claim, which made court documents publicly available. A freelance journalist ("S") obtained these documents and provided draft articles to ANL. The Defendant’s Deputy Editor, Mr Watkins, edited and approved the articles. Attempts to contact the Plaintiff prior to publication were made but disputed. Complaints were made about the articles’ fairness and accuracy, leading to this libel action.

Legal Issues Presented

1. Whether the Defendant can rely on statutory qualified privilege or absolute privilege in relation to the publication of the two articles.
2. Whether the words complained of in the first article constitute a fair and accurate extract from the Particulars of Claim in the Penthouse action.
3. Whether the publication of the words complained of was of public concern and for the public benefit under section 15(3) of the Defamation Act 1996.
4. Whether the second article was a fair and accurate report of the court proceedings at Southwark Crown Court.
5. Whether the Defendant’s defences fail due to malice, including recklessness or wilful blindness in publishing misleading information.

Arguments of the Parties

Appellant's Arguments (Plaintiff’s Submissions)

• The first article was not a fair and accurate extract from the Particulars of Claim because it included extraneous, sensationalised material and omitted the fact that the claim was disputed.
• The article falsely stated that the Plaintiff had declined to comment, which was untrue.
• Publication of defamatory allegations without including the Defence or the gist thereof was a misuse of statutory privilege and constituted malice.
• The second article was not a fair and accurate report of the court proceedings because it omitted the sentencing judge’s rebuttal of allegations made against the Plaintiff.
• The Defendant acted maliciously by deliberately or recklessly publishing unfair and misleading reports, including continuing to publish the first article online without correction after learning of the Defence.

Appellee's Arguments (Defendant’s Submissions)

• The words complained of in the first article were fair and accurate extracts from the Particulars of Claim, and the publication was of public concern and for the public benefit, thus protected by statutory qualified privilege.
• The Defendant was not required to include the Defence or its gist in the report of the Particulars of Claim, as the Defence is a separate document.
• The second article was a fair and accurate contemporaneous report of court proceedings, protected by absolute privilege under section 14 of the Defamation Act 1996.
• Omission of the judge’s comments was a reasonable editorial judgment and did not constitute malice.
• The Defendant made reasonable efforts to contact the Plaintiff and acted responsibly in publishing the articles.
• Malice requires proof of a dominant improper motive, which was not pleaded or established.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the statutory framework under the Defamation Act 1996 and the Civil Procedure Rules, focusing on the availability of qualified and absolute privilege for publication of court documents and reports of proceedings.

Regarding the first article, the court found that while most of the words complained of constituted a fair and accurate extract from the Particulars of Claim, the article also contained extraneous, sensationalised material and falsely stated that the Plaintiff had declined to comment. The omission of the fact that the claim was disputed was a material defect. The court held that publication of such defamatory allegations without indicating that they were disputed was not a matter of public concern or for the public benefit, and thus the defence of qualified privilege failed. The common law privilege also failed for the false statement about the Plaintiff declining to comment.

For the second article, the court found that the report of the court proceedings was not fair and accurate because it omitted the sentencing judge’s explicit rejection of allegations made against the Plaintiff. The omission seriously unbalanced the report and therefore absolute privilege did not apply. If the online publications were not contemporaneous, the defence of qualified privilege would fail for the same reasons. The references in the second article to the first article did not constitute extracts from court documents and were not protected by privilege.

On the issue of malice, the court distinguished between carelessness and recklessness. It found that prior to 17 June 2011, the Defendant’s failure to check for a Defence was careless but not reckless or malicious. However, from 17 June onwards, the Defendant knew of the Defence and continued to publish the first article online without correction, which amounted to recklessness and misuse of the occasion, constituting malice. Similarly, the omission of the judge’s remarks in the second article was deliberate and unfair, also amounting to malice.

The court emphasised that malice under statutory qualified privilege requires proof of misuse or abuse of the occasion, typically shown by a dominant improper motive or recklessness. The court rejected the Defendant’s argument that malice requires proof of a dominant improper motive beyond recklessness or wilful blindness in this context.

Holding and Implications

The court held that the Defendant’s defences of qualified privilege, absolute privilege, and common law privilege fail in respect of both articles.

The first article’s defence of qualified privilege fails because the publication was not of public concern or benefit, given the omission of the Defence and the false statement that the Plaintiff declined to comment. The common law privilege also fails due to the false statement.

The second article’s defence of absolute privilege fails because the report of court proceedings was not fair and accurate, having omitted the judge’s rebuttal of defamatory allegations. The qualified privilege defence for non-contemporaneous publications also fails for similar reasons, and the reference back to the first article is not privileged.

The plea of malice succeeds in respect of the first article from 17 June 2011 onwards and in respect of the second article, based on recklessness and deliberate unfairness.

The direct effect is that the Defendant has no available privilege defence to the libel claims on these articles. The judgment does not establish new precedent beyond the application of existing legal principles to the facts. The findings reinforce the importance of responsible journalism, particularly when reporting on court documents and proceedings, and the necessity to fairly represent defendants’ positions to avoid defamation liability.