Stern v Piper & Ors

Factual and Procedural Background

On 9th January 1994, a newspaper published an article concerning the Plaintiff, who had been declared bankrupt in 1978 and discharged in 1985. The article alleged that the Plaintiff had failed to honour debts exceeding £3 million, referenced a pending High Court action against him and associated companies, and included quotations from an affirmation sworn by one of the Plaintiff's creditors. On 13th May 1994, the Plaintiff commenced an action for libel against the article's author, editor, and the newspaper's proprietors. The Defendants pleaded justification, asserting the truth of the article's meanings, including the Plaintiff's financial troubles and involvement in legal proceedings. The Plaintiff applied to strike out the plea of justification as disclosing no reasonable defence and being vexatious. This application was refused both by the Master and later by the High Court Judge, leading to the present appeal.

Legal Issues Presented

1. Whether the Defendants' plea of justification, based on the repetition of allegations made in a court affidavit, constitutes a valid defence to the libel claim.
2. Whether the established "repetition rule" in defamation law precludes justification based on repeating defamatory statements made by others, even when such statements are part of court documents.
3. The extent to which reports of court documents not made in open court are protected by privilege and whether such reports can be justified as true.
4. Whether the plea of justification in this case falls within exceptions to the repetition rule, such as those recognized in prior case law concerning reports of legal proceedings or judicial pronouncements.

Arguments of the Parties

Appellant's Arguments

• The plea of justification is barred by the repetition rule, which prohibits a defendant from defending a libel action by merely repeating defamatory statements made by others.
• The statements relied upon in the affirmation are hearsay and not public material, unlike the issue of writs or judicial pronouncements, and thus cannot be justified by mere repetition.
• The publication is not protected by absolute or qualified privilege because it was not a fair and accurate report of proceedings in open court.
• Allowing the plea would undermine the repetition rule and allow dissemination of one-sided, unverified allegations from private court documents.

Respondent's Arguments

• The repetition rule does not apply because the plea concerns a "second order" allegation: a republication of original allegations made in court documents, which can be justified by proving the original allegation was made.
• There is no valid distinction between affidavits and other court documents such as writs or statements of claim for the purposes of justification.
• The defence of justification may be maintainable even where privilege fails, especially in reporting legal proceedings, to avoid fettering freedom of the press.
• The meaning of the words should be assessed by whether the jury could reasonably find them true, and if so, justification applies.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
De Crespigny v Wellesley (1829) 5 Bing 392	Repetition rule: It is no defence in libel to prove the defamatory statement was from another, even if the author is named.	Established the foundational principle underpinning the repetition rule, affirmed as binding in this case.
McPherson v Daniels (1829) 10 B & C 263	Reiteration of the repetition rule: Hearing a defamatory statement from another and naming the author is not a defence.	Supported the repetition rule, reinforcing that repeating libel is equivalent to making the statement.
Watkin v Hall LR 3 QB 396	Repetition rule applied to slander; repeated defamatory statements are actionable.	Referenced as leading case on repetition rule, cited to support refusal of justification plea.
Truth (NZ) Ltd v Phillip Holloway (1960) 1 WLR 997	Repetition of defamatory statements is as harmful as originating them; repetition rule endorsed by Privy Council.	Quoted extensively to highlight the harm of republication and to support application of the repetition rule.
Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413	Exception to repetition rule for reporting issuance of writs or public legal proceedings.	Held as an exception allowing justification for reporting the issue of legal proceedings; distinguished from hearsay affidavits.
Waters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967	Similar exception for reporting judicial pronouncements in open court.	Considered a borderline exception; court viewed it narrowly and limited its application to similar facts.
Lewis v Daily Telegraph Ltd [1964] AC 234	Distinction between alleging suspicion and guilt; repetition rule reaffirmed.	Confirmed that repeating libelous allegations is as bad as making them; held that suspicion can be justified without proving guilt, but actual allegations of guilt require proof.
Cowley v Pulsifer (1884) 137 Mass. R 394	Privilege does not extend to reports of court documents not produced in open court.	Quoted to reject extending privilege to pre-trial court documents, supporting decision against justification plea.
Wake v John Fairfax [1973] 1 NSWLR 43	Repetition rule and qualified privilege interaction; repetition rule protects cohesion of defamation law.	Used to emphasize that without the repetition rule, qualified privilege would be undermined.

Court's Reasoning and Analysis

The court examined the plea of justification in light of the established repetition rule in defamation law, which prohibits a defendant from defending a libel claim by merely repeating defamatory statements made by others, even if the original author is named. The court acknowledged the exceptions recognized in Cadam and Waters, which permit justification for reporting public legal acts such as the issue of writs or judicial pronouncements in open court, but distinguished these from the present case involving republication of allegations from a private court affidavit not made in open court.

The court rejected the Respondents' "second order" allegation theory, finding no principled basis to distinguish republication of an affidavit from other hearsay reports. It emphasized the strong and longstanding authority underpinning the repetition rule, including endorsement by the Privy Council and the House of Lords, and held that the repetition rule applies directly to the republication of the affidavit's contents.

The court further reasoned that extending privilege or justification to such reports of private court documents would be unjust and one-sided, as only one party's allegations are disseminated without the opportunity for a balanced presentation. The court noted that absolute and qualified privilege protect fair and accurate reports of proceedings in open court, but do not extend to documents not brought into the public arena.

Finally, the court addressed concerns about freedom of the press, concluding that the ruling does not unduly restrict media reporting, as the press remains free to report the institution of legal proceedings and fair, accurate accounts of open court hearings, ensuring public information without compromising reputational protections.

Holding and Implications

The court ALLOWED THE APPEAL, striking out paragraphs 4 and 5 of the Defence, which contained the plea of justification based on the repetition of allegations from the Plaintiff's creditor's affirmation.

The direct effect is that the Defendants cannot rely on the pleaded justification defence as it contravenes the repetition rule. The Plaintiff's costs of the appeal and previous proceedings were ordered to be paid by the Defendants. Leave to appeal to the House of Lords was refused.

No new precedent was created beyond reaffirming the strict application of the repetition rule and clarifying its limits concerning reports of court documents not made in open court.