On 26 November, Mr Justice Gray handed down his second judgment on The Times’s defence of "Reynolds" qualified privilege, writes Richard Shillito.
This followed the Court of Appeal’s ruling that, in his first judgment, delivered in April 2001, the judge had applied too stringent a test and that he should reassess the defence, applying the standards of responsible journalism.
The question, said the judge, was whether it was in the public interest to publish the two Times articles, irrespective of their truth or falsity. He said he took account of the damage to society of setting the standard of responsible journalism too high.
Attention has been paid in all "Reynolds" cases to Lord Nicholls’s 10 tests, of which two key ones are the seventh and eighth, namely whether comment was sought from the claimant before publication and whether the article contained the gist of the claimant’s side of the story.
Practical experience suggests that some journalists consider it is sufficient to make an attempt to contact the potential claimant and, if that attempt fails, to say that he/she could not be reached for comment.
In Loutchansky, the reporter was unable to contact the claimant, his company or their lawyers. The judge regarded his efforts to do so as "far less diligent than was required". Nor should it have been assumed that the claimant would not have had anything useful to say. In the first article complained of, the reporter included that Loutchansky had "repeatedly denied any wrongdoing or links to criminal activity", but the judge found that that bare denial was also insufficient. He could have, said the judge – and failing all else should have – repeated what the claimant’s US lawyer had said, according to an article published in The Washington Post: namely that everywhere in Europe that the allegation that the claimant had ties to organised crime had been reported, he had either sued and won or it had been retracted.
The judge’s criticism of the second article complained of was even more damning. The sole source of the article was highly unlikely to be reliable and what she said was published without any verification or corroboration.
It came as little surprise, therefore, that, having previously come to the conclusion that The Times was not under a duty to publish (in the sense of being open to legitimate criticism if it had failed to publish), the judge, applying the Court of Appeal’s prescribed test, found that The Times had not complied with the standards of responsible journalism.
The Times said it would not let the matter rest there and has applied for leave to amend its defence, to include a plea of justification. It claims it can now prove that Loutchansky was a money launderer. It will also seek to appeal the judge’s ruling.
Richard Shillito is a partner in the media team of Farrer & Co