Mail on Sunday judgment 'could have disturbing implications for journalists reporting legal actions'

The Mail on Sunday has come in for strong criticism from a judge who has thrown out its defence of privilege in defence of a libel action brought by a senior banker.
 
The paper is being sued over reports based on privileged material – one story came from a civil court claim form and the other from a report of proceedings in a criminal trial.
 
Mr Justice Tugendhat held that the privilege fell down because of the manner in which the Mail on Sunday had reported the allegations. The paper has described his judgment as "wrong and damaging to the reporting of legeal proceedings".
 
The judge had found that Financial Mail on Sunday deputy editor Simon Watkins had been aware that some material published in a Mail on Sunday article about banker Irfan Qadir, former director at the Royal Bank of Scotland, was incorrect – and that he failed to alert the MailOnline website to the fact, so that the error remained on the website for some time.
 
"People in positions of responsibility are often reluctant to admit that they have done wrong," Mr Justice Tugendhat said.
 
"It is one of the common practices of the press, including ANL in particular, to run a series of articles on a particular wrong attacking those responsible until they frankly admit their responsibility.
 
"But journalists and newspaper publishers are themselves in a position of responsibility. And unfortunately the press are as susceptible as any other institution, to the failing of not admitting that they have done wrong."
 
Mr Justice Tugendhat went on: "And there is a particular mischief in this institutional failing in the case of the press.
 
"It derives from the fact that, with some honourable exceptions, journalists are less inclined to pursue this failing when it is demonstrated by fellow news publishers and journalists than when it is demonstrated by other institutions or individuals.
 
"So the press may get away with refusing to admit they have done wrong, when others would not get away with it.
 
"Those whose reputations have been wrongly damaged in such circumstances are left with the daunting prospect of suing for libel, as Mr Qadir has in this case.
 
"And the public interest is damaged by misinformation as to the reputation of those who might otherwise be thought fit to carry out duties of benefit to the public."
 
Qadir sued over two stories which appeared in the Mail on Sunday, one of which reported allegations made in a document filed with a court in connection with a civil case in which he was involved, and the second purported to report on a court hearing.
 
He claims the first article, published on 8 May last year and headlined "Bank of Scotland Director 'drove us out with dogs'", which concerned dealings over The Penthouse night-spot in central London, means that he managed to steal a business worth £3.5 million by intimidating three businessmen with threats of violence and murder.
 
He claims the second article, headlined Top banker named in mortgage fraud case, and published on 19 June last year, means he was a central figure in a criminal conspiracy to defraud banks of £49 milliony.
 
ANL pleaded qualified privilege and common law privilege as well as justification in relation to the first story and absolute and qualified privilege as well as justification in relation to the second.
 
Mr Justice Tugendhat, dealing with the issues of privilege and malice – which can defeat the privilege defence – as preliminary issues, held in a lengthy 68-page judgment handed down today that the privilege defences failed in relation to both articles.
 
In relation to the first article, on The Penthouse night-spot, Mr Justice Tugendhat said the main issue was whether publication of the words complained of was of public concern and for the public benefit.
 
The story was based on details in forms filed with the court as part of litigation, which could be obtained by members of the public.
 
Mr Qadir had filed a defence to the claim, but that was not reported.
 
The story also incorrectly reported that he had declined to comment on allegations against him – in fact the newspaper had tried to contact him but failed.
 
The judge said that as a general rule "it will not be for the public benefit to publish any defamatory allegations made in a Claim Form or Particulars of Claim available to the public from the court … without at the same time publishing the fact that the defendant has denied, or is disputing, the allegations, as the case may be".
 
ANL's statutory qualified privilege defence failed, he said, adding: "In the present case I see no public interest in ANL publishing a defamatory extract from the Penthouse Particulars of Claim which omitted a statement that a claim is disputed."
 
He also criticised ANL's claim that Qadir had declined to comment, saying "there can be no public benefit in publishing that misinformation", which was "not the product of responsible journalism".
 
On the second article, the question was whether it was a fair and accurate report of court proceedings involving a mortgage fraud trial during which Qadir's name was mentioned by counsel in mitigation.
 
The trial judge had interrupted counsel's mitigation and made clear that Qadir was not involved in any of the mortgage lending decisions.
 
ANL said the story reported that the essence of one of the trial judge's interventions was reported with the words: "It is understand that Qadir made no lending decisions at either bank linked to the Dunlop Haywards case".
 
But Mr Justice Tugendhat said the words were not attributed to the Judge and did not purport to be part of a report of the proceedings.
 
He rejected both the qualified and common law privilege defences, saying that even if he was not correct to conclude that the report was not fair and accurate, it was "not of public concern or for the public benefit" for ANL to continue to publish the allegations made in mitigation but without publishing the trial judge's remarks.
 
He also upheld Qadir's plea of malice in respect of the second article.
 
A spokesman for the Mail on Sunday said: "This is a finding on a preliminary issue, in a case that has yet to go to full trial.
 
"It could have disturbing implications for journalists reporting legal actions on the basis of court documents. It introduces onerous new conditions a journalist must meet before being covered by legal privilege.
 
"It also demands that individual newspaper journalists must, in certain circumstances, amend online versions of articles over which they have no control.
 
"We believe the judgment is both wrong and damaging to the reporting of legal proceedings, and are seeking leave to appeal."
 
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