A magazine failed in its appeal against Mr Justice Eady’s decision to strike out its defence of qualified privilege to a libel action.
Prince Radu of Hohenzollern-Veringen, the husband of Princess Margarita of Romania, is suing Royalty Monthly magazine editor Marco Houston and its publisher over an article which he claimed suggests he was an “imposter”.
The magazine had sought to use the reportage and responsible journalism defences to the action, but they were struck out by Mr Justice Eady.
His decision was upheld by the Court of Appeal in a decision on July 15.
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Prince Radu, a former actor who married the daughter of ex-King Michael of Romania in 1996, is suing Mr Houston, and publisher Sena Julia Publicatus Ltd over an article in Royalty Monthly in September 2004 which said a “major scandal” had enveloped Radu Duda, as it called him.
It said that “Mr Duda” had been “branded an impostor” and was “accused of falsely claiming to have been given a title by the Hohenzollern family and, thereafter, of abusing the family name and using the title for personal monetary gain”.
The editor and publisher appealed against Mr Justice Eady’s decision, arguing that he was wrong as a matter of law and fact in reaching the conclusions he did, infringed their Article 10 rights without sufficient, or any, justification, and made findings contrary to the evidence.
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They also argued that the judge treated the 10 factors listed by Lord Nicholls’ in the Reynolds case as being mandatory, and gave insufficient weight to the fact that the defendants had made a reasoned, deliberate and careful editorial decision not to contact the claimant or his representatives before publishing the story.
It was also claimed that the judge had elevated the defendant’s failure to contact the claimant’s camp as an item in the list of items expounded in Reynolds to the level of a hurdle the defendants had to clear rather than just a factor to be taken into account in an appropriate case.
Lord Justice May, sitting with Lord Justice Moore-Bick and Lord Justice Lawrence Collins, said the appellants were arguing that the judge had elevated the fourth, seventh and eighth points listed by Lord Nicholls in Reynolds to a status they did not deserve in this case, especially when there was no evidence to refute the editor’s journalistic judgment that approaching the claimant’s camp would have made no difference.
“The failure has, it is submitted, been elevated to breach of a rule of law,” said Lord Justice May.
The court’s task was to review the evaluative judgment of a very experienced judge, he went on.
The Master of the Rolls, Sir Anthony Clarke, had said in Mersey Care NHS Trust v Ackroyd ([2008] EMLR 1) that such decisions involved balancing different factors.
This, while a question of law, was heavily fact-dependent and value-laden, and many factors might be relevant on both sides.
In the Galloway case the Master of the Rolls had said that the right to publish must be balanced against the rights of the individual.
Lord Justice May went on: “The balance is a matter for the judge. It is not a matter for the appellate court. This court will not interfere with a judge’s conclusion after weighing all the circumstances in the balance unless he has erred in principle or reached a conclusion which is plainly wrong.
“I do not consider that Mr Justice Eady erred in principle in the present case nor that he reached a conclusion which was plainly wrong.
“As to principle, he took all the main matters carefully into consideration. He addressed Lord Nicholls’ 10 points in turn but did not regard them or any one or more of them as necessarily or by themselves determinative.
“He treated them as relevant considerations, not, in my view, as hurdles, each of which a defendant is required to overcome. He was entitled to regard the tone of the article as one-sided and unbalanced.
“The fact that the appellants had not approached the claimant or anyone on his side of the dynastic divide was relevant and an important, but not all-embracing reason for the judge’s decision.
“It was relevant that the appellants did not report the claimant’s public denial that he had been a member of the secret police in Iron Curtain days.
“If the editorial judgment was that approaching the claimant would have made no difference, the claimant did not have to prove positively that it would have made a difference and this is not a case, such as was Jameel, where all relevant knowledge and information lay elsewhere.
“The appellants’ supposition that inquiries of the claimant or his camp would have been fruitless, based on the fact that there had been no response to the press conference, was capable of being regarded as mere supposition.
“The question was not whether the claimant would have responded, but whether it was irresponsible not to ask. The judge’s proposition was that it was a matter of elementary fairness that a serious charge should be accompanied by the gist of any explanation already given.”
Lord Justice May said he was “not in addition over-impressed” with the appellants’ submission that decisions in the case were matters of editorial judgment “as if the magic wand of editorial judgment answers all possible criticism of the balance of the article”.
Mr Justice Eady had come to a balanced overall conclusion and had looked at the matter in the round.
“He also gave due weight to editorial discretion, emphasising that the question was not what he would have done, because he is not a journalist,” said Lord Justice May.
Lord Justice Moore-Bick and Lord Justice Lawrence Collins agreed.
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