The reporter’s notebook and the angry Avenger

A recent judgment in the case brought by the actress Dame Diana Rigg against the Daily Mail is a reminder to journalists of the significant role that their notebooks can play in libel actions.

The High Court ordered the Daily Mail to disclose the notebook of its journalist Jane Kelly, who had interviewed Rigg, and whose subsequent article the actress sued over, alleging that it suggested that “she had chosen to reveal herself in public as a lonely, embittered, rejected and vengeful woman, by giving an interview to a mass-circulation tabloid for the purpose of attacking British men”. In addition, Rigg claimed that the article deliberately gave the impression that it was based upon an interview given by her about her private life, and that the article contained a number of deliberate falsehoods.

In response, the Mail made an offer of amends under section 2 of the Defamation Act 1996, the procedure by which the defendant can extricate itself from libel proceedings at an early stage by offering appropriate recompense to the claimant. The Mail rejected the suggestion that Kelly had written deliberate falsehoods and that “this was supported by her contemporaneous notes”. The Mail said that Rigg could see these notes “once the parties have agreed to go down the offer of amends route”.

If Rigg accepted the offer, she would waive her right to a jury trial. She argued that it was important for her to see Kelly’s notes before deciding whether or not to accept the offer of amends, so that she could make an informed decision whether or not to do so. Mr Justice Gray agreed, and held that Rigg was entitled to inspect the notes since they were “highly material to the decision whether or not to accept the offer of amends”.

The judge stressed that his decision “should not be treated as approving on a routine or wide-scale basis applications for disclosure by claimants faced with a decision whether or not to accept offers of amends”.

But given the wider circumstances in which notebooks may have to be disclosed – when, for example, a newspaper relies upon the defence of qualified privilege, the defence that protects responsible journalists when a story on a matter of public concern cannot be subsequently proven to be substantially true – there is a substantial incentive for journalists to keep their notebooks in good order.