Practice and Procedure


PUBLISHED October 31, 2003

The defence of fair comment was not available where the defendant in a libel action had failed to provide information in the words complained of, enabling those to whom the defamatory comments were published or republished to make up their own minds as to the validity of the comments. However, the publications of the Press release at issue took place on occasions of qualified privilege.Pre-trial review in a slander action brought by a police inspector ('C'), against his chief constable ('D') in respect of four Press statements. The statements were issued orally on D's behalf in response to telephone enquiries made by journalists in August 2001 in relation to a murder enquiry. C was one of the officers involved in an inquiry into the deaths of several patients at an infirmary. He subsequently produced a report ('the Oliver Report') calling for an investigation into what had taken place whilst evidence against the nurse involved ('N') was being collated for the purposes of a criminal trial. Following delivery of the Oliver Report, a team of officers was appointed to investigate the allegations contained therein. That team reported in February 1999 to the effect that there was nothing to the allegations in the Oliver Report. Two years later copies of the Oliver Report were leaked to the Press, resulting in a Press release being issued by D in August 2001. C alleged that this Press release slandered him. He alleged that the words in it meant that in the Oliver Report C had knowingly, recklessly or negligently made allegations about the investigation and arrest of N that were unfounded and that in consequence deserved no credibility. Those meanings were denied in the defence. The principal defence relied on was qualified privilege. Additional defences of justification and fair comment were pleaded. The issues for determination at the pre-trial review were: (i) mode of trial; (ii) what, if any, defamatory meaning the words complained of bore; (iii) whether the defence of fair comment was available to D; and (iv) whether the publications took place on occasions of qualified privilege.HELD: (1) It was agreed between the parties that the case should be tried by a judge alone. (2) To say of a police officer, who had carried out an investigation into a matter as serious as this, that the allegations in his report were unfounded and discredited must reflect adversely on the skill and competence with which that officer had carried out his investigations. The words of the Press release were defamatory of C. Publishees who were not avid for suspicion would not read into the words used on behalf of D an allegation of bad faith on the part of a relatively senior officer, when there was a lesser meaning that was equally or more apt. The words did not impute bad faith but rather that C, in compiling his report, had been guilty of negligence by including allegations that were factually wrong and not worthy of belief. (3) The requirement that the substratum of fact be sufficiently stated or indicated in the words complained of in order for the defence of fair comment to be available seemed to be entrenched in the English law of defamation. Merely to provide the information that C's allegations had been investigated and that the investigation had been rigorous fell well short of information enabling those to whom the Press release was published or republished to make up their own minds as to the validity of the epithets applied to his allegations. The defence of fair comment was not available to D. (4) There was no real prospect of C being able to establish that the occasion of the publication of the Press release was not protected by qualified privilege. Such privilege was established. The success or failure of the defence would therefore fall to be determined by the finding at trial on the issue of malice.Judgment accordingly.

[2003] EWHC 2417 (QB)