In a
recent case, a new court rule entitled The Guardian to copies of
documents filed at court in confidentially settled civil proceedings.
In
Chan U Seek v (1)Alvis Vehicles Ltd (2) Guardian Newspapers Ltd,
Singapore businessman Chan U Seek sued Alvis. He claimed that he was
entitled to £6million commission on the sale of military vehicles and
equipment to the IndonesianMinistry of Defence in the 1990s. Alvis
applied to strike out Mr Chan’s claim.
This application was
successful but was overturned by Mr Justice Neuberger. In October 2004,
two weeks into the trial, Alvis and Mr Chan entered into a confidential
settlement which prevented both sides from discussing the case.
However,
The Guardian wished to access the court file and obtain copies of
documents in it, including witness statements and pleadings, thinking
that there was likely to be a newsworthy story.
Related
Alvis opposed The
Guardian ‘s application. The Guardian relied on new Civil Procedure
Rule 5(4) which allows nonparties access to court documents.
Mr Justice Park ruled that The Guardian should be allowed access to the court file, including witness statements.
He
said that open justice has long been a fundamental principle of English
law and there is a strong presumption that there should be as few
impediments as possible to reporting cases.
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The witness
statements which The Guardian wanted to see were not read out in open
court, although the judge had read them privately. Several recent cases
have made the point that the public should not lose the ability to
access evidence which they would have had if it had been given orally.
In
almost all cases final decisions have favoured disclosure to the person
seeking access to evidence. Mr Justice Park said that the proceedings
between Alvis and Mr Chan: “were not a private arbitration. They were
in open court, and unwelcome publicity for a defendant, including a
successful defendant, is not uncommonly a consequence to any case.”
The
Guardian reporters believed that they had discovered a story which
raised serious issues and wished to see whether there was more relevant
material in other documents. Mr Justice Park decided they should be
allowed to do so.
Reynolds defence-a risky business
Three
recent decisions on the qualified privilege defence established by the
House of Lords in Reynolds v Times Newspapers Ltd & Ors are a
reminder of how difficult it can be for newspapers to run this defence
and of the risks of relying on it without also pleading justification.
The
cases in question, all of which were before Mr Justice Eady, are Jameel
v The Wall Street Journal ; George Galloway MP v The Telegraph Group
Ltd and Lance Armstrong v Times Newspapers Limited.
The message
from these cases is that the 10 non-exhaustive criteria established by
Lord Nicholls in Reynolds as the test for ‘responsible journalism’
present a high hurdle to journalists and publishers.
In the
Jameel and Galloway cases, the Reynolds defence failed and in the Lance
Armstrong case it was struck out. In both Jameel and Galloway the
seriousness of the defamatory allegations permeates the judgments. Eady
found that in neither case was the publisher under a duty to publish
the allegations in the form in which they were published at the time at
which they were published. This involved consideration of the urgency
of publication and in all three cases Eady pointed out that one should
not conflate topicality or commercial expediency with urgency.
Another
key test linked to the urgency test and highlighted in the Jameel and
Galloway decisions, is whether comment was sought from the claimant .
In
Jameel it was relevant that the journalist admitted that he would have
been prepared to allow the claimant a further 24 hours to comment on
the article before publication.
In Galloway, even though The
Daily Telegraph had contacted Mr Galloway, and put certain allegations
to him, it was found that he had not had a proper opportunity to
respond In the Armstrong case, in considering another of the criterion
from Lord Nicholls’ judgment, that of the tone of the article, the
judge was not persuaded by The Times ‘ claim that it merely ‘raised
questions’ about Armstrong in the article. He found, as he did in
Galloway, that the article was not merely ‘neutral reportage’ as argued
by the defendants but, had in fact adopted the allegations .
Jennifer McDermott is media partner at Addleshaw Goddard.
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