The decision of the Court of Appeal to uphold the use of the qualified privilege defence for responsible journalism in the case of a book about police corruption was hailed as a victory for investigative journalism.
The case raised important issues about the steps required of an author and publisher in order to qualify for the “responsible journalism” defence when the publication was a book rather than a a newspaper article, and where the topic was one of public interest, but complex, and where the author has made attempts to obtain the claimant’s side of the story.
It left the Police Federation, which had financed Mr Charman’s case, facing a costs bill estimated at some £2 million.
It also emerged that work on the appeal by the defendants’ legal team was done on a Conditional Fee Agreement – meaning that they would not be paid if the appeal failed.
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Solicitor Caroline Kean, who led the team at law firm Wiggin which represented publishers Orion and Mr McLagan, said: “For too long newspapers and book publishers have been deterred from publishing serious investigative journalism by the threat of incredibly complex and expensive libel proceedings if they made the slightest error.
“This judgment is a breath of fresh air, building on the decision last year by the House of Lords in Jameel v Wall Street which expressly stated – in relation to a newspaper article – that the defamation laws should encourage, rather than discourage, serious journalism.
“The Court emphasised that a responsible journalist, who has analysed his material critically, should not have his evaluation of his material second-guessed by a judge acting with the benefit of hindsight.
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“This decision of the Court of Appeal has put the role of the investigative journalist back in centre stage.
“From the outset, we all believed in Graeme’s journalism, but virtually every time the responsible journalism defence came before the Court – up to and including the trial in this case – it failed.
“The publishers, Orion, and their insurers, Hiscox, are to be commended for their brave decision to stand behind Graeme and the book.”
McLagan said the Court of Appeal’s decision was “a victory for solid, responsible investigative journalism” and went on: “Exposing police corruption is obviously in the public interest, as was recognised by the trial judge, the Appeal Court and even by Michael Charman’s own defence team.
“It continues to surprise me that the Police Federation, the ‘trade union’ of the lower ranks, should have given such support to a man who was ‘required to resign’ by the Metropolitan Police for ‘discreditable conduct’.
“The Federation will now have to stump up at least GBP1 million in costs, and possibly as much as GBP2 million. I do hope for the sake of its members, many of whom told me they opposed this libel action, that the Federation will have learned from this expensive lesson and will think more carefully before wielding its bullying, clunking fist against journalists in the future.”
McLagan added: “Fighting this case as a freelance journalist has taken up a great deal of my time over the past few years.
“There is surely something wrong with a system where, if he had won, Charman, at no risk to himself, would have been awarded tens of thousands of pounds, whereas I, found to be an honest responsible journalist, will receive nothing in damages.”
Orion Publishing Group chief executive Peter Roche said: “This judgment will enable serious investigative works covering matters of public concern to be published in future and increase the freedom of debate in the UK.”
Andrew Sellers, head of UK and International Technology, Media and Telecoms (TMT) claims at specialist insurer Hiscox, said the judgment was the product of four long and expensive years of tremendous teamwork between the insurers, the publisher, the author, and their legal teams at chambers 5 Raymond Buildings and Wiggin.
“We pursued the appeal on a simple point of principle. If responsible journalists like Graeme cannot successfully rely on the qualified privilege defence when reporting on matters of public interest like police corruption, then no journalist can,” he said.
“I really hope that this judgment will encourage other investigative journalists to keep on reporting and not shy away from reporting on controversial issues for fear of being sued.”
The lawyers agreed to conduct the appeal on the basis that they would receive nothing if it failed after the case reached the limit of insurance cover.
Kean said: “When the limit of insurance had been reached and there was a real risk the defence might have to fold the legal team, including counsel, unanimously agreed that we had to step in.”
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