The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the defendant, to write a letter to General Scobell, which was released to the press, vindicating him and in turn containing defamatory statements about the plaintiff.
Held: The letter was protected by qualified privilege. It was for the judge to decide whether there is any evidence of express malice fit to be left to the jury – that is, whether there is any evidence on which a reasonable man could find malice. Otherwise it is for the judge to determine whether the privilege applies. The defence of qualified privilege is based on public policy. It is usually analysed in terms of duty and interest.
Lord Dunedin said that the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn.
Lord Atkinson discussed the test for privilege: ‘It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. Nor is it disputed that a privileged communication — a phrase often used loosely to describe a privileged occasion and vice versa — is a communication made upon an occasion which rebuts the prima facie presumption of malice arising from a false and defamatory statement prejudicial to the character of the plaintiff, and puts the latter to proof that there was malice in fact.’ and
After citingthe authorities: ‘These . . in my view clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true or necessary for the purpose of his vindication, though in fact it was not so.’
Lord Loreburn said: ‘I understand the law to be as follows: It is for the judge alone to rule whether or not there is an occasion of privilege, and the rule on that subject was laid down many years ago in the case of Toogood v Spyring. Subsequent decisions have illustrated the rule, but the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. To say that foreign matter will not be protected is another way of saying the same thing.’
Lord Shaw of Dunfermline said: ‘Privileged, however, as the occasion might be, it was contended that the communication went beyond the occasion and so was not protected by privilege. I humbly think that this is a more correct way of stating the proposition than is usually adopted. Privilege is a term which is applied in a two senses. There is a privileged occasion, and there is also said to be a privileged communication. The former expression is correct; the latter, strictly viewed, tends to error. What is meant with regard to a privileged occasion is that it was protected as being within the scope of the privilege attaching to the occasion. The occasion is privileged, the communication is protected.
If, accordingly, and in so far as the communication deals with matter not in any reasonable sense germane to the subject-matter of the occasion, the protection is gone: the occasion with its privilege does not reach a communication upon this foreign and totally unconnected matter.’
Lord Finlay LC said: ‘If the communication was made in pursuance of a duty or on a matter in which there was a common interest on the party making and the party receiving it, the occasion is said to be privileged. This privilege is only qualified and may be rebutted by proof of express malice.’
Lord Finlay LC, Lord Atkinson, Lord Dunedin, Lord Loreburn, Lord Shaw of Dunfermline
[1917] AC 309, [1917] AC 309, [1917] All ER 151, [1917] AC 309, [1916-17] All ER 157, 86 LJKB 849
England and Wales
Cited by:
Cited – Downtex v Flatley CA 2-Oct-2003
The claimants sought damages for defamation and breach of contract. The claimants had purchased a business from the defendant, which contract included a clause requiring the defendant to say nothing damaging about the business. The defendant . .
Cited – Meade v Pugh and Another QBD 5-Mar-2004
The claimant was a social work student. He attended a work experience placement, and challenged the report given by the defendants on that placement, saying it was discriminatory and defamatory. He appealed a strike out of his claim.
Held: The . .
Cited – Alexander v Arts Council of Wales CA 9-Apr-2001
In a defamation action, where the judge considered that, taken at their highest, the allegations made by the claimant would be insufficient to establish the claim, he could grant summary judgment for the defence. If the judge considered that a . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Kingshott v Kent Newspapers Limited 1991
A question arose under the section as to whether a news piece was a fair and accurate report of proceedings at a local public enquiry. The judge had ruled that no reasonable jury properly directed could conclude that the words complained of were . .
Cited – Jameel v Wall Street Journal Europe Sprl HL 11-Oct-2006
The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an . .
Cited – Malik v Newspost Ltd and others QBD 20-Dec-2007
The claimant, a politician, sought damages after another local politician accused him of using physical intimidation at elections. The defendant claimed a Reynolds privilege.
Held: This was not investigative journalism, and ‘There is no doubt . .
Cited – Horrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
Cited – Clift v Slough Borough Council and Another QBD 6-Jul-2009
clift_sloughQBD09
The claimant sought damages for defamation. The council had decided that she had threatened a member of staff and notified various people, and entered her name on a violent persons register. She alleged malice, the council pleaded justification and . .
Cited – Watts v Times Newspapers Ltd, Neil, Palmer and Schilling and Lom CA 28-Jul-1995
The plaintiff author had claimed damages for defamation, saying that he had been accused of plagiarism. An apology had been given in the form requested – no qualified privilege. The plaintiff brought an associated case against his lawyer, saying . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Flood v Times Newspapers Ltd CA 13-Jul-2010
The claimant police officer complained of an article he said was defamatory in saying he was being investigated for allegations of accepting bribes. The article remained on the internet even after he was cleared. Each party appealed interim orders. . .
Cited – Clift v Slough Borough Council CA 21-Dec-2010
The court was asked how, if at all, the Human Rights Act 1998 has affected a local authority’s defence of qualified privilege in defamation cases. The claimant had been placed on the Council’s Violent Persons Register after becoming very upset and . .
Cited – Khader v Aziz and Another QBD 31-Jul-2009
The defendant sought to strike out a claim in defamation. Acting on behalf of his client the solicitor defendant was said to have called a journalist and defamed the claimant. The words were denied.
Held: Assuming (which was denied) that the . .
Lists of cited by and citing cases may be incomplete.
Defamation
Leading Case
Updated: 11 November 2021; Ref: scu.186629