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[2001] 2 AC 127 (HL). The claimant in this case was the ex-Prime Minister of Ireland, who had resigned in the midst of a political crisis in 1994. The defendants were a newspaper, its editor, and various of its journalists. The newspaper had run an article in which it was alleged that Mr Reynolds had concealed certain facts about his colleague Harold Whelehan. This concealment, it was alleged, was to assist Mr Whelehan in his bid to become President of the High Court. It was suggested that, had these facts not been concealed, Mr Whelehan's appointment would have been rendered unconscionable.
To cut a long story short, when Mr Reynolds brought an action in defamation, the defendants were unable to prove the truth of these allegations to the satisfaction of a jury. The defendants were unable to rely on the defence of `fair comment', since the defamatory remarks were of a factual nature, not merely opinions or value judgements. The jury, however, while accepting that the allegations were unproven, declined to award Mr Reynolds even a penny in damages. As the Times had already made a payment into court, Mr Reynolds was ordered to pay their costs from the data of paying-in. The unfortunate judge in this case had the dubious distinction of being accused of doing such a poor job that his performance was the subject of appeals by both the losing party and the successful party. Mr Reynolds appealed on the basis, among other things, that the judge's summing up failed to make the strength of his case clear to the jury; the Times appealed on the basis that it should have been awarded all its costs. The CourtOfAppeal held, with reluctance, that the conduct of the trial was such as to deny Mr Reynolds a fair hearing, and ordered a retrial. The Times sought permission to use the defence of QualifiedPrivilege in the retrial, which the Court of Appeal denied, but allowed an appeal on that matter to the House of Lords.
So the hearing in the House of Lords was, on the whole, not concerned with determining the truth of the Times's allegations, or of deciding what costs should be ordered against whom, it was concerned with the scope of the defence of qualified privilege. The established test for qualified privilege is whether the defendant had a duty to publish the material, and the recipient an interest in receiving it, taking into account all the circumstances of the publication. Although this is phrased very broadly, in fact the circumstances in which qualified privilege applies to publication to the public at large have always been very limited. It certainly applies, for example, to the reporting of many matters that themselves attract privilege, such as Parliamentary debates and judicial decisions, but it is hard to find many other examples of its applicability. One of the arguments raised by the defendants in this case was that the traditional common-law view of qualified privilege was too narrow, and therefore was in conflict with the provisions of Article 10 of the EuropeanConventionOnHumanRights. On the whole, this argument did not find favour with the House; in the judgements of the ECHR that were cited by the defence, it was clear what had been at issue was not the liability for inaccurate factual statements, but rather liability for expressions of opinion. Since the defendant had already conceded that it could not rely on the `fair comment' defence, which was relevant to expressions of opinion, the ECHR judgements were not of any great help. The question therefore fell to be decided under ordinary common-law principles of qualified privilege, and the relevant question was whether political reporting, done in good faith and in the public interest, is something which in general attracts qualified privilege. By a bare majority, the House decided that it did not. See DefamationAndFreedomOfSpeech for a discussion of the policy issues surrounding this decision.
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