Lecture Notes Complete Tort Law

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Lecture Notes - Complete - Tort Law
Tort Law (Manchester Metropolitan University)
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Tort Law Lecture Notes
Topic 1 – General Negligence
Factual Causation
• Causation is the final element that must exist before there can be a
successful claim in negligence.
• There must be both:
• Factual causation, and
• Legal causation
• In this lecture we will deal with factual causation
• What is factual causation?
• It is essentially a cause and effect situation.
• The claimant must suffer from actual harm, injury or loss; AND that
injury, harm or loss must have been caused by the defendant’s
negligence.
 Rothwell v Chemical & Insulating Co. Ltd -- pleural plaque held not to
be a disease, therefore no causation from careless exposure to
asbestos
The damage suffered by the claimant might be:

 Personal injury
 Property damage
 Psychiatric harm
 Economic loss
Proving Factual Causation

 Causation is established by the “but for” test.
 The question is whether the defendant’s careless act/ omission, on a
balance of probabilities (51% or above) was the cause of the claimant’s
harm/damage.
 In other words, the harm and damage would not have occurred but for
the breach of duty. This is a question of fact
 Where this proof exists, the claimant would succeed; where it does not,
he fails. This is the “all or nothing rule”
Examples where causation was proved

 Spring v Guardian Assurance plc [1994] -- Negligent reference to
former employee caused the later the chance of another employment.
 McGhee v National Coal Board [1972] -- Failure by employer to
provide shower facilities for employees exposed to kiln dust at work
caused the claimant’s dermatitis.
 Fairchild v Bellhaven Funeral Services [2002] – exposure of employees
to asbestos fibres by employers caused the formers’ mesothelioma.
 Barker v Corus [2006] – similar facts to Fairchild.
Examples where there was no causation

 Barnet v Chelsea & Kensington HM [1969] -- arsenic poisoning not
cause of death, hence no causation

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• Hotson v East Berkshire Area Health Authority [1987] -- No “lost

chance” of avoiding illness due to late diagnosis/treatment since
there was still 75% chance the condition would occur even with
early diagnosis.
• Gregg v Scott [2005]-- no lost chance of survival as incorrect
cancer diagnosis did not affect patient’s chance of survival –
there was at least 58% chance of not being cured even with
early and correct diagnosis.
• Cummings v Arrol & Co Ltd [1962]– No liability for death due to
lack of safety harness; evidence that diseased never used the
harness in the past
Exceptions to “but for” test

 The “but for” test will be unsuitable where there are:
 Multiple causes from many defendants
 Multiple causes – negligent and non-negligent from one defendant
 Concurrent causes of the same har,
And/or
 The exact causality of injury/loss is not known or certain.
Multiple causes
• Wilsher v Essex Area Health Authority -- Child’s illness and

blindness could have been caused by many things other than
defendant’s breach of duty, hence no causation by defendant
Dealing with multiple causes – (a) Material contribution to harm

• In cases of multiple causes the question might not be “but for”, but
whether the defendant’s fault substantially/materially contributed to
claimant’s harm.
• Bonnington Castings v Wardlaw – two sources of silica
contamination, one negligent, the other not negligent; held that
D’s negligence made a material contribution to the harm.
Causation established
• Holtby v Brigham & Cowan – liability for claimant’s asbestosis
shared among many employers who had contributed to it.
Dealing with multiple causes – (b) material increase to risk of harm

 McGhee v National Coal Board -- dermatitis due to long
adherence of brick dust on body; defendant materially increased
the risk of the harm by not providing showers at work to enable
workers wash off the dust after work (exposure to the dust was
inevitable in claimant’s work)
Dealing with multiple causes – (c) mesothelioma cases

 Fairchild v Glenhaven Funeral Services [2002] held that:
Where there is more than one cause and causality of damage is
unknown, each cause will be deemed to have contributed to the
disease/harm and all defendants/contributors would be jointly
and severally liable for the whole loss/harm suffered.

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 Where one out of multiple employers was found liable, that

employer could seek contribution from the other employers – s.
1 Civil Liability (Contribution) Act 1978
Departure from Fairchild – Baker v Corus

 In Baker v Corus [2006], the House of Lords departed from the
principle of Joint and several liability of Fairchild.
 Instead, it adopted the notion of proportionate liability based on
length and nature of asbestos exposure by the different
companies
Restoration of Fairchild – The Compensation Act 2006

 The principle of Fairchild now recognised by s. 3 Compensation
Act 2006
 The principle was recently applied in cases involving only
material increase in risk by one employer:
• Sienkiewicz v Greif (UK) Ltd [2011] – held that the
defendant was liable for negligently exposing claimant to
asbestos even though she was also exposed to
environmental asbestos poisoning.
• BAI (Run Off) Limited and others v Durham and others
[2012]
 Note that the Fairchild /s.3 CA 2006 principle applies in
mesothelioma/ asbestos poisoning cases.
 What happens in other types of cases? Fairchild or Baker?
Exception 2- Injury due to failure to inform

 Where claimant suffers injury from a medical procedure due to the
failure of defendant to inform him of the potential risk of the procedure,
defendant could be liable for causing it if the risk materialises --
Chester v Afsher [2005]
 See also Sidaway v Board of Governors of the Bethlem Royal hospital
[1985]
Exception 3 – Concurrent causes

 Where damage was due two or more simultaneous or
contemporaneous breaches of duty of care, each of which may
produce the same result, the persons liable for any of the breaches
could be liable for the whole damage. See:
 Fitzgerald v Lane [1987]
Exception 4 – Supervening causes

 Should there be liability on defendant if additional damage to
claimant occurred due to the negligence of a third party or natural
causes
 Yes -- Baker v Willoughby [1970] HL
 (Claimant’s leg injured and disabled in accident by defendant;
Claimant had to take a low-paid job as a consequence; same leg
shot by robbers at the place of work; leg had to be amputated;

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Original employer liable for whole loss of use of the leg and earning
capacity).
 No – Jobling v Associated Diaries Ltd 1982) HL (defendant
company not liable for subsequent myelopathy suffered by claimant
from unrelated sources).
Legal Causation
Re Polemis
 In Re An Arbitration between Polemis and Another and Furness, Withy
and Company, Limited – [1921] CA
 A person would be liable for all direct consequences of his negligent
act/omission
 The case did not distinguish between foreseeability of harm and the
foreseeability of the type/kind of harm that did occur
 Once any harm was a foreseeable consequence of a negligent act, the
defendant would be liable, even though that type/kind of harm was not
foreseeable.
 Facts – stevedores carelessly dropped a plank into a ship’s hold; On its
way down, the plank struck something, which in turn ignited petrol
containers on the ship. The ship was destroyed by fire.
 Held: (2.) That since the falling of the plank was negligent, the
defendant was liable for the fire and the destruction of the ship. It was
immaterial that the spark and the consequent fire could not have been
anticipated.
 “The question whether the damage could reasonably have been
anticipated is relevant only on the question whether the act is or is not
negligent”.
 Banks LJ: “The fire appears to me to have been directly caused by the
falling of the plank. Under these circumstances I consider that it is
immaterial that the causing of the spark by the falling of the plank could
not have been reasonably anticipated. The appellants' junior counsel
sought to draw a distinction between the anticipation of the extent of
damage resulting from a negligent act, and the anticipation of the type
of damage resulting from such an act […] I do not think that the
distinction can be admitted. Given the breach of duty which constitutes
the negligence, and given the damage as a direct result of that
negligence, the anticipations of the person whose negligent act has
produced the damage appear to me to be irrelevant. I consider that the
damages claimed are not too remote”.
 Scrutton LJ: “To determine whether an act is negligent, it is relevant to
determine whether any reasonable person would foresee that the act
would cause damage; if he would not, the act is not negligent. But if the
act would or might probably cause damage, the fact that the damage it
in fact causes is not the exact kind of damage one would expect is
immaterial, so long as the damage is in fact directly traceable to the
negligent act, and not due to the operation of independent causes
having no connection with the negligent act, except that they could not
avoid its results. Once the act is negligent, the fact that its exact
operation was not foreseen is immaterial”.

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Departure from Re Polemis

 The Privy Council in Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd (“The Wagon Mound”) (No. 1) [1961] over-rulled
Re Polemis
 It distinguished between foreseeability of any harm and the
foreseeability of the type of harm that did occur.
 A defendant would not be liable in negligence for losses if the kind of
loss/harm that occurred was not a foreseeable consequence of the
accident.
Remoteness of damage
 Under the Wagon Mound principle, a defendant will not be liable for
remote consequences of his breach of duty
 A consequence would be remote if that kind of damage was not
reasonably foreseeable.
 The question really is not whether the defendant breach led to the
damage but whether the damage suffered by the claimant is one for
which the defendant out to be liable in law.
 This is the doctrine of remoteness of damage
 Remoteness is a question of law rather than a question of fact.
Wagon Mound #1 – Viscount Simmonds

“It does not seem consonant with current ideas of justice or morality that for
an act of negligence, however slight or venial, which results in some trivial
foreseeable damage the actor should be liable for all consequences however
unforeseeable and however grave, so long as they can be said to be ‘direct’.
It is a principle of civil liability, subject only to qualifications which have no
present relevance that a man must be considered to be responsible for the
probable consequences of his act. To demand more of him is too harsh a rule,
to demand less is to ignore that civilised order requires the observance of a
minimum standard of behaviour”.
Applying the Wagon Mound principle

1. Provided the damage is of the foreseeable kind/type, the exact
damage, and the extent of the damage need not be foreseeable.
• Bradford v Robinson Rentals Ltd [1967] – frost bite from
exposure to extreme cold was not remote.
• Jolley v Sutton [2000] – injury on a 14 year-old boy who
jacked up a disused boat was not remote.
• Hughes v Lord Advocate [1963] – exploding paraffin lamp
the same kind of harm as expected from an inflammable
substance.
o Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] – large
explosion from chemicals the same as foreseeable small
explosion.
o Parsons v Uttley Ingham & Co Ltd – pigs’ death from nuts
contamination not remote since sickness was foreseeable

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2. No liability where damage is of an unforeseeable kind

– Tremain v Pike [1969] – rare weil’s disease from rat urine was
too remote since the kind of damage from rat infestation was
likely to be bites and food poisoning.
– Doughty v Turner [1964] – explosion occurred when an asbestos lid
accidentally fell into a cauldron of molten metal. It was not known that
asbestos and molten metal could react in that manner. Held, the
explosion was too remote.
3. The Egg Shell Skull Rule
 Defendant liable for claimant’s foreseeable injury even if it is more than

expected due to the latter’s unusually weak or vulnerable disposition –
the defendant must take his victim as he finds him.
 Rule was formulated in:
– Dulieu v White [1901]
“If a man is negligently run over or otherwise negligently injured in his
body, it is no answer to the sufferer’s claim for damages that he would
have suffered less injury, or no injury at all, if he had not had an
unusually thin skull or an unusually weak heart” – Kennedy J, at p.
679).
 The rule was applied in: Smith v Leech Brain – D liable for C’s lip
cancer occasioned by burns from D’s molten metal even though C had
a latent cancer.
 A defendant would be liable for harm/death his victim suffers due to
medical treatment warranted by his breach of duty unless there has
been novus actus interveniens
 Robinson v Post Office – D liable for C’s encephalitis due to anti-
tetanus injection given to him because of laceration caused on his leg
by D.
 The egg-shell skull principle applies to C’s property and the external
physical circumstances surrounding him.
 Great Lakes Steameship Co v Marple Leaf Milling Co – D liable for
grounding of ship due to overload and low tide.
 It also applies to C’s impecuniosity – Lagden v O’Connor – extra cost
of hiring a replacement car on credit recoverable.
4. Novus actus (new intervening act)

 A novus actus interveniens might make Claimant’s damage/harm
remote and unrecoverable unless it is reasonably foreseeable or a
consequence of D,s breach of duty.
 The intervention might be:
 The act of the claimant.
 The act of a third party, or
 A natural event
(a) Act of the claimant

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 A claimant might break causation if he fails to take reasonable care not

to aggravate his injury/loss; provided his behaviour was not
necessitated or compelled by the defendant’s breach.
– McKew v Holland and Hannen and Cubitts [1969] – C’s reckless
descent of steep stairs broke causation:
– Wieland v Cyril Lord [1969]– Fall due to poor sight caused be
neck injury did not break causation
– Emeh v Chelsea and Westminster AHA [1985] – Refusal to
abort a late pregnancy did not break causation.
– Suicide not a novus actus if foreseeable or necessitated by D’s
negligence
– Reeves v Metropolitan Police Commissioner [2000] -- Police
liable for suicide of a suicide-risk prisoner.
– Corr v IBC Vehicles Ltd [2008] – suicide due to depression
caused by accident did not break causation.
(b) Act of a third party

Causation may be broken where a third party intervenes after D’s
breach of duty provided the intervention was not foreseeable or a
natural consequence of the D’s negligence.
a. Knightley v Johns [1982] – Police motorcyclist riding against
traffic and causing accident broke causation.
b. Rouse v Squires [1973] – D liable for subsequent accident due
to motorway obstruction by his negligence since 2 nd accident
was foreseeable
• Necessary medical intervention will not break causation unless it was

grossly negligent, inappropriate or unusual.
• A necessary and foreseeable, but negligent rescue attempt will not
break causation.
• An instinctive act of self-preservation or one necessitated by D’s
breach will not break causation
 Scott v shepherd [1773]
 The Oropesa [1943]
(c) Act of Nature
A supervening natural event may amount to a novus actus interveniens.

-- Carslogie Steamship Co v Royal Norwegian Government [1952]
– Storm damage to ship was a novus actus.
-- Jobling v Associated Dairies [1982] -- C’s myelopathy was a
novus actus.
Claimant’s negligence and Novus actus

 The claimant’s own negligence may contribute to his
loss/damage without breaking the chain of causation.

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 However, in that situation, the defendant, as a matter of law

ought not to be responsible for the entirety of the ensuing
damage.
Contributory negligence –share of liability

 In such situation the defendant remains liable but the claimant’s
damages would be reduced to the extent of his contribution.
S.1 Law Reform (Contributory Negligence) Act 1945

 Where any person suffers damage as the result partly of his own fault
and partly of the fault of any other person or persons, a claim in respect
of that damage shall not be defeated by reason of the fault of the
person suffering the damage, but the damages recoverable in respect
thereof shall be reduced to such extent as the court thinks just and
equitable having regard to the claimant’s share in the responsibility for
the damage […]
Defences to Negligence
 Contributory negligence
 Consent – voluntarily assuming the risk – “volenti”
 Illegality
Contributory negligence
 Law reform (Contributory Negligence) Act 1945 s.1 (1)
 “Where any person suffers damage as the result partly of his own fault
and partly of the fault of any other person or persons, a claim in
respect of the damage shall not be defeated by reason of the fault of
the person suffering the damage, but the damages recoverable in
respect thereof shall be reduced to such extent as the court thinks just
and equitable having regard to the claimant’s share in the responsibility
for the damage”.
 This is a partial defence.
 To raise the defence of contributory negligence:
 Did the claimant fail to exercise reasonable care for their own safety?
 Did this failure contribute to the claimant’s damage? And
 By what extent should the claimant’s damages be reduced?
1. Did the claimant take reasonable care for his/her own safety?
 An objective standard is applied – ‘what would a reasonable person in

the claimant’s position have done to avoid being harmed?’ Note: the
sliding scale for children, as with setting the standard of care, applies –
Probert (A Child) v Moor 2012
 Jones v Livox Quarries Ltd (1952)
 ‘A person is guilty of contributory negligence if he ought reasonably to
have foreseen that, if he did not act as a reasonable prudent man, he
might be hurt himself; and in his reckonings he must take into account
the possibility of others being careless’ – Denning

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 Armsden v Kent Police (2009)

2. Did this failure contribute to the claimant’s damage?
 The claimant’s own carelessness must make some contribution to the
injuries that they suffered.
 The injuries suffered must arise from some risk or danger of which they
are aware and against which they could be expected to take
precautions - Jones v Livox Quarries Ltd ; St George v Home
Office [2008].
3. By what extent should damages be reduced?

 The Law Reform (Contributory Negligence) Act 1945 section 1(1)
states that a court can reduce the claimant's damages by whatever
amount seems just according to their share in responsibility for the
damage.
 The courts look at the comparative blameworthiness of the parties
when deciding by how much to reduce damages.
 Froom v Butcher 1976: Failure to wear a seatbelt – reduction of 20%.
 Young v Kent County Council 2005: Equal blame – reduction of 50%
Exceptions: Children
 Lord Denning in Gough v Thorne (1966)
 “A very young child cannot be guilty of contributory negligence. An
older child may be, but it depends on the circumstances. A judge
should only find a child guilty of contributory negligence if he or she is
of such an age as reasonably to be expected to take precautions for
his or her own safety”
Consent – “volenti”
 Consent is a complete defence.
 Volenti non fit injuria (“no wrong will be done to the willing”).
 “One who has invited or assented to an act being done towards
him cannot, when he suffers it, complain of it as wrong” – Smith
v Baker (1892) – per Lord Herschell.
 The defence can arise in two ways:
i. Where the claimant consents to the specific harm caused by the
defendant (or consents to the risk of that harm being caused by the
defendant’s negligence).
ii. Where the claimant consents (or is viewed to have consented) to the
defendant’s exclusion of liability for any injuries that they may cause
(subject too UCTA 1977).
Consent – i)
 Where the claimant consents to the specific harm/risk of harm the
defendant must show that the claimant did consent to that specific
harm/risk of harm and so they must have been aware of the risk of that
injury.
 Consent to the risk of harm:
 The claimant knew the nature and extent of the risk of harm; and
 Voluntary agreed to it -Morris v Murray 1991

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Consent i) – Application of the defence

 The test is subjective – the particular claimant must know and agree
to the risk – knowledge of, or willingness to take a risk, is not the same
as consent - Dann v Hamilton [1939], followed in Nettleship v
Weston [1971]; Reeves v Commissioner of Police for the
Metropolis [2000].
 However – cf Morris v Murray (1991) – it appears that mere
knowledge may be sufficient if the risk is particularly great i.e. the
courts may treat knowledge as tantamount to consent.
 The application of the defence of consent in relation to passengers in
road traffic accidents/collisions is now excluded by the Road Traffic
Act 1988, section 149.
Illegality
 Illegality is a complete defence, which denies recovery to certain
claimants injured while committing unlawful activities.
 The principles are difficult to justify and apply.
 The defences contributory negligence and volenti are used far more
often in practice.
Gray v Thames Trains (2009) – two formulations of the illegality defence:

 A claimant cannot recover in civil law for the consequence of a criminal
sanction imposed as a result of the claimant’s unlawful act (e.g. a fine
or imprisonment).
 A claimant ought not to be able to recover damages for losses they
recover while engaged in a criminal activity.
 If the illegal act is trivial or simply forms that background to the
defendant’s tort it is not likely to bar a claim - National Coal Board v
England [1954]
 Injury as a direct result of joint illegal enterprise - Pitts v Hunt [1991],
but see Delaney v Pickett [2011]
Topic 2 – Special duties – Negligently Inflicted Psychiatric Harm
Introduction
 Psychiatric harm is a form of personal injury.
 It is looked at through the spectrum of duty of care
 Does the defendant owe a duty of care to one such as the claimant
who has suffered psychiatric harm?
 Control mechanisms developed to restrict recovery for negligently
inflicted psychiatric harm.
 So policy plays a part.
Leading cases House of Lords authorities:
 Alcock v Chief Constable of South Yorkshire (1992)

 Page v Smith (1996)
 White v Chief Constable of South Yorkshire (1999)
Overview

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Two types of potential claimants suffer psychiatric harm

1) Claimant who was potentially physically in danger but actually suffered
psychiatric harm instead. These are primary victims, one set of rules
apply for recovery.
2) Claimant who was not potentially physically in danger but suffered
psychiatric harm from witnessing the physical injuries of others. These
are secondary victims, another set of rules apply for recovery.
What qualifies as psychiatric harm?

 Must be recognised medical condition (so not grief or emotional
suffering no matter how painful but pathological grief qualifies).
 Leading authority on this point – Hinz v Berry (1970), “In English law no
damages are awarded for grief or sorrow caused by a person’s death”
– Lord Denning.
Examples of recognised psychiatric harm
 Chadwick v BR – anxiety neurosis

 Hevicane v Ruane – clinical depression
 Brice v Brown – personality change
 Alcock Chief Constable of South Yorkshire – post -traumatic stress
disorder.
Secondary victim: who/what?

 Rescuers, employees if they are not in physical danger are secondary
victims.
 Secondary victims must have a special relationship with the person
physically injured.
 Secondary victims must have certain degree of proximity in time and
space to the accident.
Primary or secondary victim?

 Secondary victims must perceive the events in a special way.
3 cases at the core of the current law

 Alcock v Chief Constable of South Yorkshire
 Page v Smith
 White v Chief Constable of South Yorkshire
The leading case

 Alcock v Chief Constable of South Yorkshire 1991 HL
 Facts –
 Hillsborough disaster
 96 football fans died
 400 needed hospital treatment
 Plaintiffs test case x 10 = parents, brothers, sisters, a brother in law, a
grand-parent and a fiancee of immediate victims.
 Some were at the ground,
 Some had seen or heard about it on TV or radio.

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 So all plaintiffs were secondary victims

 All suffered psychiatric harm
 Police admitted liability but only to those who were crushed or suffered
physical injury.
The decision
All claims were rejected.
The ratio
The lack of proximity between the plaintiffs and the defendant meant that no
duty of arose such as was necessary to ground a claim in the tort of
negligence.
BUT guidelines by the House – 5 requirements set out to succeed:

1) Must be recognised psychiatric harm
2) Must be foreseeability of psychiatric harm
3) Must be proximity of relationship between plaintiff and immediate
victim.
Guidelines by Lord Oliver
4. Must be proximity in time and space to the event OR its

immediate aftermath.
5. Must be proximity of perception: the means by which shock is
caused.
Second core case – Page v Smith 1996 HL

Facts – plaintiff in relatively minor car accident. P not physically injured but
suffered from ME prior to accident. Illness in remission at the time of accident.
Ratio: reasonable foreseeability of psychiatric injury need not be established
where there is reasonable foreseeability of physical injury.
Do rescuers and employees have special status?

No – leading case: White v Chief Constable of South Yorkshire (1999) HL.
Facts – case arose out of the same events as Alcock. Police officers on duty
on the day, 3 plaintiff at the ground itself, 1 attempted to free spectators, 2
attended the makeshift morgue. 2 other plaintiffs drafted in later on in the pm
and witnessed gruesome scenes. 1 other plaintiff worked as liaison officer at
the hospital. All 5 suffered psychiatric illness as a result of their participation.
All Ps were secondary victims. The claim was based on Ps being rescuers or
employees and as such claim fell outside of both Alcock and Page v Smith so
should recover. Claims were not allowed. Neither a rescuer not an employee
enjoys special status permitting recovery for psychiatric harm. Must be either
primary or secondary victim.
White: policy?
The general public “would think it wrong that policemen, even as part of a
general class of persons who rendered assistance, should have the right to

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compensation for psychiatric injury out of public funds while the bereaved
relatives are sent away with nothing” Lord Hoffman.
But how did we get here?
 Initially courts were reluctant to recognise any such claims:
 Victorian Railway Commissioners v Coultas 1888 PC = claim rejected
 Fear of many fraudulent claims
 Floodgates
 Difficulty in valuing
 Problems in showing causal link
Early cases
 Dulieu v White 1901 = pregnant barmaid. Negligently driven carriage

crashed into pub. Shock and miscarriage. Claim upheld. Introduction
of “impact theory”. P allowed to recover for psychiatric harm if caused
by reasonable fear of being physically injured by D’s negligence.
 Hambrook v Stokes 1925 CA: pregnant mother taking 3 children to
school and going back. Children out of sight. Lorry speeding. Mother
feared for children’s safety. Shock leading to miscarriage and medical
complications.
 Decision= D found liable by a majority of CA
 Bourhill v Young (mmm… sounds familiar?) 1943 HL = pregnant

fishwife. Miscarriage brought about by shock.
Decisions: claim rejected. Effectively not foreseeable P. BUT HL considered
several points.
Bourhill v Young HL’s points

 Pregnant woman more susceptible?
 Psychiatric illness = can only recover if reasonably foreseeable in
person of ordinary fortitude (which a pregnant woman is not?...)
 Is fear for personal safety necessary?à (“impact theory”)
More early cases

 King v Phillips 1953 CA =
Mother at upstairs window 70 yards away. Sees son’s tricycle
disappear under reversing taxi. Hears son’s screams.
Decision = Claim denied.
Mother not in area of risk.
Followed Bourhill rather than Hambrook
 Chadwick v BR 1967 = rescuer case.
 Facts = horrendous train crash.
 P lived 200 yards away from scene of the accident.
 Went to scene and worked all night helping injured and dying.
 NB P crawled into carriage to assist injured.
 P developed severe anxiety neurosis.
 Decision = D had admitted they were liable for the crash. Court found
D liable for P’s psychiatric harm.
 NB = modern approach to rescuers in White revisited Chadwick and
said he was a primary victim.

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The beginning of the modern approach
 McLoughlin v O’Brian 1982 HL

 Facts = P’s husband and 3 of her children in serious RTA caused by
D’s negligence. Mrs McL did not witness the accident. She was at
home when it occurred.
 1h after the accident friend informs her that 17 year old son who was
driving is dying. Friend drives her to the hospital. At hospital she is told
her 3 year old daughter is dead. She can hear her 17 year old son
screaming. She sees her husband and 7 year old daughter covered in
oil and mud and distressed.
 She is taken to see her 17 year old son. He seems to recognise her
and becomes unconscious.
 Mrs McL suffered a psychiatric illness = severe depression, personality
change, both affecting her ability as wife and mother.
 Decision = claim allowed. D liable to Mrs McL for her psychiatric harm.
 The ratio =law as was is extended to situations where P has neither

seen nor heard the accident itself. BUT P had come upon the
accident’s immediate aftermath.
The beginning of the modern approach
 2 approaches
 Lord Bridge = only test is reasonable foreseeability of psychiatric harm
 Lord Wilberforce = strict requirements for claim to stand
 Lord Wilberforce’s approach adopted and expanded upon in leading
case of Alcock
McLoughlin v O’brian
 Lord Bridge (and Scarman)= liability for psychiatric harm should be
decided by applying broad test of foreseeability of the injury occurring
[although could look at Lord Wilberforce’s control mechanisms]
 Lord Wilberforce - law should be extended to cover P’s claim = logical
progression
 BUT need to place limits on extend of admissible claims.
McLoughlin v O’brian - Lord Wilberforce
 1.The class of persons whose claims should be recognised

 2.The proximity of these persons to the accident
 3.The means by which the psychiatric harm is caused
 = Control mechanisms
1. = Possible range is between the closest of family ties, parent,

husband and wife and extreme end ordinary bystander. Law always
denied bystander who merely witnessed events. Not very close family
tie? = Scrutinize carefully.

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2. = Proximity to accident close in time and space. But impractical and

unjust to insist on physical presence contemporaneous to accident.
3. means = law does not recognise liability where mere communication of

distressing news leads to psychiatric harm. Psychiatric harm must arise
through direct perception of the accident or its immediate aftermath, by
sight OR hearing e.g. through simultaneous TV might qualify {as to which
see Alcock later}.
A more detailed look at the present law

 McLoughlin v O’brian heralded the law as set out in Alcock – let’s go
back to the present position.
Let’s take a closer look at the guidelines in Alcock.
Alcock in detail
 The hurdles:
1. Proximity of relationship =
à No rigid categories of relationship
à Must be a close relationship of love and affection
à Presumption of above for spouses, parents and children
Proximity of relationship (cont.)

à Such presumption can be rebutted
à Other relatives no presumption: must show existence of especially
close relationship
à So is closeness of relationship an absolute requirement? Door left
open for a bystander witnessing exceptionally horrific event
 2. Proximity in time and space
à Must be high degree of proximity to the accident in time and space
à i.e. witness the event or be there in the immediate aftermath
 TV coverage?
à pre-recorded TV pictures would not satisfy the requirement of proximity
in time
à Simultaneous live broadcast? In this case not valid = 2 reasons
à 1. suffering of recognisable individuals not shown
à à 2. Pictures transmitted taken from various cameras from many
different view points = show combination of scenes which one present
at the scene could not have seen
à So normally P should perceive the events through their own unaided
senses.
à à BUT no inflexible rule. May be exceptional circumstances were
simultaneous broadcast of disaster could equate with direct perception.
à 3. The means by which the psychiatric harm is caused (including
“Sudden shock” requirement)
à Similar as a concept to time and space requirement BUT additional
points
à Psychiatric harm must result from the sudden psychological impact of
witnessing a single event (or its immediate aftermath)
à What would NOT work = subsequent reflection on the event, prolonged
exposure to distressing circumstances.

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à Merely being informed of the event/death will NOT suffice
What happened after Alcock

 Sion v Hampstead Health Authority 1994 CA
 Facts =Claimant was father of victim. Son injured in motorbike
accident. Father stayed at son’s side for 14 days. Father watched son
get worse, slip into coma and die.
 Held = father’s claim denied. Psychiatric harm had not resulted from
the sudden appreciation of a horrifying event.
 McFarlane v E.E. Caledonia 1994 CA
 Facts = Piper Alpha oil rig exploded. P in support boat. Witnessed
death of fellow workers. Claimed secondary victim and should recover
on account of exceptionally horrific circumstances (relying on
comments in Alcock).
 Held = claim failed. Not reasonably foreseeable that a mere bystander
would suffer psychiatric harm in these circumstances. Noted people’s
reaction to horrific events are entire subjective. = practical and policy
objections to allowing such claims.
After Alcock
 Page v Smith 1996 HL

 White v Chief Constable of South Yorkshire 1999 HL
 North Glamorgan NHS Trust v Walters 2003 CA
 Facts =Claimant mother of baby. Baby treated negligently by hospital.
Baby had fit leading to coma. 36 h later died in mother’s arms.
 Held = 36 hours during which C had been subjected to trauma could be
regarded as a single event for the purpose of satisfying the sudden
shock requirement
 Galli-Atkinson v Seghal 2003 CA - Facts = Claimant mother. Daughter
in road accident. Mother at the scene 1 hour later. Told daughter had
been killed. Mother attended mortuary. Saw daughter’s body. Body
cleaned up but badly disfigured.
 Held = Visit to mortuary NOT separate event (unlike in Alcock)
occurring after the horrible event had occurred. The visit in this case
was part of a sequence of uninterrupted events making up the entirety
of the mother’s perception of the tragedy.
Law Reform
 Remember those opening quotes?
 The Law Commission Report
 March 1998 (ancient now!)
= law after Alcock in need of review
- Remove 2 Alcock control mechanisms
- A fixed list of people
- Remove “sudden shock” requirement
- “Actual danger” proviso
- Rescuers, involuntary participants and unwitting agents should be left
to common law.

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Answering a problem question
 1. Establish that D is liable to the immediate victims

 2. Potential claimants primary or secondary victim?
 What does a claimant need to establish in either case?
 What are the leading authorities?
 Apply to your given facts

 Speculate if unclear
 Focus for discussion? Length of aftermath? Perception of event/means
of shock?
 Employee/rescuer issue?
Answering an essay question

 Why have the courts been reluctant to allow claims?
 Is the floodgate argument valid?
 Development of the law
 Close analysis of the leading cases:
 McLoughlin, Alcock, White (Page v Smith)
 Focus points for discussion: aftermath, unaided senses, sudden shock
requirement.
 Ability to discuss suggestions for reform and most recent case law
Test yourself
 Define immediate, primary and secondary victim.
 If danger invites rescue, does it mean that a rescuer will be able to
recover for psychiatric harm in all cases?
 Perception of the incident leading to psychiatric harm must always be
through the claimant’s senses. TV transmission will therefore never be
acceptable in psychiatric harm cases. True? False? Discuss and
explain.
Topic 2 – Special duties – Economic Loss
What is economic loss?

 Financial loss as a result of physical injury to person or property is
recoverable
 It covers =
 cost of repairing physical damage to person or property AS WELL AS
 consequential loss of earnings or profits during convalescence or repair
 Aka = “consequential economic loss”
Pure Economic Loss

Pure” because unaccompanied by physical damage.
The financial damage suffered does not directly result from injury to person
or property.
e.g. product bought which turns out to be defective but does not cause injury
Spartan Steel v Martin

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 Case is good illustration for what the courts will allow a claimant to
recover, mix of loss for damage to property, consequential loss and
pure economic loss.
 CA case [1973] Lord Denning and policy.
 D negligently cut an electric cable and caused a 14h power cut.
 C could not heat its furnace without electricity.
 Metal which was in furnace solidified.
 C had to shut factory temporarily.
 C claimed damages under 3 heads:
 1. damage to the metal which was in furnace at the time of the power
cut = physical damage to property
 2. loss of profit would have made on the sale of the damaged metal
which was in furnace at the time of the power cut = consequential
economic loss
 3. loss of profit on the metal which would have been processed during
the time the factory was closed due to the power cut = pure economic
loss
 CA held by majority = claims 1 + 2 allowed – 3 not allowed. Regarded
loss of profit not arising out of physical damage.
Example in problem question

 RTC – Robert driving – loses control of vehicle – crashes into Emma’s
car.
 Emma highly paid fashion model on her way to interview for lucrative
job.
 1. Emma suffers facial lacerations.
 2. Emma is late for the interview and loses the job.
Pure economic loss

 So is it the case that a claimant can NEVER recover for pure economic
loss?
 Not quite. The law developed over the last 40 years with a period of
expansion and then more conservatively.
Exception to exclusionary rule
 Hedley Byrne v Heller and Partners [1963] HL

 Ground-breaking
 You must know it
Hedley Byrne & Co. v Heller & Partners

 FACTS: P advertising agents doubtful about financial status of clients
Easipower Ltd. P asked Easipower’s bank. Bank said Easipower
sound. But disclaimer)
 P relied on the advice. Easipower went into liquidation.
 P suffered financial loss.
 P faced 2 major problems:
 1. statement was made negligently and not fraudulently and fraud was
needed up till now under the previous authorities

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 2. claim was for financial loss rather than for personal injury or damage
to property (this is what concerns us)
 HL held: D would have been liable for the negligently made mis-
statement if they had not attached the disclaimer of liability. So pure
economic loss can be recoverable
 But only where 4 conditions exist:
 1. Special relationship of trust and confidence exists (fiduciary) AND
 2. Party giving advice/statement voluntarily assumes the risk AND
 3. Other party relies on the advice
 4. Other party’s reliance was reasonable
 1st time duty of care extended to cover pure economic loss
 BUT big problem: statements can be repeated and then relied on by an
unlimited number of people SO
 HL imposed controls on scope of liability i.e. “proximity”, “special
relationship”, “assumption of responsibility by D” and “reliance” by P.
Special relationship
 Lord Reid: would arise where it is clear that party seeking information
trusts the other to exercise such a degree of care as is required in the
circumstances + when information given when it is know the recipient
will rely on it.
 In business context only? Lord Reid said yes but
 See Chaudhry v Prabahkar [1989] CA
 Employment reference? Yes
 Spring v Guardian Assurance Plc [1992] HL
 P had been employed by D but then dismissed
 P sought job with one of D’s competitors
Spring v Guardian Assurance Plc

 But P received such bad reference that he did not get the job
 Statements in the reference were made honestly BUT gave a
misleading impression of the circumstances surrounding the dismissal
and made without proper investigation of the facts
From statements to services

 Statements in Spring v Guardian that in appropriate cases Hedley
Byrne principles should not be limited to statements only but could
apply more generally to provision of services.
 Confirmed in:
 Henderson v Merrett Syndicates Ltd [1995] HL
 Caparo Industries plc v Dickman [1990] HL
 Facts = P took over a company. P relied on figures contained in an
audit prepared by D firm of accountants. P alleged audit prepared
negligently.
Caparo v Dickman
 P alleged audit caused them financial loss. The company was not
profitable.
 Decision: no duty of care owed here.

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 Reason: P as potential purchaser of shares in the company belonged

to a potentially large class of persons. Size of class could not be
ascertained. + Audit had been prepared for one purpose and relied
upon by P for another purpose.
Topic 3 – Defamation
Please note that the law on defamation has recently been modified by the
Defamation Act 2013. The Act came into force on 1 January 2014. Our study of
the subject will reflect the changes that have been brought about by the new
Act. Note however, that the textbooks might not have adequately covered the
changes in their current editions.
1. INTRODUCTION
The tort of defamation protects a person’s reputation and integrity from being harmed
by the dissemination of false statements. The need to protect individual reputation
was highlighted in Reynold v Times Newpapers [2001] 2 AC 127, 201:
Reputation is an integral and important part of the dignity of the individual. It
also forms the basis of many decisions in a democratic society which are
fundamental to its well-being: whom to employ or work for, whom to promote,
whom to do business with or vote for. Once besmirched by an unfounded
allegation in a national newspaper, a reputation can be damaged for ever,
especially if there is no opportunity to vindicate one's reputation. When this
happens, society as well as the individual is the loser. For it should not be
supposed that protection of reputation is a matter of importance only to the
affected individual and his family. Protection of reputation is conducive to the
public good. It is in the public interest that the reputation of public figures
should not be debased falsely – Lord Nicholls.
Under article 10 of the Human Rights Act 1998 (and the ECHR 1950) everyone has
the right to freedom of expression, including the right to hold opinions and to receive
and impart information. However, the exercise of this right is subject to the conditions
prescribed by law for, among other things, the protection of the reputation or rights of
others.
Thus, the tort of defamation seeks to balance the right to freedom of expression and
the need to protect individual reputation, integrity and privacy
. Freedom of expression is therefore, accompanied by a duty not to use that freedom
to the detriment of others without justification.
However, the tort of defamation does not protect someone’s feelings or opinion about
himself or herself from being wounded or damaged; it only seeks to protect a person
in relation to what other people think of, or how they relate with, him or
her.

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2. MEANING OF DEFAMATION
Defamation is the publication of a false statement about somebody that is injurious to
his or her reputation; or which exposes him or her to ridicule, odium, contempt or
opprobrium by others; or which causes other people to shun him or her. It has also
been defined as:
A publication, without justification or lawful excuse, which is calculated to

injure the reputation of another, by exposing him to hatred, contempt, or
ridicule -- Lord Wensleydale (then Parke B) in Parmiter v. Coupland (1840) 6
M & W 105, 108.
A statement which tends to lower the claimant in the estimation of right-

thinking members of society generally, and in particular to cause him to be
regarded with feelings of hatred, contempt, ridicule, fear and dis-esteem –
Lord Atkin in Sim v Stretch [1936] 2 All ER 1237
See also the definitions in Youssopoff v MGM [1934] 50 TLR 581 (p. 4 below).
 A statement means “words, pictures, visual images, gestures or any other

method of signifying meaning” – S. 17 Defamation Act 1996; s 15 Defamation Act
2013.
 There are two types of defamation: libel and slander.
2.1 Libel
Libel refers to written or visual defamatory statement in a permanent form. This
includes written statements, pictures, movies, postcards, and statues. Theatre
performances and TV and radio broadcasts also come into this category – ss. 4 and
166 Broadcasting Act 1990.
Monson v Tussaud’s [1894] – a waxwork figure of the claimant with a gun close to
the “Chamber of Horrors” in the defendant’s premises was held to be libellous; it
suggested that the claimant (who had earlier been discharged on criminal trial) was a
criminal.
Youssoupoff v MGM [1934] -- a film (Rasputin and the empress) that suggested that
the claimant, a princess of the Russian royal family, was seduced or raped by

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Rasputin (a Russian Mystic, also referred to as the “Mad Monk”) was held to be
libellous.
 Words recorded on a disc/CD/Tape are likely to be considered libel rather

than slander because of their permanent character.
 In the past, libel was always actionable per se; there was a presumption that
the statement was injurious.
This rule may now have to pass the test of serious harm introduced by the
Defamation Act 2013; see p. 6 below.
 Libel may also be punishable as a crime if it is sufficiently serious.
2.2 Slander
Slander refers to a non-permanent or transitory defamatory statement. The statement
may be by words, gestures, or sign language. The nature of slander means that it
has a much more limited scope of publication than libel.
Slander is not actionable per se; proof of actual damage is required. There is
however, no need to prove damage where the slander clearly and
unambiguously imputes:
 That the claimant had committed an offence punishable by

imprisonment;
 That the claimant was unfit, dishonest or incompetent in relation to his

trade, profession or calling --
s. 2 Defamation Act 1952.
The reason for these exceptions is that the above allegations are of such a
nature as to cause serious harm to the reputation of the claimant.
Note that the scope of these exceptions were reduced by the Defamation Act
2013, s. 14

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 A slanderous statement which imputes that the claimant had contracted a

contagious or venereal disease would now only be actionable per se if the
claimant has suffered special damage by reason of the allegation
 The section also abolished the Slander of Women Act 1891 under which
imputation of chastity against a woman was actionable per se.
3. CONDITIONS FOR DEFAMATION

There are three requirements for a successful claim for defamation – whether libel or
slander. These are that the statement must be defamatory; that the statement must
refer to the claimant; and that the statement must be published.
1. Statement must be Defamatory
A defamatory statement (as we have seen in the definition of defamation) is a false

statement in reference to somebody that is injurious to his/her reputation in the eyes
of others; or which exposes him/her to ridicule, odium, contempt, or opprobrium; or
which causes other people to avoid or shun him/her.
Whether the statement is or may be defamatory is an objective and factual one:
Sim v Stretch [1936] 2 All ER 1237

The question, then, is whether the words in their ordinary signification are
capable of being defamatory […] Judges and textbook writers alike have
found difficulty in defining with precision the word 'defamatory'. The
conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is
probably too narrow. The question is complicated by having to consider the
person or class of persons, whose reaction to the publication is the test of the
wrongful character of the words used. I do not intend to ask your Lordships to
lay down a formal definition, but after collating the opinions of many
authorities I propose in the present case the test: would the words tend to
lower the plaintiff in the estimation of right-thinking members of society
generally -- Lord Atkin (emphasis added).
Youssopoff v MGM [1934]

[…] Not only is the matter defamatory if it brings the plaintiff into hatred,
ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part,
but also if it tends to make the plaintiff be shunned and avoided and that
without any moral discredit on [the plaintiff's] part. It is for that reason that
persons who have been alleged to have been insane, or be suffering from
certain diseases, and other cases where no direct moral responsibility could

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be placed upon them, have been held to be entitled to bring an action to

protect their reputation and their honour – Slesser L.J.
Berkoff v Burchill [1996] 4 ER 1008

[…] Words may be defamatory, even though they neither impute disgraceful
conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his
trade or business or professional activity, if they hold him up to contempt
scorn or ridicule or tend to exclude him from society. On the other hand
insults which do not diminish a man's standing among other people do not
found an action for libel or slander – Lord Justice Neill.
In Berkoff v Burchill, the statement: “film directors, from Hitchcock to Berkoff, are
notoriously hideous-looking people” was held capable of being defamatory.
According to the court:
In the present case, it would in my view, be open to a jury to conclude that in
the context the remarks about Mr Berkoff gave the impression that he was not
merely physically unattractive in appearance but actually repulsive. It seems
to me that to say this of someone in the public eye who makes his living, in
part at least, as an actor, is capable of lowering his standing in the estimation
of the public and of making him an object of ridicule – Lord Justice Neill.
Armstrong v Times Newspapers and Others [2006] ECWA Civ 519

The defendants were sued for an article entitled “L.A. CONFIDENTIAL: The Secrets
of Lance Armstrong”. The sub-title stated that a book co-authored by the 2 nd
defendant will “raise new questions about Lance Armstrong, five-time champion of
the Tour de France and an icon of the sporting world”. The article cast aspersions on
the claimants many Tour-de-France titles amidst suspicions of use of performance-
enhancing drugs in the sport.
The claimant claimed that the words in their natural and ordinary meaning meant and
were understood to mean that he had taken performance enhancing drugs; and that
by taking drugs and denying it, he was a fraud, a cheat, and a liar. It was held that
the words, in their natural and ordinary meaning were defamatory. (The judgment in
this case would, of course, be different today given that Armstrong has been proven
to have used prohibited substances to achieve all his Tour-de-France wins; and all
the titles have been stripped from him by the cycling authorities).
Contrast with:
Byrne v Deane [1937] 1 KB 818 – someone had tipped off the police about the
presence of a gaming machine in a golf club. Someone then posted a notice at the

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club stating: “but he who gave the game away, may he byrne in hell and rue the day”.
The claimant (Byrne) claimed that the statement was defamatory of him in that it
suggested that he was disloyal to his club. It was held that reporting a criminal
activity could not be defamatory in the opinion of right-thinking members of the
society.
 Where a statement is introduced by a caption or headline, the whole

publication, not merely the caption or headline, would be considered for the
purposes of defamation.
Charleston v News Group Newspapers [1995] 2 AC 65 – the question was whether a

picture of a near-naked man and woman (bearing the faces of the claimants) in a
pornographic pose under a caption “Strewth! “What’s Harold up to with our Madge”
was defamatory. The claimants played the characters Harold and Madge Bishop in
the Soap “Neighbours”. The defendant was held not liable; the publication must be
read as a whole to determine if the statement in question is defamatory:
Whether the text of a newspaper article will, in any particular case, be
sufficient to neutralise the defamatory implication of a prominent headline will
sometimes be a nicely balanced question for the jury to decide and will
depend not only on the nature of the libel which the headline conveys and the
language of the text which is relied on to neutralise it but also on the manner
in which the whole of the relevant materials is set out and presented. But the
proposition that the prominent headline, or as here the photographs, may
found a claim in libel in isolation from its related text, because some readers
only read headlines, is to my mind quite unacceptable.
The Requirement of Serious Harm
 The Defamation Act 2013, s. 1 now provides that a statement may only be
defamatory, in the case of individuals, if its publication has caused or is likely to
cause serious harm to their reputation.
 In the case of business, a statement would only be serious and therefore

defamatory if it has caused or is likely to cause the business serious financial loss
 The Act does not define “serious”; but this provision is designed to prevent trivial
and unfounded action based on flimsy statements. However, the courts approach
to defining defamatory statement is unlikely to change – the courts have not been
willing to hold a statement as defamatory if did not cause or had the capacity to
cause significant damage to one’s private or business reputation. The courts

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have usually maintained a “threshold of seriousness”; accordingly, the new

provision seems to be an affirmation of court practice. See:
 Sim v Stretch [1936] 2 All ER 1237
 Thornton v Telegraph Media Group Ltd [2010] EWHC 1414
 Jameel v Dow Jones & Co Ltd. [2005] EWCA civ 75
 The Defamation Act 2013, Explanatory Notes, s. 1
Innuendoes
These are statements which, prima facie, do not appear defamatory but may indeed
be so when read between the lines or when considered in the context of the
particular circumstances of a given case. Innuendoes are of two types: popular
(false) innuendo; and true innuendo.
False innuendo refers to a disguised defamatory statement. In a false innuendo, the

words may only become defamatory if construed beyond their ordinary or apparent
meaning, that is to say, when read between the lines. The words are therefore given
an extended meaning. As Lord Devlin pointed out in Lewis v Daily Telegraph [1954]
AC 234, “scandalmongers are induced by the penalties for defamation to veil their
meaning to some extent”.
Thus, the defamation in a false innuendo, is implied from the words used in the
statement, and not from any external factors.
In Sim v Stretch [Supra], the employer of a domestic servant sent this telegram to her
previous employer: “Edith has resumed her service with us today. Please send her
possessions and the money you borrowed also her wages to Old Barton”.
The previous employer claimed that the telegram contained an innuendo that he was
impecunious and unworthy of credit. The words were held not to be defamatory.

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Contrast this case with:
Lewis v Daily Telegraph [1954] AC 234 – a story that the claimant’s business was
being investigated by the City of London Fraud Squad was held not to be
defamatory; it did not carry an innuendo that the claimant was guilty of fraud.
A derogatory statement may be so near the surface that it is hardly hidden at

all or it may be more difficult to detect. If it is said of a man that he is a
fornicator, the statement cannot be enlarged by innuendo. If it said of a man
that he was seen going into a brothel, the same meaning would probably be
conveyed to nine men out of ten. But the lawyer might say that in the latter
case derogatory meaning was not a necessary one because a man might go
to a brothel for an innocent purpose. An innuendo pleading that the words
were understood to mean that he went there for an immoral purpose would
not, therefore, be ridiculous. To be on the safe side, a pleader used an
innuendo whenever the defamation was not absolutely explicit. That was very
frequent, since scandalmongers are induced by the penalties for defamation
to veil their meaning to some extent – Lord Devlin.
True innuendo -- In this instance, the words in their ordinary meaning are not
defamatory but become defamatory only when they are read by people who possess
additional information which are not mentioned in the statement.
 To succeed, the claimant must make known these additional information and
prove that the readers were aware of it.
Tolley v Fry (1930) AC 333 (HL)

An amateur golfer was featured, without his consent, in the defendant’s
advertisement of their chocolate creams. It was held to be defamatory in that it
contained an innuendo that the defendant had behaved inappropriately as an
amateur golfer by making money from an advertisement:
The innuendo alleged that the ‘defendants meant and were understood to
mean, that the plaintiff had agreed or permitted his portrait to be exhibited for
the purpose of the advertisement of the defendants’ chocolate; that he had
done so for gain and reward; that he had prostituted his reputation as an
amateur golf player for advertising purposes, that he was seeking notoriety
and gain by means aforesaid; and that he had been guilty of conduct
unworthy of his status as an amateur golfer – Viscount Hailsham.
Cassidy v Daily Mirror (1929) 2 KB 343

The publication of the photograph of a man and woman with the caption “C and B
whose engagement has been announced” was held to be defamatory by innuendo of
C’s wife. The publication suggested that she was living immorally with her husband.

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Vulgar abuse would generally not amount to a defamatory statement. Vulgar abuses
are statements of abuse made in the heat of passion or in the course of a quarrel.
Field v Davis [1955] Times 25 May 1955

C was called a tramp by D. C claimed that the word was defamatory because it
suggested she was a woman of loose and immoral character. It was held that the
word amounted to a vulgar abuse and was not defamatory.
2. Statement must refer to the Claimant
The statement must refer to the claimant. However, the reference may be explicit or
implied. If the claimant was named in the publication, there is little problem in finding
that it referred to him. Where the claimant was not named in the publication or where
the reference was not explicit, the statement could be said to refer to the claimant if
reasonable people, who are aware of the special facts, would believe that the
statement refers to him. The test therefore is whether the words could reasonably be
understood as referring to the claimant.
Hulton v Artemus Jones (1910)
A publication about the misdeeds in Dieppe of a certain “Artemus Jones, a church

warden from Peckham” (a fictitious character) was held to be a reference to the
claimant who bears the same name even though he was not a church warden, was
not from Peckham, and had not been to Dieppe:
What does the tort consist in? It consists in using language which others
knowing the circumstances would reasonably think to be defamatory of the
person complaining of and injured by it – Greene MR.
Newstead v London Express [1940] 1 KB 377
A publication on bigamy about “Harold Newstead, a 30 year-old Camberwell man

who was jailed for nine months liked having two wives at once,” was held defamatory
of the claimant who bore the same names and lived in Camberwell.
In a case in which there is no question that the words are defamatory of him if
they refer to B, and the contest is only whether they do so refer, [this]
preliminary question for the judge must be: ‘Are these words on their
reasonable meaning capable of referring to the plaintiff?’ And if he answers
that affirmatively I think that, properly, the first question to be left to the jury
should be: ‘could the words used by the defendant be reasonably interpreted
by those to whom they were published as referring to the plaintiff?

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Contrast with Blennerhasset v Novelty Sales Service [1933] 175 LTJ 393 -- an
advertisement for a yoyo which claimed that a certain Mr Blennerhasset had become
obsessed with the product was held not defamatory of the claimant as the statement
would not reasonably be construed as referring to him.
 There could therefore be a reference to somebody even though his name, image
or likeness was not actually used in the statement -- Morgan v Oldham’s Press
(1971) 1 WLR 1239.
 Reference need not be intentional: It does not matter that the defendant did not
intend to refer to the claimant; the important thing is that the statement could be
seen as referring to him. In this context, liability is strict.
Newstead v London Express [1940] 1 KB 377

The reasonable meaning of the words, upon the question whether they refer
to B must be tested objectively and not subjectively. The question is what do
the words mean as words, not what did A in his own mind mean or intend
them to mean – Mackinnon LJ.
See also Hulton v Jones (Supra)
 The principle of unintentional reference does not apply to the use of a look-alike
image as it may infringe article 10 of the Human Rights Act.
O’Shea v MGN [2001] EMLR 40

A web-published pornographic photograph of a model who looked very much like the
claimant was held not to be defamatory of the claimant since it would be impossible
for the defendant to discover whether a look-alike existed.
The strict liability principle should not cover the ‘look-alike’ situation. To allow
it to do so would be an unjustifiable interference with the vital right of freedom
of expression disproportionate to the legitimate aim of protecting the
reputations of ‘look-alikes’ and contrary to article 10 – Moorland J.
 Where the defamation relates to a class of persons, individual members of the

group may not be able to sue unless the statement pointed to them or could
reasonably be taken to refer to them.
 If the class in question is small, it may be easier to find that the statement
identified or referred to an individual member:

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Knuppfer v London Express Newspapers (1944)

The claimant claimed that an article in the defendant’s newspaper critical of Russian
political refugees (Mlado Russ) in general was libellous to him personally. The
claimant was the head of the UK branch that had only 24 members. It was held that
the publication did not refer to the claimant.
3. Statement must be published

To be defamatory, the offending statement must be published. This means that the
person who made it must express the statement to a third party. There would be
such a publication if the defendant intended the statement to be received by third
parties or ought to have foreseen such reception.
Pullman v Hill [1891] – dictating a defamatory letter to one’s typist was held to be
publication.
Huth v Huth [1915] 3 KB 32 – a defamatory statement in a letter addressed to a

householder but opened by a butler without authorisation was held not to have been
published.
 Where the defendant claims that he did not intend to publish the statement, the
test is whether it is reasonably foreseeable that the statement would be seen by a
third party. If the answer were to be yes, the defendant would be deemed to have
published it, otherwise he would not be.
Theaker v Richardson (1962) – The defendant sent a letter to the claimant in a

manila envelope, but the letter was opened by the claimant’s husband. It was
held that the letter had been published.
 A defamatory statement made by the defendant to the claimant is not actionable

since the claimant’s reputation has not been damaged. Similarly, there is no
defamation if the claimant himself publishes the statement to a third party.
 There can be no publication between spouses but there can be publication to one
spouse about the other.

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3.1 Republication
 Every repetition of a defamatory statement by another person is a new

publication and creates a new cause of action; the repeater of the statement will
be liable for the defamation. However, the originator of the statement may remain
liable for the repetition if:
(a) The repetition is a natural and probable consequence of the original
publication
(b) There was a significant risk of repetition; and
(c) The statement was intended to be repeated; and
(d) The first receiver of the statement has a moral duty to repeat it
In McManus v Victoria Beckham (2002) CA, the following statement allegedly made
by the defendant in an autograph shop was repeated by newspapers: “Excuse me
but do not buy any autographs from this shop, they are all fakes. This is not my
husband’s signature out there.” It was held that the defendant would only be liable for
the repetition if she knew or ought reasonably to appreciate that the statement was
likely to be repeated by others.
See also Slipper v BBC (1991) 1 QB 283 CA
3.2 The Single Publication” Rule
 In the past, not only would every republication of a libellous statement amount to
a new publication, any republication by the same publisher of defamatory
material in newspaper’s archives, would also amount to a new publication –
Loutchansky v Times Newspapers (Nos 2-5) [2002] QB 783.
In Times Newpapers v United Kingdom [2009] EMLR 14, the European Court of
Human Rights held that this rule did not violate article 10 of the Human Rights Act
1998.
[…] The margin of appreciation afforded to states in striking the balance
between the competing rights is likely to be greater where news archives or
past events, rather than news reporting of current affairs, are concerned. In
particular, the duty of the press to act in accordance with the principles of
responsible journalism by ensuring the accuracy of historical, rather than
perishable, information published is likely to be more stringent in the absence
of any urgency in publishing the material.

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Now Article 8 of Defamation Act 2013 makes provision for a single publication rule if
a person publishes a statement to the public and subsequently publishes (whether or
not to the public or a section thereof) that statement or a statement which is
substantially/materially the same in the same or similar manner.
In this context, “publication to the public” is defined as including publication to a

section of the public. This is intended to ensure that publications to a limited number
of people are covered (for example where a blog has a small group of subscribers or
followers).
The limitation period for the purpose of bringing an action will count from the date of
the original publication.
The effect of this will be that a claimant will be prevented from bringing an action in
relation to publication of the same material by the same publisher after a one year
limitation period from the date of the first publication of that material to the public or a
section of the public has passed. If the claimant had not brought an action within that
one year period (which is prescribed in section 4A of the Limitation Act 1980), there
will be discretion for the court to allow him or her to bring an action at a later date in
respect of that article.
The rationale for the new rule was explained by the proponents of the Act as follows:
“We do not believe that the current position where each communication of
defamatory matter is a separate publication giving rise to a separate cause of
action is suitable for the modern internet age”.
However, the claimant would still be allowed to bring a new claim if the original
material was republished by a new publisher, or if the manner of publication was
otherwise materially different from the first publication.
Publication on the Internet

Although publication to a single person may be enough to justify a defamation action,
publications on the Internet must be to a substantial audience within the
jurisdiction.

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Dow Jones v Jameel [2005] EWCA Civ 75 – an online publication which was
accessed by only five people in England in Wales was held not be sufficient
publication to justify a libel action in England. It was therefore, an abuse of the court
process.
Internet publication does not raise a presumption of wide audience; proof of

readership by a substantial number of people is required – Al – Aimoud v Brisard
[2006] EWHC 1062 (QB).
4. WHO MAY SUE
 Only living persons can sue for defamation; a defamation action does not
survive the death of the defamed person.
 Trading corporations/companies can sue – Jameel v Wall Street Journal Europe

[2006] 4 All ER 1279 (HL) – a trading corporation could sue in order to protect its
business reputation.
 Government Authorities, including local government authorities cannot sue.
Derbyshire County Council v Times Newspapers (1993) HL – the claimant

council complained that an article in the defendant newspaper questioning the
propriety of some of the investment of its pension fund had injured its credit and
reputation and had brought it into public contempt. It was held that the council
could not bring the action:
It is of the highest public importance that a democratically elected
governmental body, or indeed any government; body, should be open
to uninhibited public criticism. The threat of a civil action for
defamation must inevitably have an inhibiting effect on freedom of
speech -- Lord Keith.
 Political parties cannot sue -- Goldsmith v Bhoyrul [1998] 2 WLR 435 – The
Referendum Party held unable to bring an action in defamation. However,
individual politicians may sue on personal bases for defamation – see Culnane v
Morris & Naidu [2005] ECWH 2438
 Trade Unions cannot sue. In EETPU v The Times [1980] QB 585b, it was held
that a trade union does not have the legal personality necessary to bring an
action in defamation.

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5. WHO MAY BE SUED
Every author, editor and/or publisher of the defamatory statement may be sued –
s. 1 (1) and (2) Defamation Act 1996.
‘Author’ refers to the originator of the statement unless he did not intend his
statement to published.
‘Editor’ means the person who edits the statement or took the decision to publish it.
‘Publisher’ means a commercial publisher who issues the defamtory material in the
course of business.
 Employees of an author, editor or producer may be liable if they are

involved in the mking of the statement or in the decision to publish it.
Under section 1(3), a person is not an author, editor, or publisher if he was only involved:
(a) in printing, producing, distributing or selling printed material containing the

statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound
recording.
(c) in processing, making copies of, distributing or selling any electronic medium in or
on which the statement is recorded, or in operating or providing any equipment,
system or service by means of which the statement is retrieved, copied, distributed or
made available in electronic form;
(d) as the broadcaster of a live programme containing the statement in

circumstances in which he has no effective control over the maker of the statement;
(e) as the operator of or provider of access to a communications system by means of

which the statement is transmitted, or made available, by a person over whom he
has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to those
provisions by way of analogy in deciding whether a person is to be considered the
author, editor or publisher of a statement.
Godfrey v Demon Internet [2001] QB 1 – The defendant, an Internet Service Provider,

was held not liable for libelous material published on the web site hosted by it until it was
alerted to it by the claimant and failed to remove it.
Similarly, in Bunt v Tilley [2006] 3 All ER 336 an ISP was held liable for a libelious
content carried on its server.

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I have little doubt however, that to impose legal responsibility upon anyone under the
common law for the publication of words it is essential to demonstrate a degree of
awareness or at least an assumption of general responsibility, such as has lonh been
recognised in the context of editorial responsibility […] For a person to be held
responsible, there must be knowing involvement in the process of publication of the
relevant words. It is not enough that a person merely plays a passive instrumental
role in the process – Eady J.
 Note that s.1 replaces the common law rules and s.4 Defamation Act 1952.
Under s. 10 Defamation Act 2013:
A court does not have jurisdiction to hear and determine an action for
defamation brought against a person who was not the author, editor or
publisher of the statement complained of unless the court is satisfied that it is
not reasonably practicable for an action to be brought against the author,
editor or publisher.
5.1 New Rule against “Libel Tourism
The Defamation Act 2013, s. 9, provides that a UK court does not have jurisdiction
over a defamation action brought by a non-UK, non-EU claimant, or a claimant from
a non-Lugarno Convention state,
unless it is satisfied that, of all the places in which the statement complained
of has been published, England and Wales is clearly the most appropriate
jurisdiction in which to bring an action in respect of the statement.
Note: The Lugarno Convention” means the “Convention on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters, between
the European Community and the Republic of Iceland, the Kingdom of Norway, the
Swiss Confederation and the Kingdom of Denmark signed on behalf of the European
Community on 30th October 2007”.
6. JUDGE AND JURY
In the past defamation cases were heard by a judge and a jury unless the case
involved complex issues which could not appropriately be dealt with by a jury, the
judge will sit alone. This includes examination of complex documents, accounts or
scientific material – s. 69 Supreme Court Act 1981.
 Now under the Defamation Act 2013, s. 11, trials for libel and slander will be
heard without a jury, unless the court directs otherwise. The provision therefore

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amends s. 69 (1) of the Supreme Court Act 1981, and s. 66(3) Supreme Court
Act 1984.
 Where a jury is involved, the judge has the duty of directing it on whether the
statement is capable of conveying the defamatory meaning alleged by the
claimant; or whether it conveys any alternative meaning proposed by the
defendant. The jury has the duty to decide whether the statement was in fact
defamatory
7. PRACTICAL ISSUES
Absence of legal aid -- there is no legal aid for defamation case; the claimant must
therefore usually bear the entire cost of the claim. This handicap means that only the
well-to-do are usually able to sue for defamation.
High Cost -- the costs of pursuing defamation cases is usually high; and the new
Defamation Act is generally believed to weigh more in favour of freedom of
expression.
Defending libel suits is also very expensive. Research by Oxford University in 2012
revealed that the cost of a defending a libel action in England and Wales was 140
times greater than the average in other European countries.
Complex procedure -- defamation procedure is usually more complicated than most

civil cases.
Perhaps, with the removal of the presumption on the right to jury trial, the complexity
and cost of defamation actions may be reduced.
Topic 3 – Defamation defences
1. TRUTH
Under s. 2 Defamation Act 2013, the defence of truth may be relied on by the
defendant if the statement complained of is substantially true. Where a
statement is true, the claimant cannot be defamed since a person’s reputation

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or standing in the eyes of others cannot be damaged if he had never had the
reputation.
Where the statement complained of contains two or more imputations, the

defence of truth does not fail simply because all the imputations are not
substantially true as long as the imputations which are not substantially true
do not seriously harm the claimant’s reputation.
S. 2 abolished the common law defence of justification and replaces it with

”truth”. However, the substance of the new defence of truth is the same, in all
material respects, to the old defence of justification. Accordingly, the
authorities on the defence of justification remain relevant.
 The onus is on the defendant to prove that the statement, including any
innuendo, is substantially true. The standard of proof is on a balance of
probabilities.
Williams v Reason [1988] 1 WLR 96 – an allegation that the defendant, an

amateur golfer, published and a sold a book for money in breach of his
amateur status, was justified by evidence that the defendant took money in
order to wear a particular brand of boots.
Contrast with:
Wakley v Cooke [1849) 154 ER 1316 – the following comment was made
about the claimant, a coroner: “there can be no court or justice unpolluted
which this libellous journalist, this violent agitator and sham humanitarian
is allowed to disgrace with his presidentship”. The defendant pleaded
justification with respect to the “libellous journalist” claim by claiming that
the claimant had in fact published one libel in a magazine in the past.
It was held that the defence was not available since the statement
suggested that the claimant habitually published libels or published libels
with ulterior motives -- allegations which were not proven.

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 Please note that every statement in the publication need not be completely
true; it suffices if the statement is substantially true and the untrue
elements do not themselves significantly harm the claimant’s reputation.
According to Sutherland v Stokes [1925] AC 47, the defence requires that the
“sting” of the allegation be made out even if minor mistakes do occur;
All that was required to affirm that plea was that the jury should be
satisfied that the sting of the libel or, if there were more than one, the
stings of the libel should be made out […] There may be mistakes here
and there in what has been said which would make no substantial
difference to the quality of the alleged libel or in the justification
pleaded for it. […] In the second place however, the allegation of fact
must tell the whole story …
 Minor inaccuracies will not invalidate the defence of truth. In Alexander v

NE Railway [1865] 6 B & S 340, a claim that the defendant was convicted
for an offence and sentenced to three weeks imprisonment in default of
fine was held to be true even though the actual sentence was two weeks.
 Apart from the facts expressly stated, any innuendos contained in the
statement must also be substantially true.
Sutherland v Stokes:
Then as to the breadth of the justification. When a plea of truth in
substance and in fact is made it affirms not only in the sense I have
mentioned the facts, but it affirms all that attaches to them as their
natural and reasonable meaning – Lord Shaw.
 The “sting” approach may, however, not be applicable where a specific

allegation is made and this allegation is the basis of a defamatory action. A
plea of truth in that case must show that the specific allegation is true.
Bookbinder v Tebbit [1989] 1 All ER 1169 – a specific allegation that a council

chairman wasted public funds in the printing of stationery was not justifiable
by evidence of general overspending in the council.

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See also Cruise and Kidman v Express Newspapers [1999] QB 931.
 A criminal conviction will be a conclusive proof of the commission of the

offence. Thus, an allegation of criminality could be proved merely by
reference to the conviction even when the conviction is spent. 1
S. 13(1) Civil Evidence Act 1968
In an action for libel or slander in which the question whether the

plaintiff] did or did not commit a criminal offence is relevant to an issue
arising in the action, proof that, at the time when that issue falls to be
determined, he stands convicted of that offence shall be conclusive
evidence that he committed that offence; and his conviction thereof
shall be admissible in evidence accordingly.
 However, if a statement (allegation) concerns a criminal conviction which

has been spent, the defence of truth will not be available if the statement
(allegation) was made maliciously – See s. 8 Rehabilitation of Offenders
Act 1974.
Unsuccessful plea of truth -- Where the defence of justification fails, the

defendant may incur a larger amount in damages; the extra publicity involved
in prosecuting and defending the case would be aggravating factors.
See Cassell v Broom [1972] 2 WLR 645 (HL).
2. HONEST OPINION
2.1 Historical Background

The defence of honest Opinion was previously known as “Fair Comment”, and
later as “Honest Comment. The 2013 Defamation Act has re-branded it as
“Honest Opinion”. The defence of Fair Comment was originally introduced in
respect of defamation actions arising from criticisms of, and commentaries on,
1
A criminal conviction is spent after 5 years for a non-custodial sentence; 7 years for a sentence of
less than 6 months; 10 years for a sentence of between 6 to 30 months (for children, the period is
half the period for adults). Where a conviction is more than 30 months, it cannot be spent .

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literary works, works of art, plays, theatrical performances, musical

compositions, and concerts.
In order to sustain a claim of fair comment, the literary work, which was the
subject of the comment must be disclosed. The nature of the works
concerned meant that a critique or comment would not have much meaning if
the work was not identified. In addition, there must be no malice behind the
criticism or comment. The issue of malice was important because comments
on such matters were usually subjective – opinions were likely to vary from
one person to another. There was an implication of malice until it was
rebutted.
In the 19th Century, the defence of fair comment was extended to other
matters, including the conduct of individuals, where these were of public
interest.
The essentials of the defence of fair comment was set out in the case of
Campbell v Spottiswoode (1863) 3 B & S 769 as follows:
Nothing is more important than that fair and full latitude of discussion
should be allowed to writers upon any public matter, whether it be the
conduct of public men, the proceedings in courts of justice or in
Parliament, or the publication of a scheme or of a literary work. But it is
always to be left to a jury to say whether the publication has gone
beyond the limits of a fair comment on the subject-matter discussed.
A writer is not entitled to overstep those limits and impute base and
sordid motives which are not warranted by the facts, and I cannot for a
moment think that, because he has a bona fide belief that he is
publishing what is true, that is any answer to an action for libel. With
respect to the publication of the plaintiff’s scheme, the defendant might
ridicule it and point out the improbability of its success; but that was all
he had a right to do – Crompton J.
 In 2010, the defence was changed to “Honest Comment” by the Supreme

Court in Spiller & Another v Joseph & Others [2010] UKSC 53. The court
held that the defence availed if the defendant honestly held the view
expressed in the comment, even if he had malice.

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 The defence of “fair Comment” has now been abolished and replaced by
“Honest Opinion” by s. 3(8) Defamation Act 2013. This provision is a
reflection of current judicial opinion on the matter. As was earlier observed
in British Chiropractic Association v Singh [2010] EWCA Civ 350:
The law of defamation surely requires that language should not be
used which obscures the true import of a defence to an action for
damages. Recent legislation in a number of common law jurisdictions -
New Zealand, Australia, and the Republic of Ireland - now describes
the defence of fair comment as "honest opinion". It is not open to us to
alter or add to or indeed for that matter reduce the essential elements
of this defence, but to describe the defence for what it is would lend
greater emphasis to its importance as an essential ingredient of the
right to free expression. Fair comment may have come to "decay with
… imprecision". 'Honest opinion' better reflects the realities.
 The new defence retains many of the elements of the old defence;
therefore, many of the authorities on Fair/ Honest Comment remain valid.
 However, the requirement that the comment/opinion be on a matter

of public interest, has been removed
2.2 Rationale for defence

The defence of honest opinion is founded on the need to protect the freedom
of speech of individuals (as guaranteed by article 10 of the EU Convention
1950; and the Human Rights Act 1998) in the face of the need to protect
others’ reputation. In other words, the protection of reputation should not
abrogate the right to freedom of expression in a free society. It has been
observed that:
The right of fair comment is one of the essential elements which go to
make up our freedom of speech. We must ever retain this right intact. It
must not be whittled down by legal refinements – Lord Denning in Slim
v Daily Telegraph [1968] QB 157.
It is has also been observed that:

The reason why, once a plea of fair comment is established, there is no
libel, is that it is in the public interest to have a free discussion of
matters of public interest –Scott LJ in Lyon v Daily Telegraph [1943] KB
746.

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Moreover, his lordship continues, fair comment:
is one of the fundamental rights of free speech and writing which are so
dear to the British nation, and it is of vital importance to the rule of law on
which we depend for our personal freedom that the courts should preserve
the right of “fair comment” undiminished and unimpaired… Scott LJ.
2.3 Conditions for the Defence
S. 3 Defamation Act 2013 provides as follows:

(1) It is a defence to an action for defamation for the defendant to show that
the following conditions are met.
(2) The first condition is that the statement complained of was a

statement of opinion.
(3) The second condition is that the statement complained of indicated,

whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the
opinion on the basis of —
(a) any fact which existed at the time the statement complained
of was published;
(b) anything asserted to be a fact in a privileged statement

published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant
did not hold the opinion.
.
1. The statement must be an opinion and not an imputation of fact

The statement must be in the nature of comment, opinion or criticism about
existing facts; it must not be an allegation of fact.
Hunt v The Star Newspaper Co Ltd [1908] 2 KB 309 (CA)

The law as to fair comment, so far as is material to the present case,
stands as follows: In the first place, comment in order to be justifiable
as fair comment must appear as comment and must not be so mixed
up with the facts that the reader cannot distinguish between what is
report and what is comment – Moulton LJ.

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Further:
Any matter, therefore, which does not indicate with a reasonable
clearness that it purports to be comment, and not statement of fact,
cannot be protected by the plea of fair comment.
Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 193:

It is important to keep in mind that this defence is concerned with the
protection of comment, not imputations of fact. If the imputation is one
of fact, a ground of defence must be sought elsewhere. To be within
this defence the comment must be recognisable as comment, as
distinct from an imputation of fact – Lord Nicholls
Telnikoff v Matusevitch [1992] 2 AC 345

The defendant suggested in a letter published in a newspaper that the
claimant had been anti-semitic in his article published earlier in the same
newspaper. In an action for libel, the defendant pleaded fair comment on the
ground that he was expressing his opinion on the article. The statement in the
article on which the comment was purportedly based was not disclosed in the
letter. It was held that the letter, read in isolation from the article, contained
assertions of fact which the defendant needed to prove.
 The European Court of Human Rights has endorsed this requirement.
Lindon, Otchakovsky-Laurens and July v France (2007) 46 EHRR 761:
The classification of a statement as a fact or as a value judgment is a

matter which in the first place falls within the margin of appreciation of
the national authorities, in particular the domestic courts. However,
even where a statement amounts to a value judgment, there must exist
a sufficient factual basis to support it, failing which it will be excessive –
the Grand chamber, paragraph 55.
 Distinguishing between facts and opinion, however, is not always

straightforward – one statement may be both an assertion of fact and an
opinion depending on the context.
Myerson v Smith’s Weekly [1923] 24 SR (NSW) 20, 26:

To say that a man’s conduct is dishonourable is not comment, it is a
statement of fact. To say that he did certain specific things and that his

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conduct was dishonourable is a statement of fact coupled with a

comment – Ferguson J.
British Chiropractic Association v Singh [2010] EWCA Civ 350.
The following statement was made by the defendant, a science writer, in the
Guardian Newspaper:
The British Chiropractic Association claim that their members can help
treat children with colic, sleeping and feeding problems, frequent ear
infections, asthma and prolonged crying, even though there is not a jot
of evidence. This organisation is the respectable face of the
chiropractic profession and yet it happily promotes bogus treatments.
In an action for libel, the defendant pleaded fair comment. The question was
whether the statement was fact or comment. The trial judge held that the
statement was fact. On appeal, the Court of Appeal held that the statement
was comment rather than fact.
 The comment must be based on facts in existence at the time of the

comment and not those that might exist after the comment.
Cohen v Daily Telegraph Ltd [1968] 1 WLR 916

In order to make a good plea of fair comment, it must be a comment on
facts existing at the time. No man can comment on facts which may
happen in the future […] A man may comment on existing facts without
having them all in the forefront of his mind at the time. Nevertheless, it
must be a comment on existing facts – Lord Denning.
See also Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB); [2007]
QB 580.
2. The Opinion must indicate the facts on which it is based
It used to be the case that the facts on which the comment was allegedly
made must be sufficiently disclosed or stated in order to enable readers or
listeners to judge for themselves whether the comment was founded or not. A
comment made on the basis of facts not stated or disclosed was tantamount

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to an allegation of fact; in such situations the plea of fair comment would fail –
see Myerson v Smith’s Weekly (supra)
Hunt v The Star Newspaper Co Ltd [1908] 2 KB 309 (CA)

In the next place, in order to give room for the plea of fair comment the
facts must be truly stated. If the facts upon which the comment purports to
be made do not exist the foundation of the plea fails […]
Finally, comment must not convey imputations of an evil sort except so far
as the facts truly stated warrant the imputation…. To allege a criminal
intention or a disreputable motive as actuating an individual is to make an
allegation of fact which must be supported by adequate evidence. I agree
that an allegation of fact may be justified by its being an inference from
other facts truly stated, but … in order to warrant it the jury must be
satisfied that such inference ought to be drawn from those facts – Moulton
LJ
Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33, 44:
Thus the law has developed the rule already mentioned that comment may
only be defended as fair if it is comment on facts […] stated or sufficiently
indicated. Failing that, the comment itself must be justified – Bingham LJ.
 An exception to the above is where the comment concerned a matter

which was of public knowledge or in the public domain, e.g. a book, a
movie, or the conduct of a public figure, which has become public
knowledge. In those instances, the defence might succeed without an
explicit disclosure of the facts on which the comment was based as long
as sufficient inference about it could be drawn from the comment – see
Kelmsley v Foot [1952] AC 345.
 This principle of sufficient indication/inference was later extended to

all cases of honest comment. Stating the particular facts on which a
comment / opinion was based was no longer necessary:
The comment must explicitly or implicitly indicate, at least in general
terms, what are the facts on which the comment is being made -- Lord
Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 193:
Citing the above quote with approval, the Supreme Court adopted this
principle in Spiller & Another v Joseph and Others [2010] UKSC 53.

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Spiller & Another v Joseph and Others [2010] UKSC 53.

The defendants alleged that the claimants (theatre performers) had breached
their contract with them. Consequently, they published on their website the
following statements among others:
1311 Events is no longer able to accept bookings for this artist as the
Gillettes c/o Craig Joseph are not professional enough to feature in our
portfolio and have not been able to abide by the terms of their
contract…
We would recommend that you take legal advice before booking this
artist to avoid any possible difficulties.
The claimants sued for defamation on the ground that the publication
suggested that they were grossly unprofessional and are likely to breach their
contract with other clients.
The defendants pleaded fair comment and justification. The court of appeal
held that the comment was on a matter of public interest but struck out the
defence of fair comment on the ground that the comment did not state the
contract and the term which was allegedly breached, as a result of which the
readers could not evaluate whether the comment was justified
On appeal to the Supreme Court, it was held that the defence of fair comment
was available; there was no need to specify the particular contracts and the
term which was breached. It was sufficient that the comment “identified the
breach as part of the subject-matter of the comment:
Today the internet has made it possible for the man in the street to
make public comment about others in a manner that did not exist when
the principles of the law of fair comment were developed, and millions
take advantage of that opportunity. Where the comments that they
make are derogatory it will often be impossible for other readers to
evaluate them without detailed information about the facts that have
given rise to the comments. Frequently these will not be set out – Lord
Phillips.
According to his lordship, an insistence on the disclosure of the particular

facts on which the comment was based will rob the defence of fair comment
of much of its efficacy.

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 This principle has now been enacted in s. 3(3) Defamation Act 2013. Thus,
the defendant only needs to indicate, either generally or specifically,
explicitly or implicitly, the facts on which he was expressing the opinion.
 However, unlike previously, there is now no requirement that the

facts on which the opinion is based be substantially true.
3. An honest person could have held the opinion
Until December 2010, it was the requirement that the statement must be fair.
The test whether the comment was fair was objective: it was whether an
ordinary and fair-minded man would make such a comment however
prejudiced he might be and however exaggerated or obstinate his views are –
see Marivale v Carson (above). The comment must also be germane or
warranted by the facts stated.
The onus was on the defendant to prove that the comment was fair; and this
would be discharged if he could prove that an ordinary and fair-minded person
could hold the same opinion given the same facts (even if that was not his
own personal opinion).
S. 3(4) Defamation Act 2013 now provides that it is a requirement that an

honest person could have held the same opinion on the basis of any pre-
existing and published fact or privileged statement.(i.e., statements made in
parliament; judicial proceedings, contemporaneous report of judicial
proceedings; publications in the public interest; statements in peer-reviewed
scientific and academic journals; other situations of qualified privilege under s.
15 Defamation Act 1996)
4. The defendant must hold the opinion
Under s. 3(5), the defence will be defeated if the claimant shows that the
defendant did not hold the opinion.

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If the defendant is not the author of the statement (e.g. if he was a

newspaper editor) the defence will fail if the defendant knew or ought to have
known that the author did not hold the opinion – s. 3(6).
This reflects current judicial opinion that the maker of the comment must
honestly believe in the truthfulness of the comment. The test here is
subjective; See:
 British Chiropractic Association v Singh [2010] EWCA Civ 350
 Spiller and Anor. V Joseph [2010] UKSC
Objective and subjective test
Conditions 3 and 4 have combined the subjective and objective tests for
honesty:
 Objective – was the opinion such as could be held by an honest person
on the basis of pre-existing and published fact or privileged statement?
 Subjective – did the defendant hold the opinion?
Cheng v Tse Wai Chun [2000] 4 HKC 1 (HK Final Court of Appeal).
Thus, the comment is one which is based on fact; it is made in

circumstances where those to whom the comment is addressed can
form their own view on whether or not the comment was sound; and
the comment is one which can be held by an honest person – Lord
Nicholls
2.4 Malice defeats defence

The requirement that the defendant must hold the opinion means the
defendant would be acting out of malice if he makes the comment without
actually holding the opinion; accordingly, the defence of honest opinion would
fail. According to the explanatory notes for the 2013 Defamation Act, this
provision “reflects the current law whereby the defence of fair comment will
fail if the claimant can show that the statement was actuated by malice”.

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Reynolds v Times Newspapers Ltd [2001] 2 AC 127

Freedom of speech does not embrace freedom to make defamatory
statements out of personal spite or without having a positive belief in
their truth. In the case of statements of opinions on matters of public
interest, that is the limit of what is necessary for protection of
reputation. Readers and viewers and listeners can make up their own
minds on whether they agree or disagree with defamatory statements
which are recognisable as comment and which, expressly or implicitly,
indicate in general terms the facts on which they are based – Lord
Nicholls.
Cheng v Tse Wai Chun [2000] 4 HKC 1.
Proof of malice is the means whereby a plaintiff can defeat a defence of

fair comment where a defendant is abusing the defence. Abuse consists of
using the defence for a purpose other than that for which it exists – Lord
Nicholls.
 Proof of malice -- it is for the claimant to prove that the comment was
malicious. In other words, it is for the claimant to prove that the defendant
did not honestly believe in the comment.
Thomas v Bradbury, Agnew & Co. Ltd. [1906] 2 KB 627
It is of course possible for a person to have a spite against another and
yet to bring a perfectly dispassionate judgment to bear upon his literary
merits, but given the existence of malice, it must be for the jury to say
whether it has warped his judgment – Collins MR.
Telnikoff v Matusevitch [1992] 2 AC 345

In my view, the correct view of English law is that where the
defendant’s comment is fair by the objective test, it is presumed to be
the honest expression of his view unless the plaintiff pleads and proves
express malice – Lloyd LJ.
 Note Lyon v Daily Telegraph [1943] KB 746 -- if there are several

publishers of the statement it is not enough to show that one of them
was malicious, the claimant must prove that the defendant acted out of
malice.
 However, if the defendant honestly holds the opinion, there will be no
imputation of malice merely because he holds something against the

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claimant, or has his own agenda. The presence of such an “ulterior object”
in the defendant:
[…] is not a reason for excluding the defence of fair comment. The
existence of motives such as these when expressing an opinion does
not mean that the defence of fair comment is being misused. It would
make no sense for instance, if a motive relating to the very feature
which causes the matter to be one of public interest were regarded as
defeating the defence.
On the contrary, this defence is intended to protect and promote

comments such as these. Liberty to make such comments, genuinely
held, on matters of public interest lies at the heart of the defence of fair
comment. That is the very object for which the defence exists.
Commentators of all shades of opinion, are entitled to ‘have their own
agenda’. Politicians, social reformers, busybodies, those with political
or other ambitions and those with none, all can grind their axes – Lord
Nicholls in Cheng v Tse Wai Chun [2000] 4 HKC 1.
 Thus, even if the defendant made the comment out of spite or ill will, the
defence of honest opinion will still avail him if he honestly believed in the
truthfulness of what he said and satisfied the other conditions of the
defence.
In Reynolds v Times Newspapers [2001] 2 AC 127, it was held that in a

defence of fair comment (honest opinion), unlike in the defence of qualified
privilege, the motive for making the comment is not relevant. The important
thing was that the person making the comment honestly believed that the
comment was true.
Spiller & Another v Phillips (supra)
The fact that the defendant may have been motivated by spite or ill will is
no longer material. The only issue is whether he believed that his
comment was justified – Lord Phillips, paragraph 108.
 This position is supported by the European Court of Human Rights. It was

held in Sorguc v Turkey (Application No 17089/03) (unreported) given 23
June 2009, that:
Freedom of speech may be restricted in order to protect reputation

where this is necessary in a democratic society to meet a pressing

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social need. Thus, a test of proportionality has to be applied. In

applying that test, there is a significant distinction between a statement
of fact and a value judgment. A statement of fact will be true or untrue
and the law can properly place restrictions on making statements of
fact that are untrue. A value judgment is not susceptible of proof so
that a requirement to prove the truth of a value judgment is impossible
to fulfil, and thus infringes article 10 (of the EU Convention on human
Rights) (emphasis added).
3. OPERATORS OF WEBSITES
This defence was specifically introduced by the 2013 Defamation Act. S. 5

Defamation Act 2013 provides as follows:
(1) This section applies where an action for defamation is brought

against the operator of a website in respect of a statement posted on
the website
(2) It is a defence for the operator to show that it was not the operator
who posted the statement on the website
(3) The defence is defeated if the claimant shows that—
(a) it was not possible for the claimant to identify the person who
posted the statement,
(b) the claimant gave the operator a notice of complaint in

relation to the statement, and
(c) the operator failed to respond to the notice of complaint in

accordance with any provision contained in regulations.
(4) For the purposes of subsection (3)(a), it is possible for a claimant to

“identify” a person only if the claimant has sufficient information to bring
proceedings against the person.
These provisions protect Internet Service providers and website operators

from defamation actions in respect of statements posted on their websites by
other people. The defence will only be available if:
 The offending statement was not posted on the website by the website
operator;
 It is possible for the person who posted the statement to be identified
for the purposes of legal action against that person; and

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 The operator had responded to any notice of complaint by a potential

claimant with respect to the posting
16.3 . If the website operator fails to act on a notice of complaint (e.g. by
failing to remove the offending statement, the defence will not avail).
4. INNOCENT DISSEMINATION
S, 10(1) Defamation Act 2013 provides that:
A court does not have jurisdiction to hear and determine an action for
defamation brought against a person who was not the author, editor or
publisher of the statement complained of unless the court is satisfied
that it is not reasonably practicable for an action to be brought against
the author, editor or publisher.
(2) In this section “author”, “editor” and “publisher” have the same
meaning as in section 1 of the Defamation Act 1996.
Under s. 1 (1) of the Defamation Act 1996 a person can defend himself in a
defamation action by showing that:
(a) he was not the author, editor or publisher of the statement

complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did
caused or contributed to the publication of a defamatory statement.
Meaning of author, editor, and publisher (s. 1(2))
 “Author” means the originator of the statement, but does not include a
person who did not intend that his statement be published at all;
 “Editor” means a person having editorial or equivalent responsibility for the

content of the statement or the decision to publish it; and
 “Publisher” means a commercial publisher, that is, a person whose

business is issuing material to the public, or a section of the public, who
issues material containing the statement in the course of that business.

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Who is not an author, editor and publisher?
Under section 1(3), a person is not an author, editor, or publisher if he was only
involved:
(a) in printing, producing, distributing or selling printed material containing the

statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or

sound recording.
(c) in processing, making copies of, distributing or selling any electronic

medium in or on which the statement is recorded, or in operating or providing
any equipment, system or service by means of which the statement is
retrieved, copied, distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the statement in

circumstances in which he has no effective control over the maker of the
statement;
(e) as the operator of or provider of access to a communications system by

means of which the statement is transmitted, or made available, by a person
over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to those
provisions by way of analogy in deciding whether a person is to be considered
the author, editor or publisher of a statement.
The effect of s. 1(3)(c) (which covers dissemination by Internet Service Providers

(ISP)) when read together with s. 1(1) is similar in content and in effect to
Regulation 19 of the Electronic Commerce (EC Directives) Regulations 2002.
See: Godfrey v Demon Internet [2001] QB 1; Bunt v Tilley [2006] 3 All ER 336
5. ABSOLUTE PRIVILEGE
5. 1.Introduction
Statements made in certain places or on certain occasions cannot be
defamatory even if they are not true and even if they are made maliciously.
Such statements are said to be absolutely privileged. The freedom to freely

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make statements in such places or on such occasions is deemed more

important than the need to protect the reputation of individuals.
The places and occasions covered by absolute privilege are judicial

proceedings; contemporaneous reports of judicial proceedings; parliamentary
proceedings; certain executive communications, and communications
between solicitors and their clients.
5.2. Judicial Proceedings

Statements made during proceedings in UK courts and tribunals, and in the
European Court of Justice, the European Court of Human Rights, or in any
international court or tribunal are protected by absolute privilege.
The privilege covers statements made by judges, counsel, solicitors, parties to

the cases, witnesses, and members of the jury provided the statements are
made in the course of, and in connection, with the proceedings. It also covers
documents with which the proceedings are commenced or which are made in
the course of those proceedings, such as writs of summons, pleadings,
affidavits and witness statements. Witness statements made to the police
during criminal investigation may also be covered by absolute privilege.
Buckley v Dalziel [2007] EWHC 1025 (QB) – the defendant made allegations
of criminal damage against the claimant and made a witness statement to that
effect to the police. When the Crown Prosecution Service decided not to
prosecute, the claimant sued for defamation. It was held that the witness
statement was protected by absolute privilege.
 However, documents not relevant or connected to legal proceedings are

not privileged

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Waple v Surrey County Council [1998] 1 All ER 624 – a defamatory statement

made by the defendant council against the claimant in communications about
payment of contributions towards child maintenance was held not to be
covered by privilege since it was not made in connection with legal
proceedings. The fact that legal proceedings might conceivably take place
was not sufficient.
See also Daniels v Griffith [1998] EMLR
 The privilege extends to proceedings before other bodies where the rights,
guilt, or innocence of persons are determined. These includes proceedings
before Inns of Court, Disciplinary hearing of the Law Society, proceedings
before Court Martials, and proceedings before select committees of the
House of Commons.
 Proceedings before the European competitions Commission has been

held to be covered by the privilege – see Hasleblad v Orbinson [1985] QB
475.E+W+S+N.I.
 However, proceedings before administrative bodies are generally, not

covered by the privilege.

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5.3. Contemporaneous report of judicial proceedings

Under s.14 Defamation Act 1996 (as amended by s. 7(1) Defamation Act
2013), a contemporaneous “fair and accurate” report of the public
proceedings of any UK or foreign court or tribunal, or of any international court
or tribunal established by the UN Security Council or by international
agreement are protected by absolute privilege.
“Report” includes publications in any medium, including newspapers, radio,

television, and Internet
“Fair and accurate report” – for the privilege to apply, the report must be fair
and accurate. Fairness means that the report must present a balanced report
of both sides of the case. However, where only one side of the case has been
presented at the hearing, the report should make it clear that the case is still
on-going in order to be fair.
The report will be accurate if it contains no material inaccuracies. It is the

prerogative of the jury to determine whether the report is fair and accurate.
“Contemporaneous report” – this means that the report must be made at the
same time as the court proceedings or in the first publication a reasonable
time after the proceedings. Where there is a temporary ban on the reporting of
the proceedings, the report should be as soon as practicable after the ban has
been lifted.
 The privilege extends to privileged statements communicated to

secretaries, typist, etc., in the normal course of things.
 This privilege however, does not extend to defamatory communications

made prior to the commencement of the proceedings – see Stern v Piper
[1998] 1 All ER 624.
5.4 Parliamentary proceedings

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Members of the House of Commons and the House of Lords are protected by
absolute privilege in respect of anything said or done in parliament; and in
respect of any documents used in parliamentary proceedings. The privilege is
said to cover “Proceedings in Parliament” and “Exclusive Cognisance” of
Parliament.
Proceedings in parliament is provided for under article 9

Bill of Rights Act 1689:
That the freedom of speech and debates or proceedings in Parliament
ought not to be impeached or questioned in any court or place out of
Parliament.
According to the Joint Committee on Parliamentary Privilege,

proceedings in Parliament mean:
what is said or done in the formal proceedings of either House or
the committees of either House together with conversations,
letters and other documentation directly connected with those
proceedings -- Report of 1999 HL 43-1.
Parliamentary proceedings includes “reports, papers, votes and

proceedings ordered to be published by the parliament – s. 1
Parliamentary Papers Act 1840.
Exclusive cognisance of parliament refers to the exclusive jurisdiction or

authority of the parliament over certain matters. According to the Supreme
Court:
This phrase describes areas where the courts have ruled that any
issues should be left to be resolved by Parliament rather than
determined judicially. Exclusive cognisance refers not simply to
Parliament, but to the exclusive right of each House to manage its own
affairs without interference from the other or from outside Parliament –
Lord Phillips in R v Chaytor and Others [2010] UKSC 52.
The purpose of parliamentary privilege is to protect freedom of speech and

debate in the Houses of Parliament and the committees within them.

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Pepper v Hart [1993] AC 593

Article 9 is a provision of the highest constitutional importance and should not
be narrowly construed. It ensures the ability of democratically elected
Members of Parliament to discuss what they will (freedom of debate) and to
say what they will (freedom of speech)…In my judgment, the plain meaning of
article 9, viewed against the historical background in which it was enacted,
was to ensure that Members of Parliament were not subjected to any penalty,
civil or criminal, for what they said and were able, contrary to the previous
assertions of the Stuart monarchy, to discuss what they, as opposed to the
monarch, chose to have discussed – Lord Browne-Wilkinson.
Extent of the privilege – the privilege only covers parliamentary debates,

proceedings of parliamentary committees and documents pertaining to
parliamentary proceedings (or matters within the exclusive jurisdiction of the
Parliament).
R v Chaytor and Others [2010] UKSC 52:
There are good reasons of policy for giving article 9 a narrow ambit that
restricts it to the important purpose for which it was enacted – freedom
for Parliament to conduct its legislative and deliberative business
without interference from the Crown or the Crown’s judges. The
protection of article 9 is absolute. It is capable of variation by primary
legislation, but not capable of waiver, even by Parliamentary resolution.
Its effect where it applies is to prevent those injured by civil wrongdoing
from obtaining redress and to prevent the prosecution of Members for
conduct which is criminal. As to the later, the parliament has no
criminal jurisdiction. It has limited penal powers to treat criminal
conduct as contempt (at para. 61).
Church of Scientology of California v Johnson-Smith – extracts from Hansard

(official record of parliamentary proceedings) was held to be covered by
parliamentar privilege.
 The privilege does not extend to documents or matters which are not at
the core of, or essential to, parliamentary business. It therefore does not
cover claims for parliamentary expenses or allowances.
R v Chaytor and Others [2010] UKSC 52

The defendants – David Chaytor, Elliot Morley and Jim Devine -- who were
members of the House of Commons were charged with false accounting
under the Theft Act 1968 in relation to their claims for Parliamentary expenses

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and allowances. The defendants challenged their prosecution on the ground

that it was “precluded by parliamentary privilege, by reference either to article
9 of the Bill of Rights or to the exclusive jurisdiction of Parliament to regulate
its own affairs.”
It was held that claims for allowances or expenses by Members of Parliament

are not privileged since they are not part of, or incidental to, the core or
essential business of parliament which consisted of deliberation and decision
making. Rather, the submission of expense and allowance claims was merely
incidental to the administration of Parliament.
None of these expressions of Parliamentary views lends support to the
suggestion that submitting claims for allowances and expenses
constitutes proceedings in Parliament for the purposes of article 9. On
the contrary they all suggest, either expressly or by implication, that the
submission of such claims falls outside the protection of that article.
The recovery of allowances and expenses to defray the costs involved
in attending Parliament, or travelling on Parliamentary business, has no
closer nexus with proceedings in Parliament than incurring those
expenses – Lord Phillips.
It was also held that the Houses of Parliament does not have “exclusive
cognisance” or jurisdiction over matters relating to their members’ allowances
and expenses. Where a crime has been committed, in such matters, those
concerned are liable to be prosecuted in the ordinary courts:
Moreover, the simple fact is that, since 1667, the House has never
claimed a privilege of exclusive cognizance in a case where a Member
has committed an ordinary crime in the House or its precincts – Lord
Rodger.
 The privilege does not also extend to statements made outside the
Parliament unless they are so closely connected to parliamentary business
that (a) they are deemed to form part of its proceedings; or (b) the
absence of privilege will adversely affect the performance by Parliament of
its core and essential functions:
R v Chaytor and Others [2010] UKSC 52

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The areas in which the courts ought not to intervene extend beyond
proceedings in Parliament, but the privileged areas must be so closely
and directly connected with proceedings in Parliament that intervention
by the courts would be inconsistent with Parliament’s sovereignty as a
legislative and deliberative assembly – Lord Phillips.
In considering whether actions outside the Houses and committees fall

within parliamentary proceedings because of their connection to them,
it is necessary to consider the nature of that connection and whether, if
such actions do not enjoy privilege, this is likely to impact adversely on
the core or essential business of Parliament – Lord Phillips.
Waiver of parliamentary privilege
 The parliament can, by legislation, enable the court to have jurisdiction

over matters ordinarily protected by privilege under article 9 of the Bill of
Rights Act 1689.
 Exclusive cognisance can be waived or relinquished by Parliament.
 A member of Parliament may waive parliamentary privilege in a case of

defamation involving his statement or conduct in parliament. In that case,
and to that extent alone, evidence of the relevant parliamentary
proceedings may be given in court – s. 13 defamation Act 1996.
A waiver of privilege by an MP does not affect the privilege of the whole

house or that of the other members; it does not also affect the member’s
privilege in matters not covered by the waiver.
5.5 Communications between Solicitor and client
Statements or communication made between a solicitor and his client

pursuant to, or in the course of, legal proceedings are covered by absolute
privilege.
Watson v M’Ewan [1905] AC 480 – disclosures made to a solicitor by a client

after the issuance of a writ but before the trial was held to be privileged.

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 The privilege extends to communications made between a client and a

solicitor prior, but pursuant, to a professional relationship.
Minter v Priest [1930] AC 558 (HL)

If a person goes to a professional legal adviser for the purpose of
seeing whether the professional person will give him professional
advice, communications made for the purpose of indicating the advice
required will be protected – Lord Atkin.
 Not every solicitor-client communication is privileged; for the privilege to

arise, the communication must relate to on-going or pending proceedings,
or be necessary for the administration of justice.
 Matters unrelated to on-going or pending trial, or not concerned with the

administration of justice are not privileged.
Minter v Priest [1930] – a conversation between a solicitor and a prospective

client was held not to be privileged since there was no solicitor-client
relationship before and after the conversation took place.
The relationship of solicitor and client being once established, it is not a
necessary conclusion that whatever conversation ensued was
protected from disclosure. The conversation to secure this privilege
must be such as, within a very wide and generous ambit of
interpretation, must be fairly referable to the relationship … Lord Atkin.
5.6. Certain executive communications
Communication from and between government ministers and other high-

ranking government officials are protected by absolute privilege.
In Spalding v Vilas 8, 360 U.S. 564, the USA Supreme Court rationalised
executive privilege as follows:
In exercising the functions of his office, the head of an Executive
Department, keeping within the limits of his authority, should not be
under an apprehension that the motives that control his official conduct
may, at any time, become the subject of inquiry in a civil suit for

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damages. It would seriously cripple the proper and effective

administration of public affairs as entrusted to the executive branch of
the government, if he were subjected to any such restraint. He may
have legal authority to act, but he may have such large discretion in the
premises that it will not always be his absolute duty to exercise the
authority with which he is invested. But if he acts, having authority, his
conduct cannot be made the foundation of a suit against him personally
for damages, even if the circumstances show that he is not
disagreeably impressed by the fact that his action injuriously affects the
claims of particular individuals -- at 571.
In that case, the Postmaster-General was held to be protected by absolute

privilege in respect of defamatory material he circulated in his official capacity.
Chatterton v Secretary of State for India [1895] 2 QB 189 – a defamatory

letter from the Secretary of State for India to his Parliamentary Under-
Secretary about the claimant was held to be absolutely privileged.
 This privilege only applies while the public official acts in his official
capacity, and in the course of his employment.
Gregoire v. Biddle, 177 F.2d 579, 581 (USA)

The decisions have, indeed, always imposed as a limitation upon the
immunity that the official's act must have been within the scope of his
powers […] What is meant by saying that the officer must be acting
within his power cannot be more than that the occasion must be such
as would have justified the act, if he had been using his power for any
of the purposes on whose account it was vested in him. . . .
 The scope of the privilege is not clear; it seems the privilege only attaches
to communications by public officials of the rank of minister and above.
Communications by lower-ranking officials seem to be protected only by
qualified privilege.
S v Newham London Borough Council [1998] 96 LGR 651 – defamatory

letter from the defendant council to the Department of Health about an

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employee was held to be covered only by qualified (and not absolute)

privilege.
See also:
 Szalatnay-Stacho v Fink [1946] 1All ER 303
 Merricks v Nott-Bower [1965] QB 57
 Since the rationale for the privilege is to enable the proper and effective
administration of public affairs, it is arguable that the privilege should
extend to communications by officials below ministerial rank. This is the
case in the USA.
Barr v Matteo 360 U.S. 564 (1959) (SC)

We do not think that the principle announced in Vilas can
properly be restricted to executive officers of cabinet rank, and
in fact it never has been so restricted by the lower federal
courts. The privilege is not a badge or emolument of exalted
office, but an expression of a policy. It is not the title of his office
but the duties with which the particular officer sought to be made
to respond in damages is entrusted - the relation of the act
complained of to ‘matters committed by law to his control or
supervision’.
6. QUALIFIED PRIVILEGE
6.1 Introduction
Some statements are only protected by privilege if they are made without
malice. Such privilege is said to be qualified. Qualified privilege will be lost if it
is found that the defendant is actuated by malice in making, and did not
believe in (or was reckless about the truth) of, the statement.
Qualified privilege exists both under the Common Law and the Defamation
Act 1996.
Meaning of malicious: generally speaking, a malicious statement is one

made essentially out of spite or ill will; or out of a desire to injure somebody.

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Horrocks v Lowe [1975] AC 135 considered the meaning of malice:

Broadly speaking, it means malice in the popular sense of a desire to
injure the person who is defamed and this is generally the motive which
the plaintiff sets out to prove. But to destroy the privilege, the desire to
injure must be the dominant motive for the defamatory publication.
Knowledge that it will have that effect is not enough if the defendant is
nevertheless acting in accordance with a sense of duty or in a bona
fide protection of his own legitimate interests.
The motive with which a person published defamatory matter can only
be inferred from what he did or said or knew. If it be proved that he did
not believe that what he published was true this is generally conclusive
evidence of express malice, for no sense of duty or desire to protect his
own legitimate interests can justify a man telling deliberate and
injurious falsehoods about another save in the exceptional case where
a person may be under a duty to pass on, without endorsing,
defamatory reports made by some other person – Lord Diplock.
Inference of malice -- malice may be inferred:

(a) If the defendant does not believe in the truth of the statement or is
reckless as to whether it is true or false. Mere negligence or
unreasonable belief in the truth of the statement will not be enough.
(b) If the defendant abuses the purpose of the privilege; this will be the
case where the defendant’s statement was not made with a view to
protecting his privileged interest
(c) If the statement includes irrelevant or extraneous matters; or
(d) If the statement was unreasonably made to persons outside the scope
of the privilege. See Hewitt v Grunwald [2004] EWCA Civ 2959
(publication on the internet does not necessarily imply publication to
persons outside the scope of the privilege).
 The question whether malice exists is an objective one
6.2 Common Law Qualified Privilege

Qualified privilege under the common law arises:

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Where the person who makes the statement 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 – Lord Shaw in Adam v Ward [1917] AC 309.
Toogood v Spyring [1844] 1 Cr M & R 181:
The defendant is liable for a defamatory statement unless it is fairly

made by a person in the discharge of some public or private duty,
whether legal or moral, or in the conduct of his own affairs, in matters
where his interest is concerned. If fairly warranted by any reasonable
occasion or exigency, and honestly made, such communications are
protected for the common convenience and welfare of society; and the
law has not restricted the right to make them within narrow limits –
Parke B, at p. 193.
 This need for reciprocal interest or duty may be referred as the principle of
“common interest or duty”. Whether an interest exists will be determined
objectively by the judge in any given case.
Moral or social duty means “a duty recognized by English

people of ordinary intelligence and moral principle, but at
the same time not a duty enforceable by legal
proceedings, whether civil or criminal” – Lindley J in
Stuart v Bell [1891] 2 QB 341.
The question to be asked is whether “the great mass of right minded men in
the position of the defendant would have considered it their duty under the
circumstances to make the communication?” – Lindley J. Stuart v Bell.
Interest bears a wide meaning and includes personal, public and common
interest. It will therefore include a person’s commercial, business and
professional interests and his interest in the affairs of his community, state or
country. It will also include a person’s common interest with another in their
joint employment, and the common interest in a company between an
employer and his employees.

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 The duty to make the statement and the interest or duty to receive it must
exist at the same time otherwise the defence will fail. It is the responsibility
of the judge to decide whether such a duty and interest exist in any given
case.
Watt v Longsdon [1930] 1 KB 130

Allegations of financial impropriety and immoral behavior made by the
defendants (the MD and liquidator of a company) to the chairman of the
company about the claimant (another employee of the company) were held to
be privileged due to the existence of duty and common interest in the
company. The same statement communicated to the claimant’s wife was held
not to be privileged due the absence of duty to pass the information to her.
Beach v Freeson [1971] 2 All ER 860

A letter of complaint about the claimants written to the Law Society and
copied to the Lord Chancellor by the defendant MP on behalf of a constituent
was held to be covered by qualified privilege. The MP had a duty to make the
complaint and the Law society and the Lord Chancellor had an interest in
receiving it.
6.3 Statutory Qualified Privilege
There is a list of reports etc covered by qualified privilege in Schedule 1

Defamation Act 1996 (as amended by s. 7(4) Defamation Act 2013). Note s.
15 and the importance of distinguishing between Part 1 and Part 2 of
Schedule 1.
The Schedule 1 list, though long, is not exhaustive, and other areas of
qualified privilege remain and are not affected (S 15(4)(b)).
Qualified privilege attaches to the following (among others) without

explanation or contradiction.
 Fair and accurate report of parliamentary proceedings in the UK and
anywhere in the world.

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 Fair and accurate report of judicial or court proceedings, or public

inquiries anywhere in the world.
 Fair and accurate reports of proceedings of international organizations

and conference anywhere in the world.
 Fair and accurate report of materials in public registers.
 Fair and accurate report of a government or legislature, or by an

international organization or conference anywhere in the world.
Qualified privilege attaches to the following (among others) subject to the

requirement of explanation or contradiction. This means that the persons
named in the publication should be given the opportunity to explain or
contradict the statement. Where such explanation/contradiction is given, it
should be published or else the defence will fail.
 Fair and accurate copy/extracts of notices/matters issued by a court in

the EU or by the European court of Justice.
 Fair and accurate copy or extracts of documents issued to the public by

organs of the EU, or the government or courts of EU member states, or
any international organization or conference.
 A fair and accurate report of proceedings in any public meeting or

sitting of local authorities, public inquiries, bodies, committees,
commissions, tribunals, justices of the peace.
 A fair and accurate record of decisions made by executives of local

authorities where such decisions are required to be made public.
 See generally schedule 1 Defamation Act 1996.
In Turkington v Times Newspapers [2000]. it was held by the HL that a report

of things said at a press conference to which the public was invited (but not
present) had qualified privilege under s.15 Defamation Act 1996. The same
privilege attaches to a report of material in a written press release handed out
at the press conference, even though the relevant section had not been
spoken at the conference.

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This ruling has been confirmed by s. 7 (5) Defamation Act 2013 which
introduces a new s. 11A into the Defamation Act 1996 providing privilege for
“a fair and accurate report of proceedings at a press conference held
anywhere in the world for the discussion of a matter of public interest.”
7. PUBLICATION ON A MATTER OF PUBLIC INTEREST
S. 4
(1) Defamation Act 2013 provides as follows:
It is a defence to an action for defamation for the defendant to show

that:
(a) the statement complained of was, or formed part of, a

statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the
statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the

defendant has shown the matters mentioned in subsection (1), the
court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate

and impartial account of a dispute to which the claimant was a party,
the court must in determining whether it was reasonable for the
defendant to believe that publishing the statement was in the public
interest disregard any omission of the defendant to take steps to verify
the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to

believe that publishing the statement complained of was in the public
interest, the court must make such allowance for editorial judgment as
it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be
relied upon irrespective of whether the statement complained of is a
statement of fact or a statement of opinion.
(6) The common law defence known as the Reynolds defence is

abolished.

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This new statutory defence is based on the common law defence previously
known as the Reynold’s defence – from the case of Reynolds v Times
Newspapers [2001] 2 AC 127. According to s. 4(29) of the Explanatory Notes
of the 2013 Defamation Act 2013, the new defence “is intended to reflect the
principles established in that case and in subsequent case law”.
Although the Act has abolished the Reynold’s defence, it makes it clear that
the act merely codifies the Reynold’s defence and that the existing case law
on the defence will remain helpful (albeit non-binding) guide to the
interpretation of the statutory provision. The courts are expected to take the
relevant case law into account where appropriate – see s. 4(35) Defamation
Act 2013 Explanatory Notes.
Conditions for the defence
1. The statement must be on a matter of public interest
Whether the statement is on a matter of public interest or part thereof is a

question of fact depending on the circumstances of each case.
Public interest may generally be regarded as referring to matters of public

concern or which publication is in consonance with public policy. This will
include, for example, the need for press freedom and the right of members of
the public to information.
In Reynolds v Times Newspapers [2001] 2 AC 127, a publication by the

defendant that the claimant deliberately misled the Irish Parliament and
cabinet was not covered by qualified privilege because the publication did not
contain information which the public had a right to know and because the
publication did not include the claimant’s side of the story.
According to the SC, whether a matter was of public interest may involve a
consideration of “the seriousness of the allegation”; the nature of the
information and the extent to which the subject matter is of public concern”.

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Loutchansky v Times Newspapers [2001] EWCA Civ 536:
The interest is that of the public in a modern democracy in free

expression and, more particularly, in the promotion of a free and
vigorous press to keep the public informed. The vital importance of this
interest has been identified and emphasised time and again in recent
cases and needs no restatement here. The corresponding duty on the
journalist (and equally his editor) is to play his proper role in
discharging that function. His task is to behave as a responsible
journalist.
Grobbelaar v News Group Newspapers [2001] 2 All ER 437
A false allegation that the claimant was involved in match-fixing was held not
to be privileged because it did not satisfy the public interest requirement.
According to the court:
The ultimate question was whether the public was entitled to receive the
information contained in these publications irrespective of whether it
proved to be true or false. Who, in other words, is to bear the risk that
allegations of this sort, convincing though no doubt they appear to the
newspaper when published, may finally turn out to be false? – Brown LJ.
 The statement may be a statement of fact or an opinion.
2. The defendant must believe that publishing the statement was in the
public interest.
 The defendant must believe that publishing the statement was in the public
interest; the defence will not apply if the defendant does not have this
belief.
 This a subjective test
3. The belief that publication was in the public interest must be

reasonable
 The belief that the publication was in the public interest must be
reasonably held. Whether this is so would be a question of fact depending
on the circumstances of the particular case.

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In determining whether the defendant reasonably believed that the publication

was in the public interest, the court may make appropriate allowances for
editorial judgment.
In Reynolds v Times Newspapers, the SC had suggested the following

considerations that may help in the assessment whether a person had acted
reasonably/responsibly in publishing the offending statement (comments in
brackets). These factors would help in deciding whether the defendant held
the belief, and whether this belief was reasonable, that publication of the
offending matter was in the public interest.
(a) The source of the information
(Some informants have no direct knowledge of the events; some

have their own axes to grind, or are being paid for their stories –
belief in an untrustworthy source is more likely to be considered
unreasonable).
(b) The steps taken to verify the information
(Information verified is more likely to be support reasonable belief;

moreover, the fact that attempts have been made to verify the
statement before publication will suggest that the defendant was
acting in reasonable belief)
(c) The status of the information
(The allegation may have already been the subject of an

investigation which commands respect – in this instance belief is
more likely to be reasonable)
(d) The urgency of the matter
(News is often a perishable commodity; the fact the defendant had

little time to verify the story should not count against him since it
may be in the public interest to publish the story forthwith)
.
(e) Whether comment was sought from the claimant
(The claimant may have information others do not possess or have

not disclosed. An approach to the claimant will not always be
necessary; however, such approach will suggest that the author of

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the statement has no ulterior agenda and was therefore acting

reasonably)
(f) Whether the article contains the 'gist' of the Claimant’s side of the
story
(If the claimant had given his own side of the story, failure to publish
the gist of it may raise doubts as to whether the statement was in
the public interest)
(g) The tone of the article
(A newspaper can raise queries or call for an investigation. It need

not adopt allegations as statements of fact. The tone will suggest
whether the statement was made in the public interest or for other
ulterior reasons)
(h) The circumstances of the publication including the timing
(A statement published in the public interest is more likely to take

into account circumstances surrounding the statement as well as
the effect of the publication of the story at a particular time.
Conversely, a disregard of these may suggest other motives than
public interest)
Loutchansky v Times Newspapers [2001] EWCA Civ 536:
He (the journalist) can have no duty to publish unless he is acting

responsibly any more than the public has an interest in reading
whatever may be published irresponsibly. That is why in this class of
cases the question whether the publisher has behaved responsibly is
necessarily and intimately bound up with the question whether the
defence of qualified privilege arises. Unless the publisher is acting
responsibly privilege cannot arise. That is not the case with regard to
the more conventional situations in which qualified privilege arises. A
person giving a reference or reporting a crime need not act
responsibly: his communication will be privileged subject only to
relevance and malice.
 Where the publisher is under a duty to publish the offending statement,

such a publication would satisfy the requirement of public interest.
Jameel v Wall Street Journal SPRL [2006] UKHL 44 – According to the SC,
this defence:
springs from the general obligation of the press, media and other
publishers to communicate important information upon matters of general

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public interest and the general right of the public to receive such
information [...] In truth, it is a defence of publication in the public interest –
Baroness Hale
 In considering whether a duty exists to publish material, the court should

neither set the standard of journalism too low nor too high. Too low a
standard could promote journalistic laxity and encourage the publication of
defamatory matter. Conversely, setting the standard too high could deter
newspapers from informing the public and thus damage the society –
Loutchansky v Times Newspapers [2001].
 A finding that a publication was in the public interest would displace any
suggestion of malice.
GKR Karate (UK) Limited v Yorkshire Post Limited [2000] 1 WLR 2571
If the judge decides that the occasion is not privileged, the issue of
malice does not arise. If the judge decides that the occasion was
privileged, he must have decided that, in all the circumstances, at the
time of the publication, including the extent of … enquiries, the public
was entitled to know the particular information available ... without [the
journalist] making further enquiries. It is a little difficult to see how the
same enquiries which objectively sustained the occasion as privileged
would be capable of contributing to a conclusion that subjectively she
was recklessly indifferent to the truth or falsity of her publication – May
LJ.
Jameel v Wall Street Journal SPRL [2006] UKHL 44
There is no question of the privilege being defeated by proof of malice

because the propriety of the conduct of the defendant is built into the
conditions under which the material is privileged – Lord Hoffmann.
 Once the conditions are satisfied, the privilege will avail whether the
publication is true or false.
Loutchansky v Times Newspapers [2001]

The question to be posed is accordingly whether it was in the public
interest to publish the article, true or false, rather than whether it was in
the public interest to publish an untruth. Even, moreover, when the
untruth of the article is established (or when, as here, it is not formally
disputed), it is important to remember that the defence of qualified

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privilege tolerates factual inaccuracy for two purposes: first so as not to

deter the publication sued upon (which might have been true); and
secondly so as not to deter future publications of truthful information.
We do not consider that a newspaper that is raising a defence of

Reynolds qualified privilege has the onus of establishing an honest
belief in the truth of the matter published
See also Bonnick v Morris [2002] UKPC 31.
 Publication in the public interest is consistent with the provisions of s.

12(4) of the Human Rights Act 1998. The section provides that in
considering whether a publication in the Mass Media is or is not
defamatory, the court should:
(a) have regard to the importance of freedom of expression;
(b) examine the extent to which the matter has, or is about to, become
available to the public;
(c) the extent to which it would be in the public interest for the material to
be published; and
(d) any relevant privacy code.
Internet publications
The application of the defence of publication in the public interest varies in the
case of Internet publications. Reasonable/responsible journalism requires
publishers to remove a publication if it is subsequently found to be false.
Alternatively, publishers should place a qualification/disclaimer on the story if
they cannot vouch for its truthfulness.
Where a publication is found to be false and the publisher fails to remove it

from the Internet or to warn of its falsity, the publisher cannot reasonably
believe that the continued publication was in the public interest.
Loutchansky v Times Newspapers [2001, held that:

The failure to attach any qualifications to the articles published over the
period of a year on The Times' website could not possibly be described
as responsible journalism. We do not believe that it can be convincingly
argued that the appellants had a Reynolds duty to publish those
articles in that way without qualification.
Flood v Times Newspapers [2009] EWHC 2375

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A credible story in the defendant newspaper that the claimant police officer
had received a bribe was published in the defendant print and on-line
newspaper. A police investigation later showed the allegation could not be
substantiated. It was held that the printed publication was protected by
privilege but the on-line publication was not so protected from the time the
police investigation cleared the claimant. The on-line publication ought to
have been taken down or qualified following the investigation.
 The defence of publication in the public interest applies not only to

publications in the Mass Media but also to publications in any medium or,
or by any person, publishing materials of interest to the public. See Seaga
v Harper [2008] UKPC 9.
 Moreover, the defence not only applies to political materials but to other
matters of public interest as well.
Reportage Cases
Where the published statement was an impartial and accurate report of a

dispute involving the claimant, the fact that the defendant did not take steps to
verify the truth of any imputation conveyed by the statement must be
disregarded by the court in determining whether it was reasonable to believe
the publication was in the public interest -- (s. 4(3) Defamation Act 2013
This provision mimics the common law rule on “reportage” cases.
Meaning of reportage
To qualify as reportage, the report, judging the thrust of it as a whole,
must have the effect of reporting, not the truth of the statements, but
the fact that they were made […] If upon a proper construction of the
thrust of the article the defamatory material is attributed to another and
is not being put forward as true, then a responsible journalist would not
need to take steps to verify its accuracy. He is absolved from that
responsibility because he is simply reporting in a neutral fashion the
fact that it has been said without adopting the truth – Ward LJ in
Roberts v Gable [2008] QB 502

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In Roberts v Gable [2008] QB 502, a story was published in the defendant’s

journal that the claimant, who belonged to a faction of the British National
party (BNP), has been alleged by another faction of the party to have stolen
money from the party. In an action for libel, the defendants pleaded privilege
in that they had merely reported an allegation by one faction of the party and
had acted responsibly. The story was held to be privileged.
See also Al-Fagih v HH Saudi Research and Marketing (UK) Ltd [ 2001]
EWCA Civ 1364.
 The privilege will be lost if:
the journalist adopts the report and makes it his own or if he fails to
report the story in a fair, disinterested and neutral way. Once that
protection is lost, he must then show, if he can, that it was a piece of
responsible journalism even though he did not check the accuracy of
his report -- Roberts v Gable [2008] QB 502
Galloway v Daily Telegraph [2006] EWCA Civ 17 – the defendant newspaper

published documents obtained from the Iraqi foreign Ministry, plus its own
comments and articles, which suggested that the claimant had received
money from Saddam Hussein, the then president of Iraq. In an action for
defamation, the defendants pleaded Reynolds privilege and fair comment.
It was held that the Reynolds Privilege did not apply because the newspaper
did not show neutrality in the publication; had adopted the documents as true;
and had made allegations that went beyond the content of the documents. It
was also held that the defence of fair comment did not apply since the
publication made allegations of fact.
8. STATEMENTS IN SCIENTIFIC AND ACADEMIC JOURNALS
This is a new defence introduced by the Defamation Act 2013.
S. 6 of the Act provides as follows:

(1) The publication of a statement in a scientific or academic
journal (whether published in electronic form or otherwise) is
privileged if the following conditions are met.

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(2) The first condition is that the statement relates to a scientific

or academic matter.
(3) The second condition is that before the statement was

published in the journal an independent review of the
statement’s scientific or academic merit was carried out by—
(a) the editor of the journal, and
(b) one or more persons with expertise in the scientific or

academic matter concerned.
(4) Where the publication of a statement in a scientific or

academic journal is privileged by virtue of subsection (1), the
publication in the same journal of any assessment of the
statement’s scientific or academic merit is also privileged if —
(a) the assessment was written by one or more of the

persons who carried out the independent review of the
statement; and
(b) the assessment was written in the course of that

review.
(5) Where the publication of a statement or assessment is privileged by

virtue of this section, the publication of a fair and accurate copy of,
extract from or summary of the statement or assessment is also
privileged.
(6) A publication is not privileged by virtue of this section if it is shown

to be made with malice.
(7) Nothing in this section is to be construed —
(a) as protecting the publication of matter the publication of

which is prohibited by law;
(b) as limiting any privilege subsisting apart from this section.
(8)The reference in subsection (3)(a) to “the editor of the journal” is to

be read, in the case of a journal with more than one editor, as a
reference to the editor or editors who were responsible for deciding to
publish the statement concerned.
The section provides for qualified privilege in respect of statements published

in peer-reviewed scientific and academic journals.

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The privileged statements are:
 The academic or scientific opinion that has been reviewed by the editor
of the journal and a panel of experts in the field concerned.
 Any assessment of the merit of the reviewed work published in the

same journal by the reviewers, provided this was made in the course of
the review
 A publication of a fair and accurate copy of, extract from or summary of

the statement
The privilege will be defeated by proof of malice on the part of the maker of
the statement.
The privilege does not extend to the publication of any matter prohibited by
law.
9. OFFER OF AMENDS
Under s. 2 of the Defamation Act 1996, a person who has published a
defamatory statement may offer to make amends in relation to the whole
statement or in relation to a part of the statement (qualified offer) before
submitting a defense to any defamation action.
An offer of amends is an expression of willingness and readiness:
(a) to make a suitable correction and apology in respect of the defamatory

statement
(b) to publish the correction and apology in a reasonable and practical
manner according to the circumstances of the case; and
(c) to pay to the aggrieved party any agreed or determined compensation
and costs.
 If an offer of amends is accepted, the aggrieved party will not be able to

sue or continue an action in defamation in relation to the same statement
provided the terms of the offer are fulfilled.

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 If an offer of amends is rejected, the person who made the offer may rely
on it as a defence in a defamation action if:
(a) he did not know (and have no reason to believe) that the statement
referred to, or was capable of referring to, the claimant; or
(b) that the statement was false and defamatory.
In other words, the defamatory statement must have been published

innocently and not recklessly. The defence will not avail in cases of deliberate
or reckless publication of a defamatory statement.
 Where an offer or ammends has been made, it seems the claimant must
either accept or reject it. Although the Act did not stipulate the time limit for
the acceptance or rejection of an offer of amends, it appears this must be
done within a reasonable
Tesco Stores Ltd v Guardian News & Media Ltd and Rusbridger [2008]
EWCH (QB)
Tesco sued Guardian for libel following the publication of an article in which it
was alleged that Tesco had set up an off shore facility to evade corportation
tax of £1 billion. The newspaper made an offer of amends before it filed a
defence. Tesco neither rejected nor accepted the offer. The court had to
decide whether a defendant could be compelled to accept or reject an offer of
amends. The judge held in the affirmative. According to the Eady J, the
purpose of s. 2 Defamation Act 1996 is to:
impose discipline on the parties, in the sense that the complainant would
have little choice but to accept an offer of amends in order to achieve
vindication, or reject it and take on the burden of proving malice.
 The offer of amends may be withdrawn before it has been accepted.

However, once accepted, the offer cannot be withdrawn except in
exceptional circumstances.
Warren v Random House Group Ltd (Nos 1-3) (CA) [2008] EWCA Civ 834
The claimant sued the defendant for libel on account of claims in a book
(Ricky Hatton’ Autobiography) that the claimant cheated a boxer in the
payment of price money. The defendant made an offer of amends in court and
an agreement was reached on compensation. Subsequently, the defendant
sought to withdraw the offer and plead justification based on new evidence it

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claimed to have obtained. It was held that the offer of amends was an
undertaking which could not be withdrawn except in special or exceptional
circumstances. No such circumstances existed in this case.
 The defence of amends is exclusive; no other defence may be made in

addition to it. However, the offer may be relied on in mitigation of damages
whether or not it was used as a defence.
10. CONSENT
Consent will defeat a claim for defamation. The consent may be express (as in
where the claimant provides the defamatory material to the publisher) or implied
from the claimant’s conduct.
Where an implied consent is claimed, it will be a question of fact depending on

the circumstances whether there was consent.
Cook v Ward (1830) 130 ER 1338, CP – a joke told by the claimant about himself
to a circle of friends in a pub was subsequently published by the defendant’s
newspaper. The defence of consent failed. Telling a joke to friends in private was
different from consent to its publication in a newspaper.
Consent is different from a challenge to a person to repeat a defamatory

statement. For example a challenge to someone to repeat on a non-privileged
occasion a statement he made on a privileged occasion will not amount to
consent to be defamed. Such a challenge would, if accepted, provide actionable
publication. Similarly, if the claimant asked for repetition of the statement
because he did not hear it properly or understand it the first time, this will not be
construed as consent.
 A voluntary assumption of the risk of publication could also be a defence.
Topic 4 – Trespass to the person

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What is it about?
• One of the most ancient torts you will study – torts of INTENTION
• Battery
• Assault
• False imprisonment
But also
• The tort in Wilkinson v Downton
• Protection from Harassment Act 1997
In brief
A will commit a BATTERY in relation to B if A touches B without lawful

justification for doing so.
A will commit an ASSAULT in relation to B if A makes B think that he is
about to touch him without lawful justification for doing so.
A will commit the tort of false imprisonment in relation to B if A does

something to limit B’s freedom of movement to confined space without
lawful justification for doing so.
So:
• It is about the ability to enjoy some freedom from interference

with our bodily integrity and our ability to move about.
 But there are circumstances where this “zone of freedom” can

lawfully be interfered with, in certain circumstances
Ancient torts but relevance

• “Kettling” Austin v Commissioner of Police of the Metropolis HL [2009]–
false imprisonment overlaps with Art 5 Right to liberty.
• NB remember you can sue under Human Rights Act 1998 for breach of
Articles of ECHR if defendant is public authority.
As usual start with definitions

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• Battery “the actual infliction of unlawful force on another person”

• Assault “an act which causes another person to apprehend the
infliction of immediate, unlawful force on his person”
• False imprisonment “the unlawful imposition of constraint on another’s
freedom of movement from a particular place”
All 3 have common points

• Actionable per se [say what that means]
• Directness:
à Of the contact for battery
à Of the apprehension of the contact for assault
Of the restraint for false imprisonment
• So the force/apprehension/restraint but be caused directly by the act of
the defendant
• And must be the immediate result of the act
• Without any intervening force or cause
Directness
• Reynolds v Clarke [1725] = “if I throw a log onto the highway” ….
• Scott v Shepherd [1773] = the firework at the market
• DPP v K [1990] = the acid in the hair dryer
• From a distance with an instrument
Pursell v Horn [1838] = throwing a bucket of water over the claimant
Haystead v Chief Constable of Derbyshire [2000] = mother receives blow and
drops child – battery against the baby
Common points continued

• Intention – no accident
• Intention – no negligence
• Letang v Cooper [1965] CA
• Confirmed by CA in Iqbal v Prison Officers Association [2009]
• Transferred intent
• A intends to hit B but misses and hits C
• C has a claim against A – the intent was to apply unlawful contact
• Livingstone v MOD [1984]
Battery
• Positive act needed
• Innes v Wylie [1844] – policeman just standing there
• Fagan v M.P.C. [1969] – car parked on policeman’s foot
• Voluntary act
• Gibbon v Pepper [1695]
• Intent to harm not required
• Williams v Humphrey [1975]
• Force/violence not necessary
• Anger? Cole v Turner [1704]
• Hostility? Wilson v Pringle [1987] CA
• Unacceptable contact – Collins v Wilcock [1984] – confirmed in Re F
[1989] Goff L.J.

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Assault
• Physical contact not necessary
• But usually demeanour will accompany words or gestures will suffice
• Reasonable (i) apprehension of immediate (ii) contact
• Does the claimant need to be afraid?
• Must the Defendant be able to carry out the threat?
• Stephens v Myers [1830] = the chairman of the committee
• Thomas v NUM [1985] = the non-striking miners in the bus
• R v St George [1840] = the unloaded gun
• Words alone?
• Meade’s Case [1823] -à R v Ireland [1997]
• Words explaining threatening /conditional threat: “your money or your
life” – “get out or I will break your neck” – Read v Coker [1853]
• Words remove the threat - Tuberville v Savage [1669]
Hand on the sword “if it were not assize time I would not take such language
from you”.
Defences to battery and assault

• Section 3 of Criminal Law Act 1967
• Power to use reasonable force in the prevention of crime
• Consent – must be genuine
• R v Williams
Medical treatment and consent

• Refusal of medical treatment: if treatment give despite refusal = battery
• So need valid consent – what is valid consent?
• Mental Capacity Act 2005
• Re T (Adult: refusal of treatment) [1993] per Lord Donaldson
“an adult patient […] who suffers from no mental incapacity has an absolute
right to choose whether to consent to medical treatment, to refuse it, or to
choose one rather than another of the treatments being offered. This right of
choice is not limited to decisions which others might regard as sensible”.
The tort in Wilkinson v Downtown

• Not a trespass as such
• But a wrongful interference
• Interference is not direct but is intentional
• There is harm caused to the claimant
• Harm is distress/psychiatric harm/possibly leading to physical harm
– Wilkinson v Downton [1897] = the practical joke
• Note the year
• Act wilfully done – “calculated to cause harm”.
Wilkinson v Downton – later cases

• Janvier v Sweeney [1919] = the private detective pretending to be
policeman
• Wainwright v Home Office [2004] HL = the strip search
Protection from Harassment Act 1977

• Created with stalking in mind

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• Civil and criminal liability under the Act

• Vague definition of harassment = can be usefully applied or expanded
• Must be a course of conduct so one off incidents will not qualify
• NB defence of “reasonable harassment”…
False Imprisonment
• Restraint must be total
• Bird v Jones [1845]
• No need for lock and key
• Herring v Boyle [1834]
• Wood v Lane [1834]
Awareness of restraint: trilogy

• Is awareness of the restraint necessary?
• The trilogy of cases:
• Herring v Boyle
• Meering v Graham White Aviation
• Murray v M.O.D.
Imprisonment by omission?
• Herd v Weardale Iron Steel Coke and Coal [1915] HL
• Iqbal v Prison Officers Association [2009] CA
Defences to false imprisonment

• Consent
• Employment involving agreed restraint?
• Restraint subject to agreed condition as to exit
• Restraint to enforce contract?
• Lawful arrest
• Part III of PACE 1984 as amended by Serious Organised Crime and
Police Act 2005
• Indictable offences
• “citizen’s arrest”
The cases on consent/enforcement of contract

• Robinson v Balmain [1910] PC
• Herd v Weardale [1915] HL
• Sunbolf v Alford [1838]
Citizen’s arrest under PACE 1984

• 2 key points: i. do grounds give rise to power of arrest ii. Has the
manner of the arrest complied with the statute
• S24A of PACE 1984 and S28
Problem/exam questions
• State trespass to the person
• List + define
• Common elements stated, explained, backed by authorities + apply to
facts

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• Consider each act / event in chronological order of your question

• Address potential defences
• Adding value:
à Analyse and evaluate
à Mental element for battery
à Awareness requirement for false imprisonment
à Consent to restraint for false imprisonment
Adding value
• Constitutional relevance of false imprisonment and Art 5 ECHR
• Continuing relevance of Wilkinson v Downton as stand-alone tort
• Usefulness of Protection from Harassment Act 1997
Topic 5 – Private nuisance
Private nuisance
• “Any unlawful interference with a person’s use or enjoyment of land or
some right over it” (Winfield)
• Protects right in land
• Protects against unreasonable interference
• Balancing Act
• Where the conduct of the defendant indirectly causes interference
with the claimant’s use or enjoyment of his/her land (or an interest in it)
where such interference is unreasonable.
• also covers physical damage to land
• Cannot sue in nuisance for damages for personal injury
Confirmed in Hunter v Canary Wharf (1997) HL
Reaffirmed in Transco plc v Stockport Metropolitan BC (2004) HL
Who can be sued?

• Usually “the creator”
– person with some degree of personal responsibility.
See: Sedleigh-Denfield v O’Callaghan p 296 Kidner
– liability of occupier for acts of trespasser or contractor
– Claimant must have an interest in land
– Malone v Laskey (1907) CA
– Khorasandjian v Bush (1993) CA
– Hunter v Canary Wharf (1997) HL
– Not lodgers or family members
Human Rights Act 1998 and Nuisance: Consistency?
• Article 8 ECHR - respect for private and family life
– McKenna v British Aluminium Ltd (2002)
• arguable that children had standing to sue in nuisance
• only a striking out application at first instance
Interference
• Damage to the land or property on the land
• Loss of ability to enjoy the land (= amenity)
• From activities on neighbouring land or from state of affairs on
neighbouring land

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Examples
• Vibrations causing damage to building
• Fumes dirtying/harming the property
• Tree roots
• Noise
• Smell
• Vibrations (without damage caused)
• Heat
• Smoke
Factors to consider
• Intensity and duration of the interference
• Nature of the locality
• Sensitivity of the Claimant
• Malice
Intensity and duration

• The more frequent and the longer the period the more likely courts will
find a nuisance
• De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914)
Nature of the locality

• A nuisance in a quiet residential area may not be a nuisance in a semi-
industrial or commercial one
• Sturges v Bridgman (1879) CA
• But locality irrelevant if physical damage caused: St Helens Smelting
Co. v Tipping (1865) HL
Is planning permission relevant?

• Gillingham BC v Medway (Chatham) Docks Co. Ltd (1993)
• Wheeler v Saunders (1996) CA
Sensitivity of the claimant or his property

• D’s conduct must unreasonably affect the ordinary person
• Robinson v Kilvert (1889) CA
• McKinnon Industries v Ltd v Walker (1951) PC
• Heath v Brighton Corporation (1908)
Malice
• May be relevant to reasonableness of the conduct
• Christie v Davey (1893)
• Hollywood Silver Fox Farm Ltd v Emmett (1936)
Right to a view or recreational facilities?

• Dalton v Angus (1881)
• Bridlington Relay v Yorkshire Electricity Board (1965) CA
• Hunter v Canary Wharf
• Network Rail Infrastructure Ltd v Morris (2001) CA
Remedies

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• Prohibitory injunction
• Damages
• Abatement
Inapplicable defences
• Coming to the nuisance
• Public benefit
• Miller v Jackson (1977) CA
• Adams v Ursell (1913)
• Bliss v Hall (1838)
Defences
• 20 years’ prescription: Sturges v Bridgman
• Statutory authority: Allen v Gulf Oil Refining Ltd
• Act of God – Act of stranger
Rylands v Fletcher
• A sibling of nuisance: Transco plc v Stockport Metropolitan BC HL
2004
• Very limited application: no successful claims since the war
• A nice academic debate
• On our course considered hand in hand with private nuisance in any
question
• Liability for escape from land
• Used for non-natural use
• Which causes damage
• Protects an occupier against interference due to an ISOLATED
ESCAPE from neighbouring land
• Another way of controlling land
• Considered to be a tort of strict liability
The rule
• Rylands v Fletcher (1865) Court of Exchequer
• “A person who for his own purpose brings on his land and collects and
keeps there anything likely to do mischief if it escapes must keep it at
his peril, and, if he does not so, is prima facie answerable for all the
damage which is the natural consequence of its escape
• and (1868) HL
• Lord Cairns adds the requirement that use of land should be “non-
natural user”
The story
• D millowner (occupying land under permission of the Lord owning it)
• D employed contractor to build reservoir
• Old mine shafts under the land
• Reservoir filled with water which burst through the old mine shaft
• Connected to Plaintiff’s own mine
• Plaintiff’s mine flooded
• NB: claim was against D who had done nothing wrong, one off escape

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2 cases reshaping the law

• Cambridge Water Co. v Eastern Counties Leather Plc (1994) HL
• Transco Plc v Stockport MBC (2003) HL
Who can be sued?

• The occupier of the land if they satisfy the requirements of the Rule
Who can sue

• Like private nuisance an interest in land is required: some doubt in the
past now firmly confirmed from Transco v Stockport MBC
Things likely to do mischief

• Water, electricity, fire, chemicals, explosives, slag heap
• All have been found capable of falling within the Rule
• Thing accumulated or brought on the land by D “which was not
naturally there”
• So thing must not occur on D’s land naturally
• “…many things not ordinarily regarded as sources of mischief or
danger may nonetheless be capable of proving such if they escape.
[…]”
• Lord Bingham Transco plc v Stockport MBC
Non-natural user
• = NOT ORDINARY NOT USUAL
• (Rickards v Lothian (1913) PC)
• Cambridge Water v Eastern Counties Leather plc
• Transco plc v Stockport MBC
Escape
 Read v Lyons & Co. Ltd (1947) HL
Damage and foreseeability

• There must be damage (but not personal injury)
• Damage and kind of damage must be reasonably foreseeable
• Cambridge Water Co. v Eastern Counties Leather Plc
• Damage to land or chattels on land
• Distinguish between the escape being foreseeable and the kind of
damage being reasonably foreseeable
Issues for discussions
• Absorbed in nuisance?
• The continuing relevance of the Rule
Defences and remedies

• Horsey’s table
• But NB Act of God
• Greenock Corporation v Caledonian Railway (1917) HL
• Damages = one off escape so injunction not applicable
Topic 6 – Occupier’s Liability

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What is it about?
• Dangerous places and buildings
• Liability if someone is injured there
• General principles of negligence incorporated into and modified by 2
statutes
• Why statutory intervention in that particular area of negligence?
• British Railway Board v Herrington HL [1972]
 What do these statutes do?
The 2 statutes
• 2 Statutes with crucial differences
1. Occupiers’ Liability Act 1957 (“OLA” 1957)
= covers lawful visitors
2.Occupiers’ Liability Act 1984 (“OLA” 1984)
= covers unlawful visitors (referred to in this lecture as trespassers)
Focus of OLA for us

• Concentrating on the duty, its discharge and limitations
because
• For breach, causation and remoteness the same principles as
previously covered in general negligence apply
OLA 1957
• Duty of care owed by occupier to visitors.
• In relation to danger/risks.
• On the premises due to the state of the premises.
• What is an occupier?
• What/who is a lawful visitor?
• What are premises?
• [all of the above for the purposes of establishing a duty and liability
under the 1957 Act]
Occupier
• S1(2) duty imposed in consequence of person’s occupation or control
• May be more than 1 occupier
• Wheat v Lacon [1966] HL
Visitor
• Express or implied permission
• Limitations on permission
• Limits of permission exceeded = does visitor become trespasser?
• Campbell v Shelbourne Hotel [1939]

• Walker v Midland Railway [1886]
Premises
• Very widely construed
• S1(2) “any fixed or moveable structure, including any vessel, vehicle or
aircraft”

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Duty owed
• Nature and extent
• Positive duty
• S2(2)
• Visitor is to be safe (not the premises viewed objectively)
• Safe using the premises for the purposes for which he is invited
So what should occupier do?

• Take whatever steps are reasonable in the circumstances, e.g. so the
cost of taking precautions will be relevant
• Not strict liability
• Kiapasha v Laverton [2002] CA
The duty and children

• Children visitors are owed a duty of care.
• BUT Act acknowledges children less careful than adults.
• S2(3)a
• = more care expected of occupier to ensure children’s safety.
• Glasgow Corporation v Taylor [1922]
• Jolley v Sutton [2000]
• BUT parents cannot abdicate responsibility
• Phipps v Rochester Corporation [1955]
• Simkiss v Rhonda BC [1983]
• Perry v Butlins Holiday World [1997]
The duty and persons in the exercise of a calling

• S2(3)b
• Guarding against special risks ordinarily incident to the calling
• Roles v Nathan [1963]
• Ogwo v Taylor [1988]
The duty and warnings

• S2(4)a
• Must be sufficient to enable visitor to be reasonably safe
• BUT
• No duty to warn against obvious risks
• Darby v National Trust [2001]
Exclusions and limitations of liability

• S1(1) occupier can restrict or limit the duty owed to the visitor
• NB but if premises used for business Unfair Contract Terms Act 1977
Third party contractors responsible for risk

• S2(4)b
• If visitor is injured as a result of contractor’s work on the premises
occupier may not be liable (in certain circumstances)
Contractor: the circumstances

• Acted reasonably in entrusting work to contractor

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• Took steps as are reasonable to check contractor is competent

• Took steps as are reasonable to check work properly done
• Gwilliam v West Hertfordshire Hospital NHS Trust [2002]
• Woodward v Mayor of Hastings [1945]
• Haseldine v Daw [1941]
OLA 1957 Defences

• Volenti S2(5)
• Contributory negligence (not expressly referred but generally accepted)
OLA 1984
• OLA 1984
• S1(3) “persons other than visitors”
• For our purposes = trespassers
OLA 1984: Duty Owed

• Duty owed ONLY if certain conditions are met
• To take reasonable care no injury caused to trespasser due to state of
premises
• Occupier = same as OLA 1957
Circumstances in which duty owed

• 1. Occupier aware of danger OR has reasonable grounds to believe
danger exists
• 2.Occupier knows of has reasonable grounds to believe that someone
is or may come in the vicinity of danger
• 3. The risk is one against which in all the circumstances the occupier
may reasonably be expected to offer protection
• ONLY if 1, 2 AND 3 are satisfied = duty to trespasser
• ONLY about personal injury
Awareness of danger
• OR reasonable ground to believe danger exists
• Rhind v Astbury Water Park Ltd [2004]
Knowledge someone in vicinity of danger

• OR reasonable ground to believe
• White v St Albans City and District council [1990]
• Swain v Puri [1996]
• Donoghue v Folkestone Properties [2003]
Reasonable expectation to protect against risk

• Obvious risk = no duty to protect = arises
• Tomlinson v Congleton Borough Council [2004] HL
Steps to satisfy the duty

• Warning or physical steps to discourage access
• Warning only needs to make aware of danger
• Cost of any steps will be taken into account

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Defences
• Volenti S1 (6)(but NB)
• Ratcliffe v McConnell [1999]
Contributory negligence (not expressly referred to but generally accepted).

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Lecture Notes - Complete - Tort Law

Tort Law (Manchester Metropolitan University)

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Tort Law Lecture Notes

Topic 1 – General Negligence

The damage suffered by the claimant might be:

Proving Factual Causation

Examples where causation was proved

Examples where there was no causation

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• Hotson v East Berkshire Area Health Authority [1987] -- No “lost

Exceptions to “but for” test

• Wilsher v Essex Area Health Authority -- Child’s illness and

Dealing with multiple causes – (a) Material contribution to harm

Dealing with multiple causes – (b) material increase to risk of harm

Dealing with multiple causes – (c) mesothelioma cases

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 Where one out of multiple employers was found liable, that

Departure from Fairchild – Baker v Corus

Restoration of Fairchild – The Compensation Act 2006

Exception 2- Injury due to failure to inform

Exception 3 – Concurrent causes

Exception 4 – Supervening causes

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Departure from Re Polemis

Wagon Mound #1 – Viscount Simmonds

Applying the Wagon Mound principle

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2. No liability where damage is of an unforeseeable kind

3. The Egg Shell Skull Rule

 Defendant liable for claimant’s foreseeable injury even if it is more than

4. Novus actus (new intervening act)

(a) Act of the claimant

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 A claimant might break causation if he fails to take reasonable care not

(b) Act of a third party

• Necessary medical intervention will not break causation unless it was

(c) Act of Nature

A supervening natural event may amount to a novus actus interveniens.

Claimant’s negligence and Novus actus

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 However, in that situation, the defendant, as a matter of law

Contributory negligence –share of liability

S.1 Law Reform (Contributory Negligence) Act 1945

 An objective standard is applied – ‘what would a reasonable person in

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 Armsden v Kent Police (2009)

3. By what extent should damages be reduced?

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Consent i) – Application of the defence

Gray v Thames Trains (2009) – two formulations of the illegality defence:

Topic 2 – Special duties – Negligently Inflicted Psychiatric Harm

Leading cases House of Lords authorities:

 Alcock v Chief Constable of South Yorkshire (1992)

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Two types of potential claimants suffer psychiatric harm

What qualifies as psychiatric harm?

Examples of recognised psychiatric harm

 Chadwick v BR – anxiety neurosis

Secondary victim: who/what?

Primary or secondary victim?

3 cases at the core of the current law