A crude case of qualified privilege – oil minister fails to extract libel defence

Background

The claimant, Dr Ashti Hawrami, brought a libel claim against Journalism Development Network (JDN), Daniel Balint-Kurti and William Jordan over an article published by JDN entitled “The Rise and Fall of a US Oil Man in Iraq”. It was first published in May 2021, and it was subsequently amended in August and September 2022.

The article reported on certain legal proceedings, known as the “Excalibur” litigation, between various third parties^[2] in connection with oil exploration in Iraq. The claimant was not a party to the Excalibur litigation and was not the primary subject of the article, although he was mentioned on various occasions and a picture of him appeared in it.

The claimant asserted that the natural and ordinary meaning of the article included defamatory assertions to the effect that, while serving as Minister of Natural Resources in the government of the Kurdistan Regional Government (KRG) of Iraq, he had:

• granted a highly lucrative contract to Gulf Keystone Petroleum (GKP) because of (and/or knowing of) a secret, corrupt and illegal agreement between the controller of GKP and the company of a member of the governing Kurdistan Democratic Party politburo, whereby kickbacks would be paid by GKP to the company;
• been privy to a private agreement between GKP and the KRG to treat the kickback agreement as void for illegality shortly before the passage of the UK Bribery Act 2010, but had allowed GKP to retain the contract, corruptly and in violation of Kurdish oil law; and
• facilitated the funnelling of $12 million from GKP to an offshore company secretly connected with the controller of GKP and the KRG.

Defence

The defendants denied those meanings in the amended defence, and also asserted that the article contained no defamatory meaning at common law. In the alternative, they submitted that the only relevant meaning was that there were grounds to investigate whether the claimant had come to know about, but had failed to properly investigate and act on, an illegal agreement that benefitted a senior member of the KDP.

Further, the defendants relied on defences of qualified privilege under section 15 and Schedule 1 of the Defamation Act 1996. The relevant extracts of the Act are as follows:

Section 15

1. The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows.
2. In defamation proceedings in respect of the publication of a report or other statement mentioned in Part II of that Schedule, there is no defence under this section if the plaintiff shows that the defendant-
   • was requested by him to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction, and
   • refused or neglected to do so.
     For this purpose "in a suitable manner" means in the same manner as the publication complained of or in a manner that is adequate and reasonable in the circumstances.
3. This section does not apply to the publication to the public, or a section of the public, of matter which is not of public interest and the publication of which is not for the public benefit.
4. Nothing in this section shall be construed-
   
   • as protecting the publication of matter the publication of which is prohibited by law, or
   • as limiting or abridging any privilege subsisting apart from this section.

Schedule 1

Qualified Privilege

Part I

Statements having qualified privilege without explanation or contradiction

… 2. A fair and accurate report of proceedings in public before a court anywhere in the world.

… 5. A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.

The amended defence maintained that the article contained a “fair and accurate report” of elements of the trial transcript and judgment in the Excalibur litigation.

In his judgment, Master Dagnall acknowledged the complexity of this case, given that the parties were in dispute about the alleged defamatory meanings. The claimant asserted a set of meanings, whereas the defendants disputed them generally and asserted that, as far as there was ever any defamatory meaning, it was only the defendants’ alternative meaning.

Neither party sought to ask the Master to determine issues of meaning, and the Master noted that, while a King’s Bench Division Master is not prevented from deciding meaning on a summary-judgment basis, there was a significant disincentive to his being prepared to do so.

The Curistan problem

The Master noted the Curistan problem^[3] in determining questions of meaning in circumstances where a defence of qualified privilege is advanced that arises from case law, and where the general law is that the position of qualified privilege should be determined first and, subsequently, the position as to meaning.

In Curistan, Arden LJ held that an excessive “intermingling” of extraneous material with the subject matter of a reporting would negate its “fairness and accuracy” and so qualified privilege. Arden LJ also considered the position on how issues of meaning should be approached where there has been no “intermingling” as to lose qualified privilege, in that the meaning of non-privileged passages was considered on the basis of the whole of an article via a combination of the single-meaning rule and the repetition rule. In his concluding remarks in Curistan, Arden LJ held that the appropriate analysis, once the repetition rule is disapplied, is that there is no reason why a fair and accurate report entitled to qualified privilege should be seen as anything more than a statement that the allegations in the report were made.

Claimant’s submission

Tom Blackburn, counsel for the claimant, submitted that it would be impossible for a defendant to raise a qualified-privilege defence of “fair and accurate reporting” of a subject matter that is itself not defamatory of the claimant. He submitted that, for such a situation to occur, there must be a reporting that is not “fair and accurate”, or else the report would not contain defamatory material. So he contended that the qualified-privilege defence could not succeed, because there was either no claim (i.e. no defamatory meaning in the article) or no defence (as defamatory reporting cannot be “fair and accurate”) and, as a result, the qualified privilege defence had no real prospect of success, and summary judgment should be granted against it.

Jonathan Price, lead counsel for the defendants, submitted that this analysis (i.e., that the defence of qualified privilege is logically impossible) was not presented or considered in any authority or text book and had no foundation.

Decision

Ruling on the matter of principle

Master Dagnall found that Mr Blackburn’s principle was incorrect and inconsistent with authority, and in particular the decision in Curistan, even if it were assumed that the materials used for the article contained nothing defamatory. In the Master’s analysis:

• ‍Curistan clarified that qualified privilege operates so that the relevant privileged words are ignored for defamation purposes, except as far as they provide context for non-privileged words.
• Mr Blackburn ignored the way in which this type of qualified privilege operates. Qualified privilege is not necessarily best termed as a “defence” to a claim in defamation, but is more of a disruptive response to an asserted claim in defamation, in the form of a right that prevents the claimant from relying on the relevant words in order to found the claim itself.
• It was not correct that the reported words can matter only if they contain defamatory material.
• The principle as argued did not have any express support in text books and authority. While not determinative, that, in the Master’s view, supported his analysis of the application of Curistan.

Prospect of success

After finding that a qualified-privilege “issue” did in fact arise in the case, the Master had to consider whether it had any real prospect of success.

The Master considered that, while he had the necessary material to consider the submission on a summary-judgment basis, caution was required, as he could not be entirely sure which points of interpretation of the article would be advanced at trial, and which parts of the article were said to be derived from the Excalibur material.

Given that, following Curistan, qualified privilege can be lost as a result of “intermingling” of extraneous material that is not privileged, and that non-privileged material is not in itself enough to defeat qualified privilege, the Master identified the following difficulties in this case:

• The article included elements that purported to be or were part of a report of some of the Excalibur material.
• The article included different sections containing different elements of what was said to be the Excalibur material, each with other material.
• The article included some sections that were wholly distinct from the Excalibur material.

The Master’s approach, then, was to divide up the article into sections when, and only when, there was some clear division. This was, in his view, consistent with authorities. As to the approach to “intermingling”, that was a fact-sensitive evaluation, and the court must construe the article as being “the report” and then consider whether that is “fair and accurate”.

In analysing the claimant’s ten submissions, the Master could not conclude in nine instances that a defence of qualified privilege had no real prospect of success. Among the statements complained of, the Master could draw sufficient parallels between the article and the Excalibur material. In addition, the claimant could not satisfy the Master that the statements were not “fair and accurate”.

Accordingly, the application for summary judgment was dismissed, although the Master noted that the tenth aspect of the article could not be relied on as being a report that attracts qualified privilege. The Master suggested that the parties consider whether the court should direct a trial of preliminary issues on both qualified privilege and meaning. Directions on the progress of the wider litigation were set to be considered in April 2024.

Comment

This case provides the most useful exploration of the law on qualified privilege in reporting that there has been for many years, and it will be particularly useful for practitioners to consult in any situations where privileged material becomes “intermingled” with extraneous material. It will be interesting to see whether the point comes to be argued before a court again.

Article written for Entertainment Law Review.