In our previous blog, we discussed the defence of qualified privilege for a defamation claim under section 15 of the Defamation Act 1996 (DA) and the case of Hawrami v Journalism Development Network, Inc. and others [2024] EWHC 2194 (KB). This blog is going to further discuss the summary judgment application made by the Claimant against the Defendant’s defence of qualified privilege in that case as it highlights the distinction between words that comment on a privileged material and words that purport to report the privileged material itself.
Hawrami v Journalism Development Network, Inc. and others [2024] EWHC 389 (KB)
Background
The Claimant, i.e. Dr Ashti Hawrami, brought a defamation claim against three Defendants, i.e. Journalism Development Network, Daniel Balint-Kurti, and William Jordan, for publishing an article entitled ‘The Rise and Fall of a NZ Oil Man in Iraq’ (Article). It was first published in May 2021, and it was subsequently amended in August and September 2022.
The Defendants argued that the Article was a fair and accurate report of certain legal proceedings, i.e. the Excalibur Litigation, which involved various third parties in connection with oil exploration in Iraq, so they could rely on the defence of qualified privilege under section 15 of the DA.
The Claimant alleged that the Article contained defamatory meanings, like whilst he was serving as Minister of Natural Resources in the Government of the Kurdistan Regional Government, he engaged in corrupt practices. He therefore claimed damages and an injunction to prevent further publication.
The Claimant sought summary judgment against the Defendants regarding their defence of qualified privilege and argued that:
- It would be impossible for the Defendants to rely on the defence of ‘fair and accurate reporting’ of a subject matter that was itself not defamatory of the Claimant; and
- There must be reporting in the Article that was not ‘fair and accurate’ or else the Article would not contain defamatory material.
Decision
The Court noted a ‘Curistan problem’ in this case. The case of Curistan v Times Newspapers Ltd [2008] EWCA Civ 432 (Curistan Case) concerned the reporting of proceedings in the Parliament and whether they were fair and accurate where the newspaper had added in further material to the report. In that case, the Court ruled that when assessing a hybrid article, where part only is protected by qualified privilege, the repetition rule cannot be applied to assess the meaning of the non-privileged parts. Any privilege defence would have to be determined before meaning can be ascertained.
The Court found that the Claimant’s argument ignored the way qualified privilege operated. It was a ‘disruptive response’ rather than a defence ‘in the form of a right that [prevented] the Claimant from relying on the relevant words in order to found the claim itself’.
Since there was an issue with qualified privilege, the Court had to consider whether there was any real prospect of success by dividing the Article into sections because, pursuant to the Curistan Case, qualified privilege could be lost as a result of intermingling of extraneous material that was not privileged and that non-privileged material was not in itself enough to defeat qualified privilege.
The Court was not fully convinced that the statements were not fair and accurate, especially since it was not permitted to reach its determination of the meanings of the Article on a summary basis, so the Defendants had real prospects of successfully relying on the defence of qualified privilege and therefore dismissed the Claimant’s application for summary judgment.
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