Report of proceedings was fair and accurate

LAW REPORT v 15 October 1996

Tsikata v Newspaper Publishing plc; Court of Appeal (Lord Justice Neill, Lord Justice Ward and Lord Justice Thorpe) 30 September 1996

A fair and accurate newspaper report of the proceedings of a public inquiry need not be published as a contemporary report or item of recent news in order to attract the protection of qualified privilege under the Defamation Act 1952.

The Court of Appeal dismissed an appeal by the plaintiff, Kojo Tsikata, against a preliminary ruling by Jonathan Sumption QC, sitting as a deputy High Court judge on 28 October 1994, in a libel action against the publishers of the Independent.

The action concerned an article published in the Independent on 18 June 1992, about a forthcoming election to be held in Ghana, which for the preceding 11 years had been governed by the military regime of Flight Lieutenant Rawlings. The article contained the following paragraph:

In June 1982, three High Court judges were kidnapped and executed at an army shooting range. A special inquiry into the killings recommended the prosecution of 10 people, including Flt Lt Rawlings's close aide, Captain (Retired) Kojo

Tsikata, who was named as "the master mind" of the plot. Five people were prosecuted and executed, but not Captain Tsikata.

The plaintiff sued for libel. In its defence, the defendant pleaded that the words were published on an occasion of qualified privilege.

By section 7(1) of, and paragraph 5 of Part I of the Schedule to, the Defamation Act 1952, the publication in a newspaper of a "fair and accurate report" of proceedings in public of "a public inquiry" set up "by the government or legislature of any part of Her Majesty's dominions outside the UK" should be privileged unless such publication was made with malice. By section 7(3):

Nothing in this section shall be construed as protecting the publication . . . of any matter which is not of public concern and the publication of which is not for the public benefit.

The plaintiff argued, inter alia, that the paragraph concerned was not a "report" or news item but merely commentary on past events; and it could not be "fair and accurate" if it did not also refer to the fact that the Attorney General, when making the enquiry report public, had rejected its recommendations in relation to the plaintiff, and to the fact that Amartey Kwei, the alleged co-conspirator on whose evidence the plaintiff had been implicated, had later retracted his allegations against him.

Michael Tugendhat QC and Richard Parkes (Bindman & Ptrs) for the plaintiff; Sidney Kentridge QC and Andrew Caldecott QC (Oswald Hickson Collier) for the defendant.

Lord Justice Neill said the protection under paragraph 5 of the Schedule to the 1952 Act, which would have covered a report in a newspaper published at the time, did not cease because the report was published nearly ten years later. To be covered by paragraph 5 a report of proceedings did not have to be a contemporary report or an item of recent news.

The more difficult question was whether, in relation to section 7(3), the publishers could claim it was "for the public benefit" to publish a reference to the enquiry's recommendations without mentioning the Attorney General's comments and Mr Kwei's retraction of his allegations against the plaintiff.

The solution was to be found by considering the basis on which this privilege existed and the surrounding facts. The law provided that in certain circumstances and in relation to certaintypes of subject matter a newspaper was entitled to qualified privilege if it published a fair and accurate report of proceedings in public before a tribunal in a Commonwealth country. The newspaper might not know what happened subsequently nor might it be in a position to assess the quality or effect of any later denials or refutations.

Each case must depend on its own fact. But in this case it seemed the prima facie defence was made out and that the conditions of section 7(3) were satisfied.

Finally, although the third sentence of the paragraph complained of was not covered by statutory privilege, it was protected by qualified privilege at common law as being part of the matters relating to the proceedings which the public were entitled to know.

Paul Magrath, Barrister