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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
    1. Brutus v Cozens [1972] 2 All ER 1297
    2. Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620
    3. R v Brown and other appeals [1993] 2 All ER 75
    4. R v Lemon; R v Gay News Ltd [1979] 1 All ER 898
    5. Attorney General v Times Newspapers Ltd [1973] 3 All ER 54
    6. Blackshaw v Lord and another [1983] 2 All ER 311
    7. Malone v Metropolitan Police Commissioner [1979] 2 All ER 620
    8. R v Home Secretary, ex parte Brind [1991] 1 All ER 720; [1991] 1 AC 696
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Blackshaw v Lord and another [1983] 2 All ER 311

STEPHENSON LJ. This is an appeal by the defendants, the Daily Telegraph Ltd and their economics correspondent, Mr Lord, against a verdict of a jury and judgment entered thereon by Caulfield J on 26 February 1981 for 45,000 damages for a libel on the plaintiff, Mr Blackshaw.

The libel complained of is contained in the heading and the first four paragraphs of an article written by Mr Lord, the first defendant, and published by the second defendant in the first edition of the Daily Telegraph for 13 September 1979. The whole article reads thus:

Incompetence at Ministry cost 52m

RODNEY LORD, Economics Correspondent

GOVERNMENT Department has paid North Sea oil companies 52 million in grants which they should not have received. The money is unlikely to be repaid.

Investigations by the Exchequer and Audit Department and the Public Accounts Committee of the House of Commons have led to a number of senior civil servants being reprimanded.

Mr Alan Blackshaw, the official in charge of Offshore Supplies Office when the payments were being made, resigned from the civil service last month.

Mr Joel Barnett, Labour MP for Heywood and Royston and chairman of the Public Accounts Committee yesterday described the events as 'a story of inefficiency, incompetence, inadequate staff and inadequate supervision'....

The plaintiff does not complain of....of anything but the first four paragraphs. They are alleged to mean - that by reason of the Plaintiff's incompetence and inefficiency as the official in charge of the Offshore Supplies Office 52 million of public money had been lost or improperly paid and in consequence the Plaintiff had been reprimanded and compelled to resign from the civil service. The defendants denied that those paragraphs were defamatory, and alternatively alleged that they were privileged in as many as three different ways....

The judge gave three rulings on qualified privilege....[H]e upheld a plea, or rather two pleas, in para 6 of the defence that -

the article was a fair and accurate report of matter issued on behalf of a government department and/or on behalf of the members of a Parliamentary Committee and accordingly the article is privileged....at common law.

Was the judge...wrong in ruling that the article might be a privileged publication at common law? This point the judge found...difficult, and I have not found it easy. He derived the principles to be applied from the judgment of Buckley LJ in Adam v Ward (1915) 31 TLR 299 at 304 as summarised by Cantley J in London Artists Ltd v Littler [1968] 1 All ER 1075 at 1085, [1968] 1 WLR 607 at 619. He then stated his conclusion in these words:

"if the facts be these, and I stress, if the facts be these because they are not yet found by the jury, that Mr Lord on his interrogation of Mr White, who was an official at the [Department] of Energy, concluded that there had been maladministration in the Civil Service in the administration of the grants and that a substantial sum of money was involved and, further, that the person who was responsible, I do not mean directly but right at the top of the whole administration, for administering the scheme was the plaintiff and it had been conveyed to Mr Lord that it must be Alan Blackshaw who would be the person who was referred to in the Public Accounts Committee, that is a matter which, I think, it is beyond argument would be for the ordinary English person who would be interested in the workings of government, a matter which is so important, in my judgment, that it would be the duty of the press to bring it to the attention of the public, and any right-thinking person who wanted good administration in this country, and who was interested in the running of the country, would want to know those facts, not only want to know them, but he would be keen to know them, and, furthermore, a newspaper proprietor, in my judgment, of any proper standing, I mean of integrity and of independence, would have a strict duty to bring those matters to the attention of the public. In those circumstances, though this ruling, I am told, is novel in the sense that there has not been any similar ruling, I would conclude, and do conclude, that the common law privilege would attach to this particular article".

...I approach with caution the application of common law privilege to an occasion, or more correctly a publication, which tries and fails to come within statutory privilege, and find no very clear guidance in such authorities as there are on the circumstances in which a newspaper report has the necessary qualifications for the protection of the common law...

The question here is....did Mr Lord (and his newspaper) publish his report of that conversation in pursuance of a duty, legal, social or moral, to persons who had a corresponding duty or interest to receive it?....I cannot extract from any of those authorities any relaxation of the requirements incorporated in that question. No privilege attaches yet to a statement on a matter of public interest believed by the publisher to be true in relation to which he has exercised reasonable care. That needed statutory enactment which the Faulks Committee refused to recommend (See pp 53(55 paras 211(215). 'Fair information on a matter of public interest' is not enough without a duty to publish it and I do not understand Pearson J's ruling in Webb v Times Publishing Co Ltd [1960] 2 All ER 789, [1960] 2 QB 535, that a plea of a fair and accurate report of foreign judicial proceedings was not demurrable, was intended to convey that it was enough. Public interest and public benefit are necessary.... but not enough such as to create the duty to publish the information to the intended recipients, in this case the readers of the Daily Telegraph. Where damaging facts have been ascertained to be true, or without more. There must be a duty to publish to the public at large and an interest in the public at large to receive the publication; and a section of the public is not enough.

The subject matter must be of public interest; its publication must be in the public interest. That nature of the matter published and its source and the position or status of the publisher distributing the information must be been made the subject of a report, there may be a duty to report them (see eg Cox v Feeney (1863) 4 F & F 13, 176 ER 445, Perera v Peiris [1949] AC 1 and Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961), provided the public interest is wide enough (Chapman v Lord Ellesmere [1932] 2 KB 431, [1932] All ER Rep 221). But where damaging allegations or charges have been made and are still under investigation (Purcell v Solwer 2 CPD 215), or have been authoritatively refuted (Adam v Ward (1915) 31 TLR 299; affd [1917] AC 308, [1916(17] All ER Rep 157), there can be no duty to report them to the public.

....There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there is danger to the public from a suspected terrorist or the distribution of contaminated food or drugs; but there is nothing of that sort here....

FOX LJ:.... I take the correct principle of common law privilege to be that stated by Buckley LJ in the Court of Appeal in Adam v Ward (1915) 31 TLR 299 at 304:

'"if the matter is of public interest and the party who publishes it owes a duty to communicate it to the public, the publication is privileged, and in this sense duty means not a duty as matter of law, but, to quote Lord Justice Lindley's words in Stuart v. Bell ([1891] 2 QB 341 at 350), "a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings".

No doubt the privilege may also attach if the statement is made for the protection of some lawful interest of the person who makes it, for example for the protection of his own property but that is not this case. Again, an allegation of improper or negligent conduct against a public servant may be privileged if made to persons having a proper interest to receive it, such as the police or senior officials. That is not this case either.

There are, however, statements in the books which put the principle differently. In v Perera Peiris [1949] AC 1 at 21 Lord Uthwatt, giving the advice of the Privy Council, said: "If it appears that it is to the public interest that the particular report be published, privilege will attach". The case was primarily concerned with the Roman-Dutch law rather than English law, though I think the Board was stating principles which it considered applicable to both systems (see [1949] AC 1 at 20). I do not think that the case really advances the matter for present purposes. It was concerned with a newspaper report of extracts from the Official Report of the Bribery Commission set up by the Governor of Ceylon under statutory powers to inquire into allegations that bribes had been paid to members of the then State Council to influence their decisions. I should have thought that in those circumstances there was a public duty on the newspaper to publish the material....

A wider principle is stated by Pearson J in Webb v Times Publishing Co Ltd [1960] 2 All ER 789 at 805, [1960] 2 QB 535 at 570:

"As the administration of justice in England is a matter of legitimate and proper interest to English newspaper readers, so also is this report [of foreign proceedings], which has so much connection with the administration of justice in England. In general, therefore, this report is privileged".

I think that states the principle rather too widely. It is necessary to a satisfactory law of defamation that there should be privileged occasions. But the existence of privilege involves a balance of conflicting pressures. On the one hand there is the need that the press should be able to publish fearlessly what is necessary for the protection of the public. On the other hand there is the need to protect the individual from falsehoods. I think there are cases where the test of 'legitimate and proper interest to English newspaper readers' would tilt the balance to an unacceptable degree against the individual....