Roberts & Anor v Gable & Ors

LORD JUSTICE CARNWATH: I am persuaded that permission should be granted in this case. It relates to a judgment of Eady J on a preliminary issue in a libel action. The appellants are both members of the BNP Party and have stood as candidates in general elections.

The proceedings arise out of an article written by the first respondent Mr Gerry Gable, who is a journalist, writing a column entitled “News from the Sewers” for the magazine Searchlight. The particular article was published in the October 2003 edition. The article made a series of statements about a so called feud between different factions of the BNP in the London area. The particular complaint relates to the reporting of a letter by the supporters of one faction within the BNP, which apparently accused the appellants of stealing money and other criminal conduct.

Since I am minded to grant permission, it is probably better not to say more than is essential at this stage. The question before the judge, which was a subject of the preliminary issue, was whether the newspaper could rely on the defence of qualified privilege on the basis that they were simply reporting a matter of public interest, namely a feud within a political party, and were not adopting the allegations themselves. Eady J allowed that defence. Sedley LJ refusing permission on the paper, said that Eady J’s approach was that:

I have considerable sympathy with that view, which if anything has been reinforced by the recent House of Lords decision in Jameel v Wall Street Journal [2006] UKHL 44. I certainly would not offer any strong hopes for the appellants in this case. However, as Mr Davies says, this is a developing area of the law. The only authority at this level is the case of Al Fagih v Saudi Research and Marketing (UK) Ltd [2002] EMLR 215. In that case, Simon Brown LJ set out the principles upon which the reporting of such allegations could be entitled to privilege. That followed the new approach laid down by the House of Lords in Reynolds v Time Newspapers Limited [2001] 2 AC 127 to the question of responsible reporting, although that case was not specifically dealing with “reportage” as Simon Brown LJ described it.

Applying the approach of Simon Brown LJ, I would have little doubt that Eady J was correct. On the other hand, Mr Davies points to what appears to be a qualification in the judgment of Latham LJ for allegations of “criminality”. He said this at paragraph 68:

With respect to Latham LJ, the full scope of that exception is not entirely clear to me and of course it was not relevant in the context of that case. However, it is also right to note that the other member of the court, Mantell LJ, dissented from the judgment of the majority formed by Simon Brown and Latham LJJ.

In those circumstances, it seems to me that there is a possible doubt, which could usefully be resolved in this court, as to how far the adoption of reportage goes in the context of a case such as this where the reported allegations were of criminality of a high level.

For those reasons, I would give permission to appeal.

I should add that we were told that there was another case raising similar issues on appeal from Gray J for which permission is being sought. If permission is granted for that (we have not been given any detailed information about it), then it may be that attempts could be made to bring the two cases together.

LORD JUSTICE WALLER: I entirely agree. Three Lord Justices, and it would obviously depend if the other case were joined and all sorts of things like that but if you were just arguing the point straight, a day. There should be one Lord Justice with some libel experience, if possible.