There was no money to be made in taking a defamation case as far as a person who was suing a newspaper was concerned, Mr Albert Reynolds's lawyer told the House of Lords yesterday. Mr Andrew Caldecott QC, for Mr Reynolds, was making submissions on the fourth day of an appeal by the Sunday Times.
Mr Reynolds again attended the hearing yesterday.
The newspaper is appealing a legal issue of qualified privilege arising out of the libel case Mr Reynolds took against it. The appeal was adjourned yesterday and will continue on Monday.
Addressing the five Law Lords, Mr Caldecott referred to factors which would deter a person from taking a case. The plaintiff faced all sorts of hurdles, he said. He did not have legal aid. Newspapers did not face bankruptcy, but the plaintiff very often did. Regional newspapers were often owned by large groups and national newspapers were making huge profits. If a plaintiff issued a writ and then did not go on, the newspapers would say it was a gagging writ.
"As far as the plaintiff is concerned, there is no money to be made in taking a defamation case at all", Mr Caldecott said. The only reason a plaintiff would take a case was to defend his reputation.
Last year, Mr Reynolds won a retrial in the Court of Appeal in London. The Sunday Times lost its argument that it had qualified privilege when it published the article in November 1994 at the time the Fianna Fail-Labour coalition collapsed and Mr Reynolds resigned as Taoiseach. In November 1996, a London High Court jury found that Mr Reynolds had been libelled, but awarded him zero damages, which the judge altered to one penny.
Yesterday, Mr Caldecott said that for qualified privilege to exist, there should be three factors: the article should be of public interest; there should be a right to reply; and the newspaper had to show that there was some cogent reason why it should be excused, in the particular circumstances of the case, from justifying it. Regarding the third factor, the newspaper would not have to reveal its source of information, but would have to give a good reason as to why the source was good.
Lord Nicholls, presiding, said that the third factor was certainly a novel proposition.
Mr Caldecott then turned to the question of an allegation against a newspaper of malice in writing an article. "Malice is (defined as) having a dominant improper motive and it is an abuse of the qualified privilege which leads to the privilege being withdrawn", he contended.
In the case of an enthusiastic journalist who had missed a point, or not seen an ambiguity, this was in the area of misjudgment and was not malice, he said. Journalists were not usually malicious people, but they very often were guilty of misjudgment in their keenness to publish a story.
Mr Caldecott said that an allegation of malice against a newspaper was a very serious charge, as it was in a sense an allegation of professional dishonesty. There was also a problem in deciding whether a source was malicious. If the source was not revealed, then they did not get past the first stage of being able to show that the source was malicious. "Absence of an apology is generally no evidence of malice", Mr Caldecott said. "Also, you cannot assume dishonesty by a journalist simply because an allegation is false."