Page 67 - Law and the Media

Law and the Media
of absolute and qualified privilege. It attaches to individual documents because of the
particular status or purport of the document, instead of the occasion on which the publication
was made.

Legal professional privilege
This extends to all confidential communications between a lawyer and his client, and to all
communications between a lawyer or his client and a third party which come into existence
for the dominant purpose of pending or actual litigation.

Spouses
A party need not disclose information that may expose him or his spouse to a criminal
penalty.

‘Without prejudice’ communications
These are communications between the parties that explore settlement. They are privileged
on the public policy ground of encouraging parties to settle their differences, rather than
litigate before the court.

General power
The court has a general power to impose immunity from production on confidential or
privileged documents, where to produce such documents would be injurious to the public
interest.

1.4.6 Trial
The right to elect trial by judge and jury is preserved in defamation actions, although the parties
can agree or the court can order on application that a judge alone should hear the trial.

Where the parties, or one of them, is a public figure or there are matters of national interest
in question, this suggests the need for a jury trial (Rothermere v The Times (1973)). However,
the issue of a person’s ‘fitness for public office’ is one that requires detailed consideration
of documents, and in such circumstances a jury trial may not be appropriate (Aitken v Preston
(1997)).

1.5 Damages

1.5.1 General principles

Of all the unsatisfactory elements in the law of defamation, the one that has attracted most
criticism has been the manner of awarding damages. The assessment of damages is solely a
matter for the jury.

Prior to 1997 the jury were not told how much other libel claimants had been awarded in the
past; nor were they given specific guidance on an appropriate figure or the range they should
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