WARREN WILSON AGAINST NATIONAL BUSINESS REVIEWA complaint by Warren Wilson against the National Business Review is not upheld.
The NBR article reported on a High Court hearing on an application to release two caveats. The property concerned was owned by a company in liquidation (company A) which was associated with a man (B) who had been quoted in another newspaper article, which appeared approximately 11 months earlier, as confessing to a crime.
B is being pursued by his creditors, who have evidently lost a considerable sum of money because of his activity, but is apparently elusive.
Mr Wilson is the liquidator of company A and was in court and addressed the Judge.
The article stated that the Associate Judge “says B can be contacted through his ‘friendly’ liquidator, Warren Wilson…”. The article referred to Mr Wilson’s address.
The complaint alleges breaches of accuracy, fairness and balance.
Mr Wilson complains:
a) the Associate Judge did not refer to him as the “friendly liquidator”;
b) the article did not report a comment made by the Associate Judge in his decision when the Judge responded to comments made by Mr Wilson;
c) the NBR was in breach of a suppression order made at an earlier stage;
d) the article was not accurate, fair or balanced, particularly when it did not refer to the nature of the proceeding and made no attempt to obtain any balancing comment.
The NBR’s response to the four elements of the complaint is:
a) The “friendly liquidator” comment was made by one of the solicitors involved who said that Mr Wilson was a “friendly liquidator” appointed by B. NBR says the article did not say that the Associate Judge had made the comment.
b) At the time the article was published, the Judge’s written decision was not available to the reporter. The report gives a fair account of what the Judge said at the hearing.
c) The reporter was not aware of the suppression order which was not made in that particular proceeding. Further, the Associate Judge had extracted from Mr Wilson his contact details so that he could refer creditors to them in his decision.
d) The article did mention the nature of the proceeding.
The reference to the “friendly” liquidator lacks clarity as to who made the comment. The word “friendly” appeared in quotation marks to indicate that it was a quotation from someone. It is not unnatural for most readers to assume that it was a quotation from the Associate Judge. While this may be sloppy journalism, and the report should have indicated who made the remark, it in itself is not sufficient to uphold the complaint. The claim was made in the court hearing.
The Associate Judge gave his judgment orally and if the written copy now available is an accurate transcript of it, the reporter presumably heard the comments which Mr Wilson claims should have been included in the article. The comment noted Mr Wilson had intervened again to correct an earlier statement in the decision which was impliedly critical of Mr Wilson.
This complaint is not upheld for two reasons. First, the thrust of the article was on B and not Mr Wilson. It is not necessary to balance every particular aspect of comments made. Second, the Council suspects that Judges reserve the right to edit oral judgments and there is no certainty that the final judgment follows accurately what was said, albeit that the substantive reasons given by the Judge for his decision would not have been altered.
There are two aspects to the complaint of a breach of suppression order. First, a breach of a suppression order is a criminal matter, not an ethical matter. This Council has as a matter of course taken the view that the courts are the usual forum for complaints of breach of suppression orders. Exceptions to this practice are rare and are usually because the newspaper has admitted that it breached the order.
Second, the complainant is not B. Mr Wilson has declined to attempt to obtain B’s consent to that issue of the complaint. The usual practice of the Council, when the complaint is on behalf of a third party, is to require that party to consent to the complaint. Mr Wilson refuses to do so. It is relevant in this case that B’s barrister wrote to NBR to advise of the breach but, to the Council’s knowledge, has not laid a complaint with the Solicitor General.
In this case, the NBR says the reporter was unaware of the suppression order. The order was made several weeks before the case reported in the article and was made in a separate criminal proceeding and not in the caveat case then before the court. A breach of the suppression order leads to strict but not absolute liability. There have been cases when a newspaper, having taken all reasonable care that a reasonable person would take in the circumstances and being unaware of the suppression order, has not been found guilty of contempt of court when charged with a breach of the suppression order. These cases highlight why the Council is not prepared to adjudicate on suppression orders unless the case is clear-cut. This case is not and the NBR, if prosecuted, may well not be liable.
The case illustrates why a register of suppression orders would be useful to journalists.
The final complaint relates to the nature of the proceeding not being published and no attempt being made to obtain any balancing comment. The article did make it clear that the application was in respect of a release of caveats. The balancing aspect is also not upheld as the thrust of the article was in respect of creditors not being able to contact B and what appears to have been the Judge’s intention that B should be contactable through Mr Wilson. The Judge appears to have highlighted that B could be contacted through Mr Wilson, in an attempt to assist B’s creditors. If balance were required, it was a statement from B who was not present at the proceeding and who by all accounts was being elusive.
For the above reasons, the complaint is not upheld.
Press Council members considering this complaint were Barry Paterson (Chairman), Pip Bruce Ferguson, Kate Coughlan, Sandy Gill, Penny Harding, Keith Lees, Clive Lind, John Roughan, and Stephen Stewart.
Chris Darlow took no part in the consideration of this complaint.