On a daily basis journalists report court proceedings, both criminal and civil, and rely on the defences of absolute and qualified privilege to do so.

As readers will know “a fair and accurate report of proceedings in public before a court to which this section applies, if published contemporaneously with the proceedings, is absolutely privileged”, to quote from the amended S.14 of the Defamation Act 1996.

If the report of the proceedings is fair and accurate, but isn’t contemporaneous, you can instead rely on statutory qualified privilege to defend a libel action.

However, one tricky problem that sometimes crops up is whether documents that are put before the court, but aren’t actually read in open court, attract the same privilege as documents that are read or words that are spoken in open court. Surprisingly, there is no answer on the issue in statute or in case law.

It is now common place in civil court proceedings for witness statements to be “taken as read”, which means that the witness does not give the evidence contained in the witness statement in court. The parties just take the statement as it is written, and the witness is only subjected to cross examination in open court.

Similarly, in both civil and criminal cases, it is common for the advocates to prepare skeleton arguments in relation to the case. The skeleton arguments are handed to the other parties and to the judge, but are frequently not read out in full. Again, the arguments are taken as read, and the advocate simply summarises or expands on the points orally.

Therefore, there is a significant amount of relevant and valuable information that not only adds context to a case, but also contains arguments and evidence, which is not spoken in the open court.

The problem has come to the forefront again as a result of an article written by Hugh Tomlinson QC for the legal press. In Mr Tomlinson’s opinion documents that have been taken as read should be afforded the same privilege as submissions and evidence that are actually said in open court.

Mr Tomlinson argues that the case for such documents being afforded the same protection as words that are spoken in court is a strong one. Judges have previously commented that documents being considered by the court, without being read out in open court, has the potential to make proceedings less comprehensible to the public.

It should not be forgotten that documents such as skeleton arguments and statements are available on application to the court. The general rule is that if a document forms part of the decision making process, it should be available to the public, including for the purpose of journalistic scrutiny. In some circumstances, there may be reasons for refusing public access to such documents, but any decision should be based on a balancing of the relevant considerations, with no unnecessary curb being put on open justice.

It is therefore true that journalists may access documents that form part of the decision making process, in most circumstances, but the question still remains – are articles based on them privileged?

Though the answer is unclear, there are convincing arguments in favour of the remit of absolute and qualified privilege being extended to cover these documents. After all, how can you provide a fair and accurate report of proceedings if you cannot report all of the relevant information without fear of a libel action? Court reporters need to be able to produce the fairest and most accurate reports of proceedings possible, irrespective of whether the information was actually spoken in open court.

The fact that someone as eminent as Hugh Tomlinson QC thinks this is an issue that needs to be addressed demonstrates that the current law is unsatisfactory – but for the foreseeable future, this is an uncertainty that journalists just have to live with.