Curistan v Times Newspapers Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMR JUSTICE GRAY
Judgment Date25 April 2007
Neutral Citation[2007] EWHC 926 (QB)
Docket NumberCase No: TLQJ/06/0631
Date25 April 2007
Between
Peter Curistan
Claimant
and
Times Newspapers Limited
Defendant

[2007] EWHC 926 (QB)

Before

the Honourable Mr Justice Gray

Case No: TLQJ/06/0631

IN THE HIGH COURT OF JUSTICE

QUEEN's BENCH DIVISION

Richard Parkes QC and Matthew Nicklin (instructed by Schillings) for the Claimant

Patrick Moloney QC (instructed by Times Newspapers Limited) for the Defendant

Hearing date: 26 March 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR JUSTICE GRAY

Introduction

1

The claimant in this action, Peter Curistan, is a Chartered Accountant and a well-known businessman in Northern Ireland. He claims damages for libel against the defendant, Times Newspapers Limited, in respect of an article published in the issue of the Sunday Times for 19 February 2006. He also claims in respect of the reproduction of the article on the defendant's website. The claimant's complaint relates to the Irish edition of the newspaper. The English edition carries a shorter version of the same article.

2

The parties having agreed to trial by Judge alone, I have to decide two preliminary issues, namely:

i) the meaning of the words complained of, and

ii) whether certain passages in the words complained of are protected by statutory qualified privilege, as being a fair and accurate report of proceedings in Parliament.

Consequential on my decision on those two issues, a number of further questions will arise for decision but it has been agreed that those questions should be addressed at a separate hearing after this judgment has been handed down.

3

Notwithstanding an invitation by Mr Patrick Moloney QC for the defendant to the contrary, I will deal with the two preliminary issues in the order set out above. Mr Moloney asked me to decide the issue of privilege (issue 2) before the issue of meaning (issue 1). He did so to enable a submission to be advanced as to the meaning which the words complained of would bear if the privileged words were left out of account. That would be an unconventional approach. I reject Mr Moloney's invitation not so much on that ground, but rather because, as I will explain later, it is in my view an approach which is wrong in principle.

The words complained of

4

Before turning to the two preliminary issues, I will set out the words complained of in full. I have added paragraph numbers for ease of later reference.

“ 'IRA' developer in row over accounts

i) A Belfast based property developer accused of “association with the IRA's dirty money” has falsely claimed accountants have given him a clean bill of health.

ii) Peter Curistan, an investor in Belfast's Odyssey Arena complex, has been accused under parliamentary privilege of IRA money-laundering and financial malpractice. The claims were made two weeks ago by Peter Robinson, the Democratic Unionist MP, in the House of Commons.

iii) Curistan said last week that he was horrified by “these scandalous allegations” for which he said there was no foundation. He invited Robinson “to come in

and inspect all our books, to appoint whatever accountancy firm he wants to inspect our books for the last 10 years”.

iv) The businessman said the accounts had been done every year by Price Waterhouse Coopers (PWC), and had never been qualified in any way.

v) But The Sunday Times has obtained copies of the accounts of Curistan's Sheridan Millennium Ltd for 2002 and 2003, the latest prepared. Both contain statements of qualification from PWC and state “we were unable to determine whether proper accounting records had been kept”.

vi) The 2003 accounts, which were to be submitted late and are not yet in the public domain, contain the heaviest qualification. PWC says: “We have not obtained the information and explanations that we considered necessary for the purpose of out audit”.

vii) PWC says it was unable to obtain records of sums of £593,253 and £162,666 because of a legal dispute with Irish Estate Management. They were also unable to obtain details of sums amounting to $1,190,564 (£683,000) and $688,468 (£395,139) in dispute with the IMAX corporation. In 2002, PWC also state it had not obtained all the information necessary to conduct an audit.

viii) Asked if they were meeting Curistan to discuss their concerns, and if they were confident that they would remain auditors in the long term, the accountancy company replied: “It is not PWC's policy to make a comment in respect of its clients' affairs.”

ix) Northern Ireland's Department of Economic Development has called in another firm of accountants, BDO Stoy Hayward, to perform a full due diligence check on Curistan's books in order to assess whether his Sheridan Group, which is based in British Virgin Islands, should be allowed to retain its development contract in the Laganside Corporation.

x) The contract involves the construction of housing, offices, a hotel, retail outlets, cafes and other leisure facilities.

xi) A source close to the development said: “In order for the department to be satisfied, they need BDO to examine accounts that are as up to date as possible, but under any sort of normal due diligence they cannot be content with an accounting period which is two years in arrears.”

xii) Curistan has not submitted accounts for 2004 or 2005 and it is understood that his next set will cover an 18-month period.

xiii) In his Commons statement, Robinson linked Curistan to Dessie Mackin, Sinn Fein's head of finance whom he called the IRA's head of finance. Security sources say Mackin, who has been convicted of IRA membership, succeeded Joe Cahill as the IRA's finance director.

xiv) Robinson put Mackin's personal wealth at £1.75m. Mackin and Curistan are jointly involved in about 23 companies, seven of which – Century City, Strike Four, Flix Restaurants, Daylong, Sheridan Simulation, Sheridan Theatres Dublin and Grovepark Properties – were prosecuted last December in Dublin's District Court for failing to keep proper accounts. They pleaded guilty.

xv) All seven companies were given the Probation Act, provided they made a large donation to charity. Most of them were based in the Parnell Centre in Dublin, which recently granted a licence to Peter Stringfellow for a table-dancing club, despite local objections that it would lower the tone of the place.

xvi) The latest accounts for Strike Four, which ran a restaurant that close in 2000, show accumulated losses of €2.52m (£172m) at the end of September 2004. The loss for the year was €447,485.

xvii) Curistan's Dublin auditors, Horwath Bastow Charleton, resigned from Sheridan Simulation and other companies last year saying that, like PWC, they were unable to establish if proper books and records had been kept.

xviii) Curistan could not be contacted. He has described Mackin as a friend since his student days.”

5

The article was accompanied by a photograph depicting Mr Mackin at what is described in the caption as an IRA funeral. Reference is made in that caption to Mr Mackin's conviction for being a member of the IRA. There is also a smaller photograph of the claimant captioned

“Curistan: 'horrified'”.

There is also a photograph of premises occupied by Stringfellows which has little, if anything, to do with the article.

The publication on the website is in the same terms as the newspaper article but without any photographs.

The first preliminary issue

6

The first preliminary issue, as formulated on behalf of the claimant, is in the following terms:

“which defamatory meaning the words complained of bear, and in particular whether they bear the meaning attributed to them by the claimant”.

7

The natural and ordinary meaning attributed to the words complained of by the claimant in paragraph 5 of the Particulars of Claim is

“that the Claimant through his companies, including in particular Sheridan Millennium Ltd and the Sheridan Group, was guilty of involvement in money laundering and other criminal financial malpractice for the IRA, an involvement which was amply demonstrated by his long-standing friendship with Dessie Mackin, the finance director of the IRA, by the qualification of the accounts of Sheridan Millennium Ltd by Price Waterhouse Coopers (PWC). By the qualification of the accounts of various of the Claimant's companies by their Dublin auditors and the auditors' resignation, by the failure of seven of those companies to keep proper accounts and by the investigation into the financial affairs of Sheridan Group by BDO Stoy Hayward at the instance of the Northern Ireland Department of Economic Development.”

8

According to paragraph 7 of the defence, the meaning which the defendant seeks to justify (the so-called Lucas-Box meaning) is that:

(A) there were reasonable grounds to suspect that the claimant had been associated with IRA dirty money, and was also involved in financial malpractice; and that

(B) in order to support his denial of the allegations made against him by Peter Robinson MP in Parliament linking him to the IRA's “dirty money”, the Claimant had publicly made a false claim that the accounts of his company Sheridan Millennium Ltd were not qualified in any way.

9

The rival contentions are therefore whether the article means that the claimant was guilty of involvement in money laundering and other financial malpractices (criminal or otherwise) or whether it means that there are reasonable grounds to suspect that the claimant had been associated with IRA “dirty money” and involved in financial malpractice. These two different levels of meaning have come to be labelled “a Chase level 1 meaning” and “a Chase level 2 meaning” respectively, following the decision of the Court of Appeal in Chase v Newsgroup Newspapers Ltd [2003] EMLR 218.

10

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