Cushnahan (Francis) v British Broadcasting Corporation & Adams (Jeremy)
| Jurisdiction | Northern Ireland |
| Judge | Stephens J |
| Judgment Date | 10 March 2017 |
| Neutral Citation | [2017] NIQB 30 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 10 March 2017 |
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Neutral Citation: [2017] NIQB 30 Ref:
STE10222
Judgment: approved by the Court for handing down Delivered:
10/03/2017
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
FRANCIS CUSHNAHAN
Plaintiff:
and
BRITISH BROADCASTING CORPORATION
and
JEREMY ADAMS
Defendants:
________
STEPHENS J
Introduction
[1] The plaintiff, Francis Cushnahan, has commenced proceedings against the
first defendant, the British Broadcasting Corporation (“the BBC”) and the second
defendant, Jeremy Adams, who is the Editor of “Spotlight,” a BBC Northern Ireland
current affairs programme. The proceedings relate to a number of publications by
the BBC including the broadcast of two Spotlight programmes, namely:
(a) A programme entitled “Selling Northern Ireland: Mandy McAuley uncovers a
scandal at the heart of the sale of Northern Ireland property loans.”
(“Spotlight One”). It was broadcast on Monday 29 February 2016. It was
re broadcast on 6 March 2016 (5/1784). The BBC’s standard policy for most
programmes is that they are made available to the public on iPlayer for
30 days after its last broadcast on a channel. In accordance with that policy
Spotlight One remained available to view on the BBC iPlayer until 5 April
2016. (1/173/34).
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(b) The second was entitled “The NAMA Tapes: Corruption and Cover-up:
Mandy McAuley uncovers secret recordings that expose corruption around
NAMA’s billion pound Northern Ireland property deal.” (“Spotlight Two”).
It was broadcast on 6 September 2016. It was re-broadcast on 7 September
2016. It remained available to view on the BBC iPlayer until 8 October 2016.
(1/173/35).
[2] The plaintiff states that both Spotlight programmes allege either that he was
criminally corrupt or that he was reasonably suspected of such corruption. In
essence the Spotlight programmes allege that the plaintiff, whilst a member of the
Northern Ireland Advisory Committee (“NIAC”) of the National Asset Management
Agency (“NAMA”) and whilst being paid by NAMA, was at the same time acting on
behalf of and being paid by the purchaser of NAMA’s Northern Ireland loan
portfolio and on behalf of and being paid by developers who owed money to
NAMA. In particular that one developer, Mr Miskelly, paid the plaintiff £40,000 in
cash in August 2012. The plaintiff is concerned that the BBC will re-broadcast one or
other or both of the Spotlight programmes or alternatively will broadcast another
programme (“Spotlight Three”) containing further material alleging that he was
corrupt or is suspected of corruption. He has brought this application seeking an
interlocutory injunction to prevent such eventualities. The context in which the
plaintiff seeks an interlocutory injunction is that in July 2015 the National Crime
Agency (“NCA”) commenced a criminal investigation into the sale by NAMA to
Cerberus Capital Management (“Cerberus”) for £1.241 billion of its loans to
Northern Irish property developers. The plaintiff is a suspect in that criminal
investigation, which is ongoing.
[3] The plaintiff primarily asserts that he is entitled to an interlocutory injunction
on the basis that any further broadcast by the BBC stating that he is corrupt or is
suspected of corruption would be a contempt of court under the strict liability rule in
the Contempt of Court Act 1981 or a common law contempt of court or would be a
breach of his rights under Article 6 ECHR in any potential criminal trial to an
impartial tribunal and his presumption of innocence. The plaintiff also asserts that
he is entitled to an interlocutory injunction on the basis of the tort of misuse of
private information, under the Protection from Harassment (Northern Ireland)
Order 1997 to prevent anticipated harassment and also under the Data Protection
Act 1998 to prevent an anticipated failure by the BBC to comply with the data
protection principles. The plaintiff, whilst asserting in correspondence that both
Spotlight One and Two were defamatory of him, has not sued for defamation. This
application involves a consideration of the interplay between the various causes of
action and also the interaction between strict liability contempt under the Contempt
of Court Act 1981, common law contempt of court and Article 6 ECHR.
[4] For their part the defendants have applied under Order 18 Rule 19(d) of the
Rules of the Court of Judicature (Northern Ireland) 1980 to strike out the plaintiff’s
action on the grounds that its institution and or its continuation amounts to an abuse
of the process of the Court as it is contended that in reality the plaintiff’s claim is for
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the protection of his reputation and has been brought on grounds other than
defamation as an improper attempt to circumvent the rule in Bonnard v Perryman
[1891] 2 Ch. 269; and (b) the plaintiff’s claim is an application in respect of alleged
contempt of court which he states has already been committed and for which the
plaintiff does not have the consent of the Attorney General, as required by section 7
of the Contempt of Court Act 1981 and at common law. Furthermore that these
proceedings have been brought after the plaintiff sought and was refused the
consent of the Attorney General and that this was not disclosed to the Court when
the plaintiff’s proceedings were issued.
[5] On 5 October 2016, when the plaintiff’s application first came into my list for
directions, I imposed a reporting restriction order under section 4(2) of the Contempt
of Court Act 1981 which still remains in force, see Cream Holdings Limited and others v.
Banerjee and others [2004] UKHL 44 at paragraph [22]. I considered that an injunction
was necessary to enable the court to hear and give proper consideration to this
application for an interlocutory injunction before arriving at a concluded view as to
whether to maintain the reporting restriction order. I should also record that the
court order incorrectly fails to identify section 4(2) as the jurisdiction under which
the reporting restriction order was made.
[6] Mr O’Donoghue QC and Mr Girvan appeared on behalf of the plaintiff
instructed by Johnsons. Mr Simpson QC and Mr Scherbel-Ball appeared on behalf of
the defendants instructed by C & J Black. I am grateful to counsel for their assistance
in relation to the complex legal issues and to both firms of solicitors for the
meticulous way in which the factual issues were addressed and for the orderly
preparation of the voluminous papers.
Further introductory matters
(a) The interlocutory injunction which the plaintiff seeks
[7] As originally framed the order which the plaintiff sought was to compel the
defendants “to both remove and to take steps to prevent the further broadcast or
publication … of the two Spotlight programmes”. However, there is material in the
Spotlight programmes which does not suggest corruption on the part of the plaintiff
and about which the plaintiff could not complain. Furthermore, the desired
requirement on the BBC “to take steps” suggests that what was being sought was an
interlocutory mandatory injunction rather than a prohibitory injunction. The reason
for the suggestion that the BBC should “take steps” is contained elsewhere in the
plaintiff’s application in that the two Spotlight programmes are available on
YouTube in breach of the BBC’s copyright. Initially, it was suggested that the BBC
should be compelled to require YouTube to remove the two Spotlight programmes
by commencing proceedings against YouTube if necessary. I was subsequently
informed that the plaintiffs did not seek such an order, but rather that the order
sought was to prevent or prohibit the BBC from re-broadcasting the two Spotlight
programmes. The issue then arose as to whether such an order would be effective as
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Tariq Siddiqi v John Aidiniantz
...“… the defamation rule applies if the ‘nub’ of the claimant's claim is the protection of reputation: Cushnahan v BBC & Another [2017] NIQB 30 [11]–[12] per Stephens J. The Court should “stand back and ask itself what really is the gist and purpose of the application”: Viagogo Ltd v Myles & ......
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Shakil Khan (formerly JMO) v Tanweer Khan (formerly KTA)
...held that the defamation rule applies if the ‘nub’ of the claimant's claim is the protection of reputation: Cushnahan v BBC & Another [2017] NIQB 30 [11]–[12] per Stephens J. The Court should “ stand back and ask itself what really is the gist and purpose of the application”: Viagogo Ltd v ......
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Queen v Daniel Raymond Dunlop
...It evolved somewhat in Ambrose v Harris [2011] UKSC 2435, as noted by Stephens LJ in Cushnahan v British Broadcasting Corporation [2017] NIQB 30 at [18] – [20]. In Ambrose Lord Hope stated at [62], without express reference to Lord Bingham’s formulation: “The test is whether the situation o......
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Queen v Daniel Raymond Dunlop
...It evolved somewhat in Ambrose v Harris [2011] UKSC 2435, as noted by Stephens LJ in Cushnahan v British Broadcasting Corporation [2017] NIQB 30 at [18] – [20]. In Ambrose Lord Hope stated at [62], without express reference to Lord Bingham’s formulation: “The test is whether the situation o......
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