Flood v Times Newspapers Ltd (No 2)
|England & Wales
|Court of Appeal (Civil Division)
|Lord Justice Moses,Lord Justice Moore-Bick
|13 July 2010
| EWCA Civ 804
|13 July 2010
 EWCA Civ 804
Mr. Justice Tugendhat
Before: The Master of the Rolls
Lord Justice Moore-Bick
Lord Justice Moses
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
James Price Q.C. and William Bennett (instructed by Edwin Coe LLP) for the appellant
Richard Rampton Q.C. and Miss Kate Wilson (instructed by Times Newspapers Limited for the respondent
Hearing dates: 25 th and 26 th May 2010
Lord Neuberger MR:
This judgment is concerned with an appeal by the defendant, Times Newspapers Limited (“TNL”), and a cross-appeal by the claimant, DS Gary Flood, against the judgment of Tugendhat J in a preliminary ruling in a libel claim. The hearing very sensibly proceeded on the basis that the cross-appeal raised the principal issue, in terms of importance (both to the parties and more generally) and court time, so that it was DS Flood who was the appellant and TNL the de facto cross-appellant.
The publication of the article
DS Flood is a Detective Sergeant with the Extradition Unit of the Metropolitan Police Service (“MPS”). TNL is the publisher of, amongst other titles, The Times and The Sunday Times newspapers. On 2 June 2006, it published an article (“the Article”) in The Times under the title:
“Detective accused of taking bribes from Russian exiles. Police investigating the alleged sale to a security company of intelligence on the Kremlin's attempts to extradite opponents of President Putin, Michael Gillard reports”.
TNL also published the Article on its website, and has continued to publish it there.
The text of the Article, so far as material, read as follows (adopting the paragraph numbers added by the Judge):
“ Allegations that a British security company with wealthy Russian clients paid a police officer in the extradition unit for sensitive information are being investigated by Scotland Yard.
 The officer, who has been moved temporarily from his post, is alleged to have provided Home Office and police intelligence concerning moves by Moscow to extradite a number of Russia's wealthiest and most wanted men living in Britain.
 Anti-corruption detectives are examining documents detailing the client accounts of ISC Global (UK), a London based security firm at the centre of the investigation. The financial dossier, seen by The Times, shows that ISC was paid more than £6 million from off-shore companies linked to the most vocal opponents of President Putin of Russia.
 Between 2001 and 2005, ISC provided a variety of specialist security services including “monitoring” the Kremlin's attempts to extradite key clients to Moscow, where they face fraud and tax evasion charges.
 A former ISC insider passed the dossier to the intelligence arm of the anti-corruption squad in February. The informant directed handlers to a series of ISC payments, totalling £20,000, made to a recipient codenamed Noah. Detectives from Scotland Yard professional standards directorate were told that Noah could be a reference to an officer in the extradition unit who was friendly with one of ISC's bosses.
 The officer under investigation has been identified as Detective Sergeant Gary Flood. His home and office were raided last month.
 A spokesman for the Metropolitan Police said yesterday:
‘We are conducting an investigation into allegations that a serving officer made unauthorised disclosures of information to another individual in exchange for money.’
 Anti-corruption detectives are examining the relationship between Sergeant Flood and a former Scotland Yard detective, one of the original partners in ISC. The men admit to being close friends for more than 25 years but deny any impropriety and are willing to co-operate with the inquiry.
 Sergeant Flood has not been suspended. His lawyer said: ‘All allegations of impropriety in whatsoever form are categorically and unequivocally denied.’
 ISC Global was set up in October 2000 by Stephen Curtis, a lawyer. He was already acting for a group of billionaire Russians led by Mikhail Khodorkovsky and Leonid Nevzlin, who controlled Yukos Russia's privatised energy giant…
 The dossier also reveals … Boris Berezovsky was a client of ISC.
 … Two companies linked to Mr Berezovsky – Bowyer Consultants Ltd … and Tower Management Ltd …—appear to have made payments totalling £600,000 to ISC.
 ISC stopped trading last year after Curtis, the chairman, died in a helicopter crash. Subsequently, two former Scotland Yard officers, Keith Hunter and Nigel Brown, whom Curtis recruited to set up ISC, fell out and Mr Hunter bought the company and renamed it RISC.
 A spokesman for Mr Hunter said: ‘Neither my client nor his associated companies have ever made illegal payments to a Scotland Yard officer.’
 Mr Brown, who lives in Israel said: ‘Scotland Yard recently contacted me as a result of receiving certain information. I have been asked not to discuss this matter.’”
The instant proceedings
In his claim form, issued on 31 May 2007, in respect of both the print and the website publications, DS Flood complained that, as the Judge put it, “the Article meant that there were strong grounds to believe, or alternatively that there were reasonable grounds to suspect, that he had abused his position as a police officer with the MPS extradition unit by corruptly accepting £20,000 in bribes from some of Russia's most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges, that he had thereby committed an appalling breach of duty and betrayal of trust and had thereby committed a very serious criminal offence”. In making that complaint, DS Flood was relying on the repetition rule, namely the principle that a defendant who reports a defamatory statement made by a third person about a claimant is as liable to the claimant as if he had made the statement himself.
TNL's Defence pleaded defences of justification and qualified privilege in relation to both the print publications and the website publications of the Article. The meaning which TNL seeks to justify is that:
“[DS Flood] was the subject of an internal police investigation and that there were grounds which objectively justified a police investigation into whether the Claimant received payments in return for passing confidential information about Russia's possible plans to extradite Russian oligarchs.”
The defence of qualified privilege, generally known as drew no distinction between the print publication on 2 June 2006 and the subsequent website publications. privilege, or a defence, In summary, TNL pleaded that
“in the circumstances the publication of the Article was in the public interest and its journalists acted responsibly in composing and publishing it.”
In his Reply, DS Flood pleaded to the public interest defence in terms which applied to both the print and the website publications, but he also alleged, in relation to the website publication, that the circumstances changed as time passed, further information came to TNL, and that there was no continuing public interest in the website publication.
On 2 June 2009 Eady J ordered that the validity of the defence of qualified privilege be tried by judge alone as a preliminary issue. That is the issue that came before Tugendhat J, and, as he explained, if the defence of qualified privilege failed, then the defence of justification would fall to be tried, and there was no order for that to be tried by judge alone. Accordingly, as he pointed out, it was undesirable for him to express a view as to the meaning of the Article. As he also explained at , paragraph 10:
“The parties both submit that it is unnecessary for me to make any decision on meaning. TNL admits that the article is defamatory. The meanings pleaded by the parties respectively are not so far apart that a decision on meaning is required for the purposes of considering the defence of qualified privilege. Accordingly I heard no submissions on what meaning the article would be understood to bear by the reasonable reader. Both parties have made brief submissions on the meaning which they submit that a responsible journalist should have considered, [but n]othing turns on this at this stage, and I see no need to say any more about it. “
The judgment below
The relevant facts
The facts, as agreed or found by the Judge, are fully set out in the judgment below at , paragraphs 15 to 121. They can be summarised as follows.
The article was the result of a lengthy investigation by journalists, Michael Gillard (mentioned as the reporter), his father, Michael Gillard senior, and Jonathan Calvert, the editor of “Insight” (i.e. investigations) at The Sunday Times, under whose auspices the investigation had been carried out. Following its decision not to publish, Mr Gillard took the story to The Times, with more success.
Mr Gillard was first told in December 2005 of alleged bribes for information from the Extradition Unit by one of his sources (“A”), who identified the police officer in question as DS Flood or his brother (a police officer not in the Extradition Unit). Over the next three months Mr Gillard had meetings with A and two other sources, one of whom, “B”, was working with A together with the ISC insider referred to in the article. In January 2006, B...
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