Flood v Times Newspapers Ltd (No 2)

JurisdictionEngland & Wales
JudgeLORD PHILLIPS,LORD BROWN,LORD MANCE,LORD CLARKE,LORD DYSON
Judgment Date21 March 2012
Neutral Citation[2012] UKSC 11
Date21 March 2012
CourtSupreme Court
Flood
(Respondent)
and
Times Newspapers Limited
(Appellant)

[2012] UKSC 11

before

Lord Phillips, President

Lord Brown

Lord Mance

Lord Clarke

Lord Dyson

THE SUPREME COURT

Hilary Term

On appeal from: [2010] EWCA Civ 804

Appellant

Richard Rampton QC

Heather Rogers QC

Kate Wilson

(Instructed by Legal Department, Times Newspapers Limited)

Respondent

James Price QC

William Bennett

(Instructed by Edwin Coe LLP)

Heard on 17 and 18 October 2011

LORD PHILLIPS
Introduction
1

This judgment deals with the first, and major, limb of this appeal. At the end I shall explain the position in relation to the second limb.

2

On 2 June 2006 the appellant ("TNL") published an article ("the Article") which defamed the respondent, ("Sergeant Flood"), who is a Detective Sergeant in the Extradition Unit of the Metropolitan Police Service ("MPS"). The Article stated that allegations had been made against Sergeant Flood that had led Scotland Yard to investigate whether he was guilty of corruption. The police investigation subsequently ended with a finding that there was no evidence that Sergeant Flood had acted corruptly and the trial judge, Tugendhat J accepted Sergeant Flood's evidence that he was not guilty of corruption. That finding has not been challenged. The issue before the Court is whether TNL are protected from liability to Sergeant Flood in defamation under the doctrine known as Reynolds privilege. Put shortly Reynolds privilege protects publication of defamatory matter to the world at large where (i) it was in the public interest that the information should be published and (ii) the publisher has acted responsibly in publishing the information, a test usually referred to as "responsible journalism" although Reynolds privilege is not limited to publications by the media—see Reynolds v Times Newspapers Ltd [2001] 2 AC 127.

3

Tugendhat J held that TNL are protected by Reynolds privilege [2009] EWHC 2375 (QB) [2010] EMLR 169, but his decision was reversed by the Court of Appeal, Lord Neuberger MR, Moore-Bick and Moses LJJ, [2010] EWCA Civ 804 [2011] 1WLR 153. The major reason for the Court of Appeal's decision was their view that the journalists responsible for the Article had failed to act responsibly in that they had failed adequately to verify the allegations of fact that it contained.

The Article
4

The Article had the following heading, the first sentence of which was in large bold letters:

"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".

The relevant part of the text of the Article was helpfully numbered by the judge for purposes of reference. I shall follow the example of the Court of Appeal in adopting that numbering.

"1. 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.

2. 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.

3. 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 £6m from off-shore companies linked to the most vocal opponents of President Putin of Russia.

4. 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.

5. 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.

6. The officer under investigation has been identified as Detective Sergeant Gary Flood. His home and office were raided last month.

7. 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.'

8. 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 cooperate with the inquiry.

9. Sergeant Flood has not been suspended. His lawyer said: 'All allegations of impropriety in whatsoever form are categorically and unequivocally denied.'

10.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…

15. The dossier also reveals…Boris Berezovsky was a client of ISC.

16.…Two companies linked to Mr Berezovsky—Bowyer Consultants Ltd…and Tower Management Ltd…- appear to have made payments totalling £600,000 to ISC.

19. 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.

20. A spokesman for Mr Hunter said: 'Neither my client nor his associated companies have ever made illegal payments to a Scotland Yard officer.'

21. 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.'"

5

Moore-B ick LJ stated at para 88 of his judgment, that since the Article repeated allegations made by others the starting point was the repetition rule. Under that rule a defendant who repeats a defamatory allegation made by another is treated as if he had made the allegation himself, even if he attempts to distance himself from the allegation—see Stern v Piper [1997] QB 123, 128; Gatley on Libel and Slander 11 th ed (2008) para 11.4; Carter-Ruck on Libel and Privacy, 6 th ed (2010) paras 9.34–37.

6

Sergeant Flood's claim is not founded simply on the repetition rule. The Article reports a variety of matters only some of which repeat, without adopting, allegations made by others. A central feature of the Article is the statement that the police are investigating the conduct of Sergeant Flood and the defamatory meaning alleged is derived in part from that fact. The identification of the issues arising in this case is not easy and calls for some precision in the analysis of the Article.

7

The heading, the first sentence, para 1 and para 7 of the Article report that allegations have been made to the police that an officer, identified elsewhere in the Article as Sergeant Flood, has corruptly taken bribes in exchange for the provision of sensitive information to a security company, identified elsewhere in the Article as ISC. I shall describe these allegations as "the Flood is guilty" accusation. Para 5 of the Article alleges that a former ISC insider ("the ISC Insider") has stated that ISC made payments to "Noah" who "could be" an officer who was friendly with one of ISC's bosses. The Article makes it plain that the officer in question is Sergeant Flood. I shall describe this allegation as "the Flood could be guilty" accusation. Most of the rest of the Article consists of allegations of fact, some of these derived from the dossier provided to the police and to TNL by the ISC Insider. Of these Lord Neuberger, at para 25, identified paras 5, 8, 15, and 16, to which he later added paras 10 and 19 as containing what he called "the Allegations". Moses LJ preferred to describe these as the "details" of the "foundation" of the "allegations" against Sergeant Flood. I shall call these "the supporting facts".

8

What is the defamatory meaning, or "sting", to be derived from the Article when read as a whole? In Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 218 Brooke LJ identified three possible defamatory meanings that might be derived from a publication alleging police investigations into the conduct of a claimant. These have been adopted as useful shorthand in subsequent cases. The " Chase level 1" meaning is that the claimant was guilty. The " Chase level 2" meaning is that there were reasonable grounds to suspect that the claimant was guilty. The " Chase level 3" meaning is that there were grounds for investigating whether the claimant was guilty.

9

The respondent has not alleged that the Article conveys a Chase level 1 meaning. Rather he has pleaded what are in effect alternative Chase level 2 meanings, namely:

"The words complained of 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".

10

The meaning alleged by TNL, for the purposes of a plea of justification, is a Chase level 3 meaning. This was:

"[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 relevant facts
11

Tugendhat J made detailed findings of fact—see [2009] EWHC...

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