Gary Flood v Times Newspapers Ltd

Hearing dates: 3 – 4 December 2013

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.

The claimant was at all material times a member of the Metropolitan Police Service ("MPS"). In June 2006 he was a member of its Extradition Unit. The defendant ("TNL") is the publisher of The Times and The Sunday Times.

The claimant brings this action for libel arising out of an article ("the article") published in The Times on 2 June 2006 under the headline "Detective accused of taking bribes from Russian exiles". The subheading reads "Police are investigating the alleged sale to a security company of intelligence on the Kremlin's attempts to extradite opponents of President Putin". The article first appeared in the print edition of The Times and thereafter on the TimesOnline website. The author of the article is Michael Gillard, an investigative journalist employed by the defendant.

On 31 May 2007 the claimant issued proceedings. The defendant advanced two substantive defences, a defence of public interest ( Reynolds) privilege and justification. Following a trial in July 2009 before Tugendhat J the Reynolds defence in respect of the print version and in respect of the publication on the website up to 5 September 2007 was upheld [2009] EWHC 2375 (QB) [2008] EMLR 8. Appeals to the Court of Appeal and the Supreme Court ensued. The Court of Appeal allowed the claimant's appeal to the extent that it reversed the judgment of Tugendhat J where it had been held that the Reynolds defence succeeded [2010] EWCA Civ 804; [2011] 1WLR 153 The defendant appealed to the Supreme Court which restored Tugendhat J's judgment and held that publications up to 5 September 2007 were protected by Reynolds privilege [2012] UKSC 11 [2012] 2 AC 273 The defendant also appealed against that part of Tugendhat J's decision in which he held that the Reynolds defence failed in respect of website publications post 5 September 2007, the Court of Appeal having upheld that part of the earlier decision. The defendant subsequently withdrew its appeal to the Supreme Court on that issue.

The Article

Tugendhat J identified the material parts of the article thus (paragraph numbers are added):

"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."

As a result of correspondence emanating from a journalist employed by TNL, an investigation by the Directorate of Professional Standards ("DPS") of the MPS into allegations of corrupt practice said to have been committed by the claimant was commenced. As a consequence of the investigation, the claimant was removed from the Extradition Unit from 28 April 2006 until December 2006. On 2 December 2006 the report of the investigation was completed, the Senior Investigating Officer being DCI Crump. The final paragraph stated:

"In conclusion, I have been unable to find any evidence to show that Detective Sergeant Gary FLOOD is "NOAH" as alleged by Jonathon CALVERT in his letter, or that he has divulged any confidential information for monies or otherwise. Consequently there are no recommendations made as to criminal or discipline proceedings in relation to this matter."

The finding was accepted by the Independent Police Complaints Commission.

Michael Gillard was informed of the outcome in a letter dated 4 September 2007 from DCI Crump. Following this notification, deemed to have been received on 5 September 2007, the defendant did not update the website in order to report the outcome of the investigation until about 21 October 2009. Prior to that date the only alteration to the original article on the website was a legal warning which read "This article is subject to a legal complaint." No identification of the complainant was made.

The update made in October 2009 was as follows:

" Update

In May 2007, DS Gary Flood issued libel proceedings against Times Newspapers in respect of the article below. Those proceedings are still ongoing. DS Flood disputes that there is any truth in the allegations which, as the article reported, were being investigated by the police at the time it was published.

On 20 December 2006, DS Flood returned to his duties at the Extradition Squad. In the middle of 2007, the Independent Police Complaints Commission accepted DCI Gary Crump's final report which concluded, "I have been unable to find any evidence to show that Detective Sergeant Gary Flood is "NOAH"? or that he has divulged any confidential information for money or otherwise. Consequently there are no recommendations made as to any criminal or disciplinary proceedings in relation to the matter."

The Legal Proceedings

The defendant's plea of justification

The original plea of justification which was amended pursuant to the order of Eady J on 8 May 2008 stated:

"Further or alternatively, if and in so far as the Article bore the natural and ordinary meaning that:

(1) The claimant was the subject of an internal police investigation; and

(2) There were grounds which supported thatobjectively justified a police investigation into whether the Claimant received payment in return for passing confidential information about Russia's possible plans to extradite Russian Oligarchs,

Then it is true in substance and in fact."

By the May 2008 amendment, it was alleged that in 2002 the claimant was in particular need of extra money in addition to his normal salary. The claimant had "increased his borrowings by approximately £22,500 from November 2001 to December 2002. The Defendant will invite the inference that a principal reason for this was the Claimant's gambling habit". This allegation was linked to the original allegation that between December 2002 and April 2003, seven payments totalling £20,000 had been made to "Noah" from the suspense account of Keith Hunter of ISC. The May 2008 amendments averred that the claimant's personal financial situation improved materially at or around the same time as these payments

Further, amendments on 8 May 2008 or in June 2009 alleged that:

• Boris Berezovsky, a key ISC client, was arrested on extradition warrants in March 2003, the claimant...