Makudi v Baron Triesman of Tottenham
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Laws,Lady Justice Rafferty |
| Judgment Date | 26 February 2014 |
| Neutral Citation | [2013] EWCA Civ 853,[2014] EWCA Civ 179 |
| Docket Number | Case No: A2/2013/0436 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2014 |
[2013] EWCA Civ 853
Lord Justice Maurice Kay
Case No: A2/2013/0436
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR PHILIP MOTT QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Goddard QC (instructed by Messrs Watson Farley) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
This is a renewed application for permission to appeal, permission having been refused on the papers. The appellant's original claim is one in defamation. The fullest specification of the alleged defamation is to be found in words uttered by the respondent at a time when subject to Parliamentary privilege. At a later date, and in the course of an internal inquiry, the respondent was asked by Mr James Dingemans QC, who was conducting the inquiry, questions about the same matter. In essence, the respondent did not repeat the words but, it may be said, adopted them, at the same time indicating that "he did not want to stray into territory not covered by Parliamentary privilege". That was done both orally and in writing.
One of the questions to arise is whether Article 9 of the Bill of Rights protects the respondent. I have considered the authorities, and in particular Buchanan v Jennings [2005] 1 AC 115. It seems to me that it is arguable that there is sufficient of a grey area here to justify permission to appeal, because I do not think it can be said that the prospect of success was merely fanciful. Moreover, it can be said that there is another reason for the granting of permission to appeal, namely the existence of the grey area and the circumstances in which it produces the present application. One of the matters considered by Tugendhat J was whether, if this is not a case of absolute privilege but a case of qualified privilege, the issue of malice can be properly investigated without consideration of the respondent's state of mind at the time when he said what he said and was covered by Parliamentary privilege. This is all part of what I am describing as the grey area. It is significant that the case is not one of overt republication, in the sense of the words being repeated at a time when not covered by Parliamentary privilege; it is, as I have described it before, a case of adoption of those words.
For my part I can see some force in Tugendhat J's analysis, but for the reasons I have given, I think it would be wrong to close the door on an appeal. If the appellant, as he now is, can overcome his Article 9 difficulties, and the case becomes essentially about qualified privilege and the issue of malice, I would readily grant permission to appeal by reference to the criticisms made of the approach of the judge to that issue. That does not mean that I think that the ground is necessarily made out, simply that I think it would have a real as opposed to merely a fanciful prospect of success. In reaching these conclusions, I have been assisted by the "brief written statement" submitted by Mr Andrew Goddard QC and Mr Simon Crawshaw. Essentially, I am granting permission because I believe there is a basis to do so in the light of what they have there set out.
Having said that, and as I have pointed out to Mr Goddard, I am concerned by the failure of the appellant to comply with the order for costs that was made by Tugendhat J. There is no stay upon the order that the appellant pay the respondent's first instance costs, summarily assessed on the indemnity basis in the sum of £41,510. The order was not complied with by the due date, 15 February. That prompted correspondence from the respondent's solicitors to the appellant's solicitors. They received an indication at the end of March that they expected the costs to be paid "by the end of next week"; the matter has proceeded no further. Mr Goddard does not oppose the making of an order in this court whereby the grant of permission to appeal is made conditional upon the payment of that sum of £41,510 to the appellant's solicitors within 14 days.
Having regard to that history of non-compliance, one cannot help but feel some apprehension about the costs of the appeal, given that the appellant is a Thai national, said to be resident in Thailand. I am not going to make any order today about the costs of the appeal, but if an application for security is made it should be referred on the papers to me. Of course, the respondent will have the opportunity to make written submissions, and if I feel able to resolve that issue on the papers, I shall.
It follows then that the order will be as I have indicated. I request Mr Goddard and Mr Crawshaw to submit a draft order reflecting what I have said in the course of this short judgment. The court hearing the appeal will comprise three Lords Justices, one of whom may be a High Court Judge, and subject to any better view from the Bar, I would have thought that it ought to be listed for one day.
Order: Application granted
[2014] EWCA Civ 179
Lord Justice Laws
Lord Justice Tomlinson
and
Lady Justice Rafferty
Case No: A2/2013/0436
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
HQ12X01690
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Gordard QC and Mr Simon Crawshaw (instructed by Watson, Farley & Williams LLP) for the Appellant
Mr Andrew Caldecott QC and Ms Clare Kissin (instructed by RPC LLP) for the Respondent
INTRODUCTION
This is an appeal, with permission granted by Maurice Kay LJ on 20 June 2013, against the judgment of Tugendhat J ([2013] EWHC 142) given on 1 February 2013 by which he struck out the appellant's claim in defamation and malicious falsehood and entered summary judgment for the defendant, the respondent in this court. Tugendhat J introduced the case at the beginning of his judgment as follows:
"1… On 10 May 2011 the Defendant gave evidence to the Culture Media and Sport Committee of the House of Commons ('the CMSC'). I shall refer to this as the Parliamentary evidence.
The claim is not brought on the Parliamentary evidence, and could not be, because anything said in Parliament is protected by absolute privilege. But the Parliamentary evidence has been referred to outside Parliament, and the claims in this action arise out of those subsequent references."
The principal question in the case is whether these "subsequent references" are immune to the appellant's claim by force of Article 9 of the Bill of Rights 1689. As is well known Article 9 provides:
"That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place outside of Parliament".
THE FACTS
The respondent had been Chairman of the English Football Association (the FA) and also of the England 2018 Football World Cup bid. His appearance before the CMSC took place in the course of the Committee's inquiry into domestic football governance, which had been announced in December 2010 following the failure of the England bid. Tugendhat J set out material extracts from the evidence given by the respondent to the CMSC, as pleaded in paragraph 3 of the Particulars of Claim:
"[The defendant]: … The second area is about the conduct of some members of the FIFA executive… I would, if it was thought helpful by the Committee, go to the specifics of some things which were put to me personally, sometimes in the presence of others, which in my view did not represent proper and ethical behaviour on the part of those members of the committee. If that is helpful it is probably high time it was ventilated.
Q48 Chair: … That would be helpful, and I think the Committee would like to hear it.
[The defendant]: … The fourth example to bring to your attentions, Chairman, is this. We had a number of conversations with [the claimant], telephone conversations for the most part. He was eager to secure a match between the England team and the Thai team. … [He] said it would be a great honour if England came, and we talked about the possibilities, how it would fit in at the end of the season, what arrangements might be with the clubs. But the one thing that he did insist on was that one way or another the TV rights to the broadcast in the United Kingdom would go to him. I made the point that, broadly speaking, the right to games played overseas are owned by the federations or those in the countries where the game is played. It was not, in any case, in my view, something that we could or should organise, and I told him that. But that was what he believed was the critical thing to making the arrangement a success…
Q49 Chair: … How overt in your mind was the linkage in each of the four cases between what was being asked for and the promise of a vote for the England bid?
[The defendant]: In the first three examples they all took place absolutely in the context of formal approaches about the bid… I think that with [the claimant], it might be argued that the events were potentially different, but it is hard not to think that a member of the FIFA Executive Committee, who is potentially seeking what might be a very lucrative arrangement around a football...
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