Flood v Times Newspapers Limited (SC)

The Claimant was a Detective Sergeant in the Metropolitan Police Service (“MPS”). Journalists working for The Times were informed by an anonymous source that Russian oligarchs had paid a police officer for information about extradition requests. The unnamed source further stated that the police officer, whose codename was “Noah”, “could be” the Claimant (whose surname was Flood).  The source informed the journalists that he had reported this to the MPS but that it had not investigated the allegation. In April 2006 the journalists concluded that the MPS might not be properly conducting an investigation into the Claimant.

The journalists contacted the MPS about the allegations.  This in fact caused an MPS investigation to take place and for the Claimant’s home to be searched.

On 2 June 2006 The Times published “Detective accused of taking bribes from Russian exiles”. It was published in its print edition and on its website. The Claimant sued for libel over both the print and the continuing website publications.

The article reported that: (a) an allegation had been made by an unidentified person to the MPS to the effect that C (who was named in the article) was implicated in receiving bribes from a Russian oligarch in return for confidential information concerning attempts to extradite him; (b) the fact that the allegation was being investigated by the police; and (c) information regarding the basis for the allegation that the C had behaved corruptly.

C sued in regard to the initial print publication of 2 June 2006 and in regard to the publication of the same article on The Times website from that date onwards.  On 5 September 2007 the MPS informed The Times that its investigation had concluded that C had no case to answer.  However, The Times continued to publish the article in its original form on its website without updating it to reflect this development.

At trial Tugendhat J. held that the publications up to 5 September 2007 were protected by Reynolds but that the publications thereafter were not. The Court of Appeal overturned his decision in regard to the former publications but upheld it in regard to the latter.The Defendant appealed to the Supreme Court in regard to both categories of publication.  The Supreme Court has given judgment in regard to the first category of publications (what it calls the first limb of the appeal) and will hear argument and give judgment regarding the second limb at a later date.

Ought the trial judge’s decision that the first limb publications were protected by Reynolds privilege have been overturned by the Court of Appeal.

Allowing the appeal,

(1) The trial judge’s decision on the publications up to 5 September 2007 ought not to have been overturned. It was in the public interest that the accusation made against the D and the facts set out in the article which supported it be published.

(2) The naming of the C in the article did not preclude the Reynolds defence from succeeding.  Whilst Lord Phillips reached this conclusion based upon the particular facts of the case (for instance, because of the importance of the connection between “Noah” and the C’s surname), he stated that where the subject of the article was not a public figure it would not be enough for the publisher to justify the naming of the subject of the article because it was necessary to add interest to the article by naming its subject.  However, Lords Mance, Clarke and Dyson concluded that the naming of the subject of an article would often be a matter for editorial judgement and such naming would not necessarily cause what would otherwise be a sound Reynolds defence to fail.  Lord Dyson further stated that the subject of an allegation might be named if he or she performed a public function rather than, as Lord Phillips put it, if he or she were a public figure.

(3) The defence succeeded because the journalists had reasonably satisfied themselves that the supporting facts set out in the article were true and that there was a serious possibility that the C had been guilty of the corruption of which he was suspected. The publication of such information was in the public interest.

This judgment represents a significant further movement of the law of defamation in favour of defendants. The facts of the case make it clear in a particularly stark manner that the Reynolds defence hinges on what a journalist reasonably knew at the time of publication. In this case a major reason why the journalists concluded that there were grounds to believe that the Claimant had been guilty of corruption was that the MPS had decided to investigate the Claimant and had searched his house. The journalists concluded that there must have been good reason for this to have happened i.e. that the MPS had obtained evidence of corruption. The fact that it transpired after publication that the MPS investigation and search had been prompted by the questions asked by the journalists mattered not.