Full case report
Flood v Times Newspapers Ltd (No.3)
Reference  EWHC 4075 (QB)
Court High Court, Queen's Bench Division
Judge Nicola Davies J
Date of Judgment 19 Dec 2013
Libel – Damages – Defendant’s conduct – Deterrence – Vindication
C was a member of the Metropolitan Police Service (MPS), who was working in its extradition unit in 2006. D was the publisher of the Times and Sunday Times newspapers. C’s action for libel arose from an article by Michael Gillard published in The Times on 2 June 2006 under the headline “Detective accused of taking bribes from Russian exiles”. The sub-heading read “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 appeared in print and online on the Times website, Timesonline.
C issued proceedings on 31 May 2007, D advancing defences of Reynolds (public interest) privilege and justification. At first instance, Tugendhat J upheld the Reynolds defence in respect of the print version and in respect of the publication on the website up to 5 September 2007 ( EMLR 8). There were appeals to the Court of Appeal, which reversed Tugendhat J on the success of the Reynolds defence ( 1WLR 153), and then to the Supreme Court, which restored Tugendhat J’s judgment and held that publications up to 5 September 2007 were protected by Reynolds privilege ( 2 AC 273).
Following correspondence from a journalist employed by D, the MPS’s Directorate of Professional Standards started an investigation into C. This concluded that there was no evidence to show that C was the detective identified in the article, or that he had done anything wrong. Michael Gillard was informed of the outcome in a letter dated 4 September 2007. There was no update to the website to report the outcome until 21 October 2009, the only alteration before this being a legal warning which read “This article is subject to a legal complaint.” The update made in October 2009 included a report of the outcome of the MPS investigation into C
In July 2013, the parties sought a ruling on the meaning of the article. Tugendhat J’s ruling determined that the meaning was
“that there were, and at the date of publication of the article online complained of there continued to be, strong grounds to believe that the claimant: had abused his position as a police officer with the Metropolitan Police’s 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; had thereby committed an appalling breach of duty and betrayal of trust; and had thereby also committed a very serious criminal offence”
D then abandoned its defence of justification and, with no defence remaining, it was for the Court to assess damages in respect of the publication of the article on Timesonline from 5 September 2007 until about 21 October 2009.
What damages should C be awarded in respect of the Timesonline publication between 5 September 2007 and 21 October 2009, taking into account:
(1) the conduct of D;
(2) C’s hurt and distress;
(3) damage to C’s reputation;
(4) deterrence; and
Awarding C damages of £60,000,
(1) Although there was exculpatory material which exonerated the subject of the investigation, D had failed to show consideration for the subject’s position by publishing it. This was compounded by the fact that the allegations attacked the core of C’s character, personally and professionally. The two years for which C had to live with the article represented a need for proper vindication. D showed itself unwilling to accept the findings of the investigation and persisted in pursuing evidence. The threat of further investigations was held over C to pressure him into settling on D’s terms. In refusing to update the article, D refused to take a course which was professional, responsible and fair. The refusal combined with the manner in which D pursued its own investigation was oppressive and high handed, and served to aggravate damages.
(2) The compulsion for C to pursue the proceedings to clear his name exacerbated the distress and anxiety suffered. D’s conduct after the outcome of the inquiry added considerably to C’s suffering. C had to leave his chosen unit in the MPS and so D’s refusal to act responsibly could be said to have directly impacted on his professional life.
(3) Although C did not submit actual evidence of damage to his reputation amongst colleagues and peers, common sense suggested that the persistence of the allegations online had done his reputation no good. The article’s continued existence on the website meant it was there to be read by anyone with a particular interest in C.
(4) D was aware of its obligation to publish the result of the police inquiry which had been identified in correspondence and noted in court judgments. It was also aware of it because of the decision in Loutchansky. The refusal to act responsibly invoked deterrence, as a marker and warning that such conduct cannot represent responsible journalism.
(5) The need for proper vindication was represented by damages of £45,000 which also reflected the distress, anxiety and suffering of the claimant, and the damage to his reputation. £15,000 represented the aggravation of those damages by D’s conduct and served as a deterrent.
It is hardly surprising that a failure to update the online version of a story to reflect the outcome of an investigation cannot be characterised as responsible journalism, and the judge drew attention to D’s undoubted awareness of its obligations in this respect. But the decision emphatically underlines the way in which, in an environment in which publication is ongoing because of the internet, the duties of journalistic responsibility are also continuous.
Edwin Coe for C; Times Newspapers Legal for D.
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