April 3, 2012
Times withdraws Flood appeal
Second limb of appeal to Supreme Court abandoned
The Times has withdrawn its appeal to the Supreme Court in regard to what has become known as the second limb of its appeal in Flood v Times Newspapers Limited. The second limb concerned Tugendhat J.’s decision at trial that a Reynolds defence did not apply to those publications by Times Online of “Detective accused of taking bribes from Russian exiles” which took place after The Times had been informed that an investigation by the Metropolitan Police into the allegations outlined in the article had exonerated him Mr Flood.
The article was first published in The Times on 2 June 2006 and thereafter on Times Online. It reported upon an investigation by the Metropolitan Police into allegations that Mr Flood had behaved corruptly. It set out the basis for those allegations
On 5 September 2009 the Metropolitan Police informed The Times that its investigation had concluded and that Mr Flood had been exonerated. However, The Times chose neither to withdraw the article from its online edition nor to amend it in order to reflect Mr Flood’s exoneration. A cornerstone of the Reynolds defence advanced by The Times at trial was that there was a public interest in reporting upon the fact of the police investigation (and the reasons for it) and that the fact of that investigation itself reasonably caused the relevant journalists to conclude that the allegations being investigated might be true. The article continued to be published it in its original form on the website for almost two years after The Times had been informed of Mr Flood’s exoneration.
Tugendhat J. found at trial that publications up to 5 September 2009 were protected by Reynolds privilege (the first limb publications). However, he found that publications which took place afterwards were not (the second limb publications). These could not have been the product of responsible journalism because the article was not amended in order to reflect the fact that Mr Flood had been cleared of the charges made against him. This was particularly the case given that The Times had relied upon the fact of the investigation as underpinning its Reynolds defence. The Court of Appeal upheld his decision in this regard.
The Court of Appeal allowed an appeal by Mr Flood against the first limb and rejected The Times’ appeal re the second limb. The Supreme Court overturned the Court of Appeal on the first limb (thus finding that those publications were protected by Reynolds privilege) and was due to hear The Times appeal on the second limb on 23 April, which has now been abandoned.