C, a former Director of the Bank of Scotland, brought a defamation claim in respect of two separate articles that had appeared in the Mail on Sunday (MoS).
The first article, published on 8 May 2011, was entitled “Bank of Scotland Director ‘drove us out with dogs’”. It reported on allegations made about C that had been included in PoC filed at court in a case brought against C by three businessmen, Messrs. Young, Carew and Mody. That case concerns a contractual dispute relating to the company that owned ‘The Penthouse’ nightclub in London’s Leicester Square, and is ongoing (the ‘Penthouse litigation’).
Whilst the first article repeated the defamatory allegations made about C by the businessmen in the documents filed at court, (which were broadly that he had threatened and intimidated the businessmen, as well as engaged in other criminal behaviour), it made no mention of the fact that he had filed a Defence in the claim, which was, in fact, available on the court file prior to the date the first article was published. It was accepted in evidence that D was aware of the existence of the Defence from 17 June 2011 onwards, and received a hard copy of it on 23 June 2011.
The first article also said that C had ‘declined to comment’ on the allegations.
The second article, published on 19 June 2011, bore the headline “Top banker named in mortgage fraud case, Ex-BoS boss linked to pair sentenced to 20 years’ jail”. That article reported on a sentencing hearing concerning two individuals, Ian McGarry and Saghir Afzal, who were being sentenced in relation to their involvement in a serious mortgage fraud.
During the course of the sentencing hearing, Mohammed Khamisa QC, appearing for McGarry, contended that C had been ‘intimately involved’ in the mortgage fraud. Almost immediately after those allegations were aired, the sentencing judge, HHJ Beddoe, intervened in Mr Khamisa’s submissions, making it clear that he was not in a position to be able to determine the complicity of any third parties to the mortgage fraud. HHJ Beddoe also specifically noted that: “Irfan Qadir did not lend any of the money, from the evidence I have heard, advanced by any of the financial institutions” [that were the subject of the mortgage fraud].
There was no-one from the D present at the sentencing hearing itself, nor did it have a transcript of the actual hearing at the time the second article was published. The D’s evidence was that it had based its report on an article that had appeared in the FTAdvisor.
Whilst the second article reported the allegations against C, it made no mention of HHJ Beddoe’s interventions. In addition, it was not until approx. 2 July 2011 that the online version of the second article was amended to include statements from C’s lawyers, questioning the legitimacy and accuracy of the allegations against him.
The second article also made reference to the Penthouse litigation.
C contended that the second article meant that he was, or there were at least reasonable grounds to suspect that he was, a central figure in a criminal conspiracy to defraud the banks, that he ought to be found guilty, and that he had form for criminal activity.
C wrote to D demanding removal of the articles from the online archive on 18 July 2011. This was eventually done on 9 September 2011.
D pleaded various defences. For the first article: statutory qualified privilege (under s15 Defamation Act 1996 (‘s15’)); common law qualified privilege, and justification. For the second: absolute privilege (under s14 Defamation Act 1996 (‘s14’)); statutory qualified privilege and justification.
C pleaded malice in reply.
A trial on the preliminary issue of D’s privilege defences was ordere