On 10 May 2011, D (now the Respondent on appeal), the then Chairman of the English Football Association (the FA) and of the England 2018 Football World Cup bid, gave evidence to the Culture Media and Sport Committee of the House of Commons (CMSC). There, D alleged that C (now the Appellant), the head of Thailand’s football federation, had requested the television rights to a proposed England-Thailand friendly in circumstances which suggested a linkage with the promise of a vote in support of the England bid. In the course of his evidence, D undertook to take his concerns to the international governing body FIFA, should the CMSC require him to do so.
Shortly afterwards, the FA appointed Mr James Dingemans QC to conduct a review of D’s allegations. On 20 May 2011, Mr Dingemans interviewed D, during which D declined to add anything to his statement made before the CMSC. Doing so, D explained in his witness statement before Mr Dingemans, might cause him to stray into territory not covered by Parliamentary privilege.
C issued claims in defamation and malicious falsehood against D in respect of four publications made outside Parliament: (1) D’s oral evidence given to Mr Dingemans on 20 May 2011; (2) D’s witness statement published to Mr Dingemans and (3) and (4) the publication by Mr Dingemans of reports to the FIFA and FA, respectively.
Tugendhat J found that all four publications complained of were made on occasions of qualified privilege, defeated only the presence of malice on D’s behalf. The judge accepted that the court could not enquire into D’s state of mind before Mr Dingemans without also enquiring into his state of mind before the CMSC. This would violate Article 9 of the Bill of Rights 1689, which 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. In the alternative, Tugendhat J held that an acceptance of C’s evidence at trial would not entail the conclusion that D had been dishonest: it was equally consistent with his having been mistaken.
C appealed, arguing that his claim did not constitute an affront to Article 9 as it did not target anything said in Parliament but only what D had said (or conveyed by reference) to Mr Dingemans. C appealed on two further grounds relating to Tugendhat J’s finding on malice and striking out of C’s claim in respect of the online publication of D’s oral evidence in front of Mr Dingemans (see - of LJ Laws judgment). The main thrust of the appeal, however, lay in the discussion of the ambit of the protection afforded by Article 9.