Makudi v Baron Triesman of Tottenham

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 [32]-[40] 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.

Whether the subsequent references made outside Parliament were immune to the appellant’s claim by force of Article 9 of the Bill of Rights 1698.

Dismissing the appeal. There may be instances where the protection of Article 9 would extend to extra-Parliamentary speech.

The leading judgment, given by LJ Laws, proceeded on the following basis:

1. The role of Article 9 should not be conflated with that of absolute privilege. The scope of the latter was strictly defined by reference to the setting in which the words complained of were uttered, e.g. Parliament or the Queen’s courts. The reach of Article 9, in comparison, was not so clear-cut. It ensured that those speaking in either House or in Committee were not to be vexed by the fear of litigation, for it they were, the functions of Parliament itself would be inhibited.
2.  Accordingly, a member who for his own purposes chooses to repeat outside Parliament, whether by quotation or cross-reference, what he has said within its walls would have no claim to the protection of Article 9 (R v Lord Abingdon [1794] 170 ER 337, R v Creevey [1813] 105 ER 102 and Buchanan v Jennings [2005] 1 AC 115 considered).
3.  There may be instances where the protection of Article 9 would extend to extra-Parliamentary speech. Such cases would generally possess two characteristics (although these were not to be taken as suggesting a hard and fast rule):
   • A public interest in repetition of the Parliamentary utterance which the speaker ought reasonably to serve, and
   • So close a nexus between the occasions of his speaking, in and then out of Parliament, that the prospect of his obligation to speak on the second occasion (or the expectation or promise that he would do so) is reasonably foreseeable at the time of the first and his purpose in speaking on both occasions is the same or very closely related.
4.  The distinction between repetition as opposed to mere reference to what was said in Parliament was not in principle significant for the purpose of ascertaining the reach of Article 9.
5.  Applying these principles to the facts, there was plainly a public interest in Mr Dingemans review, which would be served by the respondent’s contribution. Equally plainly, there was a very close nexus between his evidence to the CMSC and his interview with Mr Dingemans. The prospect that the respondent might be called on to repeat his allegations was not only reasonably foreseeable but actually foreseen: he had undertaken, in effect, to do so. It was furthermore obvious that the respondent had been at pains before Mr Dingemans to restrict himself to what he had said to the CMSC in order, as he saw it, not to lose the shield of privilege.
6.  Article 9 therefore prohibited an examination of the respondent’s assertions to Mr Dingemans.
7. In any event, even if Article 9 did not prevent an enquiry into the respondent’s state of mind before Mr Dingemans, the judge’s finding that there was no evidence that the respondent had been dishonest and consequently no case in malice to go to a jury was upheld.

The decision clearly rejects the existence of an absolute exclusionary rule to the effect that the scope of Article 9 is strictly limited to speech uttered in Parliament. The judgment, however, is to be read in light of Laws LJ’s firm emphasis that cases where the protection of Article 9 extends to extra-Parliamentary speech will be infrequent. The courts will look for a very strong case on the facts if Article 9 is to run, given the high importance of the need to protect freedom of speech and the interest of justice in ensuring that all relevant evidence is available to the courts.

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