December 4, 2014
Times costs appeal in Flood rejected
Court of Appeal ruling concludes Flood v Times litigation
The Court of Appeal has rejected the appeal brought by Times Newspapers Ltd against the costs ruling made by Nicola Davies J in Gary Flood’s favour at the conclusion of his claim for libel.
The claim arose from the publication by The Times of the article Detective accused of taking bribes from Russian exiles on 2 June 2006. It was published on that day in the newspaper’s print edition and thereafter on its website. The Times pleaded Reynolds and justification defences. The Reynolds defence was determined by means of trial by preliminary issue. The Times won in regard to the print edition and those website publications which took place up until 4 September 2007 but not thereafter. The Reynolds defence hinged upon The Times’ contention that the article in issue was in the public interest because publication ensured that the police were prompted into investigating the matter thoroughly and also because the article was reporting upon the progress of that investigation. The 4 September 2007 date was important because this was when The Times was formally informed by the police that the investigation had concluded and that Mr Flood had been exonerated. However, despite the professed basis for the Reynolds public interest, The Times continued to publish the article on its website for another two years. It only amended the website article to report upon Mr Flood’s exoneration in October 2009, which was shortly after it received a copy of the judgment concerning the trial of the preliminary issue, which stated that continued publication after September 2007 was not protected by Reynolds.
There were then appeals to the Court of Appeal and the Supreme Court concerning Reynolds privilege. The net effect of the ensuing judgments was to leave the parties in the same position as they had been at the conclusion of the Reynolds trial.
The Times continued to defend those publications published after September 2007 by means of a justification defence. However, following a determination of meaning in July 2013, it withdrew that defence and admitted liability. There was then a trial on quantum in regard to those publications which took place after 4 September 2007. Mr Flood was awarded £60,000. This was comprised of £45,000 in general damages and £15,000 in aggravated damages arising from the aggressive manner in which The Times had defended the claim.
Mr Flood sought all of his costs save for those which concerned the Court of Appeal and Supreme Court hearings (which were subject to a pre-existing costs order). The Times contended that it ought to be paid all or most of the costs which related to the Reynolds defence because the number of publications protected by Reynolds far exceeded the number which were not protected (i.e. those published in the two years following September 2007). However, the situation was complicated by a number of factors: in November 2007 Mr Flood offered to settle his claim for an apology and damages of £25,000 (this was nearly two years before the Reynolds trial); the die-hard approach taken by The Times’ ex-legal manager to settlement and his general approach to resolving the litigation, which was conceded to have been “aggressive” and “unpleasant” (at first instance Nicola Davies J referred to “unsubtle threats to the personal financial situation of the claimant directed at the home in which he lived”); the costs of the Reynolds trial would not have been significantly different if Mr Flood had conceded that the defence applied to the pre-September 2007 publications (and there was a significant overlap between the matters raised in the Reynolds and justification defences). Most importantly Lady Justice Sharp concluded that “the outcome of the litigation could properly be described as a victory for Mr Flood. He had received a substantial award for damages for a serious libel which had caused him great harm”, further noting that he had brought proceedings to clear his name “and by the end of the (quantum) trial he had succeeded in doing so.”
The Flood case is one of the most complex and long-running in the history of libel litigation. In addition to the Reynolds and quantum trials, two Court of Appeal and one Supreme Court hearing there were eight other hearings.