Libel and slander

Makudi v Baron Triesman of Tottenham: Court of Appeal, Civil Division: 26 February 2014

Privilege – Qualified privilege – Defendant giving evidence concerning claimant before parliamentary committee – Defendant repeating statement to Queen’s Counsel (QC) in review

Article 9 of the Bill of Rights 1689 provides, so far as material: ‘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’.

The defendant had been chairman of the English Football Association (the FA) and of the England 2018 Football World Cup bid. He gave evidence before the Culture, Media and Sport Committee of the House of Commons (the committee) in the course of the committee’s inquiry into domestic football governance, including about the claimant. The defendant had undertaken to take his concerns to Federation Internationale de Football Association.

Almost immediately after the committee hearing, the FA appointed a Queen’s Counsel (the QC) to conduct a review for the purpose of looking into the defendant’s allegations. In the course of the review, the defendant was at pains not to exceed what he had said to the committee. The claimant issued proceedings against the claimant in defamation and malicious falsehood. In February 2013, the judge had struck out the claimant’s claim and entered summary judgment for the defendant (see [2013] All ER (D) 56 (Feb)).

He held that the court could not enquire into the defendant’s state of mind before the QC in order to test the claimant’s claim of malice, without also enquiring into his state of mind before the committee, but that that would violate article 9 of the Bill of Rights 1689 (article 9). The claimant appealed.

It fell to be determined whether the defendant’s statement to the QC had been immune to the claimant’s claim by force of article 9. The appeal would be dismissed.

It was trite law that, by force of article 9, the courts would not entertain any challenge to anything said by a member of the legislature within parliament itself. However, there might be instances where the protection of article 9 extended to extra-parliamentary speech. No doubt they would vary on the facts, but generally, such cases would possess two characteristics: (i) a public interest in repetition of the parliamentary utterance which the speaker ought reasonably to serve; and (ii) 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) was reasonably foreseeable at the time of the first and his purpose in speaking on both occasions was the same or very closely related (see [11], [25], [42], [43] of the judgment). 

The instant case possessed both of those characteristics. There had plainly been a public interest in the QC’s inquiry, which would be served by the defendant’s contribution. Equally plainly, there had been a very close nexus between his evidence to the committee and his interview with the QC. The prospect that he might be called on to repeat his allegations had not only been reasonably foreseeable, but had actually been foreseen. The defendant had undertaken, in effect, to do so.

The judge’s finding had pointed to an identity between his state of mind on the two occasions of his speaking. Accordingly, article 9 prohibited an examination of the defendant’s assertions to the QC (see [30], [31], [42], [43] of the judgment). 

Decision of Tugendhat J [2013] All ER (D) 56 (Feb) affirmed.

Andrew Goddard QC and Simon Crawshaw (instructed by Watson Farley & Williams LLP) for the claimant; Andrew Caldecott QC and Clare Kissin (instructed by Reynolds Porter Chamberlain LLP) for the defendant.