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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Curistan v Times Newspapers Ltd [2008] EWCA Civ 432 (30 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/432.html Cite as: [2009] 2 WLR 149, [2008] EMLR 17, [2008] 3 All ER 923, [2009] QB 231, [2008] EWCA Civ 432 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE GRAY
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LAWS
and
LADY JUSTICE ARDEN
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| PETER CURISTAN |
Appellant/ Respondent |
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| - and - |
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| TIMES NEWSPAPERS LIMITED |
Respondent/Appellant |
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Victoria Sharp QC and Alexandra Marzec (instructed by Times Newspapers Limited) for the Respondent/Appellant
Hearing dates : 25-26 February 2008
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Crown Copyright ©
Lady Justice Arden :
"15 Reports, &c. protected by qualified privilege
(1) The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows.
(2) In defamation proceedings in respect of the publication of a report or other statement mentioned in Part II of that Schedule, there is no defence under this section if the plaintiff shows that the defendant—
(a) was requested by him to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction, and
(b) refused or neglected to do so.
For this purpose "in a suitable manner" means in the same manner as the publication complained of or in a manner that is adequate and reasonable in the circumstances.
(3) This section does not apply to the publication to the public, or a section of the public, of matter which is not of public concern and the publication of which is not for the public benefit.
(4) Nothing in this section shall be construed—
(a) as protecting the publication of matter the publication of which is prohibited by law, or
(b) as limiting or abridging any privilege subsisting apart from this section.
SCHEDULE 1
Qualified privilege
Part I
Statements having qualified privilege without explanation or contradiction
1. A fair and accurate report of proceedings in public of a legislature anywhere in the world."
"8. According to para 7 of the defence, the meaning which the defendant seeks to justify (the so-called Lucas-Box meaning: see Lucas-Box v News Group Newspapers Ltd, Lucas-Box v Associated Newspapers Group plc [1986] 1 All ER 177, [1986] 1 WLR 147) is that: (a) there were reasonable grounds to suspect that the claimant had been associated with IRA dirty money, and was also involved in financial malpractice; and that (b) in order to support his denial of the allegations made against him by Peter Robinson MP in Parliament linking him to the IRA's 'dirty money', the claimant had publicly made a false claim that the accounts of his company Sheridan Millennium Ltd were not qualified in any way.
9. The rival contentions are therefore whether the article means that the claimant was guilty of involvement in money laundering and other financial malpractices (criminal or otherwise) or whether it means that there are reasonable grounds to suspect that the claimant had been associated with IRA 'dirty money' and involved in financial malpractice. These two different levels of meaning have come to be labelled 'a Chase level 1 meaning' and 'a Chase level 2 meaning' respectively, following the decision of the Court of Appeal in Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 218.
10. I can see that there is some advantage in the use of labels such as these as shorthand. It is, however, common ground in the present case that it is open to me to determine whatever meaning I think the words would have conveyed to ordinary reasonable readers without being constrained to pigeon-hole them in one or other of the Chase levels."
i) Whether reporting privilege was available for that part of the article which set out what had been said in Parliament, and
ii) Whether the article bore a particular meaning which The Sunday Times sought in its defence to justify as true, that is to say, whether it bore a Chase level 2 meaning (reasonable grounds to suspect association with IRA money laundering), as opposed to a Chase level 1 meaning only (guilty of involvement in IRA money laundering).
The judgment of Gray J
"55. It seems to me to be clear that, in what he said in Parliament, Mr Robinson is accusing the claimant of being associated with IRA 'dirty money', ie with laundering money for the IRA. The reference to 'such men' being involved in government initiatives must be a reference to the claimant and to Mr Mackin, both of whom Mr Robinson had mentioned moments earlier. Moreover Mr Robinson refers to 'recent reports' showing that it is not the case that the claimant and his business activities are legitimate.
56. It is true that Mr Robinson calls for an investigation. But I think that his audience would have understood that the investigation for which he called was designed to expose the claimant's criminality (as he saw it) rather than to discover if he had been guilty of criminality.
57. As I have already pointed out at [45], above, Mr Parkes maintains that the Sunday Times report of what Mr Robinson said is neither fair nor accurate. Certainly the report is not complete. I have to bear in mind that -
'a reporter is in principle allowed to summarise and to be selective without losing the benefit of the privilege. It is not suggested that in themselves these parts of the article are unfair.'
58. I must next consider the extent of the extraneous material added to the reportage. It is on any view substantial, since it extends to most, although not all, of paras (v)-(xviii) of the article. On the other hand this additional material does not consist of adjectival or journalistic comment; nor is there any 'editorialisation'. In these respects the Sunday Times article can be distinguished from the BBC programme which was the subject of complaint in Henry v BBC. Furthermore there was in the present case 'no excessive commentary or misleading headlines' of the kind against which Kirby J warned in Chakravarti's case.
59. Is the privileged reportage extricable from the rest of the article? In other words is it severable or capable of being distinguished by the typical Sunday Times reader? Paragraph (i) conflates part of what Mr Robinson said in Parliament with what the newspaper claims to have discovered about the falsity of claims made by the claimant about having a clean bill of health. There are, however, no quotation marks around the second half of para (i). Moreover, para (ii) makes clear what was Mr Robinson's accusation against the claimant made in the House of Commons. That is plainly the accusation which the claimant seeks to rebut in paras (iii) and (iv) of the article.
60. It is plain that from para (v) onwards the article is largely, if not exclusively, devoted to the newspaper's investigation into the claimant's various companies and into their accounts. It is true that in paras (xiii) and (xiv) there are references back to what Mr Robinson had said in Parliament. In each of those two cases it is made clear that it is Mr Robinson who is being quoted. Moreover it is in my view important to note that these references are made (and would appear to the reader to have been made) in the context of the Sunday Times investigations into the claimant's corporate empire and the companies' accounting practices. Readers would no doubt expect a newspaper to follow up an MP's claims about a prominent businessman like Mr Curistan by carrying out an investigation of its own.
61. In my judgment the parts of the article which quote or refer to what Mr Robinson said in his speech would be recognised as such by Sunday Times readers. I think the passages are extricable from the remainder of the article in that sense. The same applies to the headline: the inverted commas around IRA indicate that the allegation is one made by someone other than the newspaper itself, ie Mr Robinson.
62. Finally I ask myself whether there is a connection between the reportage in the article and what the Sunday Times added. My answer is that there is such a connection. The accusation levelled against the claimant in the House of Commons was an association with the IRA's 'dirty money'. What is more, Mr Robinson mentioned the claimant's companies, albeit without naming all of them, as well as mentioning Mr Mackin, formerly of the IRA. As for the material added by the Sunday Times, that consisted in the fruits of its investigation into the claimants' companies in order to see whether there was evidence of IRA money being laundered through those companies' accounts.
63. It is common ground that Mr Mackin was at the material time a co-director with the claimant of seven of those companies. In my view there is a clear and real nexus between what Mr Robinson said in the House on the one hand and the additional material included in the Sunday Times article alongside reporting of Mr Robinson's speech. This is not a case of gratuitous or collateral or irrelevant commentary being published alongside the privileged material.
64. For the above reasons I conclude that the passages in the Sunday Times article which are identified in para 6(b) of the defence are protected by qualified privilege as being a fair and accurate report of proceedings in Parliament…."
"25. Is Mr Moloney right when he contends that this is a case where, exceptionally, the repetition rule should be set aside when it comes to interpreting the Sunday Times article? Even assuming that the application of the repetition rule would, as Mr Moloney submits, undermine or erode the privilege otherwise available in respect of those parts of the article which report parliamentary proceedings, I do not think that the circumstances of the present case call for the radical modification to an established rule for which Mr Moloney contends. It seems to me that the reasons given by Simon Browne LJ in Mark v Associated Newspapers Ltd [2002] EMLR 839 at [27]-[35] for the existence of the repetition rule are just as valid in the circumstances of the present case as they are in other cases. Thus, to the extent that the Sunday Times is repeating what Mr Robinson had said, it is just as bad as if the newspaper was making the statement about the claimant directly. If the repetition had not taken place in the columns of a newspaper such as the Sunday Times, little damage would have been done by Mr Robinson uttering his remarks on the floor of the House. Parliament may be a public forum but that does not mean that what members of Parliament say in the House attracts wide publicity.
26. Mr Moloney is of course right when he says that, other things being equal, a newspaper can repeat with impunity a libel which was originally published in circumstances of parliamentary privilege. The problem here is that the Sunday Times did not confine itself to reporting what Mr Robinson said. His accusation is coupled in the first paragraph of the article with the newspaper's own allegation that the claimant falsely claimed that accountants had given him a clean bill of health. Elsewhere in the article the newspaper amplifies that allegation by reference to what two firms of accountants have said and done in relation to the claimant's companies (paras (iv)-(viii) and (xvii)). The Sunday Times did not confine itself to reporting what Mr Robinson said in Parliament about Mr Dessie Mackin being a co-director with the claimant of several companies. Instead the newspaper chose, as it was of course perfectly entitled to do, to indorse that allegation by referring in para (xiii) to information evidently supplied to the newspaper by 'security sources'. The Sunday Times also incorporated in its article at paras (ix)-(xi) a reference to another firm of accountants having been called in by the Northern Ireland Department of Economic Development to perform a full due diligence test to assess whether the claimant's company should be permitted to retain a substantial building development contract. Those paragraphs raise serious questions--to put it at its lowest--as to the claimant's integrity. In these various ways the newspaper, as I repeat it had every right to do, considerably fleshed out and enlarged upon what had been said in the House of Commons.
27. I recognise of course the high importance attached to the freedom to publish fair and accurate reports on proceedings in parliament: see for example Wason v Walter (1868) LR 4 QB 73 at 89, [1861-73] All ER Rep 105 at 110-111 per Cockburn CJ and Cook v Alexander [1973] 3 All ER 1037 at 1041-1042, [1974] QB 279 at 288 per Lord Denning MR. But what is the position where a newspaper elects to go beyond publishing a report of the proceedings in Parliament and includes material of its own, as the Sunday Times did in this case?
28. In my judgment the Sunday Times article of which the claimant complains does not qualify for the special exemption from the repetition rule for which Mr Moloney contends. It would have been open to the Sunday Times to publish an unadorned report of Mr Robinson's words in the House. If that course had been adopted, the newspaper's entitlement to privilege would not have been open to doubt. However, in this case the Sunday Times chose not to take that course. I have summarised above the material extraneous to what was said in the course of the parliamentary debate which the newspaper included in its report.
29. The newspaper having chosen to enlarge upon Mr Robinson's strictures, I see no reason to disapply the repetition rule when determining the meaning of the article in its entirety. It may be that as a result the hurdle which the newspaper will have to surmount when seeking to establish a defence to this action will be a higher one. But that stems from the Sunday Times's own choice to make substantial additions to and elaborations of what Mr Robinson said in Parliament."
"30. I have not rehearsed the detailed textual arguments of counsel on the issue of meaning because I think it would be unprofitable for me to do so. Instead I will give my answer to the first preliminary issue and thereafter explain my reasons for arriving at that conclusion.
31. In my judgment the natural and ordinary meaning which would have been conveyed to the hypothetical ordinary reasonable reader of both the Sunday Times article and the website posting is that the claimant through his companies was associated with IRA 'dirty money' and was thereby guilty of IRA money laundering and financial malpractice.
32. My reasons for that conclusion are as follows: I accept that the quotation marks around IRA in the headline of the article, taken by itself, would indicate to the reader no more than that it had been alleged that the claimant is linked to the IRA. However, the body of the article, read as a whole, appears to me to convey clearly to the reader that such a link did in fact exist. It is true that the language employed in the first two paragraphs of the article is consistent with a Chase level 2 meaning, ie the existence of reasonable grounds for suspicion rather than actual guilt. It is also true that paras (iii) and (iv) contain the claimant's denials of wrongdoing and that those denials are by no means formulaic. The claimant expressed himself in firm and apparently convincing terms.
33. As it appears to me, the balance of the article is couched in terms which would in my view cause the ordinary reasonable reader to conclude that the claimant's denials are untrue and that he has indeed been associated with the IRA's dirty money. Why else the references to false accounting within the claimant's business empire? PWC are said to have qualified the 2002-2003 accounts of one of the claimant's companies; the 2003 accounts are said to have contained 'the heaviest qualification'. The reader is told that information and explanations have been denied to PWC by or on behalf of the claimant. The records of various substantial sums are said in the article either to have been unobtainable for reasons which are unexplained or to be so lacking in detail than an audit could not be carried out. The quotation attributed to a PWC spokesman about the firm's policy would in my opinion suggest to the reader that PWC were not prepared to stand behind and support their client--why else include this paragraph in the article?
34. Moreover the reader of para (ix) of the article would, I think, conclude that something was seriously amiss with the claimant's Sheridan group of companies if a 'full due diligence check' needed to be carried out in order to assess whether the group should be allowed to retain what is evidently a large and lucrative development contract. There follows immediately a reference in para (xiii) to the claimant's links to Mr Mackin who has, so the reader is told, been convicted of IRA membership and was the IRA's finance director before becoming Sinn Fein's head of finance. Some indication is given to the reader of the closeness of that link in para (xiv) of the article, where the two of them are said to be co-directors of 23 companies. Seven of those companies are said to have been convicted of failing to keep proper accounts. Then in para (xvii) the reader is told that a Dublin firm of accountants has resigned from some of the claimant's companies because they too were unable to establish whether proper books and records had been kept. The article concludes with a reference to Mr Mackin as a friend of the claimant since student days.
35. Mr Moloney rightly points out that nowhere in the article is it said in terms that the claimant is a money launderer for the IRA or that he has been associated with the IRA's 'dirty money'. Any such conclusions would, I accept, be inferences. Are they inferences which the ordinary reasonable reader would draw? I answer that question in the affirmative. Although the claimant's rebuttal features with some prominence in the article, virtually everything which follows casts doubt on the truth of that rebuttal. The first paragraph of the article links the charge of association with the IRA's 'dirty money' with the claimant's false claim to have been given a clean bill of health by accountants. The reader is told that one firm of accountants has qualified the claimant's companies' accounts twice, that another firm has resigned and that a third firm has been called in to carry out full due diligence to see if a company of the claimant should be allowed to retain a lucrative contract. The reader would in my view inevitably draw the conclusion that the reason for the claimant's persistent failure across the gamut of his companies to make proper disclosure of financial records was to conceal the fact that such disclosure would reveal the claimant's association with the IRA's 'dirty money' and so would also reveal the claimant's involvement in money laundering for the IRA."
"In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage."
(1) The privilege issue – did the judge err in his determination that the privileged passages in the article are privileged pursuant to section 15 of the 1996 Act?
(2) The meaning issue – this has two parts:-
(i) The single meaning/ repetition rule issue - Is the meaning of the non-privileged parts of the article to be found by applying the single meaning rule and the repetition rule to the allegations made by Mr Robinson and referred to in the article, or should the allegations in the privileged passages be treated only as forming the context in which the non-privileged parts of the article are written?
(ii) The Chase meanings issue - Do the non-privileged passages of the article bear a Chase level 2 meaning (The Sunday Times' defence, which pleads such a meaning, is summarised in [8] above), or do those passages bear only a Chase level 1 meaning, as the judge found, namely that Mr Curistan was in fact guilty of IRA money laundering and financial malpractice?
i) the privileged passages were not a fair or accurate report of what Mr Robinson had said in Parliament;
ii) the privileged passages were so intermingled with non-privileged material that the privilege was lost;
iii) The Sunday Times had adopted Mr Robinson's allegations as its own;
iv) whether or not The Sunday Times was entitled to rely on reporting privilege, the article had to be read as a whole applying both the single meaning rule and the repetition rule; and
On that basis the article bore the meaning that Mr Curistan was guilty of involvement in money laundering and other criminal financial malpractice for the IRA.
i) the privileged passages were a fair and accurate report of Mr Robinson's statements in Parliament and were entitled to reporting privilege;
ii) The Sunday Times had not adopted any of those allegations;
iii) the meaning of the non-privileged passages was to be ascertained on the basis that the privileged passages formed the context in which the statements in the non-privileged passages were made and on the basis that the repetition rule did not apply; and
iv) on that basis the meaning of the non-privileged passages was that there were reasonable grounds to suspect that Mr Curistan might be guilty of IRA money laundering and financial malpractice.
(1) on the privilege issue, the judge was correct;
(2) on the single meaning/repetition rule issue, the judge was wrong to treat the privileged passages as other than the context in which the statements in which the non-privileged passages were made; and
(3) he ought to have held that the article had a Chase level 2 meaning.
i) Section 15 of the DA 1996 constitutes a mandatory rule of law that fair and accurate reports to which it applies and which satisfy the conditions set out in that section are entitled to qualified privilege;
ii) One of the requirements of a fair and accurate report is that the quality of fairness must not be lost by intermingling extraneous material with the material for which privilege is claimed;
iii) The maker of a report will be liable in defamation for allegations entitled to reporting privilege if he adopts them as his own;
iv) The judge correctly applied these principles to the privileged passages and correctly concluded that they were entitled to qualified privilege;
v) In the case of an article consisting in part only of passages entitled to reporting privilege, the meaning of the non-privileged passages is to be ascertained on the basis that (1) the privileged passages merely provide the context in which the statements in the non-privileged passages were made, and (2) the repetition rule has no application to the privileged passages;
vi) In the present case, the meaning of the article is a Chase level 2 meaning. The defence of The Sunday Times pleads such a meaning, namely that there were reasonable grounds to suspect that Mr Curistan had been associated with IRA dirty money and involved in financial malpractice.
Proposition (i): Section 15 of the DA 1996 constitutes a mandatory rule of law that fair and accurate reports to which it applies and which satisfy the conditions set out in that section are entitled to qualified privilege
"It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the Houses of Parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends…. Can any man bring himself to doubt that the publicity given in modern times to what passes in Parliament is essential to the maintenance of the relations existing between the government, the legislature, and the country at large? "
Proposition (ii): One of the requirements of a fair and accurate report is that the quality of fairness must not be lost by intermingling extraneous material with the material for which privilege is claimed
"If one reads the article through without including the extract from the select committee report, which is protected, the effect of what is imputed to the respondent does not seem to amount to such deliberate misstatements or deliberate concealments as constitute an offence under section 12 of the Prevention of Frauds Act."
"… and the judge had to eliminate that part of the article that consisted of extracts from the select committee's report, since under the Act of 1840 such extracts could not in law be treated as a libel."
"The judge had approached the case with two broad questions in mind which he framed as follows: (1) To what extent was the plaintiff wrongfully defamed by the defendants? And (2) How much damage to his reputation was caused by this?
In regard to the first of these questions I think that the approach of the judge was entirely correct: he excluded from consideration those parts of the article which were privileged and he excluded those parts which were true. He held that the extracts contained in the article which came from the select committee's report were published without malice. He held that some parts of the article though only of slight materiality were true. He proceeded therefore to isolate those matters from the "indefensible part of the libel" and then posed the second question in the words: "How much damage is attributable to so much of the libel as is neither privileged under the Act nor true?"
"But here comes the question: Suppose that the reports in other newspapers were privileged, as they were in this case, cannot they be referred to in order to mitigate damage? I think the answer must be "No." If a newspaper seeks to rely on the privilege attaching to a parliamentary paper, it can print an extract from the parliamentary paper and can make any fair comment on it. And it can reasonably expect other newspapers to do the same. But if it adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged. It has "put the meat on "the bones" and must answer for the whole joint. If it cannot justify it, it must pay damages: and it cannot diminish these by reference to the privileged reports which it and others may have given previously. It is rather like the position of a Member of Parliament. Within the House he may make all sorts of defamatory statements under the cloak of parliamentary privilege. If he steps outside and, throwing off his cloak, repeats them at large, he exposes himself to attack. If he fails to justify his words, he must pay damages. He is not allowed to say in mitigation that he had already done the plaintiffs a lot of harm by what he had already said in the House, or even that other members in the House had also done the plaintiffs harm by what they had said there".
"Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege"
Proposition (iii): The maker of a report will be liable in defamation for allegations entitled to reporting privilege if he adopts them as his own
"most people believed that [ Mr Curistan's] activities were legitimate. Given recent reports, I believe they will consider that this is not the case."
Proposition (v): In the case of an article consisting in part only of passages entitled to reporting privilege, the meaning of the non-privileged passages is to be ascertained on the basis that (1) the privileged passages merely provide the context in which the statements in the non-privileged passages were made, and (2) the repetition rule has no application to the privileged passages
"…that [i.e.that the repetition rule dictates the meaning to be given to the words used] is by no means to say that that the meaning dictated is an artificial one. Rather, the rule accords with reality. If A says to B that C says D is a scoundrel, B will think just as ill of D as if he had heard the statement directly from C."
"29. …If, moreover, A is a respectable newspaper, D's position will be worse than if B had merely heard the statement directly from C. It will be worse in part because there will be many more Bs, and in part because responsible newspapers do not generally repeat serious allegations unless they think there is something in them so that the very fact of publication carries a certain weight. If, of course, in retailing C's statement, A says that C is often unreliable so that B should not suppose the statement necessarily to be true, that would certainly mitigate the gravity of the libel. Just as it would aggravate the libel if A said that C's statements ordinarily turned out to be true. But in either event, D's reputation would be damaged and the repetition rule precludes A from pretending the contrary (ie, justifying by asserting that what he said was true, the only defamer being C)."
"33…For my part I see no inconsistency between the repetition rule as explained in Stern and Shah on the one hand and, on the other, the ECtHR's decision in Thoma that journalists cannot be "systematically and formally" required to "distance themselves from the content of a [defamatory] quotation". On the contrary, it seems plain to me that any supposed tension between these has now been satisfactorily resolved by this court's decision in Al-Fagih. What that case recognised is that "the repetition rule concerns only the scope of the defence of justification in report cases: it does not limit the scope of qualified privilege at common law. Least of all does it require that an unadopted allegation is to be treated in the same way as an allegation asserted to be true."
34 That, to my mind, is the crucial point to bear in mind. The repetition rule concerns the meaning of words—and, of course, justification, the other side of the same coin. It recognises the reality as I have sought to explain it. It does not have the effect of making defamatory a publication which otherwise would not be. But when, of course, it comes to qualified privilege, the precise terms and circumstances in which the defamation comes to be repeated become all-important. The (non-exhaustive) 10 factors identified by Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 are then all in play. It is at this point that the journalist can seek to pray in aid "the contribution of the press to discussion of matters of public interest" (see paragraph 30 above). Thoma, in short, says much about the circumstances in which the defence of qualified privilege may be available in a case of mere reportage, nothing about the meaning to be attributed to the published words. That is true equally of the Verdens Gang case on which Mr Warby also seeks to rely. Both proceeded on the clear basis that the publications in question were defamatory. Whereas in Thoma, however, the journalist had merely reported the allegations (and so, in the absence of "particularly strong reasons" for penalising him, there was no sufficient cause to do so), in Verdens Gang the allegations had been adopted and in those circumstances the court held the complaint inadmissible.
35 In short, whilst I am certainly prepared to recognise that the approach adopted in Al-Fagih may need to be taken further still—rather than perhaps confined merely to the reporting of statements (attributed and unadopted) by both sides to a political dispute—I reject entirely the argument that the repetition rule as such needs changing. To regard reportage as being incapable of harming a person's reputation would be to introduce into the law a fiction which the repetition rule is designed to avoid. Furthermore, as I sought to point out in both Stern v. Piper and Al-Fagih, abolishing the repetition rule would make a nonsense of the law of qualified privilege."
"…[A] general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see, for example, Thoma v. Luxembourg, cited above, § 64)."
Proposition (vi): in the present case, the meaning of the article is a Chase level 2 meaning. The defence of The Sunday Times pleads such a meaning, namely that there were reasonable grounds to suspect that Mr Curistan had been associated with IRA dirty money and was also involved in financial malpractice
"The hypothetical reasonable reader, reading this article on a Sunday morning, would see that it did not state, expressly or by implication, that the claimant was guilty of being a money launderer for the IRA. Rather it is stated that:
a) he had been so accused, by a Paisleyite MP, acting under the protection of Parliamentary privilege (which is expressly referred to in the article);
b) he had vigorously denied it, and had prayed in aid the state of his accounts;
c) but that the newspapers enquiries had revealed that his claims about his accounts were false.
The reasonable reader would not conclude, whether from the article as a whole or from considering the actionable passages (b) and (c) in the context of the privileged passage (a), that the MP was certainly right that the claimant was certainly guilty. Rather he would understand that the newspaper to be saying that there were reasonable grounds to suspect that the MP might be right, but that the claimant's guilt had by no means yet been established."
Lord Justice Laws:
The Three Principles Described
"In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage."
Relation Between the Three Principles
i) The report of what was said in Parliament is subject to qualified privilege. This necessarily involves a disapplication of, or an exception to, the repetition rule as regards that part of the publication. If the rule were applied, the privilege would be nullified. The privilege allows the publisher to rely on the fact that he is reporting what another has said. That other is a legislator speaking in Parliament. The very purpose of the privilege is to facilitate what s/he has said. It can only be done if the repetition rule is set aside.
ii) The meaning of the publisher's own comments is to be ascertained separately from the meaning of the report of Parliamentary speech. This necessarily involves a disapplication of, or an exception to, the single meaning rule. So much follows from proposition (i): once it is accepted that those parts of the publication consisting in the report of Parliamentary speech, being covered by qualified privilege, must be understood without reference to the repetition rule, the publisher's own comments must necessarily be interpreted according to their own terms and no special rule applies. Accordingly the relation between the report and the comments is that the first sets the context for the second; no more.
Embellishment and Adoption
"But if it [sc. the publisher] adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged. It has 'put the meat on the bones' and must answer for the whole joint."
Conclusion
Lord Phillips of Worth Matravers CJ :
i) Did the article published by the respondents make clear those parts that purported to report what Mr Robinson had said in Parliament?
ii) Were those parts sufficiently fair and accurate to attract 'reporting privilege'?
iii) Was reporting privilege in respect of those parts lost by reason of the comments made by the respondent in the remainder of the article?
iv) What is the correct approach to ascertaining the meaning of the article?
v) What did the article mean?
Did the article make clear those parts that purported to report what Mr Robinson had said in Parliament?
Was the report of what Mr Robinson said in Parliament 'fair and accurate'?
Was reporting privilege lost by reason of the comments made by the respondent in the remainder of the article?
"It would have been open to the Sunday Times to publish an unadorned report of Mr Robinson's words in the House. If that course had been adopted the newspaper's entitlement to privilege would not have been open to doubt. However in this case the Sunday Times chose not to take that course. I have summarised above the material extraneous to what was said in the course of the parliamentary debate which the newspaper included in its report. The newspaper having chosen to enlarge on Mr Robinson's strictures, I see no reason to disapply the repetition rule" (emphasis mine).
"But if it adds spice and prints a story to the same effect as the parliamentary paper, and garnishes it and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law… If it cannot justify it, it must pay damages: and it cannot diminish these by reference to the privileged reports which it and others may have given previously."
What is the correct approach to ascertaining the meaning of the article?
What did the article mean?
Notes:
1. The numbering of the paragraphs did not appear in the originals and have been added to facilitate reference to parts of the document.
2. The article was accompanied by a photograph depicting Mr Mackin at what is described in the caption as an IRA funeral. Reference is made in that caption to Mr Mackin's conviction for being a member of the IRA. There is also a smaller photograph of the claimant captioned "Curistan: 'horrified'". There is also a photograph of premises occupied by Stringfellows. The publication on the website is in the same terms as the newspaper article but without any photographs.
"'IRA' developer in row over accounts
(i) A Belfast based property developer accused of "association with the IRA's dirty money" has falsely claimed accountants have given him a clean bill of health.
(ii) Peter Curistan, an investor in Belfast's Odyssey Arena complex, has been accused under parliamentary privilege of IRA money-laundering and financial malpractice. The claims were made two weeks ago by Peter Robinson, the Democratic Unionist MP, in the House of Commons.
(iii) Curistan said last week that he was horrified by "these scandalous allegations" for which he said there was no foundation. He invited Robinson "to come in and inspect all our books, to appoint whatever accountancy firm he wants to inspect our books for the last 10 years".
(iv) The businessman said the accounts had been done every year by Price Waterhouse Coopers (PWC), and had never been qualified in any way.
(v) But The Sunday Times has obtained copies of the accounts of Curistan's Sheridan Millennium Ltd for 2002 and 2003, the latest prepared. Both contain statements of qualification from PWC and state "we were unable to determine whether proper accounting records had been kept".
(vi) The 2003 accounts, which were to be submitted late and are not yet in the public domain, contain the heaviest qualification. PWC says: "We have not obtained the information and explanations that we considered necessary for the purpose of out audit".
(vii) PWC says it was unable to obtain records of sums of £593,253 and £162,666 because of a legal dispute with Irish Estate Management. They were also unable to obtain details of sums amounting to $1,190,564 (£683,000) and $688,468 (£395,139) in dispute with the IMAX corporation. In 2002, PWC also state it had not obtained all the information necessary to conduct an audit.
(viii) Asked if they were meeting Curistan to discuss their concerns, and if they were confident that they would remain auditors in the long term, the accountancy company replied: "It is not PWC's policy to make a comment in respect of its clients' affairs."
(ix) Northern Ireland's Department of Economic Development has called in another firm of accountants, BDO Stoy Hayward, to perform a full due diligence check on Curistan's books in order to assess whether his Sheridan Group, which is based in British Virgin Islands, should be allowed to retain its development contract in the Laganside Corporation.
(x) The contract involves the construction of housing, offices, a hotel, retail outlets, cafes and other leisure facilities.
(xi) A source close to the development said: "In order for the department to be satisfied, they need BDO to examine accounts that are as up to date as possible, but under any sort of normal due diligence they cannot be content with an accounting period which is two years in arrears."
(xii) Curistan has not submitted accounts for 2004 or 2005 and it is understood that his next set will cover an 18-month period.
(xiii) In his Commons statement, Robinson linked Curistan to Dessie Mackin, Sinn Fein's head of finance whom he called the IRA's head of finance. Security sources say Mackin, who has been convicted of IRA membership, succeeded Joe Cahill as the IRA's finance director.
(xiv) Robinson put Mackin's personal wealth at £1.75m. Mackin and Curistan are jointly involved in about 23 companies, seven of which – Century City, Strike Four, Flix Restaurants, Daylong, Sheridan Simulation, Sheridan Theatres Dublin and Grovepark Properties – were prosecuted last December in Dublin's District Court for failing to keep proper accounts. They pleaded guilty.
(xv) All seven companies were given the Probation Act, provided they made a large donation to charity. Most of them were based in the Parnell Centre in Dublin, which recently granted a licence to Peter Stringfellow for a table-dancing club, despite local objections that it would lower the tone of the place.
(xvi) The latest accounts for Strike Four, which ran a restaurant that close in 2000, show accumulated losses of €2.52m (£172m) at the end of September 2004. The loss for the year was €447,485.
(xvii) Curistan's Dublin auditors, Horwath Bastow Charleton, resigned from Sheridan Simulation and other companies last year saying that, like PWC, they were unable to establish if proper books and records had been kept.
(xviii) Curistan could not be contacted. He has described Mackin as a friend since his student days."
Extract from statement made in Parliament by Mr Robinson MP:
"….
17. The proceeds of the Northern bank raid—the largest ever in the British isles - have still not been recovered. They are retained by the republican movement, and the IRA has done nothing to assist in the recovery of that cash—in fact, it has done the opposite. Holding and using the proceeds of a bank robbery is a continuing crime…
18....
19….
20. It has now been revealed that, over several years, senior IRA figures have accumulated massive wealth. Its finance director, Des Mackin, now owns property worth more than £1.75 million. He has a conviction for IRA membership in the mid-1980s and served as Sinn Fein's treasurer. He, along with the Belfast tycoon, Peter Curistan, are the two co-directors of numerous companies, seven of which were prosecuted in the district court in Dublin recently for failing to keep proper accounts.
21. Instead of rewarding republicans for criminality, the Government should address the involvement of such men in government initiatives. Curistan is the key private sector investor behind Belfast's flagship £100 million Odyssey centre in my East Belfast constituency. Many of us have been aware of Mr. Curistan and his business activities and, until recently, I believe that most people believed that they were legitimate. Given recent reports, I believe that they will consider that that is not the case. His Sheridan Group was awarded a massive development contract in June 2005 by the Laganside Corporation, which is a public body, for residential provision, offices, a hotel, niche retail outlets, waterfront cafés and other leisure facilities, together with parking. When he winds up, will the Secretary of State ensure that the activities of the Sheridan Group and its association with the IRA's dirty money are fully investigated? Will he guarantee that no further public money is channelled in its direction until, if ever, it gets a clean bill of health?
22. I have already referred to the security concerns in Dublin over a popular city centre hotel, which is thought to be run by the Provisional IRA. It is used by the Irish Government Ministers and others during their working week. A senior Republican who is originally from Armagh is the main owner of the hotel and he had his home and businesses raided last week by the Irish police, and files searched in the offices of his solicitors and accountants. This particular individual has a collective property portfolio valued in excess of £70 million. The Garda are investigating a money trail that is likely to trace his multi-million pound fortune back to IRA slot machine scam in London in the 1980s.
23. In recent years, the IRA purchased businesses in Dublin and further afield. They were usually high-turnover cash businesses, such as public houses and gaming halls, that allowed the terrorist to launder dirty money, stolen cash and counterfeit notes. It is estimated that the provos own more than 20 pubs in Dublin alone, but their interests extend very much further. The IRA sought to use the proceeds of the Northern bank robbery to infiltrate the banking system in Bulgaria to provide the ultimate vehicle for laundering cash. The IRA's chief of staff, Siab Murphy, is the owner of a property portfolio that stretches to Eastern Europe. He has made a personal fortune £40 million on the back of a smuggling empire based at his farm that straddles the border with south Armagh. I have referred to these individuals in order to highlight on members just how deeply embedded criminality is within the IRA, including its upper echelons. "
