The Supreme Court has given Times Newspapers permission to appeal a ruling that it was not protected by Reynolds qualified privilege defence in its libel battle with police officer Gary Flood.
Permission was granted to Times Newspapers on the condition it pays the costs no matter what the outcome of the appeal, according to Chambers 5 Raymond Buildings, the law firm instructed to represent Flood.
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A three-member panel of the Supreme Court – Lord Hope, Lord Brown and Lord Mance – gave permission for the appeal at the end of November. It is expected the appeal will now be heard late next year.
Times Newspapers lodged its petition for permission with the Supreme Court in August, following the Court of Appeal’s decision to overturn an earlier ruling by Justice Tugendhat.
Tugendhat ruled the story – which appeared in The Times in June 2006 reporting that Detective Sergeant Flood was the subject of an investigation into possible corruption – was protected by the Reynolds responsible journalism defence.
The article reported that Scotland Yard was investigating allegations that ISC, a British security company with wealthy Russian clients, had paid a police officer in the extradition unit for sensitive information, and named Flood as the officer who was under investigation.
The Court of Appeal overturned Tugendhat’s decision, ruling that the story could not be protected by the Reynolds defence because it contained information which was extremely damaging to Flood’s reputation and because the journalists had failed to seek verification.
The newspaper argued in its petition to the Supreme Court that the Court of Appeal that the decision conflicted with four decisions of the House of Lords and Supreme Court, and two decisions of the Court of Appeal itself.
In total, the newspaper argued, the Court of Appeal made seven “fundamental errors” including failing to accept that it was bound by two of its own previous decisions not to interfere with a judge’s assessment of the balance between the parties’ competing rights under the European Convention of Human Rights.
The petition referred to an earlier case – Jameel v Wall Street Journal Europe – which it claimed confirmed that the Reynolds defence, which affords protection for defamatory statements in reports on matters of public interest produced by responsible journalism, must be applied in “a practical and flexible manner” and that the courts should give effect to the “liberalising intention” of Reynolds.
The petition argued: “One important consequence of the erroneous approach adopted by the Court of Appeal is that the media may now be deterred or prevented from publishing any accompanying detail when reporting information about possible wrongdoing.”
The Court of Appeal’s decision in the case caused serious concern among media organisations, which saw it as undermining the supposed liberalisation of the libel law which started with the Reynolds and was reinforced in Jameel.