The Times has applied to drop the second part of its appeal in its libel battle with Metropolitan Police detective sergeant Gary Flood.
The newspaper’s lawyers have written to the Supreme Court seeking to withdraw the appeal, which at present is scheduled to be heard on 23 April.
The so-called “second limb” concerns the issue of whether the Reynolds defence of responsible journalism in the public interest covers publication of the story at the heart of the case, which remained on the newspaper’s website from the time at which The Times was told that an investigation led by the Independent Police Complaints Commission had exonerated Det Sgt Flood of any wrongdoing.
Det Sgt Flood, who was with the Metropolitan Police extradition unit, sued the newspaper over an article which appeared in The Times and on its website in June 2006 and reported that Scotland Yard was investigating allegations that ISC, a British security company with wealthy Russian clients, had paid a police officer in the unit for sensitive information.
It named Det Sgt Flood as the officer who was being investigated.
Det Sgt Flood sued but Mr Justice Tugendhat held at trial that The Times was protected by Reynolds privilege in relation to the story in the printed editions of the newspaper, and in relation to the article which appeared on its website until September 5, 2009.
But he also held that the article was not protected by Reynolds privilege from September 5, 2009, the date on which the newspaper was told that the IPCC investigation had exonerated Det Sgt Flood.
The online article, the judge said, ceased to be the product of responsible journalism from that date because it had not been amended to reflect the fact that Flood had been cleared of allegations against him.
The Court of Appeal overturned Mr Justice Tugendhat’s finding that the original story was protected by Reynolds privilege – a finding which was itself overturned by the Supreme Court in a decision on 21 March.
The Court of Appeal also rejected the newspaper’s appeal in relation to the judge’s finding that the online article ceased to be protected by Reynolds privilege after the newspaper was told that Det Sgt Flood had been cleared.
It was this issue which was scheduled to be dealt with at the Supreme Court hearing scheduled for 23 April.
A spokesman at the Supreme Court said the newspaper had written expressing its wish to withdraw from the second limb of the appeal.
But the court had not yet received any indication about whether Flood and his legal team were prepared to agree to that, which meant that the court could not make a decision on whether to withdraw the case, and that the April 23 hearing was still scheduled to take place.
A decision was now unlikely until after the Easter break, he added.
Although The Times wants to withdraw the appeal on the Reynolds issue in relation to the online article, it is understood to be determined to defend Det Sgt Flood’s claim with a justification defence.
The newspaper is understood to believe that the Supreme Court judgment strengthens its case, because of the emphasis it laid on the relevance of the circumstantial evidence which convinced the journalists who wrote the original story that there were grounds to investigate the allegations that information was being bought from someone within the Metropolitan Police extradition unit.
Lawyers for The Times are pleading a justification defence with a Chase Level three meaning – the name comes from Chase v News Group Newspapers Ltd – that Det Sgt Flood was the subject of an internal police investigation and that there were grounds objectively justifying a police investigation into whether he received payments in return for passing confidential information about Russia’s possible plans to extradite Russian oligarchs.
Det Sgt Flood, who it is understood is being represented on a no-win, no-fee conditional fee agreement, pleads what the Supreme Court described as alternative Chase level two meanings, that the words complained of meant that there were strong grounds to believe, or alternatively that there were reasonable grounds to suspect, that he had abused his position as a police officer with the MPS extradition unit by corruptly accepting £20,000 in bribes.
The newspaper might also seek to argue at the trial of the issue in relation to the website publication that continuing the case could amount to an abuse of the process of the court, because the website article attracted only some 500 hits throughout the time it was available on the website, and that the majority of those happened during the period when the online article was protected by the Reynolds defence.
It might also argue that the reason for defamation litigation is for the claimant to vindicate his reputation – and that this has already happened because all the judgments in the case have made clear that Det Sgt Flood had consistently denied the allegations, and was exonerated by the investigation into them.
Nick Neocleous, a partner with law firm Edwin Coe LLP, who represents Det Sgt Flood, said he would be agreeing to The Times withdrawing the appeal, subject to reaching agreement on the terms of any order associated with the move.
“We are disappointed that the Supreme Court decided to take such a different view from what was a very strong Court of Appeal judgment,” he said. “But we have the Supreme Court decision and we have to live with it.
“We are going to continue with the defamation claim. Even Mr Justice Tugendhat thought that we could achieve quite a significant success on the website issue.”
Det Sgt Flood’s legal team was also considering the possibility of an application to the European Court of Human Rights, he added.