The High Court has today dismissed an action by Tim Yeo, the former MP for South Suffolk and Chairman of the Energy and Climate Change Select Committee, against Times Newspapers Limited in an important judgment on the Reynolds defence and the scope of politicians' Article 8 rights.
The claim was based on a number of articles published in June 2013 following an undercover investigation by the newspaper's 'Insight' team. The Claimant had attended a lunch at Nobu with two journalists posing as members of a fictitious consultancy firm seeking to employ him on behalf of a leading solar technology developer in the Far East.
At a pre-trial hearing in July 2014, Warby J held that the main articles carried a meaning that Mr Yeo:
"1) was prepared to act, and had offered himself as willing to act in a way that was in breach of the Code of Conduct of the House of Commons by acting as a paid Parliamentary advocate who would: a) push for new laws to benefit the business of a client for a fee of £7,000 a day; and b) approach Ministers, civil servants and other MPs to promote a client's private agenda in return for cash";
2) by behaving in the manner referred to in the articles had acted scandalously, and shown willing to abuse his position in Parliament to further his own financial and business interests in preference to the public interest".
The newspaper raised defences of justification, honest comment and/or Reynolds privilege. Publication of the articles largely took place prior to the Defamation Act 2013 ("DA 2013") coming into force with the online versions available thereafter, though it was common ground that for the purposes of these proceedings the available defences were substantially the same.
Warby J found that all the pleaded defences were made out and dismissed the claim. He found that Mr Yeo went to the lunch knowing that its purpose was to discuss the prospect of paid consultancy for a private client. He found that at the lunch Mr Yeo then had expressed a willingness to undertake Parliamentary advocacy on behalf of that private client.
The Judge concluded that the journalists giving evidence on behalf of the newspaper had conducted themselves "courteously and fairly" in the box and their evidence had been "clear and cogent". In relation to Mr Yeo, the Judge took the view that some of his evidence was "utterly implausible". As to his evidence that he had forgotten that the meeting was to discuss work for generous remuneration, the Judge stated that it was "not credible" that this was not in the Claimant's mind, and that "in my judgment this evidence was untrue. I am not persuaded that it was honest either". Other parts of his evidence were deemed "close to absurd" and "false and, in my judgment, dishonest". In considering the Claimant's evidence on the issue of at what point he became aware that the undercover journalists were asking him to act as a lobbyist on their behalf, Warby J noted that "When a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape. So with Mr Yeo's evidence on this issue".
Of particular significance was the Judge's discussion of the Reynolds defence, in which he reviewed the relevant case law and made some important observations:
- Detailed and subtle criticisms of journalistic conduct by a claimant seeking to undermine a Reynolds defence would only have a proper place if there was "such an accumulation of reasonable points…that they could be said, in the mass, to support an allegation of systematic bias or unfairness;
- When interpreting what Mr Yeo had said at the lunch meeting, the journalists were required to take a fair-minded attitude and approach but were not "duty bound to search out alternative interpretations, if these are far-fetched, speculative or improbable".
- That editorial oversight of what journalists are doing should involve actual checking of proposed content against source material, but the fact there might be room for improvement in this regard did not mean the journalistic process was irresponsible;
- That in sending a "front-up" letter two days prior to publication, the publisher had provided a reasonable opportunity for Mr Yeo to comment. The Judge concluded that stories such as this were peculiarly vulnerable to having their impact undermined by spoiling tactics. Specifically, the "risks are exacerbated if the story is objectively sensational and the subject is someone, such as an experienced MP, well versed in mechanisms for managing or influencing the news". If the impact of such stories was dissipated the public interest would be harmed, the story would attract less attention and there would be some waste of the resources of the media organisation that created it. This was a disincentive to investigative journalism and the fairness to the subject had to be balanced against these factors;
- A judgment had to be made as to how much of the underlying evidence should be made available to the subject of a story in order to allow a reasonable chance for comment. In cases involving undercover recordings, it might be responsible to provide a full transcript of what was said; however account had to be taken of the risk that such material could be cherry picked by the subject to allege misrepresentation and that their statements had been taken out of context. In this case the decision not to provide Mr Yeo with a transcript had not been irresponsible.
- The journalists also did not need to publish a full transcript of the lunch meeting with the articles in order to be responsible. The Judge found that the journalists' role is to distil rather than to act as historians or archivists.
- The journalists' duty to reflect the 'totality' of the evidence in the published article should not be taken too literally. In a case such as this it would be 'fair' to present readers with factual conclusions honestly and reasonably drawn by journalists who witnessed key events; it was permissible to summarise and to be selective. While it might be unfair to misrepresent the evidential picture or to present it in a wholly unbalanced way, 'fairness' did not require publishers to present readers with all the factual material that could support a competing assessment.
Another important finding of the Judge was that, as the articles related wholly and exclusively to the conduct of the Claimant, who was a serving MP and Committee chair, rather than to his personal or private life, Article 8 was not engaged. Specifically, the attack on his reputation did not lead to consequences of a sufficient nature or gravity to engage Article 8 and his 'personal integrity' was not undermined.
Overall, the decision is welcome and important as it affirms the applicability of the Reynolds defence to matters of clear public interest where the journalism is responsible. Warby J has also indicated that the approach to the new statutory defence is likely to broadly follow that taken in respect of Reynolds. The fact that the Claimant lost the claim in its entirety highlights the risks for litigants that are subjects of such stories. The weight of the defeat and nature of the decision has led to the Claimant agreeing to pay the Defendant's costs on an indemnity basis, which is highly unusual in defamation actions. Ultimately the judgment constitutes a robust defence of investigative journalism and reiterates that those who choose to play a role in public life must understand that this greatly increases the scope for their actions to be legitimately scrutinised and criticised.