Case Law: Cruddas v Calvert, Sunday Times appeal allowed in part, no allegation of criminal corruption

21 06 2013

Peter CruddasThe Court of Appeal have allowed the appeal of the Sunday Times in the libel case brought former Conservative Party Treasurer, Peter Cruddas ([2013] EWCA Civ 748) against the ruling of Mr Justice Tugendhat that the published articles made an allegation of corruption contrary to the criminal law ([2013] EWHC 1427 (QB)).  The Court set aside the orders striking out the defence of justification and entering judgment for the claimant.  The trial will now have to proceed.

Background

The Claimant is a businessman and in March 2012 he was the Co-Treasurer of the Conservative Party.  The First and Second Defendants are  journalists and part of the “Sunday Times”  ’Insight’ team.  The Third Defendant is the publisher of the “Sunday Times”.

The journalist defendants pretended to be agents for foreign investors who wanted to explore making donations to the Conservative Party. They hired a lobbyist called Sarah Southern and, through her, arranged to have a meeting with the Claimant on 15th March 2012. They carried concealed cameras with an audio recording facilities.

On 25 March 2012 the Sunday Times published four articles. The first began on page 1 and continued on page 2 under the headline ‘Tory treasurer charges £250,000 to meet PM.’ Page 1 also had a photograph of the Claimant. A sub-heading further reported that the day before ‘Cameron’s fundraiser [had been] forced to resign‘. The second article was on pages 8 and 9 under the headline ‘Cash for Cameron: cosy club buys the PM’s ear‘. The third article, also on page 9, had the headline, ‘Pay the money this way and the party won’t pry’. Page 9 carried the fourth article as well. This was written by Mark Adams under the headline ‘Rotten to the Core’.  The Sunday Times also published an editorial in the same issue on the theme ‘Sack the Treasurer and Clean Up Lobbying‘.

The Claimant issued proceedings for libel and malicious falsehood in July 2012complained of the first three articles.  He Claimant pleaded that the meanings attributed to the articles (for the purpose of his claims in both defamation and malicious falsehood) were as follows:

“(1) In return for cash donations to the Conservative Party, the Claimant corruptly offered for sale the opportunity to influence government policy and gain unfair advantage through secret meetings with the Prime Minister and other senior ministers.

(2) The Claimant made the offer, even though he knew that the money offered for secret meetings was to come, in breach of the ban under UK electoral law, from Middle Eastern investors in a Lichtenstein fund; and

(3) further, in order to circumvent and thereby evade the law, the Claimant was happy that the foreign donors should use deceptive devices, such as creating an artificial UK company to donate the money or using UK employees as conduits, so that the true source of the donation would be concealed”.

The Defendants denied that the words bore these meanings and relied on a defence of justification in relation to “lesser meanings” to the effect that the Claimant’s conduct was “ inappropriate, unacceptable and wrong and gave rise to an impression of impropriety“. The Defendants did not raise a Reynolds defence nor any other defence of privilege (or public interest), nor a defence of honest comment.

On 17 May 2013 the Defendants agreed to trial by judge alone and, as a result, on 21 and 22 May 2013 there was the trial of a preliminary issue as to the meaning of the words complained of.

Mr Justice Tugendhat held, in his judgment of 5 June 2013, that

i)  For the purposes of the single meaning rule in libel the words complained of bear each of the natural and ordinary meanings pleaded by the Claimant in para 6 of the Amended Particulars of Claim (see para 7 above);

ii)  For the purposes of the meaning rule in malicious falsehood the words complained of are reasonably capable of bearing not only those meanings, but also (and subject to one point) the meanings pleaded by the Defendants in paras 7 and 8 of the Amended Defence (see paras 10 and 11 above). The exception is set out in para 113 above. The words complained of probably were so understood by a substantial number of readers. At this hearing I have not been asked to find how many such readers there were. [124]

The judge went to hold that the meaning which he had found the words complained of to bear “connotes conduct which is criminal in England and Wales”.  In a libel case it did not matter whether that connotation was correctly made – so the fact that the word “corruption” was not used in the Bribery Act was irrelevant [47].

Because the articles accused the Claimant of corruption in a criminal sense, Mr Justice Tugendhat  then struck out the justification defence – which only sought to justify the allegation that the Claimant was corrupt in a non-criminal sense.   As the Defendants had no other defence, the Judge entered judgment for damages to be assessed and granted an injunction.

Mr Justice Tugendhat refused permission to appeal and it was refused by the single judge on 10 June 2013.  The Defendants then renewed the application at a “rolled up” permission and appeal hearing on 14 June 2013 before Longmore and Rafferty LJJ and Sir Stephen Sedley.  Judgment was reserved and was handed down on 21 June 2013.

Judgment

The leading judgment was given by Longmore LJ (with whom the other members of the Court agreed).   He concluded that

“the defendants are not asserting that Mr Cruddas was criminally corrupt in offering access to Minister for cash. They are asserting that Mr Cruddas’ conduct was “inappropriate”, “unacceptable” and “wrong”. To some people that may indicate “corruption” but it is not explicitly or implicitly an assertion of any criminal offence. It overeggs the pudding to say that the natural and ordinary meaning of the words used is that offering access to Ministers for cash is to commit a criminal offence” [16]

Although there was a reported explicit assertion that the reporters could adopt the illegal solution of funnelling funds through nominal donors this was quite different from criminal corruption “with its implication of feathering one’s own nest or making some personal gain” [17].

In relation to the allegation of funnelling money through a third party, Longmore LJ accept that this was an imputation of a criminal offence under section 61 of the Political Parties, Elections and Referendums Act 2000:

“All that is impermissible is to leap from the imputation of the crime of breach of electoral law to the imputation of personal criminal corruption. Whether the more limited imputation found by the judge can be justified is another matter” [23]

The result of this ruling was that the defence of justification in paragraph 8 of the Amended Defence should not be struck out.  There would have to be a trial of the libel claims.

The Judge’s rulings in relation to malicious falsehood were upheld by the Court of Appeal.

As a result, the court declared that “for the purposes of the libel claims the meaning of the articles does not include an allegation of corruption contrary to the criminal law” and set aside the orders which struck out the justification defence and the orders entering judgment for damages to be assessed and granted injunctions against republication.  The Claimant was ordered to pay the Defendants 50% of their costs of the appeal.

Comment

It is unusual for the Court of Appeal to overturn a determination on meaning by a trial judge which is treated as a determination of fact and, therefore, one which is only to be overturned if the court is “quite satisfied” that the judge was wrong.  However, Longmore LJ commented that “One treats any decision of Tugendhat J in this area of the law with enormous respect but as Salmon LJ says, if one is satisfied that judge’s finding is wrong, it is one’s duty to reverse him” [21].

The “Sunday Times” did not make an explicit allegation of “criminal corruption” and there seems to be considerable force in the argument that what was being alleged was “moral” rather than “criminal” corruption.

The Defendants were, however, unsuccessful on other issues – as reflected by the costs order which was made.

The result of this ruling is that a substantial libel and malicious falsehood case will now have to be tried by judge alone.  This week’s trial fixture has been lost but it remains to be seen whether the case can be relisted before the end of July.  The trial is likely to be an interesting one.


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