Makudi v Triesman: Comments on FIFA's ethics leads to questions over the protection offered by the Bill of RightsHarry Kinmonth
In an important decision on the scope of protection afforded to Parliamentarians against actions for libel, the Court of Appeal has today ruled in Lord Triesman's favour in the libel claim brought against him by the head of Thailand's football federation: Dato Worawi Makudi v Baron Triesman of Tottenham in the London Borough of Haringey  EWCA Civ 179.
The Claimant is a member of the Executive Committee of FIFA and his libel claim related to evidence given by the Defendant, Lord Triesman, to an inquiry set up by the FA into allegations of unethical behaviour in relation to England's unsuccessful bid to host the 2018 World Cup.
On 10 May 2011 the Defendant, who is a former Chairman of the FA and was the chair of England's 2018 World Cup bid, gave evidence to the Culture, Media and Sport Committee of the House of Commons ("CMSC"), where he presented an account of his personal experience with members of FIFA's Executive Committee which he felt "did not represent proper and ethical behaviour". One such experience involved the Claimant and a discussion about TV rights for an international between England and Thailand. When asked by the CMSC, the Defendant said he would be willing to take his concerns to FIFA and in answer to one of the committee's questions he described his promise to do so as an "undertaking".
There was subsequently much publicity about the Defendant's allegations. The FA resolved to conduct an investigation, and on 13 May 2011 appointed James Dingemans QC to lead it. On 20 May 2011, the Defendant gave evidence to Mr Dingemans as part of this investigation further to his undertaking to the CMSC.
In his evidence to Mr Dingemans, the Defendant referred to his Parliamentary evidence, although he did not explicitly repeat it. In his witness statement he said, "My evidence in respect of this issue is set out in the transcript of the statement that I made to the Culture, Media and Sport Committee... I think that if I try to add to it I may stray into territory not covered by Parliamentary privilege." In his oral evidence he said he did not think he could add to his evidence to the CMSC.
The Claimant sued the Defendant for libel and malicious falsehood for publishing or causing publication of the following:
- The Defendant's oral evidence to Mr Dingemans on 20 May 2011;
- The Defendant's written witness statement to Mr Dingemans made on or around 23 May 2011;
- Mr Dingemans' report entitled "Report to FIFA related to [the Claimant]" dated 26 May 2011;
- Mr Dingemans' report entitled "Review of the allegations of misconduct in relation to the FA's 2018 World Cup bid - Summary of the report to the FA".
Mr Justice Tugendhat struck the claim out at first instance on the basis that the publications had clearly occurred on occasions of qualified privilege and there was no case in malice that could be put at trial without violating Article 9 of the Bill of Rights 1689. Alternatively, the judge held that the Claimant's plea of malice, even assuming his evidence was accepted at trial, did not entail the conclusion that the Defendant was dishonest: it was equally consistent with his having been mistaken.
The Court of Appeal's reasoning in dismissing the appeal
The main basis of the Claimant's appeal was that his claim did not violate Article 9 as its target was not anything stated in Parliament but what the Defendant said (or conveyed by reference) to Mr Dingemans. Alternative grounds of appeal included a challenge to the judge's conclusion that his malice plea did not establish dishonesty.
In giving the leading judgment, Lord Justice Laws (with whom the other two judges agreed) drew a clear distinction between absolute privilege and the scope of protection afforded by Article 9 of the Bill of Rights. The common law rule of absolute privilege affords a defence in defamation cases to statements made within Parliament and the Queen's courts. The reach of Article 9 is not so clear-cut and does not depend on the setting in which a statement is made, but on whether allowing a claim in defamation to be brought will lead to members and witnesses speaking in Parliament to be "vexed by fear of litigation". Therefore, while Article 9 will clearly also protect statements made in Parliament in the same way that absolute privilege does, in "infrequent" cases the scope of Article 9 may also extend to statements made outside of Parliament.
Lord Justice Laws said that such cases will generally possess two characteristics (although this was not a "hard and fast rule"):
- A public interest in repetition of the Parliamentary utterance which the speaker ought reasonably to serve;
- So close a nexus between the occasions of his speaking, in and then out of Parliament, that the prospect of his obligation to speak on the second occasion (or the expectation or promise that he would do so) is reasonably foreseeable at the time of the first and his purpose in speaking on both occasions is the same or very closely related.
In light of this rule, Lord Justice Laws concluded:
"Looking at the case in the round, in my judgment it possesses both of the characteristics which I have sought to describe. There was plainly a public interest in Mr Dingemans' enquiry, which would be served by [Lord Triesman's] contribution. Equally plainly, there was a very close nexus between his evidence to the CMSC and his interview with Mr Dingemans. The prospect that he might be called on to repeat his allegations was not only reasonably foreseeable but actually foreseen; he undertook, in effect, to do so... For all these reasons, in my judgment Article 9 prohibits an examination in this action of the respondent's assertions to Mr Dingemans."
In other words, it was foreseeable at the time Lord Triesman gave his evidence to the CMSC that any allegations he would make might well be investigated by an extra-Parliamentary inquiry, and that it would be in the public interest for him to assist such an inquiry with the same information. If an individual were to be at risk of potential liability in defamation for anything he said to the extra-Parliamentary inquiry in such a situation, the likelihood would be that he or she would choose not to make the allegations in Parliament in first place, and this would restrict freedom of speech in Parliament in breach of Article 9.
This was sufficient to dispose of the appeal, but Lord Justice Laws also agreed with Mr Justice Tugendhat that there was no case in malice to go to a jury.
Andrew Caldecott QC and Clare Kissin were instructed by Keith Mathieson and Harry Kinmonth of RPC for the Defendant; Andrew Goddard QC and Simon Crawshaw were instructed by Watson, Farley & Williams for the Claimant.
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About the Author
Harry Kinmonth is an associate in the media team at RPC. He joined RPC in 2011 in order to specialise on media disputes, having previously trained at Herbert Smith before working in their litigation team for three years post qualification.