Flood v Times Newspapers Ltd

Where a publisher reports a police investigation into serious allegations, responsible journalism requires consideration for the subject once material exculpating that person becomes available. The publisher should publish the outcome, or suitably qualify the continuing online publication. A refusal to update a defamatory article may aggravate damages where it prolongs reputational harm and distress. The court may also take account of oppressive or high-handed conduct in pursuing an inadequately limited justification case. Vindication remains relevant even where earlier proceedings have resulted in a reasoned judgment, since online readers are unlikely to locate and study that judgment.

The claimant, a Metropolitan Police detective, sued the publisher of The Times over an article alleging that he had accepted bribes for confidential information concerning Russian extradition matters. An earlier trial upheld a Reynolds public-interest privilege defence for print publication and website publication up to 5 September 2007. The Court of Appeal reversed that conclusion, but the Supreme Court restored it in respect of the earlier period. The present hearing concerned damages for continued website publication between 5 September 2007 and approximately 21 October 2009.

By the time of the relevant publication period, the police investigation had concluded that there was insufficient evidence for criminal prosecution or disciplinary proceedings. The defendant abandoned justification. The issues were the claimant’s reputational injury, distress, need for vindication, and whether the defendant’s failure to update the article and its conduct of the litigation aggravated the damages.

1. Judgment for the claimant. The defendant was liable for the unprivileged website publication between 5 September 2007 and approximately 21 October 2009. Damages were assessed at £60,000.
2. Once the defendant knew that the police investigation had concluded without evidence supporting prosecution or discipline, the claimant was entitled to expect the article to be amended and, at the least, the outcome of the investigation to be published. Continued publication of the unqualified allegations was neither professional, responsible nor fair. The existence of earlier judgments did not provide sufficient vindication because a person researching the claimant online was unlikely to find or read them.
3. The continued availability of serious allegations of dishonesty and corruption on a searchable website caused reputational harm notwithstanding the limited number of visits. The publication also prolonged the claimant’s distress and undermined his ability to rely on his exoneration.
4. The defendant was entitled to pursue justification properly, but its conduct went beyond the pleaded issue whether there had been objectively reasonable grounds for the investigation. Aggressive correspondence, intrusive demands concerning highly sensitive personal matters, refusal to publish the investigation’s outcome, and pressure to settle were oppressive and high-handed conduct. They aggravated the compensatory damages.
5. The award comprised £45,000 for distress, anxiety, suffering, reputational damage and vindication, together with £15,000 for aggravation and deterrence in respect of the refusal to publish exculpatory material in the context of public-interest journalism.

• High Court: The earlier trial judgment upheld the Reynolds defence for the print publication and website publication up to 5 September 2007: [2009] EWHC 2375 (QB); [2008] EMLR 8.
• Court of Appeal: The claimant’s appeal was allowed to the extent that the earlier decision on the Reynolds defence was reversed: [2010] EWCA Civ 804; [2011] 1 WLR 153.
• Supreme Court: The defendant’s appeal was allowed and the earlier privilege judgment was restored for publications up to 5 September 2007: [2012] UKSC 11; [2012] 2 AC 273. The present judgment determined damages for the later website publication period.