Makudi v Baron Triesman of Tottenham

Article 9 of the Bill of Rights 1689 may exceptionally protect speech outside Parliament. The case normally requires both a public interest in repetition which the speaker ought reasonably to serve and a close, reasonably foreseeable nexus between the parliamentary and later occasions, with the same or closely related purpose.

The distinction between repetition and reference is not decisive. Protection is confined to what is strictly necessary to preserve Parliament’s freedom. Separately, a plea of malice must identify supporting facts and matters. A website publication claim may be struck out where its words, readership and alleged authorisation are not properly pleaded.

The respondent gave evidence to a House of Commons committee about alleged improper conduct by members of the FIFA executive committee. The claims did not challenge that parliamentary evidence, which was protected by absolute privilege. They concerned subsequent evidence and a witness statement given to an FA review, alleged republications to FIFA and the FA, and publication of a summary on the FIFA website.

Tugendhat J struck out the claims in defamation and malicious falsehood and entered summary judgment for the respondent: [2013] EWHC 142. The appeal concerned whether Article 9 protected the extra-parliamentary material, whether malice was sufficiently pleaded, and whether the website allegation was adequately particularised.

1. Disposition. The appeal was dismissed. Laws LJ gave the leading judgment, with Tomlinson LJ and Rafferty LJ agreeing. The Article 9 issue was sufficient to dispose of the appeal in the respondent’s favour.
2. General principles. Article 9 protects Parliament’s institutional integrity and democratic processes, rather than the personal interests of an individual member or witness. The principles identified in Prebble v Television New Zealand [1995] 1 AC 321 and Office of Government Commerce v Information Commissioner [2010] QB 98 show the importance of preventing inhibition of parliamentary speech and preserving the separation of powers.
3. A member who voluntarily repeats or refers outside Parliament to parliamentary speech for personal purposes cannot rely on Article 9. R v Lord Abingdon (1794) 170 ER 337 and R v Creevey (1813) 105 ER 102 were consistent with that principle. Buchanan v Jennings [2005] 1 AC 115 did not establish an absolute rule excluding all protection for extra-parliamentary speech. The distinction between repetition and reference is not decisive; whether a reference amounts to republication is essentially a question of fact.
4. Protection may extend to extra-parliamentary speech where there is a public interest in repetition which the speaker ought reasonably to serve, and a close nexus between the parliamentary and later occasions. The prospect of the later obligation, expectation or promise should be reasonably foreseeable when the parliamentary speech is made, and the purposes should be the same or closely related. The category is exceptional, fact-sensitive and requires a very strong case.
5. Those requirements were satisfied. There was a public interest in the FA investigation, the respondent’s participation flowed directly from his undertaking before the committee, and the prospect of his repeating the allegations was actually foreseen. Article 9 therefore prohibited examination in the action of the respondent’s assertions to Mr Dingemans.
6. Alternatively, the malice case was inadequately pleaded. The Particulars of Claim merely repeated the allegations of falsity and alleged knowing or reckless publication, without facts such as motive, prior bad feeling or other matters supporting dishonesty. This failed to comply with Practice Direction 53 paragraph 2.9 of the Civil Procedure Rules 1998, and there was no case fit to go to a jury.
7. The website allegation was also too vague. The pleading did not identify the words published, who read them, or facts showing that the respondent authorised or intended the publication. The defects were too substantial to be cured by further particulars.

1. Court of Appeal (Civil Division): The appeal from the judgment of Tugendhat J was dismissed. Article 9 protected the respondent’s assertions made during the FA review, and the alternative grounds concerning malice and the website publication also failed.
2. High Court of Justice, Queen’s Bench Division: Tugendhat J struck out the claims in defamation and malicious falsehood and entered summary judgment for the respondent: [2013] EWHC 142.