“8. According to para 7 of the defence, the meaning which the defendant seeks to justify (the so-called Lucas-Box meaning: see Lucas-Box v News Group Newspapers Ltd, Lucas-Box v Associated Newspapers Group plc[1986] 1 All ER 177 ,[1986] 1 WLR 147 ) is that: (a) there were reasonable grounds to suspect that the claimant had been associated with IRA dirty money, and was also involved in financial malpractice; and that (b) in order to support his denial of the allegations made against him by Peter Robinson MP in Parliament linking him to the IRA's 'dirty money', the claimant had publicly made a false claim that the accounts of his company Sheridan Millennium Ltd were not qualified in any way. 9. The rival contentions are therefore whether the article means that the claimant was guilty of involvement in money laundering and other financial malpractices (criminal or otherwise) or whether it means that there are reasonable grounds to suspect that the claimant had been associated with IRA 'dirty money' and involved in financial malpractice. These two different levels of meaning have come to be labelled 'a Chase level 1 meaning' and 'a Chase level 2 meaning' respectively, following the decision of the Court of Appeal in Chase v News Group Newspapers Ltd[2002] EWCA Civ 1772 , [2003] EMLR 218. 10. I can see that there is some advantage in the use of labels such as these as shorthand. It is, however, common ground in the present case that it is open to me to determine whatever meaning I think the words would have conveyed to ordinary reasonable readers without being constrained to pigeon-hole them in one or other of the Chase levels.”
“55. It seems to me to be clear that, in what he said in Parliament, Mr Robinson is accusing the claimant of being associated with IRA 'dirty money', ie with laundering money for the IRA. The reference to 'such men' being involved in government initiatives must be a reference to the claimant and to Mr Mackin, both of whom Mr Robinson had mentioned moments earlier. Moreover Mr Robinson refers to 'recent reports' showing that it is not the case that the claimant and his business activities are legitimate. 56. It is true that Mr Robinson calls for an investigation. But I think that his audience would have understood that the investigation for which he called was designed to expose the claimant's criminality (as he saw it) rather than to discover if he had been guilty of criminality. 57. As I have already pointed out at [45], above, Mr Parkes maintains that the Sunday Times report of what Mr Robinson said is neither fair nor accurate. Certainly the report is not complete. I have to bear in mind that - 'a reporter is in principle allowed to summarise and to be selective without losing the benefit of the privilege. It is not suggested that in themselves these parts of the article are unfair.' 58. I must next consider the extent of the extraneous material added to the reportage. It is on any view substantial, since it extends to most, although not all, of paras (v)-(xviii) of the article. On the other hand this additional material does not consist of adjectival or journalistic comment; nor is there any 'editorialisation'. In these respects the Sunday Times article can be distinguished from the BBC programme which was the subject of complaint in Henry v BBC. Furthermore there was in the present case 'no excessive commentary or misleading headlines' of the kind against which Kirby J warned in Chakravarti's case. 59. Is the privileged reportage extricable from the rest of the article? In other words is it severable or capable of being distinguished by the typical Sunday Times reader? Paragraph (i) conflates part of what Mr Robinson said in Parliament with what the newspaper claims to have discovered about the falsity of claims made by the claimant about having a clean bill of health. There are, however, no quotation marks around the second half of para (i). Moreover, para (ii) makes clear what was Mr Robinson's accusation against the claimant made in the House of Commons. That is plainly the accusation which the claimant seeks to rebut in paras (iii) and (iv) of the article. 60. It is plain that from para (v) onwards the article is largely, if not exclusively, devoted to the newspaper's investigation into the claimant's various companies and into their accounts. It is true that in paras (xiii) and (xiv) there are references back to what Mr Robinson had said in Parliament. In each of those two cases it is made clear that it is Mr Robinson who is being quoted. Moreover it is in my view important to note that these references are made (and would appear to the reader to have been made) in the context of the Sunday Times investigations into the claimant's corporate empire and the companies' accounting practices. Readers would no doubt expect a newspaper to follow up an MP's claims about a prominent businessman like Mr Curistan by carrying out an investigation of its own. 61. In my judgment the parts of the article which quote or refer to what Mr Robinson said in his speech would be recognised as such by Sunday Times readers. I think the passages are extricable from the remainder of the article in that sense. The same applies to the headline: the inverted commas around IRA indicate that the allegation is one made by someone other than the newspaper itself, ie Mr Robinson. 62. Finally I ask myself whether there is a connection between the reportage in the article and what the Sunday Times added. My answer is that there is such a connection. The accusation levelled against the claimant in the House of Commons was an association with the IRA's 'dirty money'. What is more, Mr Robinson mentioned the claimant's companies, albeit without naming all of them, as well as mentioning Mr Mackin, formerly of the IRA. As for the material added by the Sunday Times, that consisted in the fruits of its investigation into the claimants' companies in order to see whether there was evidence of IRA money being laundered through those companies' accounts. 63. It is common ground that Mr Mackin was at the material time a co-director with the claimant of seven of those companies. In my view there is a clear and real nexus between what Mr Robinson said in the House on the one hand and the additional material included in the Sunday Times article alongside reporting of Mr Robinson's speech. This is not a case of gratuitous or collateral or irrelevant commentary being published alongside the privileged material. 64. For the above reasons I conclude that the passages in the Sunday Times article which are identified in para 6(b) of the defence are protected by qualified privilege as being a fair and accurate report of proceedings in Parliament….”
“25. Is Mr Moloney right when he contends that this is a case where, exceptionally, the repetition rule should be set aside when it comes to interpreting the Sunday Times article? Even assuming that the application of the repetition rule would, as Mr Moloney submits, undermine or erode the privilege otherwise available in respect of those parts of the article which report parliamentary proceedings, I do not think that the circumstances of the present case call for the radical modification to an established rule for which Mr Moloney contends. It seems to me that the reasons given by Simon Browne LJ in Mark v Associated Newspapers Ltd [2002] EMLR 839 at [27]-[35] for the existence of the repetition rule are just as valid in the circumstances of the present case as they are in other cases. Thus, to the extent that the Sunday Times is repeating what Mr Robinson had said, it is just as bad as if the newspaper was making the statement about the claimant directly. If the repetition had not taken place in the columns of a newspaper such as the Sunday Times, little damage would have been done by Mr Robinson uttering his remarks on the floor of the House. Parliament may be a public forum but that does not mean that what members of Parliament say in the House attracts wide publicity. 26. Mr Moloney is of course right when he says that,other things being equal, a newspaper can repeat with impunity a libel which was originally published in circumstances of parliamentary privilege. The problem here is that the Sunday Times did not confine itself to reporting what Mr Robinson said. His accusation is coupled in the first paragraph of the article with the newspaper's own allegation that the claimant falsely claimed that accountants hadgiven him a clean bill of health. Elsewhere in the article the newspaper amplifies that allegation by reference to what two firms of accountants have said and done in relation to the claimant's companies (paras (iv)-(viii) and (xvii)). The Sunday Times did not confine itself to reporting what Mr Robinson said in Parliament about Mr Dessie Mackin being a co-director with the claimant of several companies. Instead the newspaper chose, as it was of course perfectly entitled to do, to indorse that allegation by referring in para (xiii) to information evidently supplied to the newspaper by 'security sources'. The Sunday Times also incorporated in its article at paras (ix)-(xi) a reference to another firm of accountants having been called in by the Northern Ireland Department of Economic Development to perform a full due diligence test to assess whether the claimant's company should be permitted to retain a substantial building development contract. Those paragraphs raise serious questions--to put it at its lowest--as to the claimant's integrity. In these various ways the newspaper, as I repeat it had every right to do, considerably fleshed out and enlarged upon what had been said in the House of Commons. 27. I recognise of course the high importance attached to the freedom to publish fair and accurate reports on proceedings in parliament: see for example Wason v Walter (1868) LR 4 QB 73 at 89, [1861-73] All ER Rep 105 at 110-111 per Cockburn CJ and Cook v Alexander[1973] 3 All ER 1037 at 1041-1042,[1974] QB 279 at 288 per Lord Denning MR. But what is the position where a newspaper elects to go beyond publishing a report of the proceedings in Parliament andincludes material of its own, as the Sunday Times did in this case? 28. In my judgment the Sunday Times article of which the claimant complains does not qualify for the special exemption from the repetition rule for which Mr Moloney contends. It would have been open to the Sunday Times to publish an unadorned report of Mr Robinson's words in the House. If that course had been adopted, the newspaper's entitlement to privilege would not have been open to doubt. However, in this case the Sunday Times chose not to take that course. I have summarised above the material extraneous to what was said in the course of the parliamentary debate which the newspaper included in its report. 29. The newspaper having chosen to enlarge upon Mr Robinson's strictures, I see no reason to disapply the repetition rule when determining the meaning of the article in its entirety. It may be that as a result the hurdle which the newspaper will have to surmount when seeking to establish a defence to this action will be a higher one. But that stems from the Sunday Times's own choice to make substantial additions to and elaborations of what Mr Robinson said in Parliament.”
“30. I have not rehearsed the detailed textual arguments of counsel on the issue of meaning because I think it would be unprofitable for me to do so. Instead I will give my answer to the first preliminary issue and thereafter explain my reasons for arriving at that conclusion. 31. In my judgment the natural and ordinary meaning which would have been conveyed to the hypothetical ordinary reasonable reader of both the Sunday Times article and the website posting is that the claimant through his companies was associated with IRA 'dirty money' and was thereby guilty of IRA money laundering and financial malpractice. 32. My reasons for that conclusion are as follows: I accept that the quotation marks around IRA in the headline of the article, taken by itself, would indicate to the reader no more than that it had been alleged that the claimant is linked to the IRA. However, the body of the article, read as a whole, appears to me to convey clearly to the reader that such a link did in fact exist. It is true that the language employed in the first two paragraphs of the article is consistent with a Chase level 2 meaning, ie the existence of reasonable groundsfor suspicion rather than actual guilt. It is also true that paras (iii) and (iv) contain the claimant's denials of wrongdoing and that those denials are by no means formulaic. The claimant expressed himself in firm and apparently convincing terms. 33. As it appears to me, the balance of the article is couched in terms which would in my view cause the ordinary reasonable reader to conclude that the claimant's denials are untrue and that he has indeed been associated with the IRA's dirty money. Why else the references to false accounting within the claimant's business empire? PWC are said to have qualified the 2002-2003 accounts of one of the claimant's companies; the 2003 accounts are said to have contained 'the heaviest qualification'. The reader is told that information and explanations have been denied to PWC by or on behalf of the claimant. The records of various substantial sums are said in the article either to have been unobtainable for reasons which are unexplained or to be so lacking in detail than an audit could not be carried out. The quotation attributed to a PWC spokesman about the firm's policy would in my opinion suggest to the reader that PWC were not prepared to stand behind and support their client--why else include this paragraph in the article? 34. Moreover the reader of para (ix) of the article would, I think, conclude that something was seriously amiss with the claimant's Sheridan group of companies if a 'full due diligence check' needed to be carried out in order to assess whether the group should be allowed to retain what is evidently a large and lucrative development contract. There follows immediately a reference in para (xiii) to the claimant's links to Mr Mackin who has, so the reader is told, been convicted of IRA membership and was the IRA's finance director before becoming Sinn Fein's head of finance. Some indication is given to the reader of the closeness of that link in para (xiv) of the article, where the two of them are said to be co-directors of 23 companies. Seven of those companies are said to have been convicted of failing to keep proper accounts. Then in para (xvii) the reader is told that a Dublin firm of accountants has resigned from some of the claimant's companies because they too were unable to establish whether proper books and records had been kept. The article concludes with a reference to Mr Mackin as a friend of the claimant since student days. 35. Mr Moloney rightly points out that nowhere in the article is it said in terms that the claimant is a money launderer for the IRA or that he has been associated with the IRA's 'dirty money'. Any such conclusions would, I accept, be inferences. Are they inferences which the ordinary reasonable reader would draw? I answer that question in the affirmative. Although the claimant's rebuttal features with some prominence in the article, virtually everything which follows casts doubt on the truth of that rebuttal. The first paragraph of the article links the charge of association with the IRA's 'dirty money' with the claimant's false claim to have been given a clean bill of health by accountants. The reader is told that one firm of accountants has qualified the claimant's companies' accounts twice, that another firm has resigned and that a third firm has been called in to carry out full due diligence to see if a company of the claimant should be allowed to retain a lucrative contract. The reader would in my view inevitably draw the conclusion that the reason for the claimant's persistent failure across the gamut of his companies to make proper disclosure of financial records was to conceal the fact that such disclosure would reveal the claimant's association with the IRA's 'dirty money' and so would also reveal the claimant's involvement in money laundering for the IRA.”
“It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the Houses of Parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends…. Can any man bring himself to doubt that the publicity given in modern times to what passes in Parliament is essential to the maintenance of the relations existing between the government, the legislature, and the country at large? ”
“We have to start our consideration of this case therefore by recognising that so far as the Daily Mail or any other newspaper confined itself to reproducing extracts from the report and acted in good faith and without malice the respondent would have no cause of action in defamation against it." Then again at page 392 he importantly held that the meaning of the article was to be found by disregarding the privileged part of the article: “If one reads the article through without including the extract from the select committee report, which is protected, the effect of what is imputed to the respondent does not seem to amount to such deliberate misstatements or deliberate concealments as constitute an offence under section 12 of the Prevention of Frauds Act.”
“… and the judge had to eliminate that part of the article that consisted of extracts from the select committee's report, since under the Act of 1840 such extracts could not in law be treated as a libel.”
“The judge had approached the case with two broad questions in mind which he framed as follows: (1) To what extent was the plaintiff wrongfully defamed by the defendants? And (2) How much damage to his reputation was caused by this? In regard to the first of these questions I think that the approach of the judge was entirely correct: he excluded from consideration those parts of the article which were privileged and he excluded those parts which were true. He held that the extracts contained in the article which came from the select committee’s report were published without malice. He held that some parts of the article though only of slight materiality were true. He proceeded therefore to isolate those matters from the “indefensible part of the libel” and then posed the second question in the words: “How much damage is attributable to so much of the libel as is neither privileged under the Act nor true?”
“But here comes the question: Suppose that the reports in other newspapers were privileged, as they were in this case, cannot they be referred to in order to mitigate damage? I think the answer must be “No.”
“Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege”
“…that [i.e.that the repetition rule dictates the meaning to be given to the words used] is by no means to say that that the meaning dictated is an artificial one. Rather, the rule accords with reality. If A says to B that C says D is a scoundrel, B will think just as ill of D as if he had heard the statement directly from C.”
“29. …If, moreover, A is a respectable newspaper, D’s position will be worse than if B had merely heard the statement directly from C. It will be worse in part because there will be many more Bs, and in part because responsible newspapers do not generally repeat serious allegations unless they think there is something in them so that the very fact of publication carries a certain weight. If, of course, in retailing C’s statement, A says that C is often unreliable so that B should not suppose the statement necessarily to be true, that would certainly mitigate the gravity of the libel. Just as it would aggravate the libel if A said that C’s statements ordinarily turned out to be true. But in either event, D’s reputation would be damaged and the repetition rule precludes A from pretending the contrary (ie, justifying by asserting that what he said was true, the only defamer being C).”
“33…For my part I see no inconsistency between the repetition rule as explained in Stern and Shah on the one hand and, on the other, the ECtHR’s decision in Thoma that journalists cannot be “systematically and formally” required to “distance themselves from the content of a [defamatory] quotation”
“repeating someone else’s libellous statement is just as bad as making the statement directly”
“In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage.”
“But if it [sc. the publisher] adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged. It has ‘put the meat on the bones’ and must answer for the whole joint.”
“It would have been open to the Sunday Times to publish an unadorned report of Mr Robinson’s words in the House. If that course had been adopted the newspaper’s entitlement to privilege would not have been open to doubt. However in this case the Sunday Times chose not to take that course. I have summarised above the material extraneous to what was said in the course of the parliamentary debate which the newspaper included in its report. The newspaper having chosen to enlarge on Mr Robinson’s strictures, I see no reason to disapply the repetition rule”
“But if it adds spice and prints a story to the same effect as the parliamentary paper, and garnishes it and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law… If it cannot justify it, it must pay damages: and it cannot diminish these by reference to the privileged reports which it and others may have given previously.”