England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 February 2013

Mr Justice Tugendhat :

1. The defendant applies to the court for an order that the claimant's claim for libel be struck out and summary judgment entered for the defendant. The claimant was at the material time the president of the Football Association Thailand and a member of the Executive Committee of the Federation Internationale de Football Association ("FIFA"). The defendant is a member of the House of Lords. He was Chairman of the Football Association Limited ("FA") from January 2008 to May 2010. Between October 2008 and May 2010 he was Chairman of the England 2018 World Cup bid.
2. The claim form was issued on 2 May 2012, shortly before the expiry of the limitation period. It includes claims for both slander and libel. On 10 May 2011 the Defendant gave evidence to the Culture Media and Sport Committee of the House of Commons ("the CMSC"). I shall refer to this as the Parliamentary evidence. The claim is not brought on the Parliamentary evidence, and could not be, because anything said in Parliament is protected by absolute privilege. But the Parliamentary evidence has been referred to outside Parliament, and the claims in this action arise out of those subsequent references.

THE PARLIAMENTARY EVIDENCE

3. In paragraph 3 of the Particulars of Claim it is pleaded that the Defendant gave the following evidence:

"[the defendant]: … The second area is about the conduct of some members of the FIFA executive… I would, if it was thought helpful by the Committee, go to the specifics of some things which were put to me personally, sometimes in the presence of others, which in my view did not represent proper and ethical behaviour on the part of those members of the committee. If that is helpful it is probably high time it was ventilated.

Q48 Chair: … That would be helpful, and I think the Committee would like to hear it.

[The defendant]: … The fourth example to bring to your attentions, Chairman, is this. We had a number of conversations with [the claimant], telephone conversations for the most part. He was eager to secure a match between the England team and the Thai team. … [He] said it would be a great honour if England came, and we talked about the possibilities, how it would fit in at the end of the season, what arrangements might be with the clubs. But the one thing that he did insist on was that one way or another the TV rights to the broadcast in the United Kingdom would go to him. I made the point that, broadly speaking, the right to games played overseas are owned by the federations or those in the countries where the game is played. It was not, in any case, in my view, something that we could or should organise, and I told him that. But that was what he believed was the critical thing to making the arrangement a success…

Q49 Chair: … How overt in your mind was the linkage in each of the four cases between what was being asked for and the promise of a vote for the England bid?

[The defendant]: In the first three examples they all took place absolutely in the context of formal approaches about the bid… I think that with [the claimant], it might be argued that the events were potentially different, but it is hard not to think that a member of the FIFA Executive Committee, who is potentially seeking what might be a very lucrative arrangement around a football match, is unaware of the idea settling in my mind, or in the minds of people in this country who are responsible for the bid, that these things would be linked…

Q52 Chair: So you felt that to make a complaint that some members of the Executive Committee were being unduly influenced by what can best be described as bribes, and to pursue that the only result would be to absolutely ensure England stood no chance at all?

[The defendant]: Yes Not only that, but when you listen to some of the things that members of the Committee said when The Sunday Times and then Panorama quite rightly, in my judgment, published the evidence they had about corrupt practices, the response was immediately that if we in England, including our media, behave like that, "Then you cannot expect any support from us"…

Q54 Chair: On the basis of your experience, both in terms of your direct contact with certain members, and indeed from having observed the process, do you think that the outcome of the 2018 and 2022 contests was unduly influenced by improper behaviour on behalf of some members of the Executive Committee?

[The Defendant]: I think it will have been influenced to some extent…"

4. This and other passages of the Parliamentary evidence are set out in the Particulars of Claim. A full (uncorrected) transcript of the Parliamentary evidence is annexed to the Particulars of Claim.
5. Following the Parliamentary evidence, there was much publicity about what the defendant had said. The FA resolved to conduct an investigation into the defendant's allegations. On 12 May, the FA appointed James Dingemans QC to conduct a review for that purpose. On 20 May and 25 May 2011 he interviewed the defendant.

THE PARTICULARS OF CLAIM

6. There are four publications complained of in this action. They have been referred as Publications 1, 2, 3 and 4. The defendant's oral evidence given to Mr Dingemans on 20 May 2011, the slander, has been referred to as "Publication 1" and was pleaded in para 7(a). The defendant's written witness statement to Mr Dingemans pleaded in para 7(b) of the Particulars of Claim has been referred to as "Publication 2". The two further publications relied on, which have been referred to respectively as "Publication 3" and "Publication 4", are publications by Mr Dingemans himself to FIFA and to the FA. They are said to have been authorised by the defendant. These are pleaded respectively in paras 9 and 10 and 14 to 16 of the Particulars of Claim. There is a plea of malicious falsehood in paras 12-13 of the Particulars of Claim.

Publication 1

7. At the time the Particulars of Claim were signed at the end of August 2012 the claimant did not have a transcript of that interview. In the course of correspondence between solicitors a copy was provided to the claimant in December 2012.
8. It is now submitted by Mr Goddard that the words used by the defendant in interview are accurately set out in that transcript, and it is to those that I should go for the claim in slander, rather than to what is pleaded in paragraph 7(a) of the Particulars of Claim. An amendment will be necessary if the matter proceeds. Mr Goddard submits (as is common ground) that the whole of the transcript is relevant as part of the context of the publications complained of. So it is convenient that, at the same time as setting out the passages relied on by the claimant, I should also refer to the passages relied on by Ms Kissin.
9. The transcript of the interview conducted on 20 May 2011 covers 37 pages. Much of it relates to allegations made by the defendant against individuals other than the claimant. The first of these was Mr Warner. Ms Kissin refers me to a passage on the first and second pages of the transcript, pages 527-8 of the bundle, in which Mr Dingemans had just asked a question about allegations concerning Mr Warner. The passage reads as follows.

"[The defendant]: Well, I have covered this in the evidence that I gave to the select committee. Although the uncorrected transcript is in the public domain and is available to you, that is the entirety of the statement that I made, and it was given under conditions of Parliamentary privilege. I think that if I try to add to it I will stray into territory not covered by Parliamentary privilege".

10. The passages the claimant would plead (if the matter goes forward) include one which also on page 528 of the bundle in the passage concerning Mr Warner. It reads:

"[Mr Dingeman's QC]: Did you have any further discussions with Jack Warner about the proposed academy idea?

[The defendant]: I have covered it all in the evidence to the select committee and I do invite you to rely on the transcript".

11. On page 530 of the bundle, where the topic is still Mr Warner, there is a further passage relied on by Mr Goddard as follows:

"[Mr Dingemans]: Did you have any further discussions about the academy idea within the FA with other members of the FA?

[The defendant]: Well, alongside of saying I do invite you to rely on the evidence given to the select committee…"

12. The further passage relied on by Mr Goddard is at page 531 of the bundle is as follows:

"[Mr Dingemans]: So effectively, those short other questions around the edges apart, you refer me really to your evidence to the Commons committee about this?

[The defendant]: Yes I do"

13. At page 546 of the bundle there is a passage of the transcript referring to Mr Teixeira. The passage relied on by Mr Goddard reads as follows:

"[Mr Dingemans]: And his comments, what he said, was in his halting English or translated?...

[The defendant]: Sorry let me be very accurate. It is in the evidence.

[Mr Dingemans]: Right, right, so you will stick with the evidence. It was just I was not entirely sure from that whether it was – you say he spoke in English and what you say he said is in the Commons committee evidence.

[The defendant]: Yes".

14. The part of the transcript relating to the claimant is at page 547 of the bundle. At p548 is the following passage relied on by Mr Goddard:

"[Mr Dingemans]: Right, ok. And so far as this is concerned, this point against [the claimant], is there anything further in addition to your Commons committee evidence that you can assist with?

[The defendant]: No. I don't think I can add to it".

15. At page 549 of the bundle there is the following passage relied on by Mr Goddard:

"[Mr Dingemans]: … in relation to [the claimant], then, I just give you the same opportunity: is there anything else you want to say other than what is said in your Commons evidence?

[The defendant]: No thank you".

Publication 2

16. In paragraph 7(b) of the Particulars of Claim the claimant pleads the words which he complains of as a libel published to Mr Dingemans. This is Publication 2. Those words are in a document entitled "Statement of [the defendant]" which is said to have been made on or around 23 May 2011. In the Particulars of Claim it is pleaded as follows:

"(b) … at paragraph 10 under the heading 'Allegations against [the claimant]': '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…'"

17. In the course of submissions Mr Goddard also relied on a passage at paragraph 3 of the defendant's written statement to Mr Dingemans (albeit that these words are not set out in the Particulars of Claim):

"On 10 May 2011, I appeared before the Culture Media and Sport Committee for a one-off session on the 2018 World Cup bid. An uncorrected transcript of what was said at that evidence session is at page 1 of DMT. I can confirm that before I gave evidence to the committee I had re-read my private diary…"

18. Ms Kissin refers the court to the second of the two sentences in paragraph 10 of that statement, which reads:

"I think that, if I try to add to it I may stray into territory not covered by Parliamentary privilege".

19. In paragraph 8 of the Particulars of Claim the claimant pleads:

"The Defendant thereby adopted by reference and/or confirmed and/or repeated his statements made to the CMS committee set out in paragraph 3 above and published or caused to be published, the same to Mr Dingemans".

Publication 3

20. Publication 3 is pleaded in paragraph 9 and 10 of the Particulars of Claim. It is important to note the context.
21. The publication is said to be in a document headed "Report to FIFA relating to [the claimant]". That Report by Mr Dingemans dated 26 May 2011. It is in sections. The first section covering 8 pages is the report itself. There are seven appendices, including both the written witness statement of the defendant (Publication 2) and the transcript of the Parliamentary evidence. At para 3 of his Report Mr Dingemans sets out his terms of reference as follows:

"(1) To review the evidence of the allegations against the four Executive Committee Members; and

(2) To ascertain if there is any other evidence that implicates FIFA Executive Committee Members or other FIFA officers taking 'bribes' in return for votes".

22. Mr Dingemans goes on to state that it was no part of the terms upon which he was appointed to determine whether the allegations made by the defendant were well founded or not. He states that he has produced four shorter separate reports setting out relevant evidence in respect of each of the four individuals who were the subject of the defendant's allegations made in the Parliamentary evidence.
23. In paragraph 11 of his report Mr Dingmans paraphrased what the Defendant said in his written statement as follows:

"[the defendant] said in his statement (appendix 2) that he would rely on the evidence given to the Select Committee as his evidence relevant to this allegation as he did not want to stray into territory not covered by Parliamentary privilege (paragraph 10 of the witness statement) "

24. Mr Dingemans then set out a passage from the transcript of the defendant's Parliamentary evidence, including the transcript of the defendant's answer to Q48 from the Chair (para 3 above). Mr Dingemans then referred to other matters and concluded, in paragraph 16 of his report:

"It is apparent that there were proposals being discussed whereby the Football Association of Thailand retained not only domestic TV rights but also rest of the world TV rights except for the UK, depending on what could be agreed about payment for the cost of the trip. It does not appear that it was ever proposed that the UK TV rights would be vested in the Football Association of Thailand".

25. The way that Publication 3 is pleaded in paragraph 9 and 10 of the Particulars of Claim is as follows:

"9. Further, at all material times the Defendant knew, or ought to have known and/or reasonably foreseen that his statements published to Mr Dingemans, or the gist of the said statements, would be republished in his report to the Football Association that the contents of this publication, would in all likelihood, be republished on the website of the Football Association and/or FIFA and reproduced extensively in the media.

10. The following statements of the Defendant, adopted by reference from his statements to the CMS committee (and which the Defendants published or caused to be published to Mr Dingemans) were defamatory of the claimant:

(a) The statement that the claimant had insisted that 'one way or another' the television rights to the broadcast in the United Kingdom would go to him (statement 1):

(b) The statement that the claimant believed that securing the television rights to broadcast in the United Kingdom was 'critical' to making the arrangements for a match between the England and Thai teams a success (statement 2);

(c) The statement that the Claimant's conversations with the Defendant 'did not represent proper and ethical behaviour' (statement 3);

(d) The statement that members of the FIFA Committee were being unduly influenced by bribes (statement 4);

(e) The statement that the 2018 and 2022 FIFA World Cup bidding contests were unduly influenced by improper behaviour by some members of the FIFA Executive Committee (statement 5)".

26. In paragraph 11 of the Particulars of Claim the Claimant pleads the meanings which he attributes to what he refers to as "the said words". I take this to be the words in the statements published to Mr Dingemans complained of in paras 7(a) and (b), and not the statements made to the CMSC in the course of the Parliamentary evidence. Paragraph 11 of the Particulars of Claim is the only paragraph in the pleading which sets out a meaning. Mr Goddard made clear that it is to be understood as the meaning which the Claimant attributes to each of Publications 1, 2, 3 and 4, including both the alleged slander and the alleged libel. The central allegation is in para 11 (f):

"The Claimant was unethical, corrupt and unfit to serve as a member of the FIFA Executive Committee".

27. All the meanings 11(a), (b) and (d) and (g) are meanings asserting actual guilt (commonly referred to as Chase Level 1 meanings). In Chase v Newsgroup Newspapers Ltd [2003] EMLR 218, [2002] EWCA Civ 1772 Brooke LJ explained at para 45:

"The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act."

28. Meaning 11(c) is that "The claimant was arguably guilty of a criminal offence under … the Thailand Penal Code …" This meaning raises issues peculiar to itself, which are mentioned below at para 81.
29. There then follows, in paragraphs 12 and 13 of the Particulars of Claim, a claim in malicious falsehood to which I shall return.

Publication 4

30. Publication 4 is pleaded in paragraphs 14 to 16 of the Particulars of Claim. The words complained of are identified as the statements to Mr Dingemans pleaded in para 10 of the Particulars of Claim (see para 25 above). They are also identified as being contained in a document signed by Mr Dingemans and dated 26 May 2011 headed "Review of allegations of misconduct in relation to the FA's 2018 World Cup bid – Summary of the report to the FA". That is an 18 page document. What is pleaded in paragraph 15 is:

"The Defendant's statements pleaded in paragraph 10 above were republished with the Defendant's authorisation and knowledge to the FA and FIFA in Mr Dingemans' summary report…. On 27 May 2011 the summary report itself was republished to a substantial but unquantifiable number of readers in this jurisdiction via the FIFA website."

31. The pleading of the website publications raises issues peculiar to itself (see para 90 below). It would in law be a separate publication (or publications).
32. The claim in malicious falsehood is pleaded as follows:

"12. Further or alternatively, the Claimant will say that the Defendant's oral and written statements to Mr Dingemans pleaded in paragraphs 10(a), 10(b) and 10(c) above were false and published maliciously.

PARTICULARS OF FALSITY

(a) The Claimant has only corresponded and/or communicated with the Defendant on a very limited number of occasions; and

(b) The Claimant has never insisted, requested or even suggested to the Defendant or any other person that he should personally retain the television rights of the contemplated football match for broadcast in the United Kingdom, Thailand or anywhere else.

PARTICULARS OF MALICE

(a) The particulars of falsity above are repeated; and

(b) In the premises, the defendant published or caused to be published the words complained of knowing them to be false or recklessly, not caring whether they were true or false and/or with no honest belief that they were true and it is to be inferred that he did so for a dominant improper motive.

13. Further, the Defendant's oral and written statements published to Mr Dingemans were calculated to disparage the Claimant in his business and/or in his office as a member of the FIFA Executive Committee and the President of the Thai Football Association and were calculated to cause pecuniary damage to the Claimant. The nature of the statements and the widespread publicity they were likely to attract were such that the Claimant was likely to incur loss and expense in order to counteract the adverse effect of the Defendant's statements and to repair his political and business reputation, including (but not limited to):

(a) Travel and accommodation expenses for international travel in order to address the allegations, including travel to attend several meetings of the Asian Football Club and Federation ("the AFC") convened to discuss the Defendant's contentions; and

(b) Expenses for legal and public relations advice to address the large volume of negative publicity likely to be generated by the allegations"

The pleas of actual damage and in support of an injunction

33. Paragraph 17 of the Particulars of Claim alleges that

"As a result of the matters set out above, the Defendant's statements have been widely reported in the media both in the United Kingdom, Thailand and internationally and the Defendant's statements have caused serious damage to the Claimant's personal and business reputation as well as distress and embarrassment to himself and his family"

34. There follow six sub-paragraphs headed Particulars of General Damage. The matters pleaded in paragraphs 17(a) and (b) relate to events said to have occurred on 16 and 18 May. That was before the date of any of the publication complained of in this action. Paragraph 17(c) pleads the distress suffered on these same two occasions by the claimant's family.
35. Paragraph 17(d) pleads a sample of newspaper articles which are set out in Annex 2 to the pleading. That Annex is headed "Sample of media coverage of the allegations made by [the Defendant] of 10 May 2011 against [the Claimant]". There are ten items. The first nine are dated on and between 10 May and 17 May, and the tenth item is undated. As the heading indicates, they all relate to the allegations made in the Parliamentary evidence. None of them relate to the publications on and after 20 May.
36. Paragraph 17(e) refers to distress and embarrassment suffered as a result of receiving telephone calls, none of which are dated. But these are said to have occurred "shortly after the defendant's allegations".
37. Paragraph 17(f) includes an Annex 3, which is headed "Sample of media coverage of FIFA inquiry into the Claimant's alleged misuse of GOAL Project funds". It is pleaded that this investigation was "as a consequence of the allegations of the Defendant, and that the investigation took place during October and November 2011". However there is no indication in paragraph 17(f) as to which allegations of the defendant are referred to. I infer from the preceding paragraphs that the allegations referred to are those made in the Parliamentary evidence. There is also no pleading as to how it is said that these matters relating to misuse of funds on the GOAL Project are a consequence of any allegations of the defendant.
38. In paragraph 18 of the Particulars of Claim there is a plea of special damage. There are four sub-paragraphs. Paragraph 18(d) is wholly unparticularised, and Mr Goddard accepts that it could not go forward in its present form. However, he submits that the claimant should be given an opportunity of furnishing particulars of it. Paragraph 18(a) to (c) are particularised in Annex 4, Annex 5 and Annex 6.
39. Annex 4 lists nine items totalling just under US$20,000, said to be additional expenses during his campaign for re-election to the Football Association of Thailand in order to counteract the adverse effect of the Defendant's statements and to repair his reputation. There is no fact pleaded to support an attribution of this damage to the words complained of in this action as opposed to the Parliamentary evidence.
40. Annex 5 is headed "Summary of additional travel and accommodation expenses of [the claimant] incurred in relation to the Defendant's allegations of 10 May 2011". There are five items totalling nearly US$31,000. As the heading makes clear, these expenses are specifically attributed to the Parliamentary evidence, and not to the words complained of in this action.
41. Annex 6 is a list of expenses in Thai currency said to be the approximate equivalent of just over £28,000. This is said to have been the cost of advice to address the large volume of negative publicity caused by the allegations of the Defendant and dealing with the subsequent FIFA inquiry into the misuse of FIFA funds on the GOAL project in October and November 2011. Again there is no fact pleaded to support the attribution of this damage to the words complained of in this action as opposed to the Parliamentary evidence.
42. Finally paragraph 20 of the Particulars of Claim is a formulaic plea to support an application for an injunction:

"Unless restrained by this Honourable Court, the Defendant will further publish or cause to be published the said or similar words defamatory of the claimant".

THE APPLICATION TO STRIKE OUT OR FOR SUMMARY JUDGMENT

43. The first basis for the defendant's application to strike out the claim is pursuant to CPR 3.4(2)(b) ("that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings"). Ms Kissin submits that the matters which resulted from the Parliamentary evidence must be disregarded (since that evidence cannot be sued on) and the publications in fact complained of do not amount to a real and substantial tort. The claim is an attempt to circumvent the absolute privilege that attaches to words spoken in Parliament. The claimant has identified only a single publishee for Publications 1 and 2, namely Mr Dingemans. He was appointed to investigate the matters raised in Parliament. So he already knew of the content of the Parliamentary evidence, before any publication of it to him by the defendant. The claimant has not identified any loss said to have flowed directly from the words actually complained of. Any continuation of this claim in respect of publications to Mr Dingemans is, she submits, out of all proportion to the benefit of any vindication which the claimant could achieve.
44. The second basis upon which the defendant applies to strike out is under CPR 3.4(2)(a) ("that the statement of case discloses no reasonable grounds for bringing … the claim"), alternatively for summary judgment under CPR 24.2 ("no real prospect of succeeding on the claim"). Ms Kissin submits that the publications, whether slander or libel, pleaded in paragraph 7 of the Particulars of Claim, occurred on occasions of qualified privilege, and the allegation of malice is bound to fail.
45. Further, she submits that the words of the alleged slander and libel complained of in paragraph 7 of the Particulars of Claim are incapable of bearing the defamatory meaning pleaded in paragraph 11. Ms Kissin submits that insofar as the defendant used the words complained of in paragraph 7, he did so in a context which the claimant has ignored when the claimant attributes to them the meaning pleaded in paragraph 11. No innuendo has been pleaded.
46. Ms Kissin further submits that the claimant has failed to set out the words complained of in Publications 3 and 4, or to identify the defamatory meaning which the claimant attributes to those words. Further, the claimant has failed to plead the basis on which the allegation is made that the claimant authorised the publication of the words written and sent by Mr Dingemans to the FA. These occasions were also ones of qualified privilege, where the plea of malice is bound to fail.
47. The last basis of the application to strike out, or, alternatively, for summary judgment, relates to the malicious falsehood claims. Ms Kissin submits that the words complained of are incapable of bearing the allegedly false meaning and that the plea of malice is incapable of being sustained. No actual loss causally linked to the words complained of has been pleaded, as opposed to loss attributed to the Parliamentary evidence.

WHAT IS NOT IN DISPUTE AND THE CONSEQUENCES OF IT

48. Mr Goddard accepts that claims for general or special damages alleged to have been suffered before 20 May (that is to say the date of the first of the four publications pleaded in this action) cannot stand, and ought not have been pleaded.
49. The question arises whether the phrase in paragraph 17 "the Defendant's statements" (which have caused serious damage) is a reference to the words complained of in this action, that is the statements by the defendant to Mr Dingemans, or a reference to the statements the defendant made to the CMSC, (the Parliamentary evidence).
50. If "the Defendant's statements" is a reference to the statements made to the CMSC, the paragraph is an attempt to obtain damages for a publication made in Parliament which is not, and could not, be sued on.
51. If "the Defendant's statements" is a reference to the statements made to Mr Dingemans, then the pleading is obviously untrue, because the events pleaded in the paragraph 17(a) to (f) all precede the publications made to Mr Dingemans.
52. Ms Kissin relies on the pleading of these matters to support her primary contention that these proceedings are an abuse of the process of the Court. She submits that the claim for such damages is an attempt to obtain damages for the statements made by the defendant in his Parliamentary evidence, which is a publication which is not sued upon. Thus it is an attempt to achieve from the proceedings something not properly available in the proceedings. She cites Broxton v McClelland [1995] EMLR 485. At 497-498 Simon Brown LJ (as he then was) said:

"The cases appear to suggest two distinct categories of such misuse of process:

(i) The achievement of a collateral advantage beyond the proper scope of the action – a classic instance was Grainger v Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship's register to which they had no legitimate claim whatever. …

(ii) The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation.

(3) Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial."

53. The claimant's pre-action protocol letter was written by his solicitors and dated 24 February 2012. The letter complains of publications by the defendant to Mr Dingemans, and by Mr Dingemans to the FA, by the FA and FIFA on their websites. There are attached copies of media reports dated 29 and 30 May 2011, which were not included in the Particulars of Claim, although they could have been. The letter includes no claim in relation to events before 20 May, which were included in the Particulars of Claim.
54. There is no explanation in the correspondence of how there came to be included in the Particulars of Claim (which was first served in disputed circumstances on 28 August 2012) the claims for general and special damages based on matters that occurred before the publication of the words complained of. When the disputed issues as to service had been resolved, on 28 November 2012, solicitors for the defendant gave notice of the defendant's intended application to strike out the claim. On 3 December they wrote raising the points which have since been relied on by the defendant at the hearing. This included a reference to the abusive nature of the damages claimed.
55. The claimant made a witness statement dated 13 January 2013. He refers to the Parliamentary evidence, to the wide publicity that was given to this, and to the distress and damage that he suffered as a result. He then refers to the statements made by the defendant to Mr Dingemans, and exhibits as WM3 what he refers to as a selection of newspaper articles which repeat the defamatory allegations made by the defendant to Mr Dingemans. He disavows any intention to bring proceedings in respect of the Parliamentary evidence.
56. The reports in WM3 are all dated on or after 30 May 2011. The first three are by the Guardian, the Press Association and the Independent, dated 30 May 2011. They all refer to a statement by the FA to the effect that the claimant had been cleared of the allegations made by the defendant. All of them report that statement, and some question the extent to which it is accurate. They refer to, but do not set out in full, the allegations the defendant had made in the Parliamentary evidence. None of these publications is pleaded in the Particulars of Claim. There is no explanation in the witness statement of why the media publications which are referred to in the Particulars of Claim all predated the 20 May, which is the date on which the causes of action are first alleged to have arisen.
57. There are also three witness statements of Mr Steven Burkill made in relation to the dispute about service: they are dated 10 September and 12 and 17 October 2012. He mentions at para 18(c) of his statement dated 10 September the time taken to collect evidence of special damage as part of the explanation for the delay in serving the Particulars of Claim. But he says nothing about the fact that all the evidence pleaded relates to events which pre-date the publications complained of.
58. The Particulars of Claim include the signatures of both counsel who drafted them, and a statement of truth. The statement of truth is signed on behalf of the claimant by his solicitor, Mr Burkill. The purpose of requiring statements of case to be verified by statements of truth (CPR r22.1(1)(a)) is to eliminate claims in which a party has no honest belief and to discourage the pleading of cases unsupported by evidence: White Book 2012 para 22.1.2.
59. If paragraphs 17 and 18 are not an attempt to recover damages for statements made in Parliament which are not sued upon, then they are a series of false statements which amount to a gross exaggeration of the claim. The service of a statement of case with exaggerated claims for damages is a very serious matter: see Fairclough Homes Ltd v Summers [2012] UKSC 26 at para 52. How paragraphs 17 and 18 came to be included in the Particulars of Claim is not a matter which I have been asked to investigate, or could have investigated, on the application to strike out the claim. The only question that arises out of these paragraphs on this application is whether the proceedings are an abuse of the process of the court.
60. Whether the claim is an attempt to obtain damages for a publication not sued upon, or is exaggerated to include damage which was indisputably suffered on dates before the cause of action arose, I conclude that, either way, the claim is an abuse of the process of the court.
61. Whether it would be right strike out the whole claim on that ground alone, or whether to strike out just the offending paragraphs, depends upon whether a fair trial of the action is still possible and whether it is just and proportionate to do so: see Fairclough paras 36 to 45. Before reaching a conclusion on that, I shall go on to consider the other matters raised.
62. They can be summarised under the following headings:

i) Does the claimant's claim that the defendant published defamatory words on or after 20 May disclose a reasonable cause of action, alternatively one with a real prospect of success?

ii) Are the alleged publications arguably on occasions which were not subject to qualified privilege, or does the claimant have a real prospect of showing that they were not?

iii) Is there an arguable case in malice?

iv) Is there a real and substantial tort in the publications alleged on and after 20 May 2011?

THE LEGAL TESTS APPLICABLE

63. There is no dispute between the parties as to any of the legal principles to be applied on this application. So I can refer to these principles very briefly.
64. Practice Direction to CPR r53 para 2.3 requires the claimant to specify the defamatory meaning which he alleges that the words complained of conveyed, both as to any natural and ordinary meaning and as to any innuendo. In the case of an innuendo the claimant must identify the relevant extraneous facts, and he must plead that the publishee(s) knew those facts.
65. Practice Direction to CPR r53 para 4.1 provides that at any time the court may decide whether the statement complained of is capable of having any meaning attributed to it in a statement of case. Guidance has been given by the Court of Appeal, and recently summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]. It was in these terms:

"The governing principles relevant to meaning . . . may be summarised in this way:

(1) The governing principle is reasonableness.

(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) Over-elaborate analysis is best avoided.

(4) The intention of the publisher is irrelevant.

(5) The article must be read as a whole, and any 'bane and antidote' taken together.

(6) The hypothetical reader is taken to be representative of those who would read the publication in question.

(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation . . .'.

(8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense'."

66. No claim should be struck out unless it is plain and obvious that the conditions for making such an order are satisfied.
67. The law on responsibility for republications is not entirely clear. It is clear that a distinction is to be drawn between republications which are relied on as relevant only to damages suffered as a result of the original publication, and republications relied on as giving rise to a separate cause of action against the original publisher. At least in the former case, damages will be recoverable when a reasonable person in the defendant's position ought to have anticipated that there was a significant risk that what he said would be repeated in whole or in part. See generally Duncan & Neill on Defamation 3^rd edn paras 8.15 to 8.16. However, in cases where the original publication was in Parliament and in the courts, it is to be recalled that reports of proceedings are on an occasion of absolute privilege.
68. In general, a publication will be on an occasion of qualified privilege at common law if the publisher had a duty or interest to make it and the publishee had a corresponding duty or interest to receive it: Duncan & Neill para 16.05.
69. There is no dispute that a plea of malice is a plea of dishonesty. In this case the plea is that the defendant did not believe what he said or wrote to Mr Dingemans. It is also common ground that for a plea of malice to be allowed to go before a jury at trial the facts relied on by a claimant must be more consistent with malice than with the absence of malice. A false statement may be made without malice, for example when the defendant is mistaken, even if the error is unreasonable. See generally Horrocks v Lowe [1975] AC 135.
70. The test for whether a claim discloses a real or substantial tort is set out in Jameel v Dow Jones [2005] QB 946. In Jameel, there was a serious accusation made that two persons were funding terrorists. This appeared in a website publication which was immediately removed and made virtually inaccessible. It was later discovered that only three persons had ever accessed the information while it was on the website. Lord Phillips MR, giving the judgment of this Court, held:

"54 … An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. …

55 There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged….

70 … It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate small claims procedure. Such a course is not available in an action for defamation where, although the claim is small, the issues are complex and subject to special procedure under the CPR".

THE CASE ON PUBLICATION OF A DEFAMATORY ALLEGATION

71. It is common ground that a person who has spoken in Parliament can, by referring to the same matter outside Parliament, become liable for the statement made outside Parliament without the benefit of a defence of absolute privilege. Buchanan v Jennings [2004] UKPC 36 is an example. It is also common ground that whether a defendant is liable on that basis will be a matter of fact and degree. Byrne v Dean [1937] 1 KB 818 is an example of the differences of view that different judges may take on whether a defendant is or is not in law a publisher of words not actually written by him on the occasion which is said to constitute the publication.
72. It is necessary to consider the publications sued on separately.
73. Points (5) and (6) in Jeynes are particularly to be noted in the present case. The hypothetical reader in the present case is not a member of the CMSC. In the case of Publications 1 and 2, it is Mr Dingemans. He is, of course, a lawyer. And the context in which the defendant published the words complained of to him was one in which he was acting in the course of his profession on the instructions which he set out in his reports (para 21 above). In the case of Publications 3 and 4 the hypothetical reasonable reader is a representative of the FA and FIFA, again acting in the course of professional duties. And the context of any publication to the FA and FIFA includes the whole of the report from Mr Dingemans.

Publications 1 and 2

74. Mr Goddard accepts, at least for the sake of argument, that in responding to the questions put by Mr Dingemans, the defendant was intending and attempting to ensure that anything he said would be subject to absolute privilege. But he submits that whatever the defendant's intention, he did in fact adopt, and is to be taken as having repeated to Mr Dingemans, the same words as he had expressed in his Parliamentary evidence.
75. Applying the tests that I have to apply on this application, I cannot conclude that the claimant has no real prospect of succeeding in his claim, in so far as he claims that the defendant did, in his oral and written evidence to Mr Dingemans, adopt what he had said in his Parliamentary evidence. Apart from that, I express no view as to the strength of the claimant's case that the defendant repeated parts of his Parliamentary evidence to Mr Dingemans, so as to adopt them. So I would not strike out the claim or grant summary judgment against the claimant on that point in relation to Publications 1 and 2.
76. But Ms Kissin has the further argument that Publications 1 and 2 are not capable of bearing the meaning attributed to them by the claimant, namely actual guilt of corruption.
77. She submits that the claimant is in a difficulty of his own making. As part of his attempt to recover damages for what the defendant said in his Parliamentary evidence, the meanings which the claimant attributes to all of the words complained are meanings which do not allow for the fact that the context of all of the four publications relied on is different from the context of the Parliamentary evidence, and, in the case of Publications 3 and 4, different from each of the other publications relied on. The claimant pleads the same meaning in respect of all four publications, and that meaning is based on the extracts from the Parliamentary evidence set out in para 10 of the Particulars of Claim.
78. As noted above in para 73, I am not concerned with the meaning that the Parliamentary evidence may have reasonably been understood to bear when spoken to the CMSC on 10 May 2011. For each of Publications 1 and 2 I am concerned only with the meanings which they were capable of bearing when spoken or published on or after 20 May 2011.
79. In my judgment Publications 1 and 2, that is the words spoken or written by the defendant to Mr Dingemans, are incapable of bearing the meaning that the claimant was actually guilty of corruption or actually guilty of any other reprehensible conduct. They are obviously qualified by the defendant. No reasonable lawyer in the position of Mr Dingeman's could have understood the words complained of to be an allegation of actual guilt.
80. Since this is not an application for a ruling on meaning under para 4 of the Practice Direction, and since I have heard no argument on any lesser meaning than actual guilt, I express no view as to what (if any) other defamatory meaning the words complained of may be capable of bearing.
81. Meaning 11(c) is at a lower level than actual guilt ("arguably guilty of a criminal offence"). But in relation to that meaning Ms Kissin is clearly correct that it would be an innuendo meaning, and no innuendo is pleaded. The putative reasonable publishee, in this case Mr Dingemans, cannot be assumed to know Thai criminal law, and its application to what is alleged to have been said to the defendant in England.
82. It follows that I would strike out the claim on Publications 1 and 2 as they stand on the ground that the meaning which the claimant attributes to them is a meaning which they are not capable of bearing. But if the only objection to them that I upheld were to be the pleaded meaning, I would give the claimant an opportunity to amend his Particulars of Claim to plead some lesser meaning.

Publications 3 and 4

83. Ms Kissin makes the same points as she made in respect of Publications 1 and 2. In addition she submits that the context of each of Publications 3 and 4 is further removed from the Parliamentary evidence than the context of Publications 1 and 2. The context is entirely different, since by this stage the words which appeared originally in the Parliamentary evidence were published with other material, in the context of the reports made by Mr Dingemans.
84. Mr Dingemans did annex to his report to FIFA ("Report to FIFA relating to [the claimant]") the witness statement which is the subject of Publication 2, together with the transcript of the Parliamentary evidence which was annexed to that statement. He also annexed a number of other documents including witness statements from witnesses who did not support the defendant's interpretation of events. He also referred to the transcript of the Parliamentary evidence at para 11 of his report.
85. Mr Dingemans did not annex any documents to his summary report ("Review of allegations of misconduct in relation to the FA's 2018 World Cup bid – Summary of the report to the FA"). At para 33 he states: "When interviewed [the defendant] again relied on his evidence to the Select Committee because he did not want to stray into territory not covered by Parliamentary privilege".
86. In the case of each of the two reports Mr Dingemans' conclusion is stated at paras 16 and 35 respectively:

"It is apparent that there were proposals being discussed whereby the Football Association of Thailand retained not only domestic TV rights, but also rest of the world rights except for the UK, depending on what could be agreed about payment for the cost of the trip. It does not appear that it was ever proposed that the UK TV rights would be vested in the Football Association of Thailand".

87. In the case of each of Publications 3 and 4 it is clear in my judgment that neither the words of Mr Dingemans, taken as a whole, nor those words attributed by Mr Dingemans to the defendant, are capable of being reasonably understood to mean that the claimant was actually guilty of corruption, or actually guilty of any other reprehensible conduct.
88. It follows that I would strike out the claim on Publications 3 and 4 as they stand. But if the only objection to them that I upheld were to be the pleaded meaning, I would give the claimant an opportunity to amend his Particulars of Claim to plead some lesser meaning.
89. In my judgment Ms Kissin is also correct in her submission that the facts relied on by the claimant to establish that the publications to the FA and FIFA by Mr Dingemans give rise to a cause of action against the defendant are also inadequate. They are pleaded simply by assertion. But if this were the only point I would give the claimant an opportunity to amend his pleading to make clear what his case is on this point.
90. The allegation of the publication on the website is in a different category. The basis on which this is said to give rise to a cause of action against the defendant was not addressed in the Particulars of Claim, nor in the arguments before me. The Particulars of Claim do not set out the words said to have been published on the website. Nor is there any pleading as to who may have read what was on the website. This is too vague an allegation to go forward on any basis. I would strike out the claim based on the website publication for lack of particularity, independently of any other ground.

Qualified privilege

91. The circumstances in which, on and after 20 May 2011, the defendant came to be speaking and writing to Mr Dingemans, and the terms of reference of Mr Dingemans, are set out above, as are the positions held by the defendant at the relevant time. The FA requested Mr Dingemans to report on matters which were obviously of real interest to those responsible for English football and the failed bid. The matter was of equal concern to FIFA, given the position of the claimant.
92. Mr Goddard did not concede that the occasions of publications 1 and 2 by the defendant to Mr Dingemans, or of publications 3 and 4 by Mr Dingemans to the FA and FIFA, were occasions of qualified privilege. However, he did not address any argument to me to the contrary, nor were there any arguments to the contrary raised in the correspondence exchanged before this application was made.
93. It is true that the defence of qualified privilege has not yet been pleaded. But the material facts are in part pleaded in the Particulars of Claim, and are in any event beyond dispute, in so far as they are to be found in the reports of Mr Dingemans as to the circumstances in which he came to receive the publications from the defendant and in which he made publications to the FA and FIFA.
94. In my judgment it is as plain as could be that all of these four occasions were occasions of qualified privilege.
95. The claim is therefore bound to fail unless the claimant has a case in malice which can be left to a jury at trial, and has a real prospect of success.

Malice

96. The case in malice in relation to malicious falsehood is set out in the Particulars of Claim paras 12 and 13, which are cited in para 32 above. So there is before the court the full case in malice which, in a defamation action, would not normally be pleaded before the Reply.
97. In summary the claimant's case is that if he is believed at trial when he says that he never suggested that he should retain the TV rights, then it follows that the defendant must know that he never made that suggestion to himself, with the result that it also follows that the defendant knew that what he was stating was false when he stated that the claimant had made that suggestion (or that the defendant was reckless as to whether the allegation was true or false). Since the court cannot at this stage find that the claimant will not be believed, it follows that the plea of malice must be allowed to stand.
98. Ms Kissin submits that an enquiry into the defendant's state of mind in regard to what he said or wrote to Mr Dingemans could not be conducted without also enquiring into his state of mind in regard to what he said in his Parliamentary evidence. But this would be contrary to the Bill of Rights art 9. She cites Hamilton v Al Fayed [2001] 1 AC 395 where Lord Browne Wilkinson said at p403F:

"… the courts are precluded from entertaining any proceedings (whatever the issue that may be at stake in those proceedings) evidence, questioning or submissions designed to show that a witness in parliamentary proceedings deliberately misled Parliament".

99. In Church of Scientology v Johnson-Smith [1972] 1 QB 522 the defendant, a Member of Parliament, was sued for defamation on a statement he had made outside Parliament. In the plea of malice set out in its Reply the plaintiff pleaded what it alleged were attacks made in Parliament by the defendant on the plaintiff, which the plaintiff alleged were evidence of an improper motive. At p531A Browne J held that it was not open to either party to go, directly or indirectly, into any question of the motive or intention of the defendant in anything said in Parliament.
100. Further, Ms Kissin submits that the claimant's case involves a non-sequitur. There is another possibility, no less probable than that the defendant was dishonest. It is that he was mistaken, or that he misinterpreted what the claimant had been saying to him during a telephone conversation, whether or not he was being unreasonable if he did that. There is no plea of any motive or other matter which might make dishonesty more likely than the absence of dishonesty.
101. In my judgment Ms Kissin is clearly correct in both her submissions. It would be impossible to enquire into the state of mind of the defendant on 20 May, and his written statement to Mr Dingemans, without also enquiring into his state of mind when he gave his Parliamentary evidence. No such difficulty arose in Buchanan because there was no defence of qualified privilege in that case. And the bare fact that the claimant is believed at trial (and for the purposes of this judgment I must assume that he will be believed) it would not follow that the defendant was probably dishonest. If the claimant were believed at trial, that would be no less consistent with the defendant having been mistaken.
102. It follows that this claim is bound to fail, and should be struck out, on the ground that the occasions of the four publications complained of were all plainly occasions of qualified privilege, and there is no case in malice that could be left to a jury.

Real or substantial tort

103. It follows that I do not need to consider whether an action based solely on Publications 1 and 2, or an action based on all of Publications 1, 2, 3 and 4, should be considered an action for a real and substantial tort. On either of these bases, the court would have to take into account that any remedy that the claimant could rely on would have to be a remedy which gave him something of value notwithstanding the damage to that reputation already caused by the extensive publicity that had been generated by the reports of the Parliamentary evidence.
104. The claim for an injunction could in principle be such a remedy. But it is clear beyond doubt that there is no threat or risk of any repetition of the words complained of by the defendant. Whether or not he was successful in his intention of speaking only under the protection of absolute privilege accorded to statements made in Parliament, it is clear that that was his intention. In those circumstances, and in the absence of any threat or risk of repetition in the period of over a year which passed before these proceedings were served, it is plain that there is no prospect of the court granting an injunction in this case.
105. It is unnecessary for me to consider this point further.

Malicious falsehood

106. The claim in malicious falsehood must fail for the same reason that the defence of qualified privilege must succeed. There is no case in malice that could be left to a jury.
107. Other points were argued on this cause of action, but it is unnecessary for me to address these.

CONCLUSION

108. For the reasons stated above, the claims will be struck out and judgment entered for the defendant. The publications complained of were plainly all on occasions of qualified privilege, and there is no case in malice that could be left to a jury at trial. Accordingly, there is no need to give the claimant an opportunity to put right the other defects in his Particulars of Claim.
109. The claim for damages, including special damages, which consists of damage suffered before the publication of any of the words complained is an abuse of the process of the court, and I would in any event have struck out paragraphs 17 and 18 of the Particulars of Claim on that ground, if I had not decided to strike out the whole action on the ground referred to in the preceding paragraph.