By Brian CathcartThe Times has published the outcome of a long-running libel suit against it by a police officer, Gary Flood. The newspaper said that it was reporting this ‘under the PCC Editors’ Code of Practice’.So far so good. Sadly, however, The Times felt the need to censor the story, so that it left out a string of criticisms levelled against it by the judge as she awarded, not just damages, but additional damages to punish the paper for shocking behaviour, and to deter other papers from trying the same tricks.So not only is The Times guilty of behaving very badly, but it has also covered up that bad behaviour while presenting it as compliance with the PCC requirements. (And we can be sure, just as The Times is, that the poodle PCC will do nothing to hold the paper to account for taking its name in vain.)But it is worse than that, because what the judge found that The Times had done was to exploit Mr Flood’s lack of redress; in other words, it saw that Mr Flood was powerless to make it do the right thing so it took full advantage and did a whole lot more wrong things. To put it briefly, The Times acted like a bully and a thug.Here are the two items. First, what The Times published today, and below that the extended remarks by the judge that The Times declined to share with its readers.It’s long, but it’s worth reading in full.The Times report:

In May 2007, DS Gary Flood began libel proceedings against Times Newspapers Limited in respect of an article published on 2 June 2006 entitled “Detective accused of taking bribes from Russian exiles”. Times Newspapers defended the claim, asserting that it could prove the truth of the article in the meaning that Mr Flood’s conduct was being investigated by the police and there were grounds which warranted that investigation. It also said that its publication was responsible journalism in the public interest, known as the Reynolds defence. In September 2007 The Times was notified that the police investigation had concluded and no criminal or disciplinary proceedings would be brought against DS Flood. The final report on the investigation was obtained by The Times in late 2008. It said that there was no evidence that DS Flood had divulged any confidential information for monies or otherwise or that he was the individual known as ‘Noah’. The Times did not report the findings of the report.

In June 2009 the court ordered that the Reynolds defence should be heard first and a trial took place in July 2009. In a judgment on 16 October 2009 Mr Justice Tugendhat held that the defence was available from when the article was first published until the date on which The Times was notified of the outcome of the police investigation in September 2007. He said the article was of “high public interest” and a “proportionate interference with the Claimant’s right to his reputation, given the legitimate aim in pursuit of which the publication was made”. However, after September 2007 and until an update about the police report was added to the website in October 2009, The Times had not acted responsibly by failing to inform readers of the outcome of the investigation. The Times appealed and Mr Flood also appealed. On 13 July 2010 the Court of Appeal overturned the ruling in favour of The Times in relation to publication before September 2007 and agreed that after that date there was also no defence. The Times appealed the judgment to the Supreme Court. On 21 March 2012, the Supreme Court unanimously found that publication of the article up to September 2007 was responsible journalism in the public interest. The Times did not pursue its appeal in respect of the online publication between September 2007 and October 2009.

In July 2013 Mr Justice Tugendhat ruled that the article bore the meaning to the reasonable reader that Mr Flood had abused his position as a police officer, committed an appalling breach of duty and betrayal of trust and committed a very serious criminal offence.The Times withdrew its defence of truth, as this was not the meaning it had sought to defend in the litigation. It made an offer to settle the claim in respect of the damage to Mr Flood’s feeling and the distress caused as a result of the continued publication online without an update to inform readers of the outcome of the police investigation. In December 2013 Mrs Justice Davies assessed the damages for the online publication between September 2007 and October 2009 and awarded Mr Flood £45,000, with a further £15,000 to compensate for the aggressive manner in which the litigation had been conducted by The Times.

All very interesting. You might almost believe that the times was behaving honourably in reporting this. Now read in full what Mrs Justice Davies had to say about the conduct of the Times in this case, explaining why she awarded those £15,000 extra damages:

It is possible to pursue journalism said to be in the public interest and demonstrate consideration for the subject whose reputation may suffer in the event of publication. The need for such consideration is particularly acute given the subject’s lack of redress. Once it is known that there is material which exonerates, in whole or in part the subject of the journalistic investigation, consideration should be shown for the position of the subject by publishing exculpatory material. On the facts of this case no such consideration was demonstrated by TNL, in particular, The Times and its then Legal Manager Alistair Brett towards the claimant during the period 5 September 2007 to 21 October 2009.

The absence of consideration is compounded by the fact that the article published in June 2006 contained allegations which attacked the core of the claimant’s character, personally and professionally. Of this experienced and responsible police officer, a recognised expert in his specialised field, it was being alleged that there were strong grounds to believe that he was dishonest, corrupt and acting in a manner which represented not only serious criminal conduct but a grave breach of the trust which had been placed in him.

In my view, following the conclusion of the police investigation the claimant was entitled to expect the defendant to amend the article and to publish, at the very least, the outcome of the investigation. The fact that for two further years the claimant had to live with the article, publicly detailing allegations of dishonesty and corruption, of itself, represents a need for proper vindication. I do not accept the defence submission that the judgments handed down in the course of litigating the Reynolds defence which stated that the claimant had been exonerated provided sufficient vindication. The individual who wished to research the claimant and therefore access The Times website is unlikely to have found his or her way to one of these judgments and within it the fact of the exoneration.

From 14 September 2007, TNL demonstrated an unwillingness to accept the findings of the police investigation and persisted in its own pursuit of evidence. Evidence which could serve to undermine the findings of the investigation. The defendant’s stance is encapsulated in the first paragraph of Alistair Brett’s letter of 14 September 2007 which states that witnesses, not seen during the police investigation, would have to be approached if the matter could not be settled on TNL’s terms. From the outset Mr Brett linked the offer of an update to the article to settlement of the action.

The defendants were pursuing a Reynolds defence. It was submitted by Mr Rampton QC that at trial, by reason of the limited nature of that defence, the defendant would not be permitted to cross-examine the claimant as to his credibility or any “guilt” in respect of the allegation. Whether such a course would have been permitted at trial it is a fact that the defendant’s pursuit of evidence went beyond the limited nature of the pleading as evidenced by the insensitive and intrusive demand by Mr Brett for financial details and documentation relating to the IVF treatment of the claimant and his wife. It was not just the pursuit of evidence, it was the manner in which the same was conducted. When the concession is made by highly experienced Queen’s Counsel that the correspondence of the then Legal Manager of TNL was aggressive and unpleasant, that is a matter of which account should be taken by the court. In his evidence to the court the claimant said that he felt bullied by Mr Brett’s correspondence. I accept his evidence.

I accept that the cross-examination of the claimant in these proceedings by Mr Rampton QC, properly taking the necessary points, demonstrated both restraint and sensitivity. The claimant was not cross-examined in the 2009 proceedings before Tugendhat J. Unhappily, the restraint demonstrated by Mr Rampton QC in court, is not reflected in the correspondence nor in the detailed amendments made to the original Defence, all of which would have served to increase the anxiety of the claimant as to what he could face at trial and to his particular fear that the defendant’s conduct would lead to the reopening of the police investigation. I accept that the aggressive conduct of the defendant’s case increased the distress and anxiety of the claimant. I also accept that his fear that the same could lead to a reopening of the police investigation was reasonable in the circumstances.

TNL were entitled to properly pursue a defence of justification. However, the manner in which the defence was conducted went beyond merely supporting the pleaded case namely that there had been, during the course of the police investigation, objectively reasonable grounds for the police to investigation. I accept the claimant’s contention that TNL felt no scruple in holding over the claimant the threat of further investigations to undermine the conclusion of the police investigation and thus pressure the claimant into settling on TNL’s terms.

Mr Rampton QC describes the failure to provide an update as a “misjudgement”. In my view, the course taken by the defendant goes beyond misjudgement, it represents a dogged refusal to take a course which was professional, responsible and fair. It was devoid of any consideration for the position of the claimant. The Times’ report of the proceedings at the Reynolds trial on 16 July 2009, set out in paragraph 29 above, exemplifies the attitude of The Times, namely, its refusal to accept the findings of the police investigation and its continued reliance on the unamended article. These facts underline the need in this case for proper vindication of the claimant. The refusal, coupled with the manner in which The Times pursued its own investigation and sought details and documentation from the claimant, can properly be described as oppressive and high handed. It is conduct which serves to aggravate the award of damages.

The result of TNL’s conduct meant that the claimant had no choice but to pursue these proceedings in order to clear his name. I find that this exacerbated the distress and anxiety caused by the original publication. I accept that the article, when first published, would have caused distress and anxiety as did the police investigation but I also accept the claimant’s evidence that throughout he had the hope and confidence that he would be cleared reasonably quickly by the investigation. When the result was known, the claimant was entitled to expect qualification of the original article by publication of the fact that he had been exonerated. What he did not expect was from that point he had to fight for even the publication of the outcome of the inquiry. The conduct of TNL during this period added considerably to the suffering of the claimant.

In December 2006 the claimant was allowed to return to his work in the Extradition Unit. In April 2009 he was moved from the Unit, the reason given being the pressure in his personal life and The Times litigation. Extradition was the work the claimant enjoyed and upon which he had built his reputation. Had the claimant received the published exoneration by TNL to which he was entitled, it is reasonable to conclude that he would have been permitted to remain in his specialist field. The refusal of TNL to act responsibly can be said to have directly impacted upon the professional life of the claimant during this period, a factor of which account can also be taken in assessing any award of damages.

I accept that the claimant did not submit actual evidence of damage to his reputation amongst colleagues and his peers however common sense suggests that the continuance of such serious allegations in a medium which can be accessed by those who wish to learn more about the claimant can have done his reputation no good. I accept the defence contention that it was the original article which received the highest readership. However, the continuance of the article on the website meant that it was there to be read by anyone with a particular interest in the claimant. I do not accept that this is likely to have been lawyers, as those lawyers involved in the case would have had their own copies of the article. Far more likely is the example of the three police officers who were to work with the claimant, and in advance of so doing carried out their own research. That is what people do, professionally and personally. Further, as the claimant demonstrated by the evidence relating to the Entwhistle case in America, the existence of the article undermined his own statement that he had been exonerated. All of this would be difficult on a purely personal level but the attack included allegations of a grave nature upon the integrity, professionalism and reputation of an experienced police officer working in a specialised field.

The Times was aware of its obligation to publish the result of the police inquiry. This was identified in correspondence as early as September 2007 as was noted in the judgments of Tugendhat J and the Court of Appeal. The Times was also on notice of its need so to do be reason of the decision in Loutchansky. For reasons, which have never properly been identified, The Times refused to act responsibly. It is such conduct which invokes the concept of deterrence as a marker and a warning that such conduct cannot represent responsible journalism.

The award of damages, for the period 5 September 2007 to 21 October 2009, to reflect the distress, anxiety and suffering of the claimant, the damage to his reputation and the need for proper vindication is £45,000. To that figure I have awarded a further £15,000 to represent the aggravation of those damages by reason of the conduct of the defendant and to serve as a deterrent to those who embark upon public interest journalism but thereafter refuse to publish material which in whole, or in part, exculpates the subject of the investigation. Accordingly, the claimant’s award of damages is £60,000.