Out-Law News 2 min. read

Former FA chairman can rely on privilege in making comments outside of parliament to defend libel claims

The former chairman of the Football Association (FA) Baron Triesman of Tottenham can benefit from the "absolute privilege" that extends to comments made in the UK's parliament when he repeated those comments outside of the Parliamentary setting, the Court of Appeal has ruled.

The judges said Triesman could rely on the protections set out under the 1689 Bill of Rights to defend defamation claims raised against him. It is thought to be the first time "extra-Parliamentary speech" has been deemed to benefit from absolute privilege under Article 9 of that Bill.

In 2010 Triesman was called before the UK parliament to give evidence to its Culture Media and Sport Committee (CMSC) about football governance. In giving that evidence, Triesman spoke about England's failed bid to win the right to host the 2018 football World Cup and suggested some members of the executive committee of FIFA, football's world governing body, had sought bribes from the FA in return for their offer of a vote in favour of England's bid.

A separate FA-commissioned review into the failed bid was also conducted and Triesman provided evidence. When asked about the comments made before the parliamentary committee he said he had nothing more to add.

Dato Worawi Makudi, the president of the Football Association of Thailand and a member of the FIFA Executive, took issue with Triesman's evidence to the FA's inquiry and claimed he had been defamed.

However, the Court of Appeal said that Triesman's evidence before parliament was protected by absolute privilege and that those protections extended to his evidence given to the FA's review. It identified a "public interest" in Triesman's evidence to the FA.

"There may be instances where the protection of Article 9 indeed extends to extra-Parliamentary speech," Lord Justice Laws said in the judgment. "No doubt they will vary on the facts, but generally I think such cases will possess these two characteristics:  a public interest in repetition of the parliamentary utterance which the speaker ought reasonably to serve, and so close a nexus between the occasions of his speaking, in and then out of parliament, that the prospect of his obligation to speak on the second occasion (or the expectation or promise that he would do so) is reasonably foreseeable at the time of the first and his purpose in speaking on both occasions is the same or very closely related."

"There was plainly a public interest in [the FA's] enquiry, which would be served by [Triesman's] contribution," Lord Justice Laws said. "Equally plainly, there was a very close nexus between his evidence to the CMSC and his interview with [James Dingemans QC who led the FA's review]."

"The prospect that [Triesman] might be called on to repeat his allegations was not only reasonably foreseeable but actually foreseen: he undertook, in effect, to do so. And [the High Court's findings] points to an identity between his state of mind on the two occasions of his speaking. For all these reasons, in my judgment Article 9 prohibits an examination in this action of the respondent's assertions to Mr Dingemans."

The judge, whose ruling was supported by Lord Justice Tomlinson and Lady Justice Rafferty, said the criteria he set for reaching the outcome in the case was not intended to "suggest a hard and fast rule" for following in determining the outcome of future cases.

"There may be instances which justify the protection of Article 9 which do not precisely demonstrate these two characteristics," the judge said. "The notion of public interest is not, I acknowledge, sharp-edged. Nor is the category of cases in which a member of Parliament or witness ought reasonably to serve such a public interest. As always, the common law will proceed case by case."

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