Makudi v Triesman: Comments on FIFA's ethics leads to questions over the protection offered by the Bill of Rights

In an important decision on the scope of protection afforded to Parliamentarians against actions for libel, the Court of Appeal has today ruled in Lord Triesman's favour in the libel claim brought against him by the head of Thailand's football federation: Dato Worawi Makudi v Baron Triesman of Tottenham in the London Borough of Haringey [2014] EWCA Civ 179.

The Claimant is a member of the Executive Committee of FIFA and his libel claim related to evidence given by the Defendant, Lord Triesman, to an inquiry set up by the FA into allegations of unethical behaviour in relation to England's unsuccessful bid to host the 2018 World Cup.

On 10 May 2011 the Defendant, who is a former Chairman of the FA and was the chair of England's 2018 World Cup bid, gave evidence to the Culture, Media and Sport Committee of the House of Commons ("CMSC"), where he presented an account of his personal experience with members of FIFA's Executive Committee which he felt "did not represent proper and ethical behaviour". One such experience involved the Claimant and a discussion about TV rights for an international between England and Thailand. When asked by the CMSC, the Defendant said he would be willing to take his concerns to FIFA and in answer to one of the committee's questions he described his promise to do so as an "undertaking".

There was subsequently much publicity about the Defendant's allegations. The FA resolved to conduct an investigation, and on 13 May 2011 appointed James Dingemans QC to lead it. On 20 May 2011, the Defendant gave evidence to Mr Dingemans as part of this investigation further to his undertaking to the CMSC.

In his evidence to Mr Dingemans, the Defendant referred to his Parliamentary evidence, although he did not explicitly repeat it. In his witness statement he said, "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... I think that if I try to add to it I may stray into territory not covered by Parliamentary privilege." In his oral evidence he said he did not think he could add to his evidence to the CMSC.

The Claimant sued the Defendant for libel and malicious falsehood for publishing or causing publication of the following:

1. The Defendant's oral evidence to Mr Dingemans on 20 May 2011;
2. The Defendant's written witness statement to Mr Dingemans made on or around 23 May 2011;
3. Mr Dingemans' report entitled "Report to FIFA related to [the Claimant]" dated 26 May 2011;
4. Mr Dingemans' report entitled "Review of the allegations of misconduct in relation to the FA's 2018 World Cup bid - Summary of the report to the FA".

Mr Justice Tugendhat struck the claim out at first instance on the basis that the publications had clearly occurred on occasions of qualified privilege and there was no case in malice that could be put at trial without violating Article 9 of the Bill of Rights 1689. Alternatively, the judge held that the Claimant's plea of malice, even assuming his evidence was accepted at trial, did not entail the conclusion that the Defendant was dishonest: it was equally consistent with his having been mistaken.

The Court of Appeal's reasoning in dismissing the appeal