Daily Mail's Letter Before Action
Over two weeks ago we wrote to Associated Newspapers, Peter Wright and Tony Gallagher to comment on two articles about the Daily and Sunday Mail’s use of private investigator Steve Whittamore. We received a cursory reply from the Daily Mail’s managing editor saying this was old news a day later and published that response in a third article. A week ago we followed up with three questions about the Mail’s managing editor appearing at the top of Whittamore’s list. We then received a letter threatening Byline with legal action and insisting all three articles were removed. This is their letter before action and we will publish our response later today
Byline articles of 3, 4 and 7 March 2017 (Parts 1-3)
We act on behalf of Paul Dacre, Peter Wright and Liz Hartley. As you know, Mr Dacre is the Editor of the Daily Mail and Editor-in-chief of Associated Newspapers Limited (“ANL”); Mr Wright is Editor Emeritus at ANL; and Ms Hartley is Head of Editorial Legal Services at ANL. This letter is written in accordance with the Pre-Action Protocol for Defamation.
Summary of complaint
Our clients have instructed us to write this formal Letter of Claim with the utmost reluctance because they believe passionately in freedom of expression and fully respect your rights as journalists to examine these issues. However the inaccuracies in the articles complained of (see below) are so serious and defamatory that they feel they have no option but to defend their rights.
Our clients’ complaints arise out of the publication of three articles by Byline (as published on www.byline.com) on 3, 4 and 7 March 2017. These articles are further identified below.
As mentioned above, the articles are inaccurate and highly defamatory of our clients. In short, they allege that our clients deliberately suppressed evidence from the Leveson Inquiry in order to mislead the Inquiry about the real extent of ANL’s dealings with the investigator Steve Whittamore. To have acted in this way would have been a contempt of the Inquiry and in the case of Ms Hartley would have amounted to serious professional misconduct.
The truth is that each of our clients co-operated with the Inquiry and acted with integrity. None of our three clients suppressed evidence or misled the Inquiry.
It is extremely important to our clients that these defamatory allegations, which have already been republished by third parties, are immediately removed from your website and that the record is set straight. The remedies sought by our clients are set out at the end of this letter.
Our clients’ complaints are explained in further detail below.
Our clients’ complaints arise out of the following three articles:
1. An anonymous article first published on the Byline.com website on 3 March 2017 entitled “PART 1: DAILY MAIL FACES FRESH BLAGGING SCANDAL” and promoted by the subheadline “Powerful tabloid chiefs campaigning to ban Leveson Two face questions over “buried” £150,000 payments to Private Detective – Sun Editor and IPSO watchdog boss linked to new evidence”. We refer to this below as the “First Article”.
2. A further anonymous article published on 4 March 2017 headed “PART 2: DAILY MAIL ‘MUST HAVE KNOWN’ SAYS BLAGGING SCANDAL PRIVATE DETECTIVE” – the
3. A further anonymous article headed “PART 3: MAIL BLAGS BYLINE OVER ILLEGAL SPYING” published on 7 March 2017 – the “Third Article”.
(together “the articles”).
We enclose a copy of the articles for ease of reference. The articles remain online. It is ironic that despite your website’s title no byline appears on any of the articles. Despite this, we assume from the references on Byline.com to “accountable” journalism that the authors of the articles and any other journalists or researchers who were involved in the preparation or writing of the articles are prepared to be identified. Please therefore confirm by return who they are.
The allegations complained of
All three articles rehearse old allegations concerning ANL’s newspapers and Operation Motorman, which relate to events from over a decade ago and were investigated at length by the Leveson Inquiry. ANL repeated its position once again in a statement sent to Byline on the evening of Friday 3 March after the First Article was published (a statement which was later misrepresented in the Third Article).
However, what our clients cannot ignore is the inclusion in the First Article of completely baseless defamatory allegations about each of our clients personally which are of the utmost seriousness and as we have explained above has left our clients with no choice but to instruct solicitors. These allegations are then repeated in the Second and Third Articles, including by embedded hyperlinks back to the First Article. The meanings complained of are:
1. that each of our clients deliberately buried or suppressed relevant information from ANL’s evidence to the Leveson Inquiry to avoid the true extent of ANL’s use of Steve Whittamore from being exposed;
2. that this was a contempt of the Leveson Inquiry;
3. and in the case of Ms Hartley, that this was also a breach of her professional conduct obligations as a solicitor to such an extent that she is not fit to practice and should be struck off the solicitors’ roll.
Byline has no justification whatsoever for making these allegations which are demonstrably false – as we show below – and so serious as readily to satisfy s.1 of the Defamation Act 2013. In specious support of these allegations, you have fundamentally and egregiously misrepresented our clients’ evidence to the Inquiry, as we also set out in detail below. We assume therefore that the allegations were made without any regard for their truth or falsity and merely in order to serve a wider campaign designed to bring about a so-called “Leveson 2” inquiry. This can be the only reason they have been made at this point in time.
The true facts
We address further below some of the individual allegations levelled at our clients in the articles and demonstrate why they are untrue. However, in relation to the overarching allegation that our clients buried or suppressed information from Lord Justice Leveson we think you would benefit from a description of how the process of giving evidence to the Inquiry actually worked since it would appear that the author(s) of the articles do not know (or have chosen not to make this clear to readers).
In summary, in August 2011 the Inquiry served notices on ANL (as it did in relation to most of the national press) under section 21 of the Inquiries Act 2005 requiring, by compulsion, production of written and then oral evidence and documents within categories of information specified by the Inquiry. This is important to understand: it was the Inquiry which decided upon the scope of the evidence it wished to consider and spelled out the categories of documents it expected to be provided with, not the core participants, including ANL. Once a core participant had disclosed documents to the Inquiry they would be provided to the other core participants but all documents disclosed to the Inquiry were subject to a confidentiality undertaking contained in the Inquiry’s protocol relating to the receipt and handling of documents, which prevented one core participant from publishing another core participant’s disclosed documents.
The relevant notices under section 21(2) of the Inquiries Act 2005 addressed to the Managing Directors of Daily Mail (“DM”) and Mail on Sunday (“MOS”) required the disclosure of “any documents recording or relating to fees or expenses paid to private investigators” and to the respective Editors “any details or documents relating to expenses paid to private investigators and/or other external sources of information”. The Inquiry asked for all relevant documents postdating 1 January 2005.
ANL gave its disclosure to the Inquiry in late October 2011 – by service via RPC (as this firm was retained as ANL’s solicitors during the Inquiry) – in response to the section 21(2) notices. This included two ledgers that recorded the payments made to JJ Services (Stephen Whittamore) respectively by DM (from January 2005 to March 2007 – i.e. within the dates requested by the Inquiry) and by MOS (in April 2006; i.e. within the dates requested by the Inquiry) (the “ledgers”). It would appear from the articles complained of that Byline has obtained the ledgers in breach of the confidentiality arrangement. Please confirm whether that is the case.
The ledgers were uploaded onto the Inquiry’s document management system (“DMS”), from where they could be viewed by all core participants, including the core participant victims, their solicitors and counsel. It was the decision of Leveson LJ what documents should be published to the public on the Inquiry’s website.
In making that formal disclosure RPC, on behalf of ANL, explained to the Inquiry the approach ANL had adopted to the disclosure exercise, including specifically in relation to the ledgers. It explained that the invoices underlying the ledgers were not disclosed because invoices were kept externally in storage in hard copy and filed in date order meaning that they could only be searched by date and not supplier. It explained that by reason of the difficulty, time and expense involved in providing this information, we had taken the view that it would not be reasonable or proportionate to retrieve the invoices.
The letter from RPC on behalf of ANL also made clear that if the Inquiry should have questions in relation to the approach that had been taken to locating and disclosing documents then ANL would be happy to provide further information.
Critically, the Inquiry did not ask for any further information or for ANL to retrieve the underlying invoices.
The allegation, therefore, that any of ANL’s witnesses to the Inquiry – including our clients – buried or suppressed relevant information about ANL’s use of Mr Whittamore after he was raided and/or convicted is scurrilous and completely undermined by the true facts.
Individual allegations against our clients
You must not assume that just because we do not address a specific allegation in the articles complained of that means it is accepted as true. Instead, we focus on those which our clients take greatest exception. The following are, unless stated, in the First Article.
1. You allege in the sub-heading and on page 1 that our clients buried or suppressed “substantial sums of money secretly paid to a private detective [Stephen Whittamore] even after the police began probing his criminal conduct”. Our clients did not conceal any payments to Mr Whittamore or any evidence relating to the use of private investigators by ANL journalists. As we have explained above, ANL disclosed to the Inquiry every payment made to Mr Whittamore from 1 January 2005, the date requested by the Inquiry (see above), which included all payments made to Mr Whittamore after he was convicted in April 2005.
2. The payments to Mr Whittamore were not “buried in paperwork more than [a] foot thick submitted to Leveson Inquiry”, as you allege in the first paragraph. We have explained above how the ledgers were disclosed and made available to all core participants. As you will no doubt have seen, all of the payments you have identified in the payment slips, appearing in photographs in your articles, correspond with payments recorded in the ledgers disclosed by ANL.
3. You state in your first bullet point that Mr Dacre “did not mention the substantial figure to judge”. Mr Dacre did not conceal or “fail to mention” any figures for payments paid to Mr Whittamore. It was entirely a matter for Counsel to the Inquiry what documents he wanted to put to Mr Dacre when Mr Dacre gave evidence to the Inquiry and what questions he wanted to ask. At no point when questioned by Robert Jay QC was Mr Dacre asked to give any figures.
4. On page 2 you similarly allege that “remarkably, Daily Mail bosses did not spell out figures when questioned on their use of PIs”. Again, none of our clients were asked by Mr Jay to spell out the figures. The ledgers formed part of a list of documents which ANL was informed may be relied upon by Mr Jay during our clients’ questioning, but it was entirely the decision of Mr Jay not to ask them about or take them to the figures in the ledgers. In the case of Mr Dacre, the ledgers did not even appear on the list of documents prepared by Mr Jay specifically for his questioning.
5. On page 2 you allege “The files were only released in response to a document request at the hearing into press conduct and ethics – and even that data was incomplete”. As explained above, it was entirely a matter for Leveson LJ what documents he required the core participants to disclose, and the data requested by the Inquiry was not incomplete as we have already explained.
6. Mr Dacre did not “claim ignorance” of the sums paid to Mr Whittamore or that DM
journalists had continued to use Mr Whittamore after his conviction, contrary to what you allege on page 5. Mr Dacre was not asked by Mr Jay how much Mr Whittamore was paid by the DM. Mr Dacre was asked when the DM stopped using his services and Mr Dacre responded clearly that he could not be sure when exactly but certainly by 2007.
Jay: “Do you know when the Daily Mail stopped using Mr Whittamore as opposed to the Mail on Sunday stopped?
Dacre: “I don’t know exactly because the actual bills being paid don’t necessarily refer to the time when we stopped using him, but you know in 2007 we brought the shutters down and banned absolutely the use of all these – of Whittamore enquiry agencies”.
7. In the second sub-head you state “Mail on Sunday’s Peter Wright gave inaccurate figure to Leveson Inquiry” but nowhere in the First Article do you even attempt to justify this serious allegation. Mr Wright did not give any inaccurate figure in his evidence, nor did he downplay payments or the extent of use of Mr Whittamore in the years before 2003 (as you allege on page 8 of the Second Article). Mr Jay asked him to confirm the figure of at least £20,000 that the Information Commissioner (“ICO”) had given in evidence for transactions “identified positively [by the ICO] as being illegal transactions” and said specifically “I’m not putting to you a precise sum of all the transactions involving Mr Whittamore because they went much wider than the positively identified illegal ones” but “we’re agreed we’re talking about a substantial sum of money” and Mr Wright concurred. As is patently clear, Mr Jay was asking only about the subset of transactions that the ICO had identified positively as involving illegal methods by Mr Whittamore and did not ask Mr Wright to give the total sum paid to Mr Whittamore other than to confirm it was “substantial”. The article seriously misrepresents Mr Wright’s evidence. Further, your figure of £62,000 wrongly assumes that all transactions involved Mr Whittamore using illegal methods.
Jay: In relation, for example, to the transactions which the Information Commissioner identified positively as being illegal transactions, the sum he gave was at least £20,000. Does that sound right?
Wright: That would be over — it’s a global sum over several years, I think, but yes, it would be about right, probably.
Jay: I’m not putting to you a precise sum of all the transactions involving Mr Whittamore because they went much wider than the p ositively identified illegal ones, but I think we’re agreed we’re talking about a substantial sum of money, are we?
Wright: Yes. You are using the phrase “positively identified as illegal”. I think I would modify that and say “might be illegal”.
Other misrepresentations of our clients’ evidence
1. The thrust of the second article is the allegation by Mr Whittamore that our clients knew he had used illegal methods and that they tried to suppress from Leveson LJ that they were aware that illegal methods had been used, and the extent of the use of Mr Whittamore. This is totally false. As was disclosed to the Inquiry, in 2006 and again in 2007 all external agencies used for research by ANL, including Mr Whittamore, were written to and asked to provide written confirmation that information provided to journalists was obtained in accordance with the Data Protection Act. Mr Whittamore repeatedly assured ANL that he was operating within the law.
2. On page 4 of the Second Article you state that Ms Hartley told the Leveson Inquiry that her company’s reporters had no idea that Whittamore was using blagging and that she tried to argue that they didn’t think that he was using deception because the word “blag” did not appear “much” in the ICO’s summary of Whittamore’s records. This misrepresents the true position. Firstly this section of the Second Article implies that Ms Hartley gave oral evidence on this to the Leveson Inquiry which is untrue. Ms Hartley did however discuss ANL’s dealings with Mr Whittamore in her witness statement to the Inquiry but she did not try to
argue that ANL’s reporters didn’t think he was using deception because the word “blag” did not appear “much” in the ICO’s spreadsheets. Please explain where you are quoting the use of the word “much” from? Instead Ms Hartley explained ANL’s serious reservations about the reliability of the relevant ICO spreadsheets based upon their dealings with the ICO and as such that the reference to “blags” in the ICO spreadsheets “should be treated with considerable caution”.
3. On page 7 of the Second Article you state “Wright also claimed that his managing editor, John Wellington, had “hidden” the payments in hotel and taxi expenses payments, which is why he was not aware of this”. In fact, Mr Wright’s evidence was completely to the opposite effect and you have misrepresented his evidence wholesale. What Mr Wright said in evidence was that payments to inquiry agents, such as Mr Whittamore, were classed with incidental expenses, which is why he was not aware until early 2004 that they were regularly being used by MOS reporters. When it was put to him by Mr Jay that “[the payments] were possibly being concealed in some way?”, Mr Wright said emphatically: “No, I don’t think that was the case. I think that was just administratively how they had been classed. I don’t think there was any deliberate attempt to conceal them”. The word “hidden”, despite appearing in quotation marks in your article, does not appear anywhere in Mr Wright’s oral evidence.
4. Mr Dacre did not “claim that he could not ‘recall’ many of the details about his paper’s use of Whittamore… despite having access to all its records and knowing he was going to be questioned on the matter” as you falsely assert on page 5 of the Second Article. Nor did he mislead the Inquiry as to when the DM stopped using the services of Whittamore. He stated in terms that it was 2007 (see paragraph 6 in the section about “individual allegations” above). Further, you appear to have deliberately misrepresented Mr Dacre’s evidence by taking his words out of context in order to falsely suggest that he stated that a journalist could legally obtain a British Telecom ‘Friends and Family’ list of frequently called numbers. What Mr Dacre was plainly referring to, and saying “would take time”, is obtaining telephone numbers of the friends and family members of a person in the news in order to contact them to check a story.
5. On page 3 of the Third Article you state “Despite being given access to records of all the taskings its journalists gave Whittamore, and the articles which resulted, the Mail has never provided an example of a request for blagged phone data or car registration reversals which was in the public interest”. Again, this is not true and indicative of the sloppy journalism with which this article has been put together. In ANL’s submissions to the Inquiry ANL gave both the example of (a) the vehicle registration check performed by Mr Whittamore for MOS on the owner of the vehicle through which Bob Crow, then General Secretary of the RMT Union, was able to evade on his route to work the massive disruption caused by a tube strike; and (b) the search by a DM journalist for the home telephone number of Peter Kilfoyle MP on the weekend he resigned as a defence minister. The latter example was described by the ICO as being “manifestly defensible” (see oral evidence to the Leveson Inquiry of Christopher Graham on 26 January 2012).
Extent of publication
In addition to publishing the articles on the website Byline.com, they were sent to all those who subscribe to Byline’s articles by email. The articles were also widely published via Byline’s Facebook page, and via Byline’s twitter feed and have been extensively republished on social media.
Notably for example:
• John Cleese tweeted the First Article on 3 March 2017 to his 5.51 million followers: “Paul Dacre lied to Leveson!! Read all about it on: https://www.byline.com/column/
• The Guardian journalist, Nick Davies, who was one of the journalists most prominently involved in the phone hacking investigations, tweeted on 3 March 2017 to his 40,900 followers (and retweeted by Byline on 3 March 2017): “Daily Mail hid from Leveson its use of private investigator convicted of getting info by illegal means”.
• Hugh Grant tweeted to his 249,000 followers on 6 March 2017 (as then retweeted by Byline on 6 March 2017): “Casts doubt on evidence given to Leveson by both the Editors of the Mail and Mail On Sunday.”
Such offensive and damaging tweets illustrate the real and serious harm which the articles have already caused to our clients’ reputations. It is clear that the articles have been widely and deliberately disseminated to cause maximum damage to our clients’ reputations. Our clients reserve the right to rely on any other (re)publications as may come to their attention.
In all these circumstances, our clients require that Byline, its authors, editors and/or publishers take the following steps:
1. correct the inaccuracies identified and remove the defamatory statements complained of from any online source where they continue to be published and/or over which Byline and/or its authors, editors and/or publishers have control (including taking steps to notify any relevant website hosts and/or search engine providers (e.g. Google) to request removal of any cached versions of the uncorrected versions of the articles. However, in line with your general obligations to preserve evidence, please ensure that you retain any Twitter analytics before removing any relevant Tweets – in this respect we refer you to the recent decision in Monroe v Hopkins  EWHC 433 (QB));
2. undertake that Byline and/or its authors, editors and/or publishers will not publish the same or similar allegations concerning our clients which are complained of above; and
3. publish a full retraction of the allegations complained of and an apology to each of our clients in words to be agreed with us in advance, to be published prominently on the top of the homepage of Byline’s website, Facebook page and twitter feed for at least seven days (and thereafter retained on Byline’s website, Facebook page and twitter feed) and sent to all recipients of the articles who subscribe to Byline’s articles by email.
Our clients require that these actions are agreed and undertaken within 48 hours of the date of this letter to ensure that their reputations are not further damaged.
As we explain above, our clients are passionately committed to press freedom and the principles underpinning the importance of preserving an unfettered and independent news media and we emphasise again that they fully respect your right to write about these matters. Notwithstanding this, they cannot reasonably allow false and seriously defamatory statements about them to remain online.
Our clients’ approach to damages and costs – to which they would each be entitled – will be influenced by your response to this letter. Pending that response, all our clients’ rights are reserved.
We look forward to hearing from you as a matter of urgency.