Philip Flanagan refused indemnity for defamatory tweet



The Northern Ireland High Court has found that an insurance services company was entitled to refuse to indemnify an MLA under an insurance policy, in respect of his liability to pay compensation for a defamatory statement published on his Twitter account on 1 May 2014.

It was agreed that the defamatory meaning of Philip Flanagan’s tweet was that fellow MLA Thomas Elliott “was responsible for harassing and shooting people during his service with the UDR”. Judgment against Mr Flanagan had been made on 3 February 2016.

Mr Flanagan relied on the terms of the policy which stated that “The Insurer will indemnify the Insured for all sums which the Insured becomes legally liable to pay as damages or compensation consequent upon (a) Personal Injury to any person not being an Employee; … happening during the Period of Insurance in the Policy Territory and arising from or in consequence of an Occurrence in connection with the Business.”

He claimed that the defendant espoused fairness and transparency within the policy, and that those concepts should be applied. In response, the defendant made a number of arguments, which were dealt with in turn by the judge.

AIG argued that the policy only extended to cover an MLA’s liability to pay compensation for libel and slander of third parties and did not cover any liability if both the person making the defamatory statement and the person about whom the defamatory statement was made, were MLAs.

However, the judge found that there was no such condition in the policy, and that if the defendant had wanted to exclude cover for claims emanating from one insured against another then it should have done so.

AIG then argued that the policy only extended to injury in connection with Parliamentary and Constituency activities, and the Tweet did not fall within this category of injury.

In response, the judge noted that legacy issues were a matter of general importance in Northern Irish society and therefore the Tweet was both a Parliamentary and Constituency activity.

The defendant then asserted that the plaintiff had failed to take all reasonable precautions to prevent loss or damage.

On this ground the court agreed that the defendant was entitled to refuse to indemnify the plaintiff. It was common case that the plaintiff had deliberately published the tweet, and that the defamatory nature of the tweet was so obvious that the judge concluded that subjectively the plaintiff had knowledge of its nature when he sent it.

Thus, the plaintiff did not take reasonable precautions in that he knew that he was publishing defamatory material at a time when he knew that there was no evidence upon which he could base a defence to any libel proceedings.

The defendant also argued that Mr Flanagan had failed to notify AIG of the claim, and had admitted liability to Mr Elliot without consulting with AIG.

There was some debate on whether the condition upon which the defendant relies was a condition precedent or whether in order to rely on the condition the defendant had to establish any prejudice caused by reason of the plaintiff’s breach of the condition. The judge was referred to the decision of Bingham J in Pioneer Concrete (UK) Ltd v National Employers Mutual General Insurance Association Ltd 2 All ER 395, and found that if a condition in the Policy was not a condition precedent then the insurer had only to show a degree of prejudice of a relatively slight kind in order to rely on it.

The court noted that the plaintiff received the letter of claim dated 2 May 2014 but did not as soon as possible report details of any claim to the Insurer in writing nor did he forward the letter of claim to the insurer. Furthermore the writ was not sent as soon as possible to the insurer. The first notification to the insurer was dated 19 August 2014.

Furthermore, he had made an offer without the insurers consent, let alone written consent.

The court therefore concluded that the plaintiff had breached his contractual requirements to notify, as well as the control of claims condition, and had caused clear prejudice to the defendant in that it could not attempt to negotiate settlement and could not at an early stage arrange for the publication of an apology.

Thus, the plaintiff’s claim was dismissed.

  • by Rachel Killean for Irish Legal News