THE YEO CASE: WITNESS EVIDENCE & CREDIBILITY: THERE'S A HOOK HERE SOMEWHERE

November 25, 2015 · by · in Uncategorized, Witness statements

The decision of Mr Justice Warby in Yeo -v- Times Newspapers Limited [2015] EWHC 3375 (QB) is one of those cases that, obviously, will be of wider interest.  It contains much of interest in relation to an analysis of the written and oral evidence. In particular the importance of an email written after a meeting which, the judge held, confirmed the defendant’s case rather than the claimant.

“When a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape. So with Mr Yeo’s evidence on this issue. His twists and turns in the attempts to escape the obvious served only to emphasise the problem that the 22 May email presented for him. The problem is, of course, that his own contemporaneous account of his state of mind during the meeting tends to support TNL’s case and undermine his own.”

“Experience suggests that in general those who are not interested in money tend not to get much. I can think of none who convincingly claim to have no interest in money, yet end up with an annual income in excess of £200,000.”

 

THE CASE

Mr Yeo was bringing a defamation action against the publishers of the Sunday Times. At the relevant time Mr Yeo was an MP.  An article had been published after he had met up with reporters posing as a consultancy firm.  Significantly that meeting was filmed and recorded.

KEY POINTS

  • The court will look to the evidence before it, and not at third party reports, when reaching a decision.
  • The claimant’s credibility on certain key points was not accepted.

THE EVIDENTIAL ISSUES: THE HOUSE OF COMMONS REPORT

One issue was the relevance of documents produced by the House of Commons, a Commissioner’s memorandum and a Standards Report.
  1. I have been shown, and have considered, the Code and related materials. I have seen and heard both the two audio-visual recordings of the Meeting, and examined in great detail an agreed transcript of what was said. The other exchanges between the journalists and Mr Yeo, both before and after the Meeting were in evidence, in the form of emails, a recording and transcript of the one telephone conversation between Ms Blake and Mr Yeo, and pre-publication correspondence. There is documentary evidence illustrating the processes by which the articles came to be published. I heard oral evidence from Mr Yeo and, for the defendants, from Mr Calvert, Ms Blake, Mr Hymas, and Mr Ivens. Each witness was cross-examined. It is on this evidence, and other documents to which I shall refer below, that I base my conclusions on the issues.
  2. I have not had regard to the Commissioner’s Memorandum, or to the Standards Report. In his letter of claim, in his original statements of case, and in the initial version of his witness statement Mr Yeo made reference to these materials, and sought to place reliance on them. TNL responded. That gave rise to a dispute as to relevance, and to consideration of whether aspects of the parties’ statements of case and witness statements might infringe the doctrine of Parliamentary Privilege: see my judgment of 22 July 2015, [2015] EWHC 2132 (QB) at [7]-[29]. However, both sides’ statements of case have since been amended, as have their witness statements. In the end I have not been asked to examine or consider any of the Parliamentary proceedings relating to the publication of these articles, or to take such proceedings into account in any way.
  3. I am sure that this is right. As a rule a court will not rely, in reaching conclusions on disputed issues of fact, on findings made in other proceedings involving different parties. Such findings are not conclusive and, generally, they are not even admissible: see my July 2015 judgment at [41]. Where the findings are made by a Parliamentary official or body, it is all the more undesirable for the court to examine them. None of the relevant proceedings are in evidence. I have not read them. Nothing I say here should be taken as in any way passing judgment on any such Parliamentary proceedings.

THE WITNESS EVIDENCE

One key issue was the credibility of Mr Yeo as a witnes.

  1. The issue here is not, of course, whether it was or is legitimate or reasonable to conclude that Mr Yeo was prepared, and had offered himself as willing, to act as a paid Parliamentary advocate in breach of the Code. It is whether on the balance of probabilities TNL have proved that he was, and had. That brings in questions about Mr Yeo’s actual state of mind. What did he understand the journalists to be seeking from him? What was he actually willing to do?
  2. The burden of proof is on TNL, but they can rely on the unedited video recording and the agreed transcript. Inevitably, therefore, a key factor in answering these questions is my assessment of Mr Yeo’s credibility as a witness, by which I mean both the plausibility of what he said, and my assessment of how convincingly he said it. As to plausibility, some of what Mr Yeo said was plausible on its face. But by no means all of it was. Indeed, I found some of his evidence utterly implausible. I refer in particular to his evidence about what he understood to be on offer to him, via the Email and at the Meeting.
  3. Asked about the 13 May email Mr Yeo’s evidence was that the only reason he thought it was right to meet CGG was the sentence that referred to the client’s nanocell technologies having the potential to be “a crucial breakthrough” in progress towards meeting renewable energy and zero carbon homes targets. He claimed that “The possibility of a job was of no interest to me at all… As far as I was concerned, this meeting was about learning about this technology.” Asked why, in that case, he did not say so when he replied to the email his unconvincing answer was that “There was no reason to do that.”
  4. When it was put to him that when, during the meeting at 22:32, Ms Blake told him about their client, the “South Korean venture capitalist”, he knew that a generous remuneration package was on offer on behalf of a venture capitalist Mr Yeo disputed that. This exchange took place:

“… At this point in the lunch, I was not interested in the job. I would not have been surprised if they hadn’t mentioned it. I had forgotten about the remuneration. I wanted to know why this product could help Britain and when the strategic issues were on which they wanted advice.

Q. You’d forgotten about the reference to generous —

A. Absolutely.

Q. You’d forgotten about it?

A. Yes.”

  1. Mr Millar pointed out that when, at 34:26 in the Meeting, Ms Blake suggested that the work would take one or two days a month, Mr Yeo had responded “Yup.” The cross-examination continued in this way:

“Q. Why didn’t you say at this point: “Blimey, excuse me, I had completely forgotten about the suggestion that there was a job, I’m not interested in that”?

A. Why would I say I completely forgot?

Q. Because that’s what you told me your state of mind was.

A. Indeed it was, but I think it might have been rather rude to say I’d forgotten about it because when she mentioned it, I did recall it was mentioned in the email, and I think there it says consultancy work would take up around a day or possibly two each month so she’s repeating what she’d said in the email.

Q. So you did recall the email at that point?

A. Yes, I was reminded about that, yes.

Q. Did you recall that the email talked about a generous remuneration package?

A. I did not.

Q. Right. So you remembered that bit of the email but not the reference to the generous remuneration package?

A. Correct.”

  1. I share the incredulity expressed by Mr Millar. I am quite unable to accept this evidence. I accept that Mr Yeo is genuinely interested in green technology, and that he has given advice and help to some in this field without seeking or accepting any material reward. However, the 13 May email was short and clear. It was plainly suggesting a consultancy with generous remuneration. It is not credible that this was not present to Mr Yeo’s mind at all. Experience suggests that in general those who are not interested in money tend not to get much. I can think of none who convincingly claim to have no interest in money, yet end up with an annual income in excess of £200,000. I do not consider that Mr Yeo is such a person. In my judgment this evidence was untrue. I am not persuaded that it was honest either.
  2. Mr Yeo maintained his composure in the witness box, for the most part. That was unsurprising, given his long experience of public life. He had clearly prepared very thoroughly for the process of giving evidence. But he was wary. For instance, when he said that he had “always felt that lobbying and paid advocacy are pretty much the same thing” he was asked “pretty much or exactly?” His reply was “Well, when lawyers start to say is there some significance in using another term, I suspect they probably have in mind there is some different significance that I’m not aware of. So I don’t know. I think pretty much is what I said and pretty much is what I meant.”
  3. He also resorted on occasion, when under pressure, to answers involving bluster not only in their content but also in his manner. An example of this followed Mr Millar’s questioning about the Email. This exchange took place when he was challenged to explain what was meant by a passage in his witness statement about “strategic advice”:

“Q. What was it that you thought they wanted that amounted to strategic advice, and what would that involve?

A. My thought in my mind was that I’d received a genuine email from genuine people who were advising a genuine business who had a genuine technology which might genuinely help Britain meet its renewable energy and zero carbon homes target. Unfortunately I was misled in that. Nothing that I was told in the email or at the lunch was true. It was an elaborate construction of lies.”

  1. This was no kind of answer to the question, and Mr Yeo cannot have believed that it was. He took on an air of exasperation if not anger, which struck me as created or at least exaggerated for effect. This in my view was a deliberate use of a hot-tempered counter-attack as a diversionary tactic. Overall, I did not find that Mr Yeo presented convincingly. I have found it helpful to compare his manner when giving evidence in public, after careful preparation, with his demeanour at the Meeting as shown on the video recording, when he was relaxed, unguarded, and unaware that he was under observation. The contrast was striking. It is the video recording that I regard as the more reliable guide to Mr Yeo’s state of mind at the time.
  2. A striking instance of the contrast between the two, which is important to credibility, is the passage during the Advocacy Discussion about the witness from GB Railfreight whom Mr Yeo said he had “[told] in advance what he should say” to the ECCSC: [95]-[96] above. This is collateral to the issues, because Mr Yeo has never complained of the part of the articles which presented him as having “coached” this witness. Mr Yeo’s evidence dealt with the point nonetheless, and was clear: he did no coaching. But his explanation of what he said makes little or no sense to me. He told me that his words were a joke, prompted by what he suggested was an odd question from Ms Blake (“were you able to ask him questions sort of afterwards or …?”). I still fail to understand the humour that is supposed to have been involved. Mr Yeo’s suggestion that Mr Calvert and Ms Blake laughed at the “joke” is clearly untrue, and close to absurd.
  3. Mr Calvert was clear that “It was not a joke”. As he saw it, the reason Mr Yeo laughed was that “he had done something illicit and it was the sort of thing people do when they are slightly embarrassed when they confide in you that they have done something naughty.” Ms Blake was asked “…wouldn’t it have been reasonable for Mr Yeo to think it was understood to be a joke…” given that everybody laughed. She replied: ” No, I don’t think it would. It wasn’t funny. We laughed because it was shocking.” I find this inherently convincing, and it is supported by viewing of the recording. The issue of whether the witness was in fact coached is not one for my decision. What I do find, however, is that Mr Yeo intended his words at the Meeting to be taken seriously. His evidence about the matter has been false and, in my judgment, dishonest.
  4. At the end of the evidence I accept Mr Millar’s submission in opening:

“The claimant clearly had, must have had — and we mean “must have had” despite his denials — a clear understanding of the nature of the engagement being proposed by CGG, the extremely generously remunerated engagement. First of all, point (a), it’s plainly a job that they’re offering. It’s utterly hopeless for the claimant to try and deny that he understood that because that’s what the email from Robyn Fox is saying. You don’t have a role which is extremely generously remunerated without it being a job, without it being work, and the flesh was put on that in the meeting when the figures were discussed.”

  1. In my judgment Mr Yeo went to the Meeting knowing full well that its purpose was to discuss the prospect of a consultancy, involving work for which the client was prepared to pay generously. That prospect was not the only reason he went to the lunch, but it was very much present to his mind. He and Mr Browne are right to say that this was a preliminary meeting, that no agreement was reached, or even proposed in formal terms. Clearly, it would have taken time to reach one. But none of this is really to the point. The important point is what the meeting was preliminary to. To a man as intelligent as Mr Yeo that cannot have been in doubt. It was preliminary to a job, for payment. The way that he responded to questions shows that he was not in doubt about this.
  2. Mr Yeo’s explanation of his position [87]-[88] above was in the nature of a “pitch” designed to impress his listeners with his Parliamentary position, the quality and importance of his business roles (“.. quoted … market cap …”), and his ability to undertake the role on offer without conflict of interests. Talk of his ability to “commit to” at least one day a month is not consistent with anything but a job. In the same passage ([89] above) Mr Yeo spoke of “another job I’m talking to people about…” That in itself implies a readiness to accept payment.
  3. Mr Yeo was clearly willing in principle to accept substantial payment for the work, if a consultancy was eventually offered. He did not baulk at the sum of £7,000 a month that was mentioned in the money discussion ([90] above). His case is that his references to “getting value” and the prospect of negotiation amounted to a suggestion that he might not earn as much as £7,000 a month, in which case he would take less. I am not convinced by that. The more likely interpretation is that of TNL: that he was keeping open the option to negotiate upwards. Certainly, Mr Yeo was not baulking here at the suggestion that he might earn thousands a month from this consultancy. He was not offering to do the work for nothing. It is noteworthy that he did not quibble when the topic of a bonus was raised.
  4. I also find that Mr Yeo understood well enough during the Meeting that the work that the CGG personnel were asking him to consider undertaking, in return for the generous remuneration under discussion, included advocacy for their Korean client. In explaining his position he recognised that if he did the job he would be “involved with promoting another solar technology”: [88] above, emphasis added. His evidence is that the first reference to his being an “advocate” ([92] above) passed him by. That might have been credible, taken in isolation, but I find it hard to accept in context. There can in any event be no doubt that he heard and understood the word the second time it was used ([93] above). He responded by addressing specifically, among other things, what he could not do by way of advocacy: [93]-[95]. Mr Browne’s submission that the question posed by Ms Blake was confusing, as it spoke of Mr Yeo being “our advocate and our advisor”, is therefore not persuasive. That submission also overlooks the key facts that (a) Ms Blake’s question was about what Mr Yeo could do by way of advice and advocacy “in Parliament”, and (b) Mr Yeo’s response shows that he understood perfectly well that he was being asked – among other things – what kind of Parliamentary advocacy he could provide for CGG and its client. He specifically ruled out “getting up and making a speech for you”.
  5. Mr Yeo, in my judgment, expressed a willingness to undertake Parliamentary advocacy. What he explicitly ruled out was “public” advocacy, such as making public speeches. But it was only public advocacy that he ruled out. He did not expressly or impliedly rule out advocacy “behind the scenes”. On the contrary, his answer when asked by Mr Calvert if he would be able to do that was affirmative: [95] above. I reject as unreal the argument – reliant in part on punctuation, or the lack of it – that the words “of course” did not represent agreement by him that he could do so. It is apparent not just from the page but from the recording that those words expressed agreement that he could.
  6. Mr Yeo has sought to explain away the words that he then went on to use: “but what I say to people in private is another matter…” This is said to refer to advice and not to advocacy. I reject that. An explanation of what Mr Yeo could do by way of private advice would not have been an answer to Mr Calvert’s very clear question, which was about advocacy behind the scenes. It is also hard to reconcile this claim with the story that Mr Yeo then went on to tell, about the witness at the ECCSC hearing. Clearly, that story was meant to illustrate the point that he had just made. Where was the story leading? My conclusion is that it was always intended to contrast Mr Yeo’s inability to question the witness at a public session of the ECCSC (because of a conflict, which meant “it would look as though it might be biased about that”), with his readiness, willingness, and ability to work for the same client towards the same end, behind the scenes. It makes sense if the “behind the scenes” work relates to Parliamentary hearings. On Mr Yeo’s case, the story was originally leading to something other than the untrue “joke” it ended up with, which was a spontaneous response to Ms Blake’s interruption. Mr Yeo’s witness statement said that he was “going to elaborate” on his initial reply by explaining that he had on more than one occasion discussed with Mr Smith privately “how the future of GBRf might benefit from more investment either by its parent company… of which I am a director … or by outside investors.” I do not find this remotely convincing.
  7. It hardly needed stating that Mr Yeo, as a director of the parent company, could privately discuss the strategy of a subsidiary with its MD. That explanation would not have illustrated the point that had just been made. It would barely have related to the topic under discussion. A discussion of that kind with Mr Smith would have had no connection with Parliamentary advocacy, or Parliamentary advice. Moreover, if this was what Mr Yeo had been going to say, one would have expected him to wait for the laughter to die down after his “joke” and, redirecting the conversation (“But seriously…”), provide the intended explanation. There was no impediment to his doing this. He did nothing of the kind.
  8. There has been much debate about whether Mr Yeo indicated any willingness to “push for new laws”, and which new laws were under discussion. Three areas have been identified: building regulations, planning laws, and FITs. It is not clear that Mr Yeo offered to help push for changes in the second or third of these. In my judgment however Mr Yeo was prepared and showed willing to help CGG and its client by “pushing” for changes to the building regulations in the way suggested by Ms Blake.
  9. The nature of the change that CGG had in mind was set out clearly enough by her at 31:05: [77] above. Mr Yeo responded not just positively but also enthusiastically. The substance of his response was that such changes would be easy to secure, because the kind of change suggested would be “working with the grain” that is, in accordance with existing policy. By stating that “this will be one of the easy areas” he was indicating a readiness to participate, and that he could identify other “areas” for action, in order to help promote the product.
  10. It was Mr Yeo who identified the audiences for endeavours of this kind: [81] above. They included “policy-makers who would include ministers and civil servants.” Asked, later, what sort of thing he would be able to do for CGG “as our advocate and advisor in Parliament” Mr Yeo waffled a little, referring to “help[ing] define how to influence the policy process here”: [83] above. This has been presented by him as amounting to no more than an offer to guide CGG on how to influence the process. I am satisfied that he meant more than that. Hence his boast about his “very close relationship with … all the key players in the UK in government and in the department.” He was plainly offering at the very least to introduce CGG to such “key players”. The submission that his offer to “facilitate” such introductions fell short of this is not plausible. Mr Yeo was putting himself forward as a person with the best possible connections, and the ability to ensure that CGG could meet “anyone … you needed to get hold of in this country”. Asked for clarification he expressly reconfirmed that this extended to “people in government.”
  11. In my judgment what Mr Yeo had in mind was personal introductions, by which he would bring Ministers or civil servants together with CGG or other representatives of their client. What was contemplated was private not public meetings. Such introductions were plainly envisaged as a way of advancing the interests of CGG and its client, not solar technology in general. The behaviour proposed would have violated the Lobbying Resolution. It was an offer to advocate or initiate a matter by an approach to ministers or servants of the Crown, for consideration. The sense of Mr Yeo’s words, taken in the context of the discussion as a whole, was that he could, and would be willing to, advance CGG’s interests by “making [an] approach to a Minister or servant of the Crown …” in the course of which he would engage in advocacy “which seeks to confer benefit exclusively upon a body … outside Parliament” from which body he would be receiving “a financial benefit.” Among the objectives that had been identified earlier in the discussion was securing amendment of the Building Regulations – in simpler language “new laws”.
  12. Given these findings, the issue of what exactly was contained in Mr Calvert’s partly inaudible question about Ministers at 1:02 ([100] above) fades in importance. But I have explained at [163] of this judgment that I accept TNL’s submissions on that issue, and reject the argument that Mr Yeo was there saying that there was no point in approaching Ministers on behalf of CGG because they would not be “susceptible” to any such approach.
  13. In reaching the conclusions I have already set out I have of course given careful consideration to Mr Yeo’s email of 21 May, in which he made clear that lobbying was “incompatible with my position”. Mr Browne’s submissions on the facts leaned heavily on this email, which he presented as clear evidence that Mr Yeo was not prepared to lobby. In opening Mr Browne argued that “Whereas the transcript is a muddle of vague and self-contradictory statements and offers, the email is clear cut and beyond any ambiguity.” I do not agree with the first part of this statement. There is truth in the second part but not in the way that Mr Browne suggests.
  14. Importantly, the email contains a clear and unambiguous admission that Mr Yeo was aware “during the Meeting” that CGG were “seeking someone to advance their interests by lobbying.” Indeed, it says that this was something that became “increasingly apparent” to him during the meeting. The significance of this seems to have been lost on Mr Yeo for some time. His evidence was, initially, that it was not until the evening of 22 May that it occurred to him that CGG might have been looking for a lobbyist. His first witness statement, dated 15 May 2015, said this: “…by the time I finally got home on the evening of 21 May at about 10.30, after a full Parliamentary schedule during the afternoon and early evening, followed by dinner out, I reflected on the conversation. I wondered if perhaps the business people with whom I had had lunch did want more in the way of help than the Rules would permit me to provide.” A second witness statement made in September 2015 said: “Reflecting afterwards on the Conversation itbecame apparent to me that the fictitious client of the undercover reporters was more interested in Parliamentary services“. (The emphasis in both quotations is mine). The accuracy of both statements was confirmed by Mr Yeo on oath.
  15. The disparity between this evidence and the email of 22 May led, predictably, to some uncomfortable cross-examination. In attempting to explain, Mr Yeo did not acquit himself well. First, he reconfirmed the accuracy of his first witness statement. Then, confronted with the contrast between that and his email, he maintained there was no difference: “I don’t think there’s any incompatibility between what is in my written statement and my email.” Next, asked the simple question “Is the email accurate and true?” he launched into a 400-word answer. This was rambling but the gist of it was an attempt to reconcile the statement and the email by saying that the fact that lobbying was wanted had become “increasingly apparent” as he reflected afterwards on some signs that had been there during the Meeting. He was then asked about the words “during our meeting”. He answered “I didn’t think about it during the talk.” Having said that he was driven to admit:

“So, perhaps, Mr Millar you are right, perhaps it is not absolutely accurate to say that it was apparent to me during the talk. It was apparent to me on reflection that the talk had moved in a new direction and I [am] willing to accept that perhaps it was not strictly accurate in my email to say “it was apparent to me during the talk”.”

(The emphasis is mine; and I have corrected what seems to me an obvious mistake in the agreed transcript or in Mr Yeo’s choice of words; it matters not which.)
  1. Mr Yeo then spotted an opportunity to fight a rearguard action. He seized on his use in the email of the word “increasingly” and said this:

“… I do say increasingly apparent. I think it might be fair to say it was not very apparent during the talk, but from a zero start it wasn’t apparent at all before the talk or the first half of the talk, towards the end of the talk it became a little bit apparent, so it was increasingly apparent, but the full force of the conversation came home to me when I got back to my flat and had time to think about the day.

Q. So it didn’t become increasingly apparent to you during the talk that they wanted a lobbyist?

A. From a zero base I think it might have been a little bit apparent by the end of it.”

  1. When a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape. So with Mr Yeo’s evidence on this issue. His twists and turns in the attempts to escape the obvious served only to emphasise the problem that the 22 May email presented for him. The problem is, of course, that his own contemporaneous account of his state of mind during the meeting tends to support TNL’s case and undermine his own. His evidence on this issue was in my judgment unreliable and untruthful. The truth is that Mr Yeo did appreciate during the Meeting that CGG were looking for lobbying services. That is why he said so in his email of 22 May. He knew throughout that the provision of such services was prohibited by the Code. That is why he said in his email of 22 May that lobbying was “incompatible” with his position. He did not object during the meeting to being asked if he would provide such services, because that was something he was prepared to do.
  2. In my judgment the reason he did raise the point in his email the following day was that he had by then been told that he was not going to be offered this opportunity and felt it best – with nothing to lose by doing so – to cover his back. The evidence does not bear out the suspicions entertained by the journalists at the time, that by the time he sent his email Mr Yeo had got wind that an undercover journalistic sting operation was under way. It does seem that this was known by some at the Palace of Westminster, but it is not TNL’s case that Mr Yeo had got to know of it. There is nothing to contradict Mr Yeo’s denial that he had. Even so, the more persuasive explanation of the email is that it was written for the record, rather than reflecting a position held by Mr Yeo at the time of the Meeting.
  3. For one thing, Mr Yeo could easily have taken that position explicitly at the point in the meeting when it became “a little apparent” to him that lobbying was being sought, or at some later point when it became more apparent. He did not. His explanation in evidence was that he did not regard this as necessary as he had made no offer to lobby. The inevitable follow-up was to ask why he regarded it as necessary when he wrote the email the next day. The best he could do by way of an answer was to say “I think I wanted to make clear to them that I had not accepted their hospitality under false presences”. That is not consistent with the wording of the email, and is unworthy of belief.
  4. For these reasons the evidence satisfies me that at the Meeting Mr Yeo expressed a willingness, and was in fact prepared, to act as a Parliamentary advocate who would push for new laws to benefit the business of CGG’s client, and approach Ministers and civil servants to benefit that business. He was prepared to do these things as part of a paid consultancy role, for which he was willing to accept £7,000 a day or more, if he felt it was justified and could negotiate it. His expressions of willingness reflected a preparedness to do things which, if they had been done, would clearly have involved breaches of the Code. These findings are sufficient to lead me to uphold the plea of justification.
  5. The defamatory imputation includes reference to approaches to MPs. This is far from being the most significant aspect of the imputation, the substantial truth of which would be made out even if this aspect was not proved. I am however satisfied that Mr Yeo was prepared to make such approaches in ways that would have been in breach of the Code. This does not follow from the fact that he was prepared to engage in prohibited lobbying by means of approaches to Ministers and civil servants, but his willingness to do that does make it more likely. In my view Mr Yeo said enough in the Meeting to justify the conclusion that he was willing to approach other MPs to seek their support for measures to benefit Haemosu, including changes to the building regulations that would specially favour the company’s product. That may or may not have involved urging MPs to vote in particular ways, but applying the approach indicated by Parliament itself ([43] above) it would have been a breach of the Code.
  6. I add that in my judgment, Mr Yeo also showed willing to do the following in return for the consultancy fees on offer:

(1) to guide CGG and its client on the best ways to influence the ECCSC;(2) to do so by showing them submissions to the ECCSC which had been influential in the past, and thus giving them privileged access to inside information. This was not just an offer to point them to publicly available sources showing the committee’s response to earlier submissions; it was akin to a judge helping out a litigant by pointing out passages in previous skeleton arguments which the judge knew to have influenced the court in those cases.

  1. It is not strictly necessary for me to address the issue, raised by both sides, of whether the substantial truth of the defamatory sting would be made out by proof that Mr Yeo had been prepared to act, and had offered himself as willing to act as a paid advocate in breach of the Code in one, but not both, of the ways specified in the defamatory factual imputation. It is my clear opinion, however, that it would. If TNL had proved a willingness, and a preparedness, to act as a paid Parliamentary advocate in one of those two ways the substantial truth of the defamatory imputation would have been made out, even if the other had not been proved. It would be artificial and unrealistic to conclude that Mr Yeo had been libelled because it was not shown that he was willing to use his role as a paid advocate to push for new laws, although he was willing to do so by approaching Ministers. The reverse is equally true. In my judgment this conclusion is consistent with the way Mr Yeo himself presented his case in his evidence. He presented the matter as if any imputation that he was willing and had offered to engage in paid advocacy in breach of the Code was of equal, and considerable, gravity. He did not seek to draw distinctions between the different ways in which he was accused of doing so. I agree with that approach.

THE MITCHELL CASE AT TRIAL

Many will make comparisons with the Mitchell case, involving as it does a Conservative MP.  However my view is that Mitchell case was different. Mr Mitchell was honest, but mistaken, his recollection having been coloured by subsequent (wholly wrong) assertions about what he had said. In the Yeo case the judge found that there was no ambiguity in relation to the issue of credibility.

See:

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