NI Assembly Insurers Refuse to Cover Sinn Féin’s Phil Flanagan for Compensation and Costs Awarded in Tom Elliot Libel Case

It’s worth noting to begin with that that refusal is in accordance with advice given to Jack Peel, Deputy Head of Finance, NI Assembly in March 2011 by Karen McLaverty, Vice President, Marsh Ltd, who provide the Assembly insurance broking and risk management services.

Nineteen months after libelling the former UUP leader, Tom Elliot, then an MLA, now MP for Fermanagh and South Tyrone [since May 2015], the recently deselected Sinn Féin MLA, Phil Flanagan, appeared in Belfast High Court yesterday where he recognised the allegations were defamatory and baseless, formally apologised and agreed to pay compensation and costs.  The Sinn Féin MLA later tweeted an agreed statement in which he accepted his original tweet was untrue, wholly without foundation and apologising for all offence caused.

Setting aside the irony of Phil Flanagan’s original libellous allegations – in that they could have, more accurately, been directed at some of his own party colleagues without fear of libel – there are a couple of points of interest in this case.

Firstly, having deleted the original tweet an hour after posting it in May 2014, why did it take 19 months for the Sinn Féin MLA to accept his allegations were untrue, wholly without foundation and apologise?  As the UUP’s Tom Elliot, MP, said after the hearing [Edit: new link to UUP statement]

Mr Elliott said: “I have been totally vindicated and Phil Flanagan has admitted that the comments he made were totally untrue. I am very disappointed that it has taken so long to get to this stage.

“This could have been resolved 19 months ago, but unfortunately I was forced to go down this route. Despite that, I am delighted with the result.”

The other point, possibly related, concerns who will actual pay the compensation and costs awarded.  As the BBC report notes

The court was also told that the insurance firm which indemnifies MLAs at Stormont, has refused to cover Mr Flanagan in respect of any compensation and costs in this case.

The Sinn Féin MLA is challenging that decision in a separate court action. [added emphasis]

The Irish News report notes some of the submissions on compensation

Mr Justice Stephens was told Mr Flanagan has been unable to advance an offer of compensation because of the unresolved issue with insurance.

The defendant’s barrister, Desmond Fahy, argued that because of his client’s efforts to make amends the judge should heavily discount the level of damages decided on.

But David Dunlop, for Mr Elliott, argued that it took until yesterday’s hearing to secure a public apology.

“The defendant had every opportunity from May 1, 2014 until January 8, 2016 to tweet that what he said was untrue and wholly without foundation and to apologise to the plaintiff, but he hasn’t done so and he has called no evidence to explain why he hasn’t done so,” Mr Dunlop argued.

Claiming the discount on compensation should be limited, he added: “Accusing a person who has a responsible position as an elected representative and who has previously served as a soldier in the Ministry of Defence of harassing and shooting people must be towards the top end of the scale.”

Judgment was reserved on the level of damages.

Pledging to give his verdict as soon as possible, the judge said: “The case has raised points I have to reflect on and consider.”

In the News Letter Sam McBride suggests the bill could be significant

It also emerged in court that Mr Flanagan – who was deselected by Sinn Fein last month and so will end his term as an MLA in May – had hoped to avail of taxpayer-funded insurance which indemnifies MLAs from actions arising from defamatory comments which they make.

However, the insurer has refused – for reasons which were not made clear in court – to pay for his case.

Mr Flanagan is now suing the insurer in a separate case which has yet to come to court.

As things stand, he will have to pay compensation to Mr Elliott as well as the legal costs for both sides of the action.

This afternoon [Friday 8 Jan] the case resumed at the High Court, with Mr Flanagan’s barrister confirming that he would not be calling his client to offer any evidence in his defence.

After consulting with his client, the barrister confirmed that Mr Flanagan would tweet his apology to Mr Elliott by midnight tonight.

The judge, Mr Justice Stephens, reserved judgement on the issue of costs.

A previous libel by Sinn Fein, where the party defamed former Northern Ireland Water director Declan Gormley by untrue allegations about his financial conduct, saw the party having to pay £80,000 in compensation, as well as a far bigger legal bill.

However, unlike that case which went to trial with Sinn Fein denying that its statements had been defamatory, in this case Mr Flanagan accepted that what he had done was wrong, meaning that the judge is likely to give him a discount.

Today’s hearing was told that typically such discounts can be in the range of 33 to 50 per cent of what would ordinarily have been awarded against him.

Mr Flanagan’s barrister, Desmond Fahy, argued that because of his client’s efforts to make amends the judge should heavily discount the level of damages which he decides to award.

But Mr Elliott’s barrister, David Dunlop, argued that it took until today’s hearing to secure a public apology.

Unlike the NI Water libel case, which involved Sinn Féin press releases published on the party website, the party is unlikely to pick up the tab for Mr Flanagan in this case.

As for the reasons why the NI Assembly insurer has refused to cover any compensation and costs awarded…

Presumably Phil Flanagan assumed the Assembly insurance previously availed of by the DUP’s Paul Givan might apply?

Although, to my knowledge that is the only case when an MLA has used that policy cover.

But if that is his assumption, he might have to think again.

Several documents relating to the MLAs indemnity insurance were released following Mick’s FOI request in April 2013.

That particular policy seems to be renewed on a yearly basis, with AIG Europe Ltd in 2013/14 [pdf file], but assuming that the terms and conditions remain the same – including the 2013 increase in the excess to GBP 25,000 [3.7Mb pdf file] rather than an increased premium- Phil Flanagan’s claim would appear to fall under Libel and Slander cover in the Public Liability section.  I doubt that Employers’ Liability would cover Phil Flanagan’s twitter activity and, in any case, that mentions Bodily Injury but not Personal Injury.

Among the documents released in June 2013 is a March 2011 email from Karen McLaverty, Vice President Marsh Ltd, who provide the Assembly insurance broking and risk management services, to Jack Peel, Deputy Head of Finance, NI Assembly, et al. [scroll down, page 3 of 14 in 250Kb pdf file]

Having looked at the policy wording, I would advise as follows:

There is no libel/slander/defamation cover if an employee of the NIA or NIA Commission (NIAC) alleges another employee of the NIA or NIAC has libelled or slandered them. [added emphasis]

There is no libel/slander/defamation cover in respect of remarks/articles made by a third party (not an employee of NIA or NIAC) against an employee of NIA or NIAC.

There is cover however in respect of libel/slander/defamation if an employee of the NIA/NIAC makes defamatory remarks/articles etc in respect of a third party who is not an employee of NIA nor NIAC.

And, for the purposes of clarity, a 17 April 2013 email from Jack Peel, from the same document [page 7 of 14, pdf file]

The Assembly has an extension to its Combined Employers’ and Public Liability Insurance Policy to cover Libel and Slander made by employees of the Assembly (the insurers have since clarified that “employees” is deemed to include Assembly Members).  The extension was added in 2010/11 and the Assembly was advised that it was added at no additional cost to the Assembly. [added emphasis]

Since in May 2014, the date of the original libellous allegations, both Tom Elliot and Phil Flanagan were Northern Ireland Assembly Members, that leaves only one outstanding question – who’s advising Phil Flanagan?

Adds Today’s Irish News [12 January] has confirmation of the lack of insurance cover from a NI Assembly spokeswoman.

The Northern Ireland Assembly yesterday explained why its insurance does not cover the case.

A spokeswoman said: “Under the terms of the current policy the insured are ‘the Northern Ireland Assembly and the Northern Ireland Assembly Commission.

“The policy indemnifies for claims against the ‘insured’ and as both Mr Elliot and Mr Flanagan are deemed to be ‘the insured’, indemnity does not apply.”

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  • Kevin Breslin

    I suppose if Tom Elliot (or anyone else in his party) libels Phil Flanagan, Phil is then covered.

  • chrisjones2

    Perhaps the key lies in Exclusion 3

    Perhaps the key lies in Endorsement Number 3

    Libel & Slander Extension

    Section 2 of this Policy extends to indemnify the Insured in respect of an Occurrence

    arising out of libel or slander.

    Provided always that:

    (a) indemnity will not apply in respect of any libel or slander that is:

    ……………………………………………………………….

    (2) made by or at the direction of the Insured or any Employee of the

    Insured with the knowledge of the defamatory nature thereof;

    (3) made by any person acting outside of the scope of their authority.

    But how will Phil pay? Didn’t he say once on TV that SF kept so much of his pay that he was forced to live on benefits – a very odd statement for someone on £50k a year

  • chris

    It would appear to be simpler than that. As the Vice President of Marsh Ltd I quoted in the original post said

    There is no libel/slander/defamation cover if an employee of the NIA or NIA Commission (NIAC) alleges another employee of the NIA or NIAC has libelled or slandered them.

  • chrisjones2

    Are MLA’s employee’s? They are elected not employed?

    In any case why should the tax papers indemnify them for libel

  • “Are MLA’s employee’s?”

    Yes. Read the original post. All the way to the end…

  • Gopher

    If an MLA is on 50K the payout would have to be proportionate to income, the fact that SF MLA gets shaken down for his pay has no bearing. Is there a legal or political Darwin award?

  • chrisjones2

    Sorry I missed that one

  • AndyB

    Interesting point.

    Even if libel against other MLAs had been covered, there would be an excess of £25,000.

  • Yes, AndyB

    Even if it was covered…

  • Kevin Breslin

    Good research.

  • Kevin

    It’s not relevant when one MLA has libelled another MLA.

    There is no libel/slander/defamation cover if an employee of the NIA or NIA Commission (NIAC) alleges another employee of the NIA or NIAC has libelled or slandered them.

  • Kevin Breslin

    So it’s academic research, I guess. Good!

  • chrisjones2

    No its dependant on the damage done by the lies

  • Jag

    “having deleted the original tweet an hour after posting it in May 2014, why did it take 19 months for the Sinn Féin MLA to accept his allegations were untrue, wholly without foundation and apologise?”

    The original tweet which has been widely reported in recent days including on the BBC here (http://www.bbc.com/news/uk-northern-ireland-35266927) said

    “Tom Elliott speaks to Steven Nolan about past.I wonder if he will reveal how many people he harassed and shot as a member of the UDR.”

    Maybe Phil Flanagan thought this was a legitimate question rather than a suggestive statement of fact. Did Phil conceivably think the answer to both questions might have been zero?

    If I write on Twitter today “I wonder if Joe Soap (not a real name) will reveal how many times he has beaten his wife” is that libellous of Joe Soap? It’s not a statement that Joe beats his wife. The answer could conceivably be zero. It is a loaded question, no doubt and suggests the possibility that Joe might beat his wife, but there exists the possibility that theoretically every husband could beat their wife.

    Phil Flanagan’s apology states “I posted a tweet alleging that Tom Elliott was responsible for harassing and shooting people during his service with the UDR. I now accept this was untrue and wholly without foundation and I apologise for all offence caused”

    But did Phil in fact allege as fact that Mr Elliott was “responsible for harassing and shooting people during his service with the UDR” Didn’t Phil merely suggest that possibility and frame it as a question.

    I didn’t hear the case. Is the judgement yet online [EDIT: it appears that the libel was settled, but a judgement is expected on damages]. But I can imagine some argument about the nature of the allegation. And that might be the reason for the delay in tweeting the apology.

  • Jag

    There’s no need to re-examine the libel. From the agreed statement read out in court.

    A letter was sent to the Defendant on the 2nd May 2014 concerning the “tweet”, but did not result in any response or an apology. The Plaintiff issued proceedings on 2nd June 2014 and on the 26th September 2014 the Defendant responded through his solicitors and made a qualified offer of amends in accordance with Section 2 of the Defamation Act 1996.

    The Defendant admitted his tweet had the following meaning:

    ‘The Plaintiff was responsible for harassing and shooting people during his service with the UDR.’

    The Defendant has accepted his statement was untrue and wholly without foundation and has apologised for all offence caused to the Plaintiff.

    The Defendant has also agreed to pay damages to the Plaintiff and to pay his legal costs.

  • Jag

    Pete,

    You ask the question why it took 18 months for an apology to be made by Phil to Tom.

    Having read the statement read out in court, Phil made a “qualified offer of amends” four months after the original Tweet. Why “qualified”? Could it be presumed that, at that point, Phil didn’t accept that he had libelled Tom without qualification? I can’t see any other explanation. And if that is indeed the case, then you can clearly see why it required a court hearing, or the prospect of a court hearing, 18 months on from the original Tweet before Tom got the apology he got last week. Just because you get a settlement between opposing parties in a court case, doesn’t mean that the judge would necessarily have determined the same settlement, nor does it mean that one of the parties might have previously expected or hoped for a different outcome.

  • Not if they’re an “employee” of the NI Assembly or the NI Assembly Commission. And Phil is still an MLA…

  • Adds Today’s Irish News [12 January] has confirmation of the lack of insurance cover from a NI Assembly spokeswoman.

    The Northern Ireland Assembly yesterday explained why its insurance does not cover the case.

    A spokeswoman said: “Under the terms of the current policy the insured are ‘the Northern Ireland Assembly and the Northern Ireland Assembly Commission.

    “The policy indemnifies for claims against the ‘insured’ and as both Mr Elliot and Mr Flanagan are deemed to be ‘the insured’, indemnity does not apply.”