Strasbourg
rejects radical reform of English defamation law
McVicar v UK Application 46311/99, Judgment
7 May 2002
The
repetition rule is compatible with freedom of expression
Mark v Associated Newspapers Limited (30
May 2002, Court of Appeal)
Successful
privacy ruling for diner photograph for a restaurant review
Hugh Tunbridge v Dorking Advertiser, 22
February 2002: Press Complaints Commission
Actor's
business telephone number is not private
Steve Bing v The Mirror, 6 December 2001: Press Complaints
Commission
Castaway 2000 participant lands damages for poor
portrayal
Copsey v BBC and Lion Television Ltd (27 May 2002,
Eady J)
Teacher wins £1250 for Friends Reunited libel
Jim Murray v Jonathan Spencer (20 May 2002, Lincoln
County Court)
Freelancer pays for selling pictures of soccer cheat's
lovers
MGN Ltd v Harold Holborn trading as Contact Pictures
(22 April 2002, Jacob J)
Newspaper payouts to witnesses
Lord Chancellor's Consultation Paper
Supermodel's former PA wins permission to appeal
Campbell v Frisbee (26 May 2002, Court of Appeal)
Hamilton backers not required to pay Al Fayed's costs
Hamilton v Al Fayed, Sir Robert McAlpine Ltd and 7
Others (17 May 2002, Court of Appeal)
Lawyers lose £191,000 on Conditional Fee Agreement
Bonnie Louise Woods v Sheila Chaleff (30 April 2002,
Supreme Court Costs Office)
House of Lords faces possible Strasbourg appeal for
failing to give reasons
Grigori Loutchansky v Times Newspapers Ltd (16 May
2002, House of Lords)
Cook Report libel trial to commence in October
Cook v News Group Newspapers Ltd (21 May 2002, Eady
J)
Hamilton's alleged sex attack: complainant charged
with perverting the course of justice
R v Nadine Milroy-Sloan
Article not capable of accusing soldiers of on-duty
affair
Pedder and Dummer v Times Newspapers Ltd (22 May 2002,
Gray J)
Having lost his reputation, Holocaust denier Irving
now set to lose his home
David Irving v Penguin Books (21 May 2002, Peter Smith
J)
Al Fayed to sue Sunday Telegraph over uranium smuggling
allegations
Al Fayed v Telegraph Group Limited
Chinese survivor of Japanese slaughter wins damages
Li Xiuying v Toshio Matsumura (10 May 2002, Tokyo District
Court)
Countess wins libel claim for Profumo affair allegations
Maureen Cecilia Ward, Countess of Dudley v Macmillan
Publishers Ltd (7 May 2002, Gray J)
Jeweller wins damages for rival's slander to newspaper
reporter
Nigel Cowley v Roger Clayden & Blue Finger Promotions
Ltd (7 May 2002, Gray J)
McVicar v UK Application 46311/99, Judgment 7 May 2002
The
European Court of Human Rights has rejected an attempt by author John
McVicar to reform English libel law and procedure. He sought to overturn
two longstanding features of defamation proceedings. Firstly he argued
that state funding should be available to defend libel cases. Secondly,
he sought a reversal of the burden of proof, so that a claimant would
be obliged to prove that the defamatory allegation was untrue, rather
than the defendant having to prove that it was true.
The case stemmed from a 1995 article about Linford Christie in the now
defunct satirical magazine 'Spiked'. The former sprinter claimed that
the article alleged that he was 'a cheat who regularly used banned performance
enhancing drugs'. On a majority verdict, the jury found that McVicar
had not proved the allegation to be true. The lack of legal aid in defamation
actions meant that McVicar represented himself at the trial and for
most of the litigation. Although no damages were claimed by Christie,
McVicar was left with costs and an injunction preventing any repetition
of the allegation. The following year, the athlete was banned for two
years after failing a test for the anabolic steroid, nandrolone.
McVicar asked the European Court to rule that he did not get a fair
trial and his freedom of expression was violated. Under Article 6 of
the European Convention on Human Rights everyone is entitled to a fair
and public hearing. Under Article 10 everyone has a right to freedom
of expression, subject to restrictions, which are either prescribed
by law or necessary in democratic society, to protect the reputation
or rights of others.
Fair Trial (Article 6)
McVicar claimed that the lack of legal aid forced him to represent himself
and that in consequence, he was deprived of "effective access" to the
court. The complexity of defamation law and procedure led to him making
errors that resulted in important evidence being excluded. While he
had limited assistance from an advocate shortly before the trial, the
errors could not have been rectified. In any event, he was substantially
disadvantaged by having to represent himself at trial. Faced by a wealthy
opponent, he was not on a level playing field.
The UK government argued that, with limited resources, it is for the
state to determine how effective access to the courts is achieved. In
any event in this case the advocate involved was fully informed and
McVicar himself was well able to formulate and express arguments. It
was also fair for the party who asserted an allegation to have to prove
it. As to the rules, they were straightforward but McVicar failed to
comply with clear court directions.
The
European Court decided that McVicar was not prevented from presenting
his defence effectively to the High Court nor was he denied a fair trial
by reason of his ineligibility for legal aid.
Its
reasoning was that:
- the UK has a free choice as to how it guarantees effective access to courts;
- the rules to exclude witnesses and expert evidence were clear and unambiguous;
- he was an intelligent journalist;
- he was represented for a time by a specialist defamation lawyer.
Here, McVicar argued that writers and publishers of limited means might be deterred from publishing material of public interest because they could not afford proper representation in any subsequent defamation claim. In addition, the exclusion of his evidence by the court was disproportionate as was the burden of proof. A proper balance between freedom of expression and reputation would have required Christie to prove that the allegations were false.
In setting the penalty it imposed a fine below those paid by newspapers in the past for more serious intentional offences. It accepted that deterrence was not a significant factor for MGN; the prospect of the proceedings was itself of considerable deterrence and matters could have been worse, there was a retrial rather than a permanent stay. Furthermore, although they were relevant, any penalty was not related to the costs thrown away in the original trial. In this case, the gravity of the offence was such that costs were not a sufficient penalty and the fine of £75,000 was in addition to agreed costs of £54,000.
The UK government submitted that freedom of expression was not absolute. Procedures prescribed by law were necessary to protect the reputation of others. There was always a need to balance the rights of claimants and defendants. Such a balancing exercise was within the state's 'margin of appreciation' for determining competing rights.
The court decided that McVicar's freedom of expression was not unjustifiably restricted by the unavailability of legal aid and the requirement to prove that the allegations in the article were substantially true on the balance of probabilities.
Its reasoning was that:
- it was incumbent on the media to impart information and ideas on matters of public interest and the public also has a right to receive them;
- but article 10 does not guarantee wholly unrestricted freedom of expression;
- alongside the freedom are duties and responsibilities and where reputations are attacked, the freedom relies on the proviso that journalists act in good faith;
- on the facts of this case, McVicar's ineligibility for legal aid did not interfere with his right of freedom of expression;
- the interference with McVicar's freedom of expression was justified as necessary for the protection of the reputation and rights of Christie.
The consequences of the allegations made against Christie were grave. It was for McVicar to verify the allegations to a high standard but he only did so after the event, a year later. The excluded evidence, which was said to be crucial, was presented vaguely a year after publication and only elaborated on on the eve of trial. Proving the allegations as substantially true was a justified restriction on McVicar's freedom of expression in order to protect the reputation and rights of Christie.
Comment
Having represented John McVicar, we may not be the most impartial commentators. Whatever the rights and wrongs of the underlying arguments, it is regrettable that the European Court of Human Rights did not tackle them head on instead of deciding the case on the facts as they saw them. Once again, we are left wondering whether the absence of state funding for defamation cases can ever be a breach of Article 6. It was a fiction to say that McVicar's intelligence and the very limited representation provided by us came anywhere near ensuring a level playing field - a convenient fiction since it allowed the Court to duck the fundamental issue of principle. On the burden of proof, the Court seemed unduly influenced by the fact that some of McVicar's evidence emerged after the article was published. So what? That does not mean that it is any the less valid or cogent and it does not affect the fundamental issue of whether it is consistent with Article 10 for a journalist to be found liable in defamation without it being proved that the publication was untrue.
Mark v Associated Newspapers Limited (30 May 2002, Court of Appeal)
Miss Mark appealed the ruling of His Honour Judge Previte QC striking out the meanings pleaded in her libel action against Associated Newspapers Limited. Miss Mark was a former nanny to the Prime Minister's family. She had written a book about her experiences. The Blairs obtained an injunction against publication of material from the book by the Mail on Sunday ("MoS"). The following day the Daily Mail published the article on which Miss Mark sued. Amongst other things, the article alleged that Miss Mark had "misrepresented her position", that she had said to the MoS that breach of confidence "would not be a problem". It also reported that Miss Mark had claimed to be "devastated" by the proposed MoS article, having previously suggested that she had co-operated with the newspaper.
The defamatory meanings Miss Mark sought to attribute to the article were that she had lied when she denied authorising the publication of material from the book by the MoS and claimed to be devastated by the MoS article; when the truth was that she had willingly cooperated with the newspaper in the disclosure of such material. Judge Previte ruled that the words were not reasonably capable of bearing such meanings and that in any event, this was a "bane and antidote" case where statements in the article from MoS and Miss Mark balanced each other out, leaving a neutral picture. The defendants also argued that the repetition rule in English libel law was inconsistent with Article 10 ECHR. (The repetition rule states that where X repeats the statement of Y that Z is a thief, he cannot defend a claim on the basis that it was true that Y said Z is a thief - he must prove that it is true that Z is a thief).
The
Court of Appeal upheld the appeal. It found that the article was open
to the meanings contended, as being within the range of meanings that
a reasonable reader could understand the article to bear. In doing so,
the court held that the repetition rule in English libel law was not
incompatible with the European Convention on Human Rights jurisprudence.
'Reportage' - the neutral reporting of what another had said - was recognised
by the court as being capable of causing considerable harm, and to rule
otherwise would be to create a legal "fiction". Where appropriate, reported
speech could be protected by the defence of qualified privilege. The
court also concluded that the mere printing of a denial of a defamatory
allegation would rarely be sufficient antidote to neutralise the bane,
and that was the case here.
Comment
We act for Miss Mark and are unable to comment.
Hugh Tunbridge v Dorking Advertiser, 22 February 2002: Press Complaints
Commission
The
PCC upheld a complaint by Hugh Tunbridge that a secretly taken photograph
of him eating with a companion in a quiet Dorking café was an invasion
of his privacy. The photograph was used without consent to illustrate
a local restaurant review and was said to have breached the PCC's Privacy
Code.
The PCC considered that although the use of the photograph might appear
trivial, there was an important principle at stake. The Privacy Code
defines a 'private place' as anywhere, private or public, where there
is a 'reasonable expectation of privacy'. Although the café was a public
place, the PCC reasoned that customers in a quiet café can expect to
sit inside without having to worry that surreptitious snaps would be
published in newspapers. In this case 'There was no suggestion that
the complainant was easily visible from the street…' and 'all the circumstances
suggested' that Hugh Tunbridge could expect to dine without intrusion.
Comment
At first sight, the PCC's decision puts a brake on the freedom of
press photographers and affords protection to diners. Many will welcome
the prospect of being able to eat in peace and not have lenses poking
around in their pommes de terre. But the decision leaves vexed questions
for both photographers and diners because the criteria for the scope
of the privacy is vague. If diners want privacy, they will have to work
out how far away from the window to sit or whether the corner they choose
is dark enough. It will be no less easy for photographers who will have
to decide, on the basis of very generalised guidelines, whether 'all
the circumstances suggest that the diners are clearly in a place where
they have a reasonable expectation of privacy'. In reality, photographers
won't know where they stand and diners won't know where to sit.
News Reports
Restaurant
diner wins privacy case over picture
Chris Gray
24 May 2002
Steve Bing v The Mirror, 6 December 2001: Press
Complaints Commission
The privacy of Steve Bing was not invaded when The Mirror published the telephone number of his Los Angeles film company and encouraged readers to call his office and let him know what they thought about his behaviour towards Liz Hurley. The former lovers had argued publicly over the paternity of Hurley's child and the newspaper viewed his conduct as cruel. The PCC agreed that Bing's general office number was widely available and that none of his personal numbers were published. Given his high-profile relationship with Hurley, scrutiny by the press was inevitable and there was no intrusion. Where there was no breach of the PCC's code, the commission would not interfere with the editorial decisions of a free press.
Copsey v BBC and Lion Television Limited (27 May 2002, Eady J,
Statement in Open Court)
Ron
Copsey, a participant in the Castaway 2000 project, has succeeded in
his libel actions against Lion Television and the BBC. The action arose
from his portrayal on the Castaway 2000 series, and in particular an
episode broadcast on BBC1 in September 2000. This included coverage
of a dispute between Mr Copsey and another (female) participant in the
project, which gave the impression, falsely, that Mr Copsey had assaulted
the participant by throwing a chair at her. In an agreed Statement in
Open Court the production company and broadcaster apologised to Mr Copsey
and confirmed that they had agreed to pay him damages and legal costs.
Mr Copsey obtained a total of £16,000 damages. Lion and the BBC also
agreed to edit the episode in question to ensure that the same allegation
did not appear in future repeats.
Comment
This victory is, according to our researches, the first time a reality
TV contestant has successfully sued a television company over the manner
of their portrayal on screen. It signifies that the subjects of such
programmes (such as Castaway and Big Brother) can indeed make a stand
if they are presented in a distorted fashion on screen. The fact that
a contestant agrees to take part in such a programme does not provide
a carte blanche to programme makers to make entertaining television
at the expense of the reputation of contestants.
Links
News Reports
BBC
pays damages to angry castaway
Matt Wells
28 May 2002
Castaway
Ron in court victory
Lisa O'Carroll
27 May 2002
Castaway
Ron to sue BBC for libel and says: 'I'm no drama queen'
John Arlidge
17 June 2001
Jim Murray v Jonathan Spencer (20 May 2002, Lincoln County Court)
Jonathan
Spencer, former pupil of ex-teacher Jim Murray, paid the price for posting
libellous comments on the Friends Reunited website. Spencer was sued
after claiming that Murray had been sacked for making 'rude remarks
about girls' and 'strangling' a pupil. In fact, Mr Murray had retired
from the Doncaster comprehensive. Mr Spencer, now a teacher himself,
accepted it was a 'stupid remark'. In a hearing in Lincoln County Court
- an unusual venue for a libel case - he was ordered to pay £1,250 in
damages and costs of £150. Mr Murray dismissed the award as 'peanuts'
and 'pathetic' and blamed Friends Reunited for 'giving immature young
people the chance to have a go.' The website's operators - who removed
the offending material promptly - were not sued.
Comment
The case again illustrates the dangers of internet libel. The informality
of the process can lull participants into a false sense of security.
It would have more interesting if the operators had been sued. The chances
are that the statutory defence under s 1 of the Defamation Act 1996
would not have been available. The provision ensures that anyone who
is not an author, editor or publisher of a statement will not be liable
if they took 'reasonable care in relation to its publication'. Operators
such as Friends Reunited have a greater degree of involvement than mere
access providers and are likely to be considered "editors" or "publishers"
and therefore liable in the same way as the author.
Links
News Reports
Web
of Lies: Teacher wins libel case over jibes on Friends Reunited
Nathan Yates
21 May 2002
Teacher
wins damages in Friends Reunited libel case
Martin McNamara
21 May 2002
Comment
Web
warning
Dan Tench
27 May 2002
Lessons
in libel
Fiona Patten and Hilton Mervis
23 May 2002
Back to top
MGN Ltd v Harold Holborn trading as Contact Pictures (22 April 2002, Jacob J)
A freelance photographer commissioned by the Sunday People to snap the mistresses of soccer "love cheat" Gary Flitcroft, was injuncted by the newspaper after he sold the photographs on to a rival newspaper.
Harold Holborn of Oldham based agency Contact Pictures was accused by the judge of not being 'full and frank' in his dealings with MGN Ltd by failing to tell the Sunday People that he had already handed the photographs to the News of the World. Holborn claimed his £180 fee from the Sunday People only covered first use rights and that he owned the copyright. The Sunday People argued that there was a court order preventing the identification of Flitcroft and his two mistresses, in a case then known as A v B and C; it had won an injunction to stop the sale of the photographs and Holborn was in receipt of confidential information and he was not at liberty to disclose it.
Despite
Holborn objecting to the Sunday People's application for its
legal costs, he was ordered to pay £15,000.
Lord Chancellor's Consultation Paper on newspaper payments to witnesses
The
government is proposing to introduce legislation that will outlaw media
payments to witnesses involved in criminal proceedings. It is currently
seeking responses. If the legislation is passed it will be a criminal
offence to pay, or agree to pay, a witness in active criminal proceedings
for stories to be published after the trial.
The Press Complaints Commission in its submission has argued
that the freedom of the press is dependant on journalists being free
to acquire information in the public interest. It also claims the government's
concern is unwarranted. Effective self-regulation has ensured that there
are few if any verdicts that have been affected. The government cites
payments in five high profile cases to support the need for legislation.
Back to top
Campbell
v Frisbee (26 May 2002, Court of Appeal)
Vanessa
Frisbee, the former personal assistant to Naomi Campbell, has been granted
permission by Brooke LJ to appeal against an earlier decision in favour
of the model. Naomi Campbell is suing her former PA for breach of confidence
in relation to an article in The News of the World entitled 'Fiery
model attacks aide over secret love scenes with heart throb Joseph Fiennes'
on 4 June 2000. The model alleges that Vanessa Frisbee supplied information
to the newspaper in breach of their confidentiality agreement. The Deputy
Master granted Naomi Campbell summary judgment for part of her claim
relating to details of Miss Campbell's affair with Joseph Fiennes published
in the article, which Vanessa Frisbee had admitted supplying to the
newspaper. That decision was upheld on appeal to Lightman J. Miss Frisbee
appeals on the basis that the confidentiality agreement was no longer
binding due to an alleged assault on her by the model, and that there
was a public interest in publication of the information.
Earlier this month permission was granted to The Mirror for an
appeal against Mr Justice Morland's award of damages in favour of Miss
Campbell over allegations published in The Mirror relating to
Miss Campbell's visits to Narcotics Anonymous meetings. The Master of
the Rolls, Lord Phillips, has now directed that the two Naomi Campbell
appeals will be heard together in the Court of Appeal on 8 or 9 July
2002.
Comment
We act for Miss Frisbee, and are unable to comment.
Mostyn Neil Hamilton v Mohamed Al Fayed, Sir Robert McAlpine Ltd
and 7 Others (17 May 2002, Court of Appeal)
The
Court of Appeal rejected an attempt by Mohamed Al Fayed to make Neil
Hamilton's backers liable for the costs of his unsuccessful libel claim.
The claim resulted in a costs order of over £1 million against Mr Hamilton
which was way beyond his assets. His action had been funded by a group
of backers, who provided assistance under an agreement which purported
to entitle them to their money back if Mr Hamilton won, but would not
make them liable for Mr Al Fayed's costs if Mr Hamilton lost. Mr Al
Fayed made an application to the trial judge, Morland J, for an order
that the unrecovered costs should be paid by the backers. This was refused.
Morland J ruled that only very rarely would it be just and reasonable
to make such an order, and that some exceptional further feature was
required. Having considered all the circumstances of the case, in particular
that the backers did not have any improper purpose, it would have been
unjust to penalise them with an order for costs.
The Court of Appeal expressed their sympathy with Mr Al Fayed at having
successfully defended a claim, while finding himself substantially out
of pocket. Nevertheless, the policy of giving priority to access to
justice for impecunious litigants prevailed over the rights of their
opponents to recover their costs. If backers were to be made responsible
for such costs, funding would be withdrawn and access to justice would
suffer. This accorded with other types of claim brought by impecunious
parties, such as those funded by a conditional fee agreement or legal
aid. Funding of litigation was generally to be permitted if intended
to assist in a genuine claim. However the court did find that Morland
J had erred in taking into account Mr Al Fayed's conduct in the witness
box and subsequently. Nevertheless, if it had exercised its discretion
afresh, it would have reached the same ultimate conclusion as the judge.
The Court also found that had it been necessary, they would have accepted
the respondents' arguments on causation. In the case of Lord Portsmouth,
it could be shown that his contribution to the costs of Mr Hamilton's
claim had not directly caused Mr Al Fayed to incur any legal costs,
because the contribution was made after the decision had been taken
by Mr Hamilton's solicitors to proceed to trial. Given the decision
to uphold the judge's ruling, it was not necessary to explore this issue
in relation to the other funders.
Comment
This is another example of how judges will generally do all that they
can to ensure that litigants have access to the courts to air their
grievances, even if that means that some defendants will find themselves
in a no-win situation.
Links
Judgment
Back to top
Bonnie Louise Woods v Sheila Chaleff (30 April 2002, Supreme Court Costs Office)
Cult
buster Bonnie Woods settled her libel action against the Church of Scientology
on the door of court. She was awarded £55,000 in damages and the defendants
agreed to pay her costs, which were claimed to be around £200,000. But
her lawyers may well end up with nothing. Top city firm Allen & Overy
and barristers from libel set 5 Raymond Buildings were acting under
conditional fee agreements which costs judge Master Rodgers held unenforceable.
The agreements were governed by the 1995 Conditional Fee Regulations,
which were amended in April 2000. The CFAs breached three main provisions.
They failed to set out: the method of calculating the amount payable,
whether the costs claimed were limited by the amount of damages and
certain specific matters that had to be drawn to the client's attention.
The Master rejected the submission that the regulations should be given
a purposive construction.
Comment
This case gives a very clear warning to practitioners. If your agreement
is not within the statutory regulations, do not expect any help from
the courts. Parliament has set out the requirements for lawful conditional
fee agreements and they must be observed.
Grigori Loutchansky v Times Newspapers Ltd (16 May 2002, House of Lords)
The
House of Lords has refused The Times leave to appeal twice in
as many weeks. Both petitions were in the long running series of actions
between the newspaper and the Russian businessman, Grigori Loutchansky.
Two issues were at stake. Firstly, whether documents acquired after
publication can be used to support the 'Reynolds' public interest element
in a plea of qualified privilege. Secondly, whether the one-year limitation
period for defamation actions applies to publications on the internet.
On the first question, the trial judge Mr Justice Gray, disallowed any
reliance by the newspaper in its defence on documents purporting to
set out the reasons for Loutchansky's exclusion from the UK since 1994,
the USA's refusal of a visa for him and his inclusion in police and
intelligence reports by Interpol, Israel and Austria. These were acquired
by the newspaper after publication of the defamatory articles. The Court
of Appeal agreed with Mr Justice Gray.
Both courts agreed on the second point too. They ruled that Loutchansky
had a new cause of action based on The Times' internet archive
edition of the defamatory article. This was despite the fact that the
action was initiated over a year after the original articles were published
and therefore outside the limitation period for defamation. This is
unlike the USA where publication is deemed to take place when the article
is transferred to the web and not each time it is accessed.
The Times' main concern now appears to be that the Law Lords
gave no reasons for their decision in either case. According to the
paper's in-house lawyer, Alastair Brett, this flouts the Human Rights
Act 1998. The Act incorporates into English law Article 6 of the European
Convention on Human Rights under which there is a right to a hearing
which is fair. According to Brett, European case law makes clear that
this right includes a requirement that a court should give reasons for
its judgment. There is a strong possibility that The Times will
take its case to the European Court but is awaiting the outcome of a
further hearing before Mr Justice Gray.
Comment
Whatever one thinks of Mr Brett's approach to litigation, he could
never be accused of lying down and allowing himself to be tickled. It
is fair to say The Times have secured significant benefits to the media
in cases such as Reynolds, Burstein and (to a limited extent) in Loutchansky
- which other publishers have gratefully accepted gratis. However, it
is also worth pointing out that, while securing legal gains, the Times
lost the appeals in both Reynolds and Burstein and are likely to lose
again in Loutchansky when the case comes back before Mr Justice Gray.
Links
News Reports
To
QP or not to QP?
Jennifer McDermott
7 January 2002
Cook v News Group Newspapers Ltd (21 May 2002, Eady J)
Following
the publication of articles alleging that the Cook Report programmes
were 'a sham' and misled viewers, the News of the World faces
a series of libel actions from the presenter Roger Cook, the production
company, Carlton TV, and a number of staff involved in making the programmes.
News Group Newspapers, publishers of The Sun, News of the World and
The Times, applied recently to amend its defence. The judge ruled
out a number of amendments to keep the trial manageable and others because
they were irrelevant. He allowed in a series of changes which make fresh
allegations of viewers being misled. The jury will now look at extracts
from 14 programmes made between 1987 and 1998. The trial of Roger Cook's
claim is set to commence in October.
Comment
We act for a number of the production team and are unable to comment.
Last August Nadine Milroy-Sloan accused former Tory MP Neil Hamilton and his wife Christine of attacking her in an east London flat and forcing her to take part in sex games. The allegations were reported in lurid detail in the News of the World. At the time, the Hamiltons were arrested and interviewed but the police took no further action. The couple claimed they were in Claridges when the alleged attack took place. They accused publicist Max Clifford of attempting to smear them by brokering the deal with the News of the World. They are pursuing a libel action against Milroy-Sloan and were granted a freezing order by the High Court to cover up to £400,000 of Milroy-Sloan's assets pending a decision on any damages which might follow a libel trial. This included the £45,000 Ms Milroy-Sloan was paid by the News of the World for her story. Since then, Milroy-Sloan, like Neil Hamilton, has become bankrupt.
Ms Milroy-Sloan has now been charged with perverting the course of justice.
Links
News Reports
Hamiltons'
sex accuser charged
Paul Kelso
10 May 2002
Hamiltons'
accuser arrested at home
Rebecca Allison
February 01 2002
Hamilton
accuser's assets stay frozen
Lisa O'Carroll
August 30 2001
Pedder and Dummer v Times Newspapers Ltd (22 May 2002, Gray J)
TThe
Times succeeded in striking out one of two meanings in a libel action
brought by Captain Pedder and Staff Sergeant Dummer. The judge ruled that
the words complained of were not capable of bearing the couple's contended
meaning.
The couple had claimed that a Times report concerning their alleged affair
whilst on a tour of duty was untrue and defamatory. They said the article,
headlined 'Captain's affair with married sergeant', implied that the couple
"…during an important army exercise in Oman indulged in an illicit and
improper sexual relationship during which they had sexual intercourse".
The Times argued that the report made express reference to the investigation
being undertaken into the couple's conduct and did not imply actual 'guilt'.
The newspaper accepted the meaning that there may have been 'reasonable
grounds to suspect' the couple of having sexual intercourse whilst on
duty.
In his judgment Mr Justice Gray readily accepted that if the headline
stood alone, it meant that there was an affair with an imputation of sexual
intercourse. But it did not stand alone. Readers must be assumed to have
read at least the first three paragraphs of the article which made it
clear that this was an allegation under investigation. Those paragraphs
ensured that the article fell well short of alleging sexual intercourse.
The meaning pleaded was therefore struck out, with permission given to
plead a meaning that there were reasonable grounds to suspect the couple
of intercourse.
The principles governing the approach to applications of this kind are:
- The court should give the words complained of their natural and ordinary meaning as conveyed to an ordinary reasonable reader reading the article once.
- The hypothetical reader is not naïve and not unduly suspicious. He can read between the lines, read in an implication more readily than a lawyer and indulge in a certain amount of loose thinking. Not avid for scandal or selecting the worst meaning where lesser meanings are available.
- The court should be cautious of over-elaborate analysis.
- The court should not be too literal in its approach - it is very difficult to draw the line between a lawyer's construction and a layman who reads in implications more freely.
- The defamatory meaning pleaded by a claimant is to be taken as the most injurious meaning the words are capable of bearing. It is for the judge to ask himself what meaning they bear.
Comment
We are instructed by a newspaper in relation to a similar complaint
brought by the Claimants in this action and therefore make no comment
David Irving v Penguin Books (21 May 2002, Peter Smith J)
The author, found to be an apologist for Hitler who falsified history, will not escape liability for the costs of his failed libel action against Deborah Lipstadt and Penguin books. The publishers' defence cost £2m and Irving was ordered to pay £150,000 on account in May 2000 but has paid nothing. The judge rejected Irving's offer to pay £2000 a month as taking too long and also rejected the application to lift a bankruptcy order against him. Irving now faces the prospect of his home being seized.
Comment
If all publishers were equally vigorous in enforcing costs orders,
some claimants might think twice before commencing litigation.
Links
Failed
libel action costs Irving his home
Vikram Dodds
22 May 2002
Al Fayed v Telegraph Group Limited
Mohamed Al Fayed is to sue the Sunday Telegraph in relation to an article about uranium smuggling in which he was named. The article, which included details of a shipment of uranium from Russia to Afghanistan, included a picture of Mr Fayed in front of a stockpile of uranium suggesting that he was involved. The article originates from a French paper, which has already published a correction and is now reportedly facing 'further legal action…which could result in substantial damages'.
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Fayed to sue Sunday Telegraph
Jessica Hodgson
7 May 2002
Li Xiuying v Toshio Matsumura (10 May 2002, Tokyo District Court)
TAt
18 years old, Li Xiuying was repeatedly stabbed during an attempted
rape and left for dead when up to 300,000 Chinese civilians were slaughtered
by Japanese troops in 1937. There is film of her in hospital with wounds
to her head, legs and stomach. Now 83, she has won libel damages of
£7,900 in a Japanese court against the author and publisher of a book
which claimed her experiences were fabricated. But her demand for a
published apology was rejected.
Her case highlighted the claims of some Japanese historians and right-wing
politicians that the Nanjing Massacre is an exaggeration and that few
innocent victims were killed. Now, she, along with other survivors of
Nanjing, is taking the case for compensation for her injuries from the
Japanese Government to a higher court.
Maureen Cecilia Ward, Countess of Dudley v Macmillan Publishers Ltd (7 May 2002, Gray J)
The Claimant, a former dancer and actress, brought a libel action against the Defendant in relation to allegations contained in a book they published entitled "Christine Keeler: The truth at last - My story". The Claimant's name was mentioned in connection with a person said to be involved in the Profumo affair, and the alleged activities of that person in a series of sexual relationships. The Claimant had been involved with the person, but it was before the Profumo affair, and she was distressed and offended by the allegations. In a statement in open court, the Defendant accepted that the allegations were untrue and apologised. References to the Claimant were removed from the book, the Defendant undertook not to repeat the allegations and paid the Claimant damages and costs.
Nigel Cowley v Roger Clayden and Blue Finger Promotions Ltd (7 May 2002, Gray J)
Mr Cowley, the owner of a jeweller's shop, brought an action for slander in relation to allegations made either by Mr Clayden, the owner of a neighbouring jeweller's shop, or Mr Clayden's shop assistant. The allegations, made to a local newspaper reporter, were that stolen property had been recovered from the Claimant's premises during a police raid and the Claimant had been arrested and charged. It was further alleged that people had been encouraged by him to steal jewellery to order. The police had been working to prevent the market in stolen property and had actually praised the Claimant who had been assisting them. He had not been raided, arrested or charged, and was distressed by the allegations, which also damaged his business reputation. In a statement in open court, the Defendants stated that they regretted making the allegations and apologised, acknowledging that they had paid the Claimant damages and costs.