Express Yourself

With Express Newpapers embroiled in a three-way takeover bid, Bal Khela discovers how the newspaper’s legal department sees the future

Express Newspapers hit the headlines again last week after it became the target of a three-way takeover battle.

The unsolicited bids came from Indian conglomerate The Hinduja Group, which is understood to have made an estimated £100m offer through its UK subsidiary Amas, while former Mirror Group chief executive David Montgomery is believed to have stepped forward with a £90m offer, backed by venture capitalist 3i and HSBC.

Both bids arrive only months after Barclay Brothers made a £75m offer for the newspapers. The offer was duly rejected by the group’s chief executive Lord Hollick, although whispers in the City suggest that Barclay may be willing to come back with an increased offer, which will guarantee an all-out war for the much-coveted titles.

However, while Express Newspapers’ joint head legal adviser Justin Walford is careful not to comment on the issue, he seems remarkably unperturbed by the escalating interest in the papers.

It will be up to the parent company United News & Media to fight off or welcome the bids, which historically turns to Allen & Overy and Ashurst Morris Crisp for corporate advice. Although at these early stages it is not clear which firm will be chosen when the time comes, Walford says that United News & Media will use another firm if it becomes necessary.

Walford’s remit, though, remains unchanged, since he mainly oversees issues relating to litigation. “In general, all [editors] are happy to correct anything which is wrong, although any settlement may depend on whether or not the other side is just gold-digging,” he says. “I’ve worked with some 14 editors over the years and have a very good relationship with the current editors. It’s crucial to discuss matters quickly and sensibly.”

Walford works closely with joint legal adviser Stephen Bacon in the small legal department, and they in turn are assisted by consultant Cloisters silk Arthur Davidson QC, who comes in once a week to advise on a number of issues that fall within their remit.

One such issue is dealing with the main newspapers, associated magazines and internet sites for everything from editorial work – including large amounts of libel reading, dealing with complaints, litigation (most often defamation, copyright and contempt) – to advising on contracts and advertising.

Two of the more prominent practices advising the subsidiary, Davenport Lyons and Lovells, also provide advice on contracts.

Walford says: “The sums that are paid are confidential [for book serialisations], but they often cover internet rights. Newspapers can pay thousands of pounds for these rights, and sometimes also commit themselves to television commercials, so the contracts are important.”

All in all, the workload is quite a handful, but the in-house team takes a very hands-on approach. Walford says: “In general, whoever is busiest will hand it to whoever is not. We probably have a smaller legal department than most other newspaper groups, but in broad terms, most newspaper legal departments cover the same areas of work and legal problems. We do as much of the work in-house as possible, but we don’t litigate ourselves, and claims are sent out to one of our solicitors.”

Both Walford and Bacon are former barristers, and Walford admits to having a preference for his old chambers, One Brick Court, but he also uses Five Raymond Buildings regularly.

He says: “We’ve tended to instruct One Brick Court and a number of silks, including George Carman QC, who was the best libel silk [before he retired] because he was a fearless master of courtrooms and juries. There are no obvious successors.”

Walford left the bar 15 years ago because he could not spare the time it would take to establish a full practice. “I made the switch because I was married and wanted a family,” he says. “It was slow going at the bottom in those days, and a good job offer came from Express Newspapers.”

Like Carman, Walford also gets a thrill out of defamation cases. “I love my work, and I’ve been very fortunate to work with some fine journalists and editors. There’s a special buzz about newspapers, and a special buzz about libel law,” he says.

While he agrees that each editor has a different idea of risk-taking and a different attitude to litigation, he adds that more often than not these differences are exaggerated.

Walford is still dissatisfied with the state of libel law. He believes that the jury system should not be universally used for defamation cases, but welcomes that courts now temper the “ridiculous sums” that were once awarded to claimants.

He thinks judges are the answer to such situations. “One of the main reasons for high costs is the necessity of leaving so much to be decided by a jury,” says Walford. “In the future, I suspect it will be sensible if judges were to decide many more matters, except possibly that of justification or truth, where this is pleaded as a defence.”

While Walford enjoys handling libel cases, he does not necessarily find courtroom slanging matches enjoyable. With regards to litigation, he is keen to promote mediation and arbitration.

“Mediation and arbitration is going to grow not just with libel, but in other areas too. Although historically arbitration is not something that has been often used in libel, it’s something we are increasingly offering to keep the costs down.”

But even given the recent changes in how the courts handle libel cases, Walford is still not entirely content, and suggests a wholesale reform of the law. He says: “Despite the progress that has been made on lower damages, on a new defence of offer of amends, and in particular the new Reynolds public interest qualified privilege defence, there is still need for reform in libel law. Hopefully, the new Human Rights Act will give a real spur to freedom of speech.”

According to Walford, the rights of free speech should be balanced against the rights of personal reputation. He uses the case against Elton John as an example. The pop singer took the Daily Express to court after the newspaper printed details of his financial affairs, which it had gleaned from the original draft of a barrister’s written opinion obtained by a journalist. John demanded that the journalist reveal who she received the information from.

Express Newspapers used Richards Butler with Michael Beloff QC of 4-5 Gray’s Inn Square and Patrick Moloney QC of 1 Brick Court, and John used Eversheds and David Pannick QC of Blackstone Chambers.

Walford says: “It was an important case concerning the rights of journalists to protect their sources. The other side were trying to force one of our journalists to reveal her source. We won the case in the Court of Appeal, and we would have fought it all the way to the European Court if necessary.”

The diplomatic barrister suddenly takes on a gladiator-like tone, and one knows that whether he faces a battle from the bidders or at the European Court, he will be unaffected.

The ever-cautious in-house counsel is also reluctant to talk about the revolving doors relating to the political allegiances of the Express titles. It has been suggested that if their bid is successful, the Hinduja brothers Srichand and Gopichand may want the newspaper to become apolitical, so that it avoids alienating its original Conservative-led readership.

Most people would agree that the newspaper’s political allegiance has done a 180° turnabout, but Walford says: “The paper has changed from the old paper and become liberal with a small ‘l’. It’s not just a Labour paper, because it’s recently been championing the position of pensioners to give them a proper square deal.”

The change in political leanings has not had a dramatic effect on sales, with the Daily Express’ mid-market rival the Daily Mail selling an average of 2.36 million copies daily compared to last month’s figure of one million daily for the Daily Express. But Walford is more optimistic about the future, and believes the tide is about to turn. He says: “Sales have now levelled out. You just have to look at the Daily Star to see that the dip is now bottoming out.”

Having survived the worst of the newspaper wars in recent years, Express Newspapers will now have to accept that, like The Mirror, it will now provide its rivals with column inches on any takeover battle for at least the rest of the year.
Justin Walford
Head of legal
Express Newspapers

Statistics
Organisation Express Newspapers (a wholly-owned subsidiary of United News & Media)
Sector Media
FTSE 100 ranking 77
Market capitalisation £3.7bn
Employees 970
Legal capability Two lawyers
Heads of legal Justin Walford and Stephen Bacon, joint legal advisers
Reporting to Managing director Andy Jonesco and legal director at United News & Media Jane Stables
Main location for lawyers London
Main law firms Davenport Lyons, Henry Hepworth, Lewis Silkin, Lovells and Richards Butler