Sign of The Times

The gossip mongers work hard in Fleet Street so when news that The Times’ most senior lawyer Alastair Brett had left the paper abruptly on Friday (16 July) it didn’t take long for his peers to surmise that he had fallen out with someone.

Brett has been a stalwart of The Times and Sunday Times legal group for 33 years. He is part of the old school set of newspaper lawyers that includes The Telegraph’s Arthur Wynn-Davies who is working toward retirement after 33 years with the paper (7 June 2010).

The Times lawyer was and still is a prominent member of the Fleet Street Lawyers Society. He has contributed to various debates affecting the press, none less so than the Freedom of Information Act and the never-ending discussions around the state of Britain’s libel laws.

According to one well placed source Brett was told on Friday that his services were no longer required. Accordingly, he packed up his belongings and jumped on a plane.

The fact that this came just days after The Times lost a significant case in the Court of Appeal has prompted speculation that Brett had worn out the patience of his superiors by fighting one test case too many.

Last week, the Court of Appeal handed down its judgment in the libel case brought by Detective Sergeant Flood against The Times. The case provides some clarification on the Reynolds defence, although not the type of clarification welcomed by newspaper lawyers.

Here is the story so far: in June 2006 The Times published a story about Flood alleging that he had sold information to Russian oligarchs about extradition requests. The policeman had previously been investigated by the Metropolitan Police but no charges brought before the story was published online and in the paper.

Flood sued for libel and The Times invoked the Reynolds defence, which had been established by in another case fought by The Times, led by the then-head of The Times legal department Antony Whitaker, and enshrined in law in 1999.

The Reynolds defence, which was created around 10 years ago, permits publishers to escape liability for publishing false and defamatory material if they can persuade the court that it constituted “responsible journalism”.

At the original trial last October Mr Justice Tugendhat held that the Reynolds defence could have been invoked prior to Flood being investigated and exonerated by the Independent Police Complaints Commission but that thereafter the online edition should have been amended to reflect the facts.

Both The Times, led by Brett, and Flood appealed the ruling.

What happened next, comments one source, was a “spectacular own goal for The Times”.

Presiding over the case in the Court of Appeal the Master of the Rolls Lord Neuberger ruled that Tugendhat J was right to say the online version should have been amended.

However, he ruled against the newspaper on the issue of privilege.

Neuberger MR concluded: “Of course, it will add something to the substance and newsworthiness of the story that the police are investigating the claimant, but it seems to me that it would be tipping the scales too far in favour of the media to hold that not only the name of the claimant, but the details of the allegations against him, can normally be published as part of a story.”

Now newspaper lawyers are up in arms because, they argue, the scales of justice have been tipped away from them, putting power into the hands of the claimants.

The case is expected to cost the newspaper more than £1m.

With high costs for a unfavourable outcome, it is not difficult to see why the gossip mongers of Fleet Street have come to the conclusion that Brett was dismissed.

It may not be the most glittering end to his long career, but it is worth remembering that Brett has done a lot to service free speech in the UK.

Calls to The Times for comment were not returned.

The lawyers:

Edwin Coe partner Nick Neocleous instructed 5RB’s James Price QC to lead William Bennett for Flood

The Times instructed One Brick Court’s Richard Rampton QC to lead Kate Wilson directly