Media judges in the spotlight as Eady J’s future is thrown into doubt

At the top of this the country’s most senior judiciary are attempting to strike a balance between freedom of expression and right to privacy while keeping lawyers, journalists, editors, politicians and the public happy.

The Master of Rolls (MR) Lord Neuberger affirmed this view last week (28 April) when delivering a speech at Eton.

“The ultimate policy decision on the balance between freedom of expression and respect for privacy appears to have been left in the hands of judges rather than Parliament,” he stated. “A better analysis in my view is that, as often happens, Parliament has enacted the general policy and has left the application of that policy to particular cases in the hands of the judiciary.”

Whether this means the judiciary is creating law or just enforcing it, he said, was not a question for the MR to answer. Nevertheless, he recognises that this is one area of law where the sitting judges are under intense scrutiny.

Mr Justice Eady, for example, has had his fair share of controversy. Speaking in 2008 to the Society of Editors, Daily Mail editor Paul Dacre accused the judge of introducing privacy laws “by the back door”.

Dacre hit out, saying: “The freedom of the press is far too important to be left to the somewhat desiccated values of a single judge, who clearly has an animus against the popular press and the right of people to freedom of expression.”

Eady J refrained from responding publicly until December 2009, when he spoke at the Justice conference. “It’s become fashionable to label judges not as independent, but rather as unaccountable and as hostile to freedom of speech,” he said.

Regardless of the critics, Eady J remains the country’s leading defamation judge. “He’s straight-talking and doesn’t intervene as much as other judges, which is okay,” says one lawyer who appears before him regularly.

Since 2002 Eady J has held the important post of head of jury and non-jury lists. This appointment will come to an end in October.
“The question is, will Eady continue after 1 October, when he can no longer decide who’s sitting on what cases?” one barrister queries.

Media lawyers were ­surprised to learn that the judge has not been invited by Neuberger to sit on the committee examining issues around the use of injunctions.

“There has to be a reason he wasn’t asked,” one lawyer speculates. “There are tensions at play here, and of course everybody thinks he’ll retire.”

Instead of Eady J, Mr Justice Tugendhat has a coveted place on the panel.

Tugendhat J was praised by the press in January for having reversed an injunction that prevented the press reporting that footballer John Terry had had an extramarital affair with the ex-girlfriend of his England teammate Wayne Bridge.

It is widely believed that Tugendhat J will succeed Eady J as head of the jury lists.

“To say he’ll fill Eady’s shoes adequately may be a step too far,” another lawyer states. Tugendhat J, although perceived as a top-flight media judge, spends just 12 weeks a year hearing these cases, the lawyer adds.

Step forward Mrs Justice Sharp, the former One Brick Court silk who joined the bench last January.

Last week she threw out a defamation claim brought against The Daily Telegraph by tennis player Robert Dee, who claimed the paper had defamed him by dubbing him the “world’s worst tennis pro”.

More than 30 media outlets had already settled cases with Dee, who was represented by One Brick Court’s Andrew Caldecott QC, who was instructed by Addleshaw Goddard partner David Engel.

One in-house media lawyer says that, as a silk, Sharp J was “fantastic, pragmatic and bright, a clear thinker”, although adding that “she lacks the right experience”.

More important is how the appellate court has responded to the pressures thrust upon it.

The fact that Lord Chief Justice Lord Judge, Neuberger and Lord Justice Sedley fought for a place to sit on the panel hearing for Singh v British Chiropractic Association (2010) - one of the most important libel cases of the year and an appeal of an earlier Eady J judgment - shows how seriously these issues are being taken.

This was the first defamation case Judge LCJ had sat on since the late 1990s.

Some lawyers suggest that it is Eady J’s judgments that are being scrutinised more closely.

On 11 May two of his cases will be heard by the appellate court. The first, Smith v ADVFN Plc & Ors, will be heard by Lord Justices Wilson and Sullivan and the retired Sir P Kennedy and will look at whether postings on a messageboard can be considered libellous.

The second, Imerman v Tchenguiz & Ors, will be heard by Neuberger and Lord Justices Moore-Bick and Munby. There are further cases in the pipeline.

The issues surrounding current defamation and libel laws have been raked over time and again by lawyers, legal commentators, politicians and newspaper editors. In the middle of this maze sits the judiciary, and right now Eady J is holding the dice.