Paper trial

If there’s one thing that defendant and claimant defamation lawyers agree on, it’s that more judges are needed to oversee large scale defamation cases.

Mr Justice Eady is the man most commonly associated with these trials, but he is becoming an increasingly more controversial figure.

Last week Eady J was criticised for seeking to exclude evidence in a defamation case brought by Express Newspapers owner Richard Desmond against author Tom Bower. Desmond had claimed that in an as-yet unpublished book, which claims that Desmond forced a journalist at one of his papers to write a negative story about Daily Telegraph owner Conrad Black, Bower defamed him.

Last week the High Court found in Bower’s favour, but not before Eady J was forced by the Court of Appeal to play a taped conversation between Desmond and hedge fund manager Jafar Omid that he had originally blocked. In the conversation Desmond told Omid that he would be “the worst f**king enemy you’ll ever have” if he did not return money invested by Desmond’s son. Three days after the conversation the Sunday Express published a libellous article about Omid.

While the High Court case was going on Bower’s legal team, led by Ronald Thwaites QC of Ely Place Chambers, applied twice to the Court of Appeal to ask its judges to overrule Eady J’s decision on the tape. Bower’s legal team felt the tape was significant because it showed that Desmond bore a grudge against Omid. The existence of a grudge was pivotal to their argument.

The appeal judges were less than flattering about Eady J, with Lord Justice Pill saying his decision had been “plainly wrong” while Lord Justice Hooper said that if the court was not allowed to hear the tape a miscarriage of justice could occur.

Eady J is no stranger to controversy. Last year Daily Mail editor-in-chief Paul Dacre accused Eady J of bringing in privacy laws by the back door after ruling that the News of the World had breached Formula 1 chief Max Mosley’s privacy after secretly filming him taking part in a sex orgy (The Lawyer, 4 August 2008).

The fact he has hit the headlines again has led some to question whether the choice of judges who can sit on defamation and privacy cases is wide enough.

“Part of law is hearing a commonality of judicial voices,” says Finers Stephens Innocent partner Mark Stephens. “If there are just one or two voices heard it hinders the growth of law.”

A City-based claimant lawyer agrees, saying: “Eady comes to this with a great experience, but all the criticism of him is not helpful for the defamation and privacy legal system in this country. We would benefit from more judges sitting on such cases.

“What has been demonstrated is how narrow our libel law system is. The problem is systemic as opposed to being about just one man. There needs to be a broadening of the system and more judges sitting on these cases.”

The question is, are there any would-be judges who fit the bill? Deputy High Court judge and 5 Raymond Buildings silk Richard Parkes QC could be an obvious choice, given his depth of experience in the media world.

Then there’s bar chairman Desmond Browne QC, also a silk at 5 Raymond Buildings, who has been involved in numerous high-profile media cases.

Or Gavin Millar QC of Doughty Street Chambers? Or One Essex Court’s Geoffrey Hobbs QC?

The system almost certainly needs to be broadened and, if that were to happen, there would be no shortage of potential candidates.