Sector focus: The press gang
9 February 2004
The legal movers and shakers behind our national newspapers are the Fleet Street lawyers, who despite their power like their anonymity. Naomi Rovnick blows their cover
Apart from press barons, editors and celebrities, who wields the most influence in the world of UK newspapers? You may think of PRs such as Max Clifford and Mark Borkowski, advertising gurus such as WPP’s Sir Martin Sorrell, politicians such as Tessa Jowell or publishers such as Trinity Mirror’s Sly Bailey. But the one highly influential group whose members are never mentioned in any list of the media’s most powerful is that of the newspaper lawyers – the real decision-makers behind what goes on every newspaper’s front page.
The seven Fleet Street lawyers profiled here are an experienced bunch. They have between them nearly 100 years of experience in the newspaper industry and have advised more than 50 editors.
Well known in media circles yet virtually anonymous outside them, it is they who have the last say on whether a story can run. They constantly fight to stop the press being gagged, whether by precious celebrities using the law to protect their images, or by businesses so obsessed with their share price that any negative story leads them to sue for libel.
But deciding what goes on the front page is nowhere near the sum of the Fleet Street lawyers’ power. They are now seen, at least by those who journey regularly from the Royal Courts of Justice and Whitehall to Wapping and Canary Wharf, as a powerful lobby for the newspaper industry.
All seven featured lawyers meet frequently, share legal costs to fight cases where they have a common interest, and even lobby the Government together.
At the end of last year, lawyers for Associated Newspapers, Guardian Newspapers, Independent News & Media, MGN and Times Newspapers together wrote to the Government demanding an end to the conditional fee arrangements (CFAs) that allow libel lawyers to charge newspapers a 100 per cent uplift on the costs of a case they win.
They also act together in cases where they think an important issue of press freedom is at stake.
In late 2001, lawyers from The Guardian, The Times, the Daily Mirror and the Daily Mailintervened in the David Shayler case. They instructed the same QC, the now High Court judge Michael Tugenhadt, to argue that a blanket ban preventing former MI5 officers from disclosing anything about their work was unlawful and in breach of the European Convention on Human Rights (ECHR).
The lawyers for the four major broadsheets and Reuters are also acting together in the Interbrew case, now set for the European Court of Human Rights , which will determine whether or not journalists must reveal their sources in a case that could change reporting forever.
But what is the truth about the Fleet Street lawyers? Are they a united force for press freedom? Are they a conspiratorial legal arsenal, bankrolled by press barons such as Rupert Murdoch and Richard Desmond, to further the newspapers’ rights to publish anything that will sell copies and ensure they never get sued? The reality is that they are a group of highly professional lawyers who, when mobilised, have considerable power, but who seem reluctant to become an organised lobby and use this power to its full potential.
As Duncan Lamont, media partner at Charles Russell and a former legal adviser to the Daily Mirror, puts it, the lawyers of Fleet Street are a group of individuals with different agendas who happen to share a passion for press freedom.
Many of the Fleet Street lawyers interviewed for this piece claim they do not want to be seen as a group of campaigners or crusaders.
According to Daniel Taylor of News International Newspapers, it is often a coincidence that the Fleet Street lawyers act on cases together. “We do often act together and share the costs of litigation, but generally because the same people are suing us on the same stories,” he says.
Another point to consider is that the newspaper lawyers, like most of the profession, like to keep a low profile.
“I think a good Fleet Street lawyer is like the chief engineer of a Cunard liner: in the bowels of it all, rather than being on the bridge,” says The Daily Telegraph legal head Arthur Wynn Davies. “That’s a job for the editor. The less visible you are, the more effective you are.”
Another worry the newspaper lawyers have in organising themselves as a lobby is that too much cooperation could be seen as anticompetitive.
Reynolds Porter Chamberlain partner David Hooper, who was instructed by the newspaper lawyers to prepare their submission to the Government on the subject of CFAs, says this could never be the case.
“They’re a lobby of sorts, and I don’t see anything wrong with it. They help each other on the basis that their newspapers are competing against each other ferociously. There’s no suggestion of doing each other favours. It’s one of the best things for freedom of the press if the newspapers do get together to fight the industry’s battles,” he argues.
But the newspaper lawyers have no plans to get together on a formal basis. There is a society known as the Fleet Street Lawyers, run by Alistair Brett of The Times, but this is an informal club which does not publicise itself and is not an incorporated association.
This is nothing like the situation in the US, which has an incorporated trade body for newspaper lawyers known as the Libel Defense Resource Center, which is devoted to the cause of freedom of information.
Media law is in constant flux, with lawyers and editors unsure of how to proceed on many issues. Conflicting privacy judgments abound, and there is no organisation that has the lobbying might to persuade the Government to produce statutory legislation and clear up the confusion surrounding this new area of law.
At the beginning of last year, the Market Abuse Directive (MAD), which states that financial journalists who make mistakes reporting on public companies can be imprisoned, came into force in this country. A loose group of editors have used their newspapers to highlight the issue, but MAD is still there, still unmodified and still as frightening as ever.
In late 2001, The Guardian editor Alan Rusbridger laid the job of lobbying the Government on freedom of information issues squarely at the door of the newspaper lawyers. “The reality is that, unless [newspaper lawyers] can work out some kind of common path, the press will never present a united front on many of these issues,” he wrote in November 2001.
But this is ignoring the obvious fact that the newspaper lawyers do work for titles that are in competition with one another. Too much formal cooperation would be a bit whiffy.
The current situation is loose and disorganised, but at least the lawyers of Fleet Street can get together to wield their collective power when they need to, without commercial ramifications.
“I think there’s something quite nice and British about it. That you can be commercial rivals, but then you can also operate on a different level. At the moment the newspaper lawyers have a situation where it’s up to them how much they do together and they don’t have to be formal,” Hooper concludes.
But although they may not be in a formal association, the newspaper lawyers still wield a lot of power
and maintain strong views on the freedom of the press that they are not afraid to express. And long may this continue.
|Annual legal spend||Undisclosed|
|Head of legal||Harvey Kass|
|Legal capability||Six (plus 16 freelance lawyers)|
|Main law firms||Bird & Bird, Freshfields Bruckhaus Deringer and Reynolds Porter Chamberlain|
Harvey Kass is Associated Newspaper’s group legal director with responsibility for the legal affairs of the group and fighting libel actions.
He is currently working on Associated’s planned bid for The Daily Telegraph titles following the collapse of Hollinger International.
With the support of many of the other newspaper lawyers, Kass is currently campaigning for a change in bar rules to stop barristers who are regularly instructed by the major newspapers from acting against them.
“This is a very important issue,” Kass told The Lawyer last October. “Clients shouldn’t feel inhibited when taking advice from counsel. Barristers we work with constantly profile the opposition when advising us. It can’t be right for insights gained in advising us to be used against us.”
|Tom Crone, Daniel Taylor, Alastair Brett|
|Organisation||News International Newspapers|
|Annual legal spend||Undisclosed|
|Heads of legal||Tom Crone (group manager), Daniel Taylor (The Sun and the News of the World) and Alastair Brett (The Times and The Sunday Times)|
|Main law firms||Addleshaw Goddard, Davenport Lyons and Farrer & Co|
News International Newspapers, which is part of Rupert Murdoch’s NewsCorp and the publisher of four national newspapers, is understood to have the largest legal budget of any UK newspaper group. It also has the most campaign-orientated group of lawyers.
Alistair Brett at The Times has scored major victories for press freedom in cases such as Reynolds v Times Newspapers, which established that newspapers can claim a qualified privilege defence in order to defend libel claims.
Last November legal manager Tom Crone hit out at the Attorney-General Lord Goldsmith for clamping down on media coverage of high-profile cases, such as the allegations of rape made against a group of Premiership footballers, before they go to trial.
|Annual legal spend||Less than £100,000|
|Head of legal||Arthur Wynn-Davies|
|Main law firms||David Price Solicitors & Advocates and Dechert|
Arthur Wynn-Davies heads up the legal function at The Daily Telegraph. Unlike many of the other Fleet Street lawyers, he does not go in for campaigns or crusades. He is a Labour voter, but fiercely loyal to his paper. With 27 years of working as a newspaper lawyer (he was with the Daily Mirror before he started at The Daily Telegraph in the 1980s), he is also the longest-serving Fleet Street lawyer.
Wynn-Davies is currently working on the libel claim brought by former Labour MP George Galloway over allegations in The Daily Telegraph that he was in the pay of Saddam Hussein.
The Daily Telegraph is published by Hollinger International, controlled by Hollinger Inc, which the Barclay brothers are planning to acquire from Lord Black.
|Organisation||Northern & Shell|
|Annual legal spend||£2m|
|Head of legal||Maninder Gill|
|Legal capability||Eight (plus 15 night lawyers)|
|Main law firms||Addleshaw Goddard, Alexander Johnson, Ashurst, Davenport Lyons, Finers Stephens Innocent, Lewis Silkin, Rosenblatt, SJ Berwin and Wiggin & Co|
As company secretary of Richard Desmond’s Northern & Shell, owner of Express Newspapers, Gill sits on the private company’s board and has a major involvement in its many corporate deals, including the current planned bid for the Telegraph group of newspapers.
Gill has been a crusader for a new privacy law in England and Wales, running the litigation for OK! Magazine and the Douglases against Hello!, which he won last April. The Douglases, however, lost their privacy points and are now appealing those with the support of Gill, his legal team at Northern & Shell and Addleshaw Goddard.
|Head of legal||Siobhain Butterworth|
|Main law firms||Berwin Leighton Paisner, Davenport Lyons, Lovells and Olswang|
Siobhain Butterworth, who joined The Guardian as its first legal head in 1997, is a far from faint-hearted lawyer who has been involved in almost every recent press freedom campaign. She is involved in the Interbrew case and led The Guardian’s intervention into the David Shayler case.
“My job is all about freedom of expression and human rights. You have to be committed to that and that’s what all of us in this department get excited about,” she says.
Butterworth, however, does not describe herself as a crusader, just as a lawyer who does what is necessary for the good of her newspaper.