Shooting the messenger
29 November 1999
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The media can always count on a good libel trial to excite the public. Elizabeth Davidson reports on the memorable libel cases of the past and asks what can we expect in the future.
Nothing captures the public's imagination like a libel trial. Salacious, sleazy, scurrilous. The lives of the rich and famous are prised apart, scrutinised under the microscope and then reported in far greater detail than the original story that prompted the litigation in the first place.
The latter half of the 20th century has been an extraordinary period for libel actions. Phrases like "to do a Taylforth" have become common while everybody remembers Jeffrey Archer's alleged but never proven "spotty back". The list of memorable cases is endless.
This week, in Court 13 of the Royal Courts of Justice, Mohamed Al Fayed, the owner of Harrods, and Neil Hamilton, the disgraced ex-Tory MP, are waging war over allegations that Hamilton took cash from Al Fayed in return for asking questions in Parliament.
It is the last great libel trial of the century. The next century, some experts predict, may see nothing of its like again. Legal reforms and previous rulings may see the 21st century bereft of such extraordinary show trials.
Media lawyer Mark Stephens, senior partner at Stephens Innocent, calls this century the "golden era of libel". But he believes that the golden age is coming to an end.
Stephens says: "It became the golden era of libel mainly because damages went up so high. Now that damages aren't quite so high it is coming back to business as usual, but I think we are still the libel capital of the world.
"In the US it is common to pursue damages of up to $5m, and to receive $1m-$1.5m compensation. I don't think the UK will catch up with the US in terms of levels of damages but 90 per cent are settled in favour of the pursuer so it is usually worth bringing a case."
The problems for claimants hoping to win high-cost damages stems from the judgment in the libel trial of Elton John, which effectively "capped" the spiralling levels of damages and put an end to the glory years of libel. John received £350,000 from Mirror Group Newspapers in 1995 over false allegations that he had an eating disorder, but this was later reduced on appeal to £75,000.
The Court of Appeal pronounced that judges should offer juries guidance on the levels of damages to be awarded, and that damages should be set at levels comparable to those of personal injury cases. Prior to this damages awards and out of court settlements ranged from one pence to £1.5m, although they are notoriously expensive to bring.
Stephens' "end of an era" view is hotly challenged by Newsgroup legal manager Tom Crone, who represents The Sun and News of the World. He disputes that the Elton John case changed the face of libel.
He says: "The only difference Elton John made is that juries can be given a bit more guidance on how much people can get. In the right case, awards of £1m are still possible."
Crone predicts that the introduction of no win, no fee libel actions will cause the biggest change to the area. He sees an upsurge in cases which will offset litigants put off by spiralling costs and possibly diminishing damages.
"It is significant. Possibly one of the obstacles in the past has been it's a rich man's game. But if you have the no win, no fee then that could change," says Crone.
For the moment, the public can be satisfied with the high profile and rather ludicrous spectacle of Al Fayed and Hamilton cuffing it out in the High Court, a "historical" battle encompassing politics, sleaze, and royalty.
Both men may appear to be ridiculous figures with a grudge to bear rather than serious people concerned with justice, but their case is typical of so many of the trials that have gone before it. It has all the rags-to-riches and riches-to-rags ingredients, and a guaranteed place in history.
And the public loves it. The 20th century has seen a star-studded procession through the courts, with smooth-talking silks cock-a-hoop as the libel courts dish out increasingly high damages.
The libel trials of Sonia Sutcliffe, Elton John, Jason Donovan, Imran Khan, Liberace and Count Tolstoy have all occupied far more column inches than the stories they dispute ever did.
In what is famously a lottery for the rich and famous, the lawyers - such as Peter Carter-Ruck and George Carman QC - have become celebrities along with their glittering clients.
Crone says that the Hamilton trial gives us a chance to see Carman, the libel lawyer's libel lawyer, in action. He says: "George can hold his own at any time. He is a one-off. He is the one who weaves magic spells in court.
"When he is in court people are just waiting for him to get up again, it's like a Jack Nicholson film, you are just waiting for him to come back on screen."
While Crone's favourite libel case was Sonia Sutcliffe's, the wife of the Yorkshire Ripper, "because you could hear a pin drop in the court room", Stephens' personal favourite is the Liberace trial in 1956.
The flamboyant entertainer Liberace sued the Daily Mail, whose columnist called him a "sniggering, snuggling, chromium-plated scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother-love", on the basis that this implied he was homosexual. Stephens is especially fond of that quote.
Goodman Derrick partner Jeffery Maunsell defended Granada Television against libel claims brought by the now disgraced Conservative politician Jonathan Aitken. Maunsell paticularly remembers the case because of the way it collapsed so dramatically in 1997 on the sixth day of the trial upon the discovery of a document which proved Aitken had been making the claims up.
Maunsell's other favourite is the case of former Manchester United manager Tommy Docherty, who was accused of having an affair with the wife of the team's physiotherapist. Docherty withdrew his charges of libel in the middle of being cross-examined by the counsel for the defence, before scurrying out of the court with the woman in question.
But it is now 10 years since libel damages peaked, hitting record levels on a regular basis. In 1989, the highest ever libel award in the UK was the £1.5m given to Conservative peer Lord Aldington from historian Nikolai Tolstoy over allegations that he had been party to war crimes as a serving British officer. Also in 1989, Sonia Sutcliffe won £600,000 against Private Eye (although that amount was later reduced to £60,000).
A decade later, libel actions are still hogging the front pages. Whether that will still be the case in another 10 years is a moot point. But one thing is for sure, should the court's time no longer be occupied by libel trials, the world - and the lawyers - will be poorer for it.
Balancing private rights and public interest
Leading libel lawyer Peter Carter-Ruck discusses the cases that have influenced defamation legislation.
In view of the number of changes in practice and procedure, both by statute and judicial decision in the past decade, it may seem difficult to identify what have been the major effects upon the law of defamation in this country but, in my opinion, it was the implementation of the Courts and Legal Services Act 1990 and the House of Lords decision in Reynolds v Times Newspapers Limited (1999). Both the statute and the House of Lords decision point to a history of procrastination in the development of defamation law.
In 1965, Justice published a report of a working party under the chairmanship of the late Lord Shawcross, comprising members of Justice and the British Committee of the International Press Institute. Our secretary was Lord Alexander, then Robert Alexander, a junior member of the bar.
In that report, we recommended the Court of Appeal should be given the power to vary damage awarded by a jury in the same way as the court was entitled to vary an award of damages made by a judge. The recommendation was unanimously endorsed by the Report of the Committee on Defamation in 1975 and was not implemented until the Courts and Legal Services Act of 1990, a delay of 25 years, during which lawyers were faced with the unenviable task of advising litigants on damages in light of some seemingly extravagant awards, of which two merit contemporary mention.
In Commander Packard v Eleftherotypia (1987), when only 40 copies of the Greek newspaper were sold in this country, the jury awarded £450,000 damages, to be followed only a month later by the award of £500,000 damages to Jeffrey Archer.
But fortunately, times have now changed as a result of the decision in Rantzen v Mirror Group Newspapers Limited (1994), and the effect of Article 10 of The European Convention for the Protection of Human Rights and Fundamental Freedoms. As a result, lawyers are now able better to advise their clients upon the issue of damages.
Another matter which is likely to lead to fundamental change is Reynolds v Times Newspapers Limited (supra), which, in my opinion rightly, by deciding that no general defence of privilege covered publication of political matters appears to open the door, in certain circumstances, for qualified privilege to succeed as a defence on matters of public interest, and this again further demonstrates the element of procrastination in invoking pressing changes in the law.
Once again, Lord Shawcross' committee in 1965 recommended that there should be a statutory defence of qualified privilege for newspapers in respect of re-publication of criticism made of a person or institution if the subject matter of the criticism was one of public interest, and the newspaper published in good faith, provided that the newspaper, if requested to do so by the person or institution criticised, has published a reasonable letter or statement by the way of explanation or contradiction.
Although the door may have been opened by the House of Lords decision, we have yet to see whether the recommendation in 1965 will be implemented and thus introduce a fair opportunity for newspapers to publish adverse data when it is in the public interest to do so.
Peter Carter-Ruck is senior consultant to Peter Carter-Ruck & Partners and consultant to Pellys in Bishop's Stortford.