A draw in court, such as the recent Kewell v Lineker battle, is not as rare as you may think…

On 16 May, Mr Justice Eady discharged the jury from the libel action brought by footballer Harry Kewell against TV presenter Gary Lineker, Telegraph Group and sports editor Jon Ryan. The case concerned an article published in The Sunday Telegraph entitled ‘Kewell move made me feel ashamed of game’. Kewell, who plays for Liverpool, said Match of the Day presenter and former England star Lineker had made him feel “hurt and humiliated” by being accused of blackening football when he wrote that agents such as Bernie Mandic (Kewell’s) were “using unintelligent sportsmen for their own gain” and that he was “a pawn in a murky deal”. It was also alleged that transfer regulations had been “cleverly circumvented” by them. The court heard that the £5m-plus transfer fee for Kewell to go from Leeds to Liverpool had earned Mandic £2m.

The jury was discharged because it couldn’t agree on a verdict. Six men and six women good and true in this instance obviously concluded that the action was six of one and half-a-dozen of the other. Somewhat startling is the fact that they could not even get past this first question as to whether the story was defamatory.

The last memorable draw in a libel action was in September 1992. It involved former Tory minister David Mellor and his friendship with Mona Bauwens, the daughter of a prominent Palestinian. They had been on holiday together and she objected to an article in The People headlined ‘Top Tory and the PLO Paymaster’ and sued for libel. Libel silks Richard Hartley and George Carman jousted for a week, but the jury couldn’t decide. The judge, Mr Justice Drake, subsequently revealed that Bauwens was happy for him to decide the case, but Carman was not. There was no second action, although an agreed statement in open court was published, in which The People said it had never intended to criticise her.

There has also been a settlement of Kewell’s dispute (although Mandic is now threatening to sue). It would appear each side paid its own costs and no damages were paid. But Lineker had the last laugh, because the transfer transactions he criticised are being investigated by football chiefs.

Lineker and the paper confidently believed that the article was fair comment. They were fortified by Section 6 of the Defamation Act 1952 (which provides that a defence of fair comment will not fail because the truth of every allegation of fact is not proved if the expression of the opinion is fair comment having regard to the facts alleged, or referred to in the words complained of, are proved). Consequently, they vigorously defended. Superficially, they were right to feel bullish, but it transpired that Lineker had not actually written the newspaper column bearing his name, nor had Kewell’s agent received the £2m fee purely for the transfer of Kewell from Leeds to Liverpool but for a substantial amount of work done in Australia as well. A failure to distinguish clearly between facts and comment is an area that can cause problems. Bold headlines and attention-grabbing allegations often look like more than just comment.

Although Kewell’s action was perhaps unwise, Lineker had clearly not got it quite right, even though he honestly believed what he said. Ghost written articles making serious allegations are bound to be vulnerable in such a situation.

Another fair comment defence may soon be filed by Stelios Haji-Iannou, the colourful boss of easyJet. Haji-Iannou, who has started easyCruise, called rival Carnival’s Costa Magica cruise ship “tacky”. Carnival boss Micky Arison was enraged, saying that Haji-Iannou himself is the expert on what is tacky. Haji-Iannou’s response was to challenge Arison to sue, claiming his description was fair comment with regard to the decor of the ship. Libel lawyers are loyally booking easyJet for their summer holidays now that the football season is over.

Rod Dadak, head of defamation, Lewis Silkin