Roger Pearson looks at a recent case in which the judge decided that similarity of workds constituted the repetition of a libel But no lump sum. Only four small words, but each one recently cost Daily Mail gossip columnist Nigel Dempster and his employers an estimated u13,750 in the High Court. The bill, comprising contempt fines of u35,000 and a legal costs bill of around u20,000, is regarded as a warning to the media of the hard-line approach courts plan to take towards breaches of orders and undertakings.

In the recent action Judge Richard Walker held that the words, but no lump sum, which rounded off a gossip item on Baron Steven Bentinck, made the sting of the piece similar to an earlier article which had also been the subject of libel proceedings, and which Dempster and Mail publisher Associated Newspapers had undertaken not to repeat. The judge ruled that that similarity rendered Dempster and Associated Newspapers in contempt of the earlier order.

In imposing the fines, the judge said he considered the breach was down to ineptitude and negligence rather than deliberate. He said that if he had considered the contempt was deliberate, he would have committed Dempster to jail for a significant period of time.

As it is, the fines u10,000 against Dempster and u25,000 against Associated Newspapers and indemnity costs, send out a clear message that even if contempt occurs by accident, the penalties are high. According to Raymond Tooth, senior partner with Sears Tooth, who represented Bentinck, the case also makes it clear that when it comes to orders or undertakings not to repeat an offending piece, a repetition does not have to be the same word for word similarity will suffice.

The recent action, which may yet be subject of an appeal, followed a reference made in Dempsters diary column this August to divorce proceedings between Bentinck and his former wife Nora. An earlier libel action brought by Bentinck against Dempster over reference to their divorce in the diary column in November 1995 ended in settlement, with Dempster and the Mail paying damages of u50,000 and agreeing not to repeat certain statements. That initial article, accepted to be inaccurate, described Baron Bentinck as a creep, and indicated that despite his wealth he was mean towards his sick wife during their divorce proceedings.

The more recent article asserted that the former baroness received a tax-free u5,000-a-month settlement but no lump sum, and it was those final words that tipped the scales for the judge, making the second piece sufficiently similar to the first to bring it in breach of the undertaking.

Dempster, who has never before been in breach of a court order in the 24 years he has edited the Mails diary column, had told the judge that he was well aware of the undertaking but did not consider what he had written had been in breach of it. It was argued that no reasonable reader would have drawn an inference of meanness from the piece, and that reporting it as a settlement had indicated the Baroness was satisfied.

That argument would have carried the day, said the judge, but for the last four words of the piece, which, when read in the context of a piece that also described the Barons jetsetting lifestyle, would be taken by readers to indicate meanness, although on a lesser scale than the initial article indicated.

Tooth says he considers that the importance of the decision lies in the judges approach to similarity. An undertaking in the classic form is not to repeat the same words or similar. This decision shows that similar really does mean similar. The decision serves as an important warning to the media, he says. The penalties imposed by the judge are also to be regarded as a warning that judges take breaches of undertakings or orders even where the exact words are not repeated very seriously. I feel this case is a salutary lesson for all in the media, and gossip columnists in particular.