Should the courts listen to Max Clifford’s invective of the Hamiltons in his defence against them?

In the ghost town that is the law courts, there is a most interesting libel action afoot that continues to fascinate. It is an action between, in the blue corner, Neil Hamilton, famed for the libel action he dramatically lost against Mohamed Al Fayed, and in the red corner Max Clifford, the UK’s best-known publicist, and on any account the UK’s most consummate media manipulator. So why the punch up?

It was Clifford who introduced Nadine Milroy-Sloan, the lady who complained to the police that both Neil and Christine Hamilton had been present while she was being raped, to the News of the World. The Hamiltons were arrested in August 2001, generating huge media coverage. No charges were ever brought and it was subsequently established that the allegations were totally untrue, resulting in Milroy-Sloan being sentenced to three years’ imprisonment.

The Hamiltons are seeking compensation against Clifford for the comments he made to journalists and on GMTV regarding the allegations and the police investigation. There has already been a number of pre-trial spats. But it begs the question to the reasonable man on the Clapham omnibus (formerly a Routemaster): what are the risks in a libel action where you have a reputation which is not entirely free of blemishes?

Bad reputation is often used in a plea of justification or to mitigate damages. An 1882 case, Scott v Sampson, governs the law applied. It says that only evidence of general bad reputation is admissible. Evidence of specific acts of misconduct by the claimant, revealing their character, or rumours about it, are not.

The opponents of the rule say the test is prohibitive and out of date. In fact, there was an attempt before the 1996 Defamation Act to abolish it, but there was a fear that doing so would open the floodgates to muckraking. As a result the rule has remained intact. However, there has been a relaxation in interpretation, partially through the courts’ anxiety to observe Article 10 of the European Convention on Human Rights in relation to freedom of expression. In the recent case Burstein v Times Newspapers (2001), which concerned a composer who it was alleged used to organise hecklers of performances of the music of Sir Harrison Birtwistle, evidence was allowed to be given of previous conduct because of its proximity to the alleged libel. The Court of Appeal ruled that the rule did not prevent a jury from having access to directly relevant background material, as it should not be required to assess damages in “blinkers”.

The courts will not allow defendants to justify or mitigate damages in cases where they have got the story wrong by simply rubbishing the claimant and digging up as much dirt as possible. Nevertheless, it is clear that they are now increasingly reluctant to prevent a defendant from demonstrating more than merely evidence of bad reputation, that is events in relation to particular acts of misconduct, in order to give a more accurate picture of the claimant’s reputation.

We are living in a society where, if there is anything to know about you, most people will know it. Few people do not know of Neil Hamilton’s failed libel action against Al Fayed and about his and his wife’s lives generally. The internet records anything of interest (although, of course, even if it is not necessarily true). We even see from Channel 4’s poll to discover the ‘100 worst Britons we love to hate’ that the Hamiltons are nineteenth and Max Clifford is 30th in the list, just under Cliff Richard.

If you have a past then you can be sure that the defendant will try to refer to it one way or other. Perhaps the Scott v Sampson rule should be put to rest and our libel judges, who now have much more time on their hands, should be left to bring the law into the new millennium.