Would you sue your paper boy?
by Steve Platt (New Statesman, 12 March 1993)

It may be true in politics, as Samuel Johnson proposed, that there is no settling the point of precedency between a louse and a flea. But insofar as the laws of libel are concerned, the distinction can be highly significant.

In his book My Learned Friends (just published in paperback as Grotesque Libels), Adam Raphael tells the story of the flea that allegedly bit the backside of Margaret Thatcher's husband, Denis, during the 1977 Conservative Party conference. The Observer's Pendennis column reported the incident as follows: 'The great flea epidemic sweeping the country has claimed at least two political victims. At the Conservative Party conference last month in Blackpool, Mrs Thatcher's unassuming husband husband, Denis, was bitten in bed at the Imperial Hotel by one of the fleas much encouraged this year by our damp and mild autumn. The flea left the Tory leader alone. The Imperial Hotel took every precaution against the invaders, even to the length of buying new beds for the Thatchers' suite. Another prominent member of the party, however, was also bitten in his bed at Blackpool and was so incensed that he has written to the hotel where he stayed.'

Three days later one of those letters calculated to make all editors groan with mixed derision and despair arrived at the Observer. It was a writ from the Imperial's owners, swiftly followed by their 'statement of claim'. In the lingua franca of a libel action, it alleged that 'the natural and ordinary meaning' of the words contained in Pendennis was that: '(i) the Imperial Hotel at Blackpool was infested with fleas and that guests were exposed to the risk of being bitten by fleas; (ii) that the Imperial Hotel at Blackpool was unhygienic and not fit to be regarded as a luxury hotel and that the Plaintiffs were not fit to run the same.' The Imperial's lawyers made the familiar claim for a full apology, damages and costs.

What sort of 'natural' and 'ordinary' meaning is this, one may ask, that can be read into a trivial and innoccuous diary item so as to turn it into a calumny so vile that it can only be remedied by recourse to the full weight of the law? It is, of course, the 'natural' and 'ordinary' meaning of a libel lawyer, which, in cases such as this, may be neither natural nor ordinary, but is sufficient to send publishers scurrying towards the safety of a speedy apology and an out-of-court settlement -- which, however unjust in relation to the contents of the original article, is a far safer bet (poker players apart) than the hugely costly lottery that a full-blown libel trial comprises.

The case of the Imperial flea was eventually settled by what Adam Raphael describes as 'mutual assurances of goodwill and esteem on all sides'. But not before nearly a year had gone by, during which the legal bills had reached five figures and Denis Thatcher had decided, 'on mature reflection', that he had not been bitten by a flea after all, but by a sea midge. Raphael reports how, in the course of the arcane legal to-ings and fro-ings that take place in the period between a libel writ being issued and an action being set down for trial, 'Distinguished entomologists were consulted and the precise characteristics and differences between the two species of insect were meticulously logged. While fleas bit, the entomologists agreed, sea midges did not, or at least did not inflict anything like the same degree of bloody damage.'

The point of precedency between a sea midge and a flea clearly could be settled to the satisfaction of libel lawyers. The above-quoted entomological experts seem to have given the Observer's lawyers cold feet about the prospects of winning the case in court. This was despite the fact, as Raphael wryly reports, that Tory MP Edward du Cann, whose wife had counted 34 different 'fleabites' on his body during his stay at the Imperial that week, had offered to go into the witness box on the Observer's behalf and, if necessary, to expose his injured buttock to the jury as evidence.

Great theatre and courtroom drama it may well have made. But as a basis on which to secure accurate reporting, or redress of genuine injury, it is pure farce. In the end, in this case, two equally matched opponents decided to cut their losses (and the lawyers' gains) and settle for an amicable draw. Against the advice of senior counsel, the Observer's editor carried a small article announcing the conclusion to 'the libel case of the century'. For once the plaintiffs shared the joke; they responded with an invitation to Adam Raphael and his wife to spend a weekend at the Imperial's expense.

Other libel settlements are rarely so amicable. More usually, one or the other party decides that they cannot afford to take the case all the way to court. This has little to do with the likelihood of their winning. Libel actions are unequal contests for very high stakes. Impoverished publications -- or plaintiffs, for financial disadvantage can cut both ways -- are compelled to settle early, and comparatively cheaply, for fear of the costs of a full trial.

Costs can be ruinous in either direction. In 1983, the actress, Charlotte Cornwell, sued the Sunday People over a television review by Nina Myskow in which she said of Cornwell: 'She can't sing, her bum is too big and she has the sort of stage presence that jams lavatories.' When the case came to court, the jury found in Cornwell's favour and awarded her £10,000 damages. The Court of Appeal, however, subsequently ruled that the judge had misdirected the jury and ordered a retrial. This was aborted after two days, when the judge in that case ruled that Cornwell's answer to a question put by her QC was grossly prejudicial. A third trial was held, in which she was awarded £11,500 damages. But, as Adam Raphael writes in My Learned Friend, 'At the end of the day she was more than £70,000 down because the costs of the first trial were split and she had to pay all the costs of the appeal and the abortive two-day retrial, as well as a proportion of the Sunday People's costs.'

Whatever one thinks of the merits of Cornwell suing over the sort of review that would pass as fair, if cruel, comment under the libel laws of virtually every other country in the democratic world, her case against the Sunday People and Myskow contains one compelling lesson: libel is a rich person's privilege. When a solicitor's letter alleging libel arrives on an editor's desk, two questions are asked immediately: 'Do they have a case?' And 'Do they have the money?' The answer to the latter question is at least as important as that to the former. If the view is that the plaintiff is likely not to have the necessary money to finance a full libel action, or that an unsuccessful action would cost more than the plaintiff could afford to lose, most publications will try to spin out the period before a case comes to court for as long as possible in the hope (and, often, realistic expectation) that the plaintiff will tire of pursuing it, lose heart or run out of cash. Since, typically, it takes several years for a libel case to reach court, this process of attrition enjoys every chance of success.

In contrast, wealthy or powerful litigants can secure out of court settlements with little regard to the actual merits of the case. Big companies, in particular, often seek little or no financial redress; their intention is to suppress editorial matter that is critical of them and their activities. A quick retraction and a promise not to repeat the alleged libels in future has the desired effect, not only of clamping down on the story in question, but of deterring other publications from carrying unfavourable articles -- on this or any other story about the company -- in future. Since costs alone in a moderately complicated libel action can very easily reach six figures, the pressure to settle quickly out of court -- and not only for impecunious publications -- is immense.

When the Spectator's columnist Taki was sued for calling Rosemary Marcie-Riviere 'a merry widow', the magazine went down for £15,000 damages; but its bill for costs was ten times as high. Last year, when Hayes and Harlington's Labour candidate, John McDonnell, settled the libel action against him by his opponent, Terry Dicks MP, he had to pay damages of £15,000; there were also Dicks's costs (incurred by £240-an-hour libel specialist Peter Carter-Ruck) of £55,000. Even in a very straightforward libel action, such as that of Edwina Currie against the Observer (again handled by Carter-Ruck), the £5,000 damages award was dwarfed by the £30,000 costs.

The pressure towards pre-court settlement has been intensified, of course, by the windfall awards that have increasingly come to characterise juries' decisions in libel cases. The figures in recent years tell their own story: £450,000 to Commander Martin Packard for a story in the Greek newspaper Eleftherotypia, which sold only a couple of dozen copies in Britain; £500,000 to Jeffrey Archer from the Daily Star; £300,000 against the trade paper Stationery Trade News for an article about a stationery distributor; £700,000 in total to Koo Stark from the Sunday People, Sun, Daily Mirror and News of the World for suggestions that she had continued an affair with Prince Andrew after her marriage; £1.5 million to Lord Aldington against Nikolai Tolstoy for allegations about his part in the forced repatriations of Russians and Yugoslavs after the war.

No one argues that any of these -- or many other -- pay-outs bear any meaningful relation to the actual hurt or damage caused by the libels for which they were awarded. Certainly, when the Criminal Injuries Compensation Board assesses rape at £5,000 and the loss of an eye at £13,000, there is no serious case to be made that reputations should in any way be valued at a sum 20, 30 or 300 times higher. Sticks and stones may break my bones, but names can make me rich.

Jury-determined damages bear no logical or rational explanation. It is lottery, pure and simple. Little has changed since C H Rolph wrote in the New Statesman in 1970 of how one jury reached one of these 'curiously varying figures': '[The] foreman opened the discussion with "Well, how much?" One juror timidly suggested £100. Another immediately, and angrily, said £5,000. Others began filling in with intermediate sums. £500, £1,200; and one man, inscrutably, said £2,780. In the end, the foreman added them all up and divided by 12, and that was what the plaintiff got.'

What juries have been doing for years (and what politicians have been happy to let them continue to do; hence the absence of legislation to reform the libel laws) is to punish publications for the perceived excesses of the press. This is convenient on a number of counts. It means that a very rough sort of control can be imposed upon the press without the messy business of the government being seen to intervene in press freedom. And it enables the rich and powerful (among whom must be counted politicians) to exert a brake on what can be said and written about them without incurring the obloquy that would follow from a more direct assault on press liberty.

There is no shortage of support, or workable proposals, for reform of the libel laws: rationalising the basis for libel awards by taking the power to fix damages out of the hands of the jury and giving it to the judge; introducing a 'fast-track' procedure by which inaccuracies can be corrected quickly and with minimal expense; introducing a right to reply; an arbitration system that would cut costs massively by all but taking libel actions out of the hands of the legal profession; the abolition of jury trials, allowing county court judges to hear cases and fix the level of damages.

There was, indeed, an explicit commitment to reform in the 1992 Conservative manifesto following on from the Lord Chancellor's review committee recommendation in 1991 that procedures should be simplified, that defendants should have greater rights to draw attention to previous misdeeds by plaintiffs in order to mitigate damages, and that actions should be concluded with damages assessed by a judge unless the plaintiff could prove that a defendant had published a libel recklessly or knowing it to be false. The Lord Chancellor also announced in 1991 the government's intention to extend the defence of 'innocent dissemination' as soon as a convenient legislative vehicle became available.

This is of particular relevance to the use of the libel laws to pursue third parties other than the authors and publishers of an alleged libel. As the law stands, there is nothing to stop anyone taking legal action against any part of the production and distribution chain, right down to corner shop newsagents and the paper boys and girls they employ to deliver publications if they so choose. In recent years, only a small minority of libel plaintiffs have sued printers, distributors and retailers. Since James Goldsmith's libel actions against Private Eye in the 1970s, when at one stage he had some 74 separate writs out against virtually anyone involved in the printing, distribution and sale of the magazine, it has been regarded as a somewhat direputable practice, employed only by the likes of the crooked newspaper tycoon, Robert Maxwell. Most plaintiffs have accepted the argument, as we have made in these pages previously, that it may have been different in Caxton's day, but in modern conditions the printers, distributors, wholesalers and retailers of publications have little more control over what passes through their hands than Sony and Ferguson have over what is shown on their television sets.

In their case against the New Statesman, the Prime Minister and Claire Latimer have now chosen to take a contrary view. They are, of course, within their legal rights to do so. As Lords Scarman and Bridge remarked, in their majority ruling, from which Lord Denning dissented, in the James Goldsmith v Sperrings case in 1977, Goldsmith's action was not, as Denning suggested, an abuse of legal process. He had merely used the legal process according to his rights. The threat to press freedom, therefore -- and Scarman and Bridge seemed to be clear that such a threat did exist -- came not from Goldsmith, but from the law that allowed him to sue everyone involved in the production and distribution chain. It was for parliament, not judges, to change that law.

Sixteen years on, despite the overwheling evidence in favour of reform and explicit government commitments to introduce it, parliament has still failed to do so. The question should be asked of MPs: would you sue your paper boy? And are you in favour of the continuation of a law that makes it possible for people to do so?

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