Events | 2009.12.06
Libel in the spotlight
In an extract from his submission to parliament, Tom Bower describes the impact of Justice Eady\'s actions in his battle against Richard Desmond
Richard Desmond [the owner of the Daily Express] issued a writ for libel against me in 2007 concerning two paragraphs in a biography I had written about [rival newspaper publisher] Conrad Black that referred, in passing, to him. Desmond v Bower, as the case became known, raises the following issues: libel writs are being used by the rich to suppress objective discussion of the truth; specialist solicitors are encouraged by the attitude of the courts to issue threats knowing that the cost of rebuttal by the media has become prohibitive; some judges are prejudiced against journalism; and the administration of the libel laws lacks even-handedness.
At an early stage, my defence team applied for an order that the words published were not arguably defamatory. Had they succeeded, the claim would have ended at that point, at relatively little cost. For the claim to have been struck out at that stage it was necessary to show that a jury would actually be perverse to find the words were defamatory, and the court of appeal had shortly before made it clear this decision was for the jury, not the judge. Mr Justice Eady, who heard the application, indicated that he thought that the jury might well find the words were not defamatory at all, but he could not usurp that function. The net effect of this decision was, though, that rather than having a claim that should have been recognised as trivial at best struck out or contained at an early stage, the parties were now left with incurring the costs of defending the claim to trial or giving in. The structure of libel claims is such that the costs of so doing would inevitably be totally disproportionate to any award of damages.
As a result of this ruling, a full defence needed to be prepared. This requirement that a very expensive defence be prepared on the basis of something the defendant believes to be a vacuous position is one of the failings of the current law.
Following service of the defence, Desmond\'s side went very quiet – although a claimant has the responsibility to push their case forward. Desmond, it appeared, was delaying the litigation which he had initiated. He then sprung a surprise. On the day that lists of documents were due to be exchanged, his solicitors suddenly announced they were going to make an application to cut down the defence. Desmond\'s side argued that the defence would be limited to pleading only material that directly related to his campaign about Black, and that the jury would not have the benefit of knowing that this was part of the typical pattern of Desmond\'s behaviour. Eady sided with Desmond and ruled that all the material that did not refer to Black had to be excised from the defence. Subsequently he ruled that even material that referred to Desmond\'s attitude to the Telegraph – such as the notorious "Nazi" incident – also had to be excised. This meant that he was able to come to court with a "clean slate" – he argued that he had no personal grudge against Black, that the insults he had published were just "banter" and that he did not influence what was reported in his papers. Equally important, Eady ruled that the defence could not mention Desmond\'s involvement with pornography or anything else detrimental to his reputation. Considering the damaging and verifiable evidence set out in my defence reflecting the truth about Desmond\'s past, Eady\'s ruling created a wholly artificial position. We were fighting a battle where the odds were already against us, as a result of the generous presumptions English libel law makes in favour of the claimants. But now, our hands were tied behind our backs and we were gagged from producing evidence of Desmond\'s behaviour with regard to other rivals, to his staff who did not do what he demanded, and to his willingness to use his papers to advance his business interests when it suited him (consistent with his previous methods of business). We were not to be allowed to show that: "the claimant (ie Desmond) treated Express Newspapers as his personal vehicle to serve his own agenda".
In early 2009, after the judge\'s ruling, a new example of Desmond\'s interference arose in a high court settlement. My lawyers sought to introduce that settlement into my trial. The uncontested evidence was that on 10 July 2008, Desmond had a telephone conversation with Jafar Omid, the manager of Pentagon Capital Management, which had previously invested millions of pounds belonging to Desmond. Omid was compelled on legal advice to continue to hold £75,000 of Desmond\'s son\'s money temporarily. Desmond was outraged. He was [subsequently] recorded , as a matter of routine, threatening that unless the money was immediately returned he would publish damaging material. Desmond said: "Let me tell you something, Jafar. As good a friend as I am, I\'m the worst fucking enemy you\'ll ever have."Two days later, a two-page article was published in the Sunday Express which, among many false allegations, falsely stated that Omid had "ripped off hundreds of small investors for an astonishing £1bn". Omid sued for defamation and Desmond surrendered in January 2009.
To be clear: my lawyers wanted to rely on the Omid settlement as proof that Desmond was prepared to order the publication of false stories in his newspapers in pursuit of a grudge. Eady refused to allow this. Initially, he declared that the Omid case occurred after the Express\'s publication of the Black story in 2003 and was therefore "irrelevant" and inadmissible. He refused to let my team issue a witness summons to compel Omid to bring the tapes to court and give evidence as required.
Two appeal judges overruled Eady and confirmed that a witness summons for Omid could be issued, for production of the tapes and for him to testify. Despite the court of appeal\'s ruling, Eady was not prepared to allow the defence to put in all of this evidence.
The similarities with his battle against Black were so striking, so not surprisingly Desmond\'s lawyers strenuously sought to exclude the evidence. To their satisfaction, Eady did not consider that the court of appeal\'s ruling meant the evidence should be put before the jury. Although the jury had heard Desmond\'s denials of a grudge against Omid, Eady declared that the jury could not hear the tape-recorded conversation in which Desmond uttered his threat, or hear Omid\'s testimony.
Eady referred back to his initial ruling: at the beginning of the trial, Eady had ruled that the contents of the tape and the repercussions in the Sunday Express could not be put to Desmond, unless through his evidence he opened up the issues himself. At the end of the defence case, Eady was asked whether it would now be possible to introduce the evidence, as supported by the court of appeal\'s decision, in order to contradict Desmond\'s explicit testimony that he did not have a grudge. Eady now declared that it was too late because both sides had completed their evidence and it would be "unfair to [Desmond] for me to re-open this question". However, Eady accepted that he had originally ruled that any decision about introducing the evidence should be left until the end of the claimant\'s evidence. Now he said that he did not want to prejudice Desmond\'s case. Instead, his ruling risked prejudicing the defendant\'s (ie, my) case. Accordingly, Eady refused my lawyers\' application for leave to return to the court of appeal. Notwithstanding this, in unprecedented circumstances and at short notice, the court of appeal agreed to hear a second appeal. On 17 July, three judges heard the arguments.
In a unanimous judgment, the court of appeal agreed the evidence of the taped conversation should be admitted . Lord Justice Hooper said: "I have no doubt the judge was wrong to exclude the evidence of the telephone call … Indeed I would go further and say not to allow it would risk the possibility of a miscarriage of justice." Even so, Eady would not allow a transcript of the conversation to be provided for the jury, which might have made it easier for them to follow the tape, which was played just once through a PC computer using inadequate speakers in the courtroom, and he refused to order Omid to testify.
In the event, the jury\'s verdict was against Desmond . Considering that the balance in libel trials considerably favours the plaintiff, and that so much evidence was excluded, this outcome was by no means certain. Moreover, I could never have afforded to defend myself without the support of my publishers and their insurers.
I believe Eady should have been able as a matter of law to respond positively to my lawyer\'s application to strike out the case at the outset. He accepted that the words Desmond complained about were barely defamatory and might be held by a jury not to be defamatory at all. In such circumstances, it would have been disproportionate for Desmond to have ever been awarded any substantial amount of damages – but, by being unable to stop the case at that stage, both sides were left in a position where they would have to expend totally disproportionate amounts of money to present their case.
For such a case to proceed, at such risk of costs, against an individual who does not have the resources of the claimant, a billionaire, risks a serious miscarriage of justice, not least because Desmond\'s reputation was never seriously at risk. It was ludicrous for him to be able to suggest that anyone would seriously think he was a "wimp" as the result of the words I wrote, or that it would affect him in business in any way. Desmond\'s complaint was contrived to suppress the unauthorised biography of himself. No author, or even publisher, should risk losing £3m in a suppressive libel action. I believe that Desmond was encouraged to proceed by the fact Eady refused to let me adduce evidence about Desmond\'s reputation and business practices generally, since this may well have encouraged the newspaper proprietor to believe that he could exploit the jury\'s ignorance and win the case. Without that encouragement, the case might have been resolved very much sooner.
This is an edited extract from Tom Bower\'s submission on libel law to the culture, media and sport committee. You can read the full text at http://bit.ly/bowerdesmondon the parliamentary website
For more information, please visit
http://www.guardian.co.uk/media/2009/dec/07/desmond-libel-law-ruling
