Richard Desmond’s attempt to sue an investigative journalist merely highlighted the weaknesses of English defamation law, says David Allen Green

Last week a defendant won a libel case at the English High Court. Although this is not altogether unknown, it is worth looking closely at how it was achieved. The case shows just how incredibly difficult it can be for any journalist or writer to succeed against the might of English libel law. This case is in fact a practical and worked example of what it takes to force back the legal impediments to free speech in England.

The defendant was Tom Bower, the investigative writer. The alleged libel was a passage in his recent biography of jailed media magnate Conrad Black. The passage describes how Lord Black betters a business and publishing rival by rather unattractive means. This rival is even pitched in the book as “a tough operator” so as to show the sheer forcefulness of Lord Black in his business practices.

Bower was then sued for libel. However, it was not Lord Black who sued Bower, but the beaten “tough operator” business rival, Richard Desmond, the owner of Express newspapers.

One cannot be certain why Desmond sued Bower over a brief passage in a biography of Lord Black. It may be that Desmond was not really concerned with this passage, but that he was really seeking to inhibit Bower from publishing a biography of Desmond himself. If so, this would not be the first example of “libel chill” being used in what Americans call “strategic litigation”. This is where the tools of litigation are used for wider commercial or political goals, or with ulterior motives.

Whatever Desmond’s motive, English libel law requires the claimant to show that a passage is defamatory of their reputation. So Desmond glossed the passage so to give it the most serious defamatory implications.

He alleged that the passage in the biography meant that Desmond was “motivated entirely by his personal desire to get revenge against Conrad Black for losing an earlier court battle with him”.

He also alleged that the passage meant that he “had directly ordered the Editor of the Daily Express to run a horrifically damaging story about Mr Black’s (and Hollinger’s) financial dealings, wholly indifferent as to whether the story was in fact true or false, in a vindictive and completely unjustified attempt to damage Mr Black’s reputation and that despite his reputation for being a tough businessman and the fact that the story was actually true, the Claimant allowed himself to be ground into the dust by Mr Black by accepting an abject and humiliating settlement”.

With this “pleaded meaning”, Desmond was able to get the libel case off the ground. Libel claimants in England do not need to show any loss has been suffered or is even likely; they do not even have to show that there has been any damage to their reputation.

The burden of defending the case then switched to Bower. Defending a libel action is expensive, time-consuming, and highly stressful. Nonetheless, Bower adopted a broadly-based defence. The passage was either not a libel or was justified and broadly true. Even if it was a libel, Desmond should only receive nominal damages.

Desmond is a controversial figure in the UK newspaper industry. Bower sought to include in his defence various well-documented examples of Desmond’s domineering approach to his ownership of his newspapers. Desmond of course opposed this, arguing that it was not relevant to the issues before the court.

There is a principle of English law that the evidence put before the court should be relevant to the issues of the case. In this sense, Desmond had a point. Some of the examples were nothing to do with the incident described in the biography, and nor did they show anything about interfering in editorial policy. Even Desmond has rights, even in this sort of case.

But there was one telling piece of evidence which was particularly important for Bower’s defence. It was a transcript of a bullying telephone call made by Desmond to another business associate. The telephone call was then followed by attacks on that business associate in one of Desmond’s newspapers. A libel claim followed and, in a statement subsequently read out in court, Desmond accepted that this earlier newspaper attack had been prompted by him.

Unlike most of the adverse stories about Desmond, this appeared highly relevant to all the issues in the case. However, it was ruled out by the trial judge Sir David Eady. Bower pressed forward and appealed this ruling. Ultimately Bower’s appeal was upheld by the Court of Appeal in stark and emphatic terms.

One appeal judge stated: “it appears to me that, with respect, the decision of Mr Justice Eady in context was plainly wrong”. Another added that “unless the court interferes, the jury will not hear evidence, the absence of which in my view might lead to a miscarriage of justice…this is not a case of interfering with a case management decision or interfering with some discretionary decision of the judge. It is taking steps to ensure that a possible miscarriage of justice does not occur.”

One cannot know whether this evidence determined the outcome of the trial. The deliberations of the jury room are a strictly kept secret. Regardless of the weight which was eventually placed on the introduced evidence, one must be struck by the additional difficulties – including expensive and complex appeal hearings in addition to the full jury trial – which had to be overcome by Bower to defend his case. One must also be struck by the court of appeal only intervening in the extreme case of a threatened miscarriage.

In the end, however, Bower was able to defend himself by producing evidence which was relevant to the case and damaging to Desmond. An investigative writer thereby was not defeated in the libel courts, and the cause of free expression was served.

More widely, there are both encouraging and depressing implications of this case for free expression in England.

On one hand, the court of appeal can and will overturn illiberal rulings in libel cases; but on the other hand, one must wonder how many rulings have been left not appealed because of the costs and complexity of conducting such appeals. Not every libel defendant is as determined as Bower.

Perhaps the most worrying feature of all English libel litigation is the lack of rigorous oversight of the high court from a free expression perspective. There does not appear to be any real bite to the free speech right provided under Article 10 of the European Convention of Human Rights, which is supposedly given effect in English law by the Human Rights Act 1998.

Trial judges do make mistakes; and trial judges can sometimes concentrate on technical issues of the law of evidence rather to see the issue in broader terms of free expression and other fundamental rights. In this way Mr Justice Eady is in the same position as any other trial judge.

The severe problems which beset English libel law, and perhaps render it not fit for purpose in the age of free expression, are actually wider than the contribution of any particular judge.

The English legal system is simply at fault in not embedding free expression in the routine administration of justice.

David Allen Green is a London solicitor. He blogs as Jack of Kent.