Article published in New Law Journal Vol 144 No 6656 (July 15 1994) pages 983-984

Publish - And Be Not Damned

Philip Gegan looks at a fairer way of dealing with damages for defamation

Of all the ancient freedoms enjoyed in England through the ages, one alone stands out as fundamental and epitomising all others, and that is freedom of speech. As our legal system developed, it has been deemed necessary to curtail this freedom. Vested interests have from time to time pursued this curtailment by establishing and developing laws relating to blasphemy, sedition and defamation.

Each of these laws may have had some justification when first developed. Church and state, being fundamental institutions, have needed protection at certain times. Blasphemy laws prevented Christianity from seriously being brought into question for many centuries. The penalties can be verified but were extremely harsh. The laws against sedition have helped protect governments from time to time against the threat of violent revolution. Again, the penalties were as severe as they are well known.

The law of defamation, in contrast, has developed to protect not institutions, but individuals - people whose reputations have been unjustly "lowered in the estimation of right-thinking members of society". This concept may have been justifiable in Victorian times, but now the law of defamation is an anachronism long overdue for abolition. It is a preserve for the very rich who can afford to defend inflated egos and risk having to pay thousands of pounds in legal costs. Mention of legal costs brings us to the point that the laws of libel and slander, and the grossly inflated fees commanded by certain lawyers who specialise in this field are largely responsible for the fear and disdain in which the legal profession is held by a large and growing section of the public.

Let us look at some recent cases and the amounts of money involved.

1. A well known political magazine settled an action brought by four police officers by apologising in the High Court, paying them just £500 each, and their legal costs of an estimated £20,000 (ratio of costs to damages - 10:1).
2. Two cases both had the sum of £150,000 as the plaintiff's estimated legal costs. In one, damages of £20,000 were awarded and the other was settled by way of an apology and agreed damages of £15,000 (ratios - 7.5:1 and 10:1).
3. Damages of £400,000 were awarded to the plaintiff, whose initial legal bill came to about £180,000 (ratio - nearly 1:2).
4. An out of court settlement of just £500 was arrived at, with legal costs of at least £4,000. An apology was forcibly extracted by the plaintiff, who was funded by a national employees' association, from the defendant, whose only or main asset was his house. The defendant was prevented from pointing out that only the threat of losing his house made him submit as this would have detracted from the "sincerity" of his apology.
5. A libel writ was issued and an injunction obtained preventing the defendant from calling it what it most patently was - a gagging writ.

All these cases have taken place within the last two or three years. No doubt there are even more embarrassing and revealing cases in the preceding two or three years, and so on.

From these examples two things are clear. First, that sums of money awarded in damages to successful plaintiffs in libel actions are often grotesquely excessive when contrasted with the actual libel committed. Secondly, that legal costs are in turn often extortionate and certainly disproportionate to the sums of money awarded, not to mention the actual work done and responsibility undertaken.

It has long been the case that the amount of damages, as well as the question of whether there has been a libel, is decided by a jury. Perhaps this explains some of the ludicrous sums awarded in recent years. £20,000, £150,000, even half a million pounds - all for something that is not even sticks and stones. How does it compare with the damages awarded to any of your clients who have suffered appalling injuries in a road accident, or had their hand crushed or their back broken? Or to the spouses of people who have had their very lives shortened or taken away through someone else's negligence?

The recent Court of Appeal case of Rantzen v Mirror Group Newspapers (NLJ Law Reports, April 9, 1993, p 507), which reduced an original award of £250,000 to £110,000, has given some cause for hope, in that the court took note of Art 10 of the European Convention on Human Rights. This provides that freedom of expression can only be limited by restrictions or penalties that are "prescribed by law and are necessary in a democratic society" for certain defined reasons. The court, in effect, said it was not "necessary" for a jury to have a blank cheque on behalf of the plaintiff in libel actions.

By making use of s 8 of the Courts and Legal Services Act 1990 the court was able to hold that the original award was excessive. In setting guidelines, the court rejected the option of aligning awards with those in personal injury cases. However, in future reference may be made to defamation awards made by, or having the approval of, the Court of Appeal. Most opinion seems to agree that all this will tend to make future libel damages awards considerably lower.

Nevertheless, who can deny that the law seems to tell us that the supposed reputations of certain rich and famous people are m ore valuable than the lives and limbs of those less rich and famous? Or that crooks like the late Robert Maxwell (no fear of litigation there) can use the law and their financial muscle to issue gagging writs and help conceal their wrongdoings?

At last, a report on libel is being prepared. Lord Justice Neill (who gave judgment in the Rantzen case) is expected to publish his findings shortly. It is to be hoped that His Lordship will be bold enough to cut a swathe right through this antiquated and abused field of law.

How refreshing it would be if it were proposed that the law of defamation be completely abolished in its present form. Of course people who have been unjustly libelled should have a form of redress. But this does not mean that they should be entitled to thousands of pounds - often more than they would be awarded if they had suffered some horrific injury through someone else's negligence.

All that is required is a right of reply. This would give us a system that would be almost self-regulating in that the people to whom the original alleged libel has been communicated would have communicated to them a denial, backed up by relevant facts as appropriate, by the "victim". Libels occurring in the media would be subject to the decisions of the relevant bodies that regulate the media concerned, e.g. the Press Council. They would decide whether a right of reply was justified. The same prominence and circulation would therefore be given to the reply as that given to the original libel. The public could therefore make up its own mind as to whether the original statement was true or justified. This system would also give many of the people who currently use the libel laws so effectively for their own purposes a reminder that they are not above their fellow citizens in the eyes of the law. At present, of course, libel actions are almost exclusively the preserve of the super-rich (those to whom the loss of several thousand pounds by way of damages and legal costs would not be a complete disaster). Legal aid is not available for the ordinary citizen to protect his name or defend proceedings brought by someone with more money. A just and fair system for dealing with alleged defamations of character does not exist now but could easily be made to do so.

There will, of course, be substantial opposition to any reform of these archaic laws, not least from those lawyers who have made a very comfortable living from acting for vexatious litigants active in the libel arena. But certainly most people, including most lawyers, would welcome such a change. It would, by itself, lift the standing of the legal profession immeasurably and free an almost immeasurable amount of High Court time (to say nothing of the time of the unfortunate jurors) currently wasted on futile actions that only interest the public on account of the sums of money potentially involved or the personalities of the parties.

This reform can and must be made. All it needs is the necessary commitment and sense of purpose on the part of the legal profession.

Copyright © 1994-2008 Philip Gegan, Leicester, England.