(not satire – it’s UK libel law)
Apparently something rather odd is afoot in the Lord McAlpine libel suit currently being heard against Sally Bercow in the High Court.
I have no legal background or grounding in law myself, but I’m told by those who have that it looks as though legal precedent is either being overlooked or is being strangely ignored.
According to case law, a previous judgement in Smith V ADVFN (another internet libel case involving multiple defendants) shows clearly that if the guidance in the case is followed, Lord McAlpine’s action should be doomed.
Put simply as possible, the judgement says that compensation in libel cases should be considered as a whole and not on an individual case by case basis – in order to avoid what the judgement calls ‘overcompensation’.
Here’s the relevant part of the judgement:
any distress and hurt feelings suffered would have to be compensated by reference to the totality of the publications and not on the artificial basis of the sum total of the impact upon his feelings by one individual publication; otherwise there would obviously be a significant risk of overcompensation.
Considering McAlpine has already received over half a million pounds in compensation for exactly the same “distress and hurt feelings suffered”, it would seem he and his lawyers are proceeding clearly on a case by case basis in order to receive yet more compensation – and for some reason they are being allowed by the UK legal establishment to get away with it.
Although the judgement in the McAlpine/Bercow case is yet to be given – it’s expected some time this week – the question is why has the suit not already been dismissed by the judge as an abuse of process on the basis of the above judgement?
This comes on top of the Solicitors Regulation Authority bizarre inaction after McAlpine’s solicitors were accused of breaking the solicitor’s code of practice by indulging in what is known as ‘speculative invoicing’.
Here’s my previous blog post about that:
Are McAlpine’s lawyers breaking the solicitors’ code of practice?
If the judgement goes against Ms Bercow – with no reference to the above judgement – is it a case of one libel law for Lords of the Realm – and another for the rest of us?
Or is the UK legal establishment making an attempt to reassert its authority over what it sees as a little bit too much in the way of free speech on social media for comfort?
What do you think?
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Here’s a link to Smith V ADVFN – the preliminary hearing.
And a link to Smith V ADVFN – the full judgement.
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Related articles by Tom Pride:
Savile wasn’t ‘hiding in plain sight’. It was a cover-up.
Justice? McAlpine gets hundreds of thousands in compensation while child victims get next to nothing
I hope Lord McAlpine isn’t going to sue me for saying this?
Are McAlpine’s lawyers breaking the solicitors’ code of practice?
Why are UK police helping McAlpine sue twitter users when he’s a tax exile in Italy?
Lord McAlpine in his own damning words – The New Machiavelli?
It was the police – not the BBC – who wrongly named Lord McAlpine in abuse allegations
How did Cyril Smith get away with paedophilia? By threatening tweeters and bloggers with libel!
Child abuse scandal can of worms – just who is Daily Mail reporter David Rose?
High level child abuse cover-up? Why has Theresa May barred a US journalist from the UK?
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Pride's Purge 
maybe someone should report his solicitor to his professional body.
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Pingback: Something odd in the McAlpine v Bercow case – is legal precedent being ignored? » Alternative News Network
If Lord McAlpine succeeds in his heavy-handed action against Sally Becow, I suggest we all tweet about his long-held collection of disturbingly sexualized prepubescent nude female images, in response. He has tried to maintain anonymity in the disposal of his vast Ovenden “art” collection, but cannot deny prior ownership. Now that Graham Ovenden has been convicted of molesting his subjects, we know these were images of abused children which McAlpine avidly collected and defended as innocent works of art.
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Excellent article and at last one which has picked up on an extremely important point. It raises a number of issues which the judge will certainly need to address if this is not resolved this week. If I am understanding this correctly, he will not only have to assess the compensation received to date, he will have to consider any action in the pipeline and any other further action McAlpine intends to take against others. And then the judge, when considering damages would only be able to assess SB’s role in the whole picture. Add that lot up and surely this can only result in one outcome. Another libel case dismissed as ‘not worth the candle’.
If the case is not thrown out on meaning and the judge goes on to award any damages against SB as an individual, that may well result in McAlpine being able to pick off more defendants one by one – over-compensating himself more and potentially bringing the administration of justice into disrepute. I also note these observations from the judge in the links:
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73.First, there was the potential risk of over-compensation (to which I had referred on 12 May). It was clearly necessary for any award of damages to be made in the context of all the claims (including those settled last year). It would not be right to compensate for either injury to reputation or for hurt feelings as though any individual’s publication(s) had been the sole cause.
103. On the other hand, they do need to be seen in the context of the litigation as a whole. Not least, I have to bear in mind the undoubted need for these cases, if they are ever to be heard, to be heard together so as to avoid inconsistencies and over-compensation. They need to progress, if at all, in harness.
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We obviously have to accept that the judge may dismiss the case on meaning and so these questions may not arise. Nevertheless when one looks at what the Appeal Judges said here (see link) about a previous decision by the judge presiding over McAlpine V Bervcow (Waterson V Lloyd) perhaps there is some valid concern that the Sally Bercow tweet is being over-analysed and the wider picture being overlooked. The legal commentary on this article is interesting and suggests that some judges still have the tendency to over-complicate some cases and in doing so allow nonsense libel claims to run for years when they should have been judged accordingly at the outset.
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http://inforrm.wordpress.com/2013/03/02/case-law-waterson-v-lloyd-honest-comment-and-political-discussion-edward-craven/#comments
“Nevertheless, the outcome of the Court of Appeal’s decision is a sensible one. As McCombe LJ recognised, in libel litigation it is too easy for a microscopic dissection of words to displace straightforward and commonsense interpretations. The law is designed to compensate claimants for injury to reputation actually caused – a forensic and sterile linguistic analysis is therefore best avoided. Richards LJ’s approach had a distinctly artificial air, whereas the majority’s approach – eschewing over-complicated analysis and focusing on the meaning that an ordinary layman would attribute to the publications – was grounded in reality”.
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Anyway – it should be interesting to see if the judiciary do go ahead and ignore or overlook their own clear guidance. Interesting times ahead.
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funny i was one of the people on twitter he was supposed to be suing but i am still waiting for my letter.
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I suppose the other thing to consider is the fact that as well as Sally Bercow apologising for the tweet, it has been reported from some sources that she made an offer to settle. Has McAlpine refused a perfectly reasonable offer of amends?
Surely any offer would have to be considered reasonable if it also took account of the totality of the publications, the others involved and compensation paid to date.
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it seems the secret of avoiding a mcalpine lawsuit is to not apolgise and carry on saying it and then for some reason he dosent want to know.
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Reblogged this on 3am.
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Tom
I see you have been canvassing for some views in the Twitter legal community about your article. Good luck on that but I have done the same elsewhere and apart from one half hearted attempt at a reply, I have never got a response. Many lawyers will say you are wrong in law. When you point out the comments were from a judge, they will then either say that the judge was wrong or will say this case is different.
Of course the considerations about over-compensation should apply to all libel cases involving multiple defendants. I would not suggest that Sally Bercow’s legal team have ignored it as I know they are competant and probably are doing a good job considering. The judge issues the directions and manages the case and the defence team has to work within that.
I know we may be getting into arguments which have not been considered in court yet but what I would like to see is a legal perspective on how, if at all, the above guidance might come into play in the scenario that Bercow loses the hearing on meaning. It has been reported that the hearing on damages would just deal in making an award, which assumes that the compensation and totality of the publications will be considered but Bercow will be liable for at least a small award and costs. In my view such an outcome would still be quite wrong giving the circumstances here and the clear guidance
To pick up on the point about the direction of this case when compared to others which have been dismissed as an abuse of process, it would be interesting to know what is different about this case and others like Waterson V Lloyd, where meaning was debated at length – and others where the judge concluded that a set of words might be defamatory but the costs would far outweigh any vindiction and compensation award in any event – so is an abuse of process.
Perhaps it is due to the fact that the Bercow’s team deny the tweet was defamatory and therefore the natural legal course is to have a hearing on meaning. But I do wonder if the judge could not have approached this in the way Eady J did in Smith V ADVFN. He mentioned many defences he thought might be available for defendants and the numerous weaknesses of the claims but did not make a specific ruling on the posts in question. He stayed the proceedings for several reasons – not least because the claimant was attempting to sue scores of people and there was a danger that if he continued seeking compensation on a claim by claim basis, the administration of justice could be brought into disrepute. At the very least you could argue that this potentially is a similar situation here.
In the above case, the judge did not sit there analysing the 264 posts, although he concluded that at least one or two were defamatory. The judge told the claimant that if he wanted to proceed he had to show why each of the 40 odd claims had a reasonable prospect of success considering all the potential weaknesses mentioned in the judgement – including the points about the danger of over-compensation in terms of totality of the publications and number of defendants saying the same thing and the three claims setted by negotiation a year earlier. The claimant could not show that and lost.
Anyway – this was one attempt by a lawyer on another forum telling me why the over- compensation arguments would not apply here. I responded to his reply and that was the last I heard from him on the point.
MickC
Loverat,
I presume from what you say that you accept Bercow libelled McAlpine-and the point at issue is damages.
The Bercow case is the only one proceeded with-it is therefore the only one in which compensation can be set by the court. By definition it cannot be taken “in the round” with others.
Loverat
MickC
Over-compensation considerations in the case I mentioned also applied to settlements not set by the court – negotiated settlements e.g Statements in Open Court. This will apply to the £310,000 McAlpine negotiated with the media corporations. The guidance is clear on this and if you research the above case, the judge in para 73 was referring to settlements paid by defendants to avoid continuance the year before. The judge also refers to ‘totality of the publications’ not totality of previous damages awarded by the court.
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Sally Bercow has hired excellent counsel in William MacCormack QC; she has offered to settle, she has pleaded her innocence; and she wrote on her equivocal tweet *innocent face*….That is surely no proof of wrongdoing or libel, IMO. ~~McAlpine is making a big fuss over nothing and he is acting like a ********** *******-** ******* …. [*innocent face*] 🙂
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I think law is a lot more subjective than lawyers and judges would have us, and themselves, believe.
I think right-wing politics enters many courtrooms, that many judges and lawyers import their right-wing politics into the courtroom and that there are plenty of right-wing ‘official’ kangaroo courts up and down the land. Furthermore, I think these courts frequently hand down right-wing biased decisions.
Look how the rioters are factory-processed at the weekend with ‘special’ instructions. By contrast, look how Brooks and Coulson’s case is adjourned (again.) Look how lawyers try to tap-dance around Hirst v UK no2 by conflating EU and ECtHR law.
This sort of thing has been going on for a long time. Remember when copious amounts of convoluted waffle was used to pretend that the Factortame litigation didn’t drive a coach and horses through parliamentary sovereignty?
And don’t get me started on this “libel” case…
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Going back to what the judge actually considered in the meaning hearing.
This is one example where the same judge considered meaning and dismissed the case there and then because the defamatory meaning advanced by the claimant (Nancy Dell’olio) could not be attributed to the words complained of. An interesting judgement although the judge did say that the words did not pass the standard of ‘seriousness’ to be judged as defamatory in a court. I wonder what he will make of this. A throw away comment, albeit made in the background of wider and serious allegations.
Still, I suppose, the judge would probably use much of the criteria when go though the exercise of assessing this case.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2011/3472.html&query=NANCY+and+DELL%27OLIO&method=boolean
Despite some things I am hearing, one has to be confident that the English Justice system and the judge will find a way to dismiss this on similar grounds. Obviously if it carries on then the important points about compensation must surely become relevant.
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Well, we all know the outcome so probably not alot of point in adding further comment now Sally Bercow has decided to give up. We all know the outcome was wrong but it would be interesting to know why this was when recent decision making in libel cases was improving. I have continued to canvass views elsewhere about this case – not on the decision on meaning (which legally and technicaly may be correct) but the outcome as a whole and the apparent failure or lack of provision to address all the crucial points mentioned in the article.
The odd thing is that within the legal community there appears to be a wall of silence about this case and no one seems to wish to acknowledge or discuss why the wrong outcome was reached. I would have half expected someone to at least address my points about the direction of this litigation and case management but nothing. For example that might help people understand why the legal guidance was not considered in the decision making process.
Tom – I don’t suppose you ever got a reply from David Allen Green who claimed he was helping Carter Ruck with the defence? I thought he said he was going to comment at some point – but I have not come across anything. More generally speaking it seems that for whatever reason there are those that wish to quietly forget this case but I think it is important to know what happened. There are some (not myself I might add) who are suggesting the defence team goofed up and pursued the wrong line of defence. I believe the judge has to be responsible here but it nevertheless would interesting to know why there seemed to be no provision within the process the judge chose for the correct guidance to be raised.
It is important because people need to know whether the judge has departed from previous legal precendent and guidance as a one off – or he will now adopt this rather narrow mindset going forward. If the latter, then I might suggest that the work of the Libel Reform Campaign has achieved little.
Interestingly I was reading recently that one prominent Libel Reform Campaigner successfully sued someone for libel recently and I do not think this sends out the right message. I have always wondered whether some of the individuals involved in that campaign have taken part more for self advancement reasons rather than for the greater good. On one hand Libel Reform campaigners have been falling over themselves to support people like Simon Singh but in other cases defendant litigants have totally ignored and their cases have passed without comment or coverage.
Without any response to shed light on this, people will reach their own (possibly wrong) conclusions on who from the above is responsible for this shambles.
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