Posts Tagged ‘libel reform’
Mystery surrounds a multi-million pound government grant to the charity behind one of Michael Gove’s flagship Academy schools.
Last year, the Durand Education Trust was awarded £17.3 million to build what the Telegraph heralded as the “first fully free state-run boarding school” .
Durand Primary School in Stockwell, South London, had earlier, said the Daily Mail, “used proceeds from a leisure and student accommodation business it runs” to buy St Cuthman’s, the site of a former special needs centre in Midhurst, West Sussex.
The school’s plan was to give its pupils an alternative to poorly-performing local secondary schools when they completed their time at Durand. The new secondary school would be based in the countryside to keep the children far away from “stabbings and the constant threat of trouble”.
“Teenagers will be transported from London on Monday mornings to spend five days and four nights in the country, returning on Friday evenings, all free of charge”, reported the Mail .
To those tempted to ask whether public money would be better spent improving the local secondary schools rather than building an entirely new one, 50 miles away, and then shipping hundreds of children there and back every week, the school had a good answer:
“It wouldn’t cost [the government] a penny”, Durand’s Executive Head told the Spectator. While the secondary school’s core expenditure would be funded by the state in the normal way, “we’d cover the costs of boarding from the profits of our health club”.
According to the Economist, “Nothing quite like it has been tried before”.
According to the Daily Express, “Parents… are delighted their youngsters will get the chance to enjoy a Harry Potter-style education away from the area’s notorious gang culture.”
“Unlike other state boarding schools, it will not charge for accommodation”, explained the Guardian. “Instead, its running costs will come out of private income the school generates from a swimming pool, gym and block of flats.”
Media coverage has been so positive, in fact, that the PR and lobbying company employed by Durand to promote the St Cuthman’s project, secure government funding, and “make Durand Academy synonymous with educational excellence” last year won an advertising industry award for the £200,000 campaign.
It may also have helped that the school has repeatedly deployed libel lawyers Carter Ruck against critics of the school’s management, and is currently suing Lambeth Council over three emails in which its chief auditor raised concerns about its financial affairs.
Yet amid all the glowing news reports, two big problems seem to have been overlooked.
1. Notwithstanding claims that Durand purchased the St Cuthman’s site “using its own funds”, and “using income from a gym and flats on its London site”, Companies House records appear to show that the Durand Education Trust actually took on a debt of £1.9 million to buy the property – over half of its reported £3.4 million sale price:
2. The reported profits from Durand’s business activities cover only a fraction of the school’s boarding costs. It appears that the project will therefore need millions of pounds in additional funding in order to become financially viable – at a time when other schools are having to cut back.
State boarding school lodging costs reportedly range from £7,500 to £12,000 per year for each child. Even at the lower end of that scale, Durand would need more than £4.3 million per year to board the 625 secondary pupils it hopes to take in. In the last three years, the school’s business arm, London Horizons, has generated £304,964 (2009), £255,157 (2010) and £350,120 (2011) for Durand Primary School and the Durand Education Trust – an average of just over £300,000 – less than 10% of the money the school looks to require.
According to “Spears Wealth Management Survey”, Durand has recently launched a public fundraising campaign urging wealthy individuals to sponsor children at the new school, costing this at £3,800 per child, per year. But even at that level, this would still require around £2,375,000 per year for 625 children. This is a sum that many long-standing charities would struggle to raise in a good year, let alone a start-up fundraising programme focussing on a single state school in the midst of a global recession.
When I asked for a copy of the budget and costings for the boarding school project, the Department for Education refused to reveal it, claiming that “Disclosure of certain information would be likely to prejudice the commercial interests of the Department, the proposers or both by adversely affecting bargaining positions and resulting in less effective use of public money”.
So I made a Freedom of Information request to Durand Academy asking for:
“Details of how much Durand paid for the purchase of the St Cuthman’s site”, “The amount of any funds borrowed by Durand to finance the purchase” and “The terms of any such loan, and details of how any such loan is
to be repaid”.
I got the following reply:
1. Details of how much Durand paid for the purchase of the St Cuthman’s site in Sussex.
ZERO (DAT did not purchase the site)
2. Details of how Durand financed the above purchase.
NOT HELD. See above
3. The amount of any funds borrowed by Durand to finance the purchase.
4. The terms of any such loan, and details of how any such loan is to be repaid.
When I queried this, pointing out that a video on Durand Academy’s own website states that “Durand used its savings to purchase a site in the countryside”, I got no response.
But the school appears to be working on the basis – at least when it comes to Freedom of Information – that the Durand Education Trust is legally a separate entity from Durand Academy, and that FOI requests to the latter do not cover the former.
I subsequently told Durand that I’d seen information suggesting they were in debt, and that this seemed to raise questions about the viability of the St Cuthman’s project and the government’s decision to award it so much money at a time of “extreme national austerity”.
They issued a strong denial, stating that:
“Your assertions and source are factually incorrect on this matter. Durand Academy is not in debt, nor has liability for the land purchase and it would be wrong to suggest either.
“On the issue of value for money, we must object. More than any other school we are aware of, Durand has worked tirelessly and independently over the last twenty years to add significant value and opportunities for local tax payers, without impacting the public purse. Without additional central government support Durand has: improved the condition and value of the school estate substantially; absorbed a run-down failing primary school; completely refurbished that school to a high specification as a specialist early years site; expanded the number of places available to the local community; built state-of the art leisure facilities that children enjoy free use of and the wider community benefit from; reduced class sizes; subsidised healthy meals and; invested in a secondary school project that will provide choice and opportunity for local parents.
“We appreciate very much the ‘extreme national austerity’ that you refer, and that is why we believe that the Government has chosen to support a project and a project team that has never asked for hand-outs and are self-sufficient, has always made maximum efficient use of resources and have a strong record of delivery, not only in education, but in delivering projects on time and to budget.
“The £17.34 million pledged by the Government is some £8m to £15m less than has typically been spent on establishing a new secondary school to serve inner London in recent years. This money will help to deliver a secondary state boarding school from scratch, providing life changing opportunities for thousands of children. This project is innovative and ambitious, but we can assure you it is viable and we are committed to its delivery.”
Confused, I asked whether this applied to Durand as a whole – ie. not just Durand Academy but also the Durand Education Trust (for whom my usual correspondent at the school is listed as the main contact).
I was told: “As stated below this is from Durand Academy. Durand Education Trust is a separate entity. I am an administrator at Durand Academy and field correspondence for Durand Education Trust.”
So I asked my correspondent to refer my previous query about the financial situation to the Durand Education Trust. At the time of publication, a follow-up request for clarification had been acknowledged, but not replied to.
Given that the Durand Education Trust is legally constituted as an “independent charitable trust”, rather than a government body, it is not clear whether the Freedom of Information Act can be applied to it.
It may be that I’ve missed something obvious here (in which case, please do email me or leave a comment below). Or it may be that Durand has a substantial, and previously-undisclosed, source of additional income that can plug the financial gap.
But at the moment it is difficult to see how the Department for Education will be able to avoid committing many more millions each year to this experimental project – leaving millions less available for other, less favoured schools within the education system.
Update: I have now had some comments from the Durand Education Trust. Here’s what they say:
“1. Some of your estimates are so over the top as to be risible. For instance, though there will be costs associated with providing boarding (principally the extra costs associated with keeping duty staff on site overnight for safeguarding) the idea that these would amount to almost £30,000 per night, which is what is consistent with the lower figure in the range you cite, is frankly absurd.
2. DET did not take out a bank or building society loan to fund the purchase of the site. Any information you have to the contrary is false.
3. The figures you quote for London Horizons revenues were figures supplied to you in respect of sums historically paid over to Durand Primary School and Durand Academy. They do not reflect the level of income accruing to DET now or in the future.”
The Durand Education Trust also complain that “Whilst we are prepared to be as transparent as commercial sensitivities allow, we note that almost everything you have written about Durand in the past… has been unfair or inaccurate, and sometimes both. It is hard to resist the conclusion that your reporting is actuated by malice and/or a political agenda…”
So it looks like the mystery will continue for a while yet. I’d welcome any comments from readers that could help to clear things up.
On the financial question, the figure of £7,500 to £12,000 per year per child for state school boarding costs comes from a broadly positive Telegraph article, in which Durand got a prominent mention (“More cash needed for state boarding schools, warns head“, November 28th 2011). Over a 39-week school year where 625 children were boarded for 4 nights per week, the lower end of this scale would indeed amount to approximately £30,000 per day, which certainly is a lot of money.
It’s worth noting, however, that the cost-per-child cited by Durand in their new fundraising campaign – £3,800, would, under the same analysis, equate to around £15,000 per day for 625 children – or £24 per child. While this is significantly less, it is still a substantial sum, and with a total yearly cost (£2,375,000) that would still be much higher than the reported annual income generated, to date, by London Horizons (£350,120 in 2011).
It is not yet clear how the costs of transporting 625 children on the 50 mile trip to and from West Sussex each week would fit into the above analysis, or where the money for this would come from.
I have asked the Durand Education Trust for more details of the things I’ve written that they feel have been unfair or inaccurate, and invited them to produce a “right to reply” piece for publication on this blog, putting their side of the story. I will update this post if and when I receive a reply.
In literal terms, The Durand Education Trust appear to be correct in stating that “DET did not take out a bank or building society loan to fund the purchase of the site”. Records from Companies House show that the company which lent them £1.9 million was not a bank or a building society, but a firm called Alderley Land. More on that in due course…
From the misguided threats against Labour activist Sally Bercow by the right-wing lobby group Migration Watch, to the renewed attacks on cardiologist Peter Wilmshurst by the controversial multinational NMT Medical, it’s clear that the abuses of our libel law will continue until some robust reforms are implemented.
As is perhaps to be expected given the money involved, the libel industry has been running a classic lobbying campaign against moves for reform. In the process they have enlisted the help of the notorious former speaker of the House of Commons, Michael Martin, who recently found his way into the Lords. I think this says something about the character of these people.
It seems to me that the libel industry could very easily win this unless pressure is maintained on the new government to do the right thing.
I’m pleased to join today’s mass-blog in urgent support of the libel reform campaign:
This week is the first anniversary of the report Free Speech is Not for Sale, which highlighted the oppressive nature of English libel law. In short, the law is extremely hostile to writers, while being unreasonably friendly towards powerful corporations and individuals who want to silence critics.
The English libel law is particularly dangerous for bloggers, who are generally not backed by publishers, and who can end up being sued in London regardless of where the blog was posted. The internet allows bloggers to reach a global audience, but it also allows the High Court in London to have a global reach.
You can read more about the peculiar and grossly unfair nature of English libel law at the website of the Libel Reform Campaign. You will see that the campaign is not calling for the removal of libel law, but for a libel law that is fair and which would allow writers a reasonable opportunity to express their opinion and then defend it.
The good news is that the British Government has made a commitment to draft a bill that will reform libel, but it is essential that bloggers and their readers send a strong signal to politicians so that they follow through on this promise. You can do this by joining me and over 50,000 others who have signed the libel reform petition at
Remember, you can sign the petition whatever your nationality and wherever you live. Indeed, signatories from overseas remind British politicians that the English libel law is out of step with the rest of the free world.
If you have already signed the petition, then please encourage friends, family and colleagues to sign up. Moreover, if you have your own blog, you can join hundreds of other bloggers by posting this blog on your own site. There is a real chance that bloggers could help change the most censorious libel law in the democratic world.
We must speak out to defend free speech. Please sign the petition for libel reform at
For my details on this, see my previous post…
These documents consist of:
pp1-2 A letter from the Migration Watch solicitors, Geoffrey Leaver, to Sally Bercow
p3 A transcript of the television programme in which Sally Bercow made comments which Migration Watch claims are defamatory.
p4 A draft apology to Andrew Green written by the Migration Watch solicitors and included in their initial letter, with the expectation that Sally Bercow would “send an apology to Sir Andrew in the terms attached”.
It’s important to note that even though this letter was written by the claimant’s solicitors in Sally Bercow’s name, she neither approved it nor signed it.
pp5-8 A response to the Migration Watch solicitors from Sally Bercow’s lawyers, Preiskel & Co.
Time for an open and honest debate about Migration Watch? Defamation case against Labour activist Sally Bercow highlights the urgent need for libel reform.
Right-wing thinktank takes its cue from the British Chiropractic Association
Migration Watch is a right-wing thinktank run by Andrew Green, former UK Ambassador to Saudi Arabia, whose controversial claims about the scale and impact of immigration in Britain have been repeatedly challenged.
One might have thought that our former envoy to one of the world’s most repressive regimes would have been keen to defend basic human rights. So I was surprised to learn that Green and his organisation have made repeated use of Britain’s notoriously unfair and draconian libel laws in response to criticism of their views.
Today sees the launch of a renewed campaign to defend freedom of speech in Britain, prompted by the ill-judged libel threat by Migration Watch and Andrew Green against Labour commentator and activist Sally Bercow over comments she made in a TV discussion. She is fighting the claim with the help of formidable free speech advocates David Allen Green and Robert Dougans, who led the successful defence of science writer Simon Singh against an unfounded libel claim by the British Chiropractic Association.
Interestingly, Migration Watch have themselves repeatedly called for “open debate” about immigration:
“The census figures should stimulate an open and honest debate about this highly sensitive issue”, Migration Watch, February 2003
“It is time for a fundamental rethink on the back of an open and honest debate” – Andrew Green, BBC, September 2005
“An open debate would be welcome”, Andrew Green, Guardian, March 2010
Migration Watch’s David Coleman was also keen to cite “freedom of speech” in 2007, when students at Oxford University controversially sought to have him sacked over his association with the Galton Institute (formerly known as the Eugenics Society).
Migration Watch is one of a small number of NGOs (splitting this dubious honour with the “Quilliam Foundation” and the BCA) who, while seeking to be part of a public discussion, have chosen to respond to criticism within that discussion by resorting to Britain’s discredited and dysfunctional libel laws.
It is indeed time for an “open debate”. Migration Watch should practise what they preach, and drop this misguided libel threat.
2. Professor Bridle, who is the managing director of the Second Claimant company, brings this defamation claim against Mr Williams, a Health and Safety inspector employed by the Second Defendant, the Health and Safety Executive, (‘the HSE’) at the HSE’s offices in Cardiff. The claim is made in slander in respect of words allegedly spoken by Mr Williams, when acting in his capacity as an HSE inspector, on or about 24 July 2008, to representatives of the University of Wales Lampeter, Mr Cennydd Powell, the University’s Head of Estates, and his assistant Mr John Fowden.
3. The words complained of were that Professor Bridle “is not a real professor as he claims” and that Mr Powell and Mr Fowden (and by implication also the university and all other third parties generally) “should not believe a word that he says”. It is further said that in telephone conversations between Mr Williams and Mr Powell between 24 July and 31 July 2008, Mr Williams repeated to Mr Powell the alleged defamatory statements…
Summary of Defendants’ Submissions
…48. The Defendants submit that publications by the journalists referred to and by the author Richard Wilson in his book ‘Don’t Get Fooled Again’ contain far more serious allegations than those complained of in these proceedings. They are in permanent form, have received and continue to receive far wider publication and would inevitably have caused much greater damage to reputation than the alleged slander by an HSE inspector to the University’s estate manager and his assistant.
49. Richard Wilson’s book contains a Chapter entitled ‘Fake Experts and Non-Denial Denials’ which is almost entirely devoted to attacking Professor Bridle. It disparages his academic qualifications, and brands him as a ‘charlatan’ and a ‘liar’. An article in ‘The Guardian’ dated 30 June 2008 by Peter Wilby refers to Professor Bridle and Asbestos Watchdog in disparaging terms and suggests that his scientific credentials should be subject to careful scrutiny. A critical article suggesting that Professor Bridle was not a neutral expert and was linked to the Asbestos Cement Product Producers Association was published in CMAJ [ a scientific journal] by Kathleen Ruff on 22 December 2008. Critical comments have been published on a blog run by Richard Wilson in September 2008. Julie Burchill wrote an article critical of Professor Bridle and Christopher Booker in The Guardian on 2 November 2002.
50. It is therefore submitted that the incident giving rise to this claim is a peg on which Professor Bridle hopes to hang the next round of his campaign. It is submitted that he has been waiting for the opportunity to “get HSE in the dock” and this action is a contrived way of seeking that. It is submitted that were this action allowed to proceed it would also cause harassment and prejudice beyond that usually encountered in litigation…
…82. It is, I consider, apparent from the correspondence exhibited to the witness statements that the dominant motive in bringing the proceedings is to cause embarrassment and prejudice to the HSE because of the Claimant’s anger at the HSE’s refusal to accept his views on the subject in question. It is apparent from the evidence that Professor Bridle believes that a claim against the HSE will be likely to bring the debate about the difference in scientific views to a public forum more readily than a claim against an individual journalist would do. Thus I have concluded that, whilst I would not go so far as to characterise the claim as ‘vindictive’ in the same league as the claim in Wallis v Valentine, it does, in my view, fall into the category of a ‘vendetta’ as outlined in that case and in Bezant v Rausing.
83. I note particularly the fact that no defamation proceedings have been brought by Professor Bridle against any of the authors of some of the attacks made against him in the press, in the book by Richard Wilson and on the internet. The content of those publications are mostly in terms far more pejorative than the words alleged to have been spoken by Mr Williams, and will have had a much larger audience. The fact that such publications are widely available will inevitably put into issue the extent to which Professor Bridle’s reputation has been damaged by the alleged publication in this claim. I do not consider that Professor Bridle’s explanation as to why no such proceedings have been brought is credible when compared to the issue of these proceedings for words spoken in either a private meeting or a telephone conversation to either one or two persons (depending upon the evidence).
84. In the light of the lack of any convincing evidence as to why the HSE have been singled out for a claim, and the publishers of the publications referred to have not had proceedings brought against them, and on the basis of the evidence relied on by the Defendants, I have concluded that there is an improper collateral purpose to the claim against Mr Williams and the HSE, rather than simply vindication of reputation…
Accordingly the Defendant’s application for summary judgment and for strike out succeeds in its entirety.
Via Jack of Kent
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
B E T W E E N
- and –
(1) COMMISSIONER FOR THE METROPOLITAN POLICE SERVICE
(2) BARONESS BUSCOMBE
(3) PRESS COMPLAINTS COMMISSION
PARTICULARS OF CLAIM
1. The Claimant is a solicitor.
2. The First Defendant is responsible for the Metropolitan Police Service (“MPS”).
3. The Second Defendant is employed as the Chairman of the Third Defendant.
4. The Third Defendant is a regulatory body for British newspapers and magazines.
5. At all material times the Second Defendant was acting in the course of her employment with the Third Defendant.
6. The Claimant acted as solicitor to Gordon Taylor and Joanne Armstrong, the Professional Footballers’ Association’s (“PFA”) Chief Executive and Legal Advisor and one other person (whose name remains confidential) in an action against News Group Newspapers (“NGN”) in regard to the hacking of mobile telephone messages by employees and/or agents of the News of the World (a newspaper owned by NGN).
7. In 2006 the MPS launched an investigation into the activities of Glenn Mulcaire, a private detective retained by the News of the World, and Clive Goodman, who was employed as the News of the World’s Royal Correspondent. The investigation discovered that Mr Mulcaire had improperly obtained the pin number required to access messages left on Mr Taylor’s mobile telephone voicemail. Mr Mulcaire used this pin number in order to retrieve voicemail messages left for Mr Taylor, thus breaching not only Mr Taylor’s confidence but also the confidence of the numerous persons who left messages for him, including Ms Armstrong.
8. On 26 November 2006 both Mr Mulcaire and Mr Goodman pleaded guilty to conspiracy to intercept communications, contrary to section 1(1) of the Criminal Law Act 1977. The interceptions were of messages left for three members of the Royal Household.
9. Mr Mulcaire also pleaded guilty to five additional counts concerning the unlawful interception of the communications of figures with no connection with the Royal Household (and therefore having no connection with Mr Goodman’s work as a royal correspondent): Max Clifford, Skylet Andrew, Gordon Taylor, Simon Hughes MP and Elle Macpherson. Mr Goodman was not charged with these five offences. They related to interceptions carried out for a person or persons unknown at the News of the World.
10. In 2007 the Third Defendant conducted an investigation into the Mulcaire/Goodman scandal. It published a report entitled: PCC Report on Subterfuge and Newsgathering. During its investigation it posed a number of questions to Colin Myler, who had replaced Andy Coulson following his resignation as the News of the World’s editor, and Les Hinton, the Chief Executive of News International (the News of the World’s ultimate owner). At paragraph 6.3 the report concluded that:
No evidence has emerged either from the legal proceedings or the Commission’s questions to Mr Myler and Mr Hinton of a conspiracy at the newspaper going beyond Messrs Goodman and Mulcaire to subvert the law and the PCC’s Code of Practice. There is no evidence to challenge Mr Myler’s assertion that: Goodman had deceived his employer in order to obtain cash to pay Mulcaire; that he had concealed the identity of the source of information on royal stories; and that no-one else at the News of the World knew that Messrs Goodman and Mulcaire were tapping phone messages for stories.
11. On 6 March 2007 Mr Hinton gave evidence to the Culture, Media and Sport Parliamentary Select Committee (“the Select Committee”). He reported that Mr Myler had told the Third Defendant 12 days earlier that Mr Goodman’s telephone hacking was “aberrational”, “a rogue exception”.
12. On 18 November 2008 the Select Committee commenced an investigation into press standards, privacy and libel. It investigated the News of the World’s involvement in the Mulcaire/Goodman telephone hacking scandal.
13. On 8 July 2009 The Guardian published an article by Nick Davies: Trail of hacking and deceit under nose of Tory PR chief. This concerned allegations that Mr Mulcaire’s actions had not been “aberrational” but that telephone hacking had been widely used by the News of the World in order illicitly to secure information. This article was followed up by one published on 9 July 2009: Revealed: Murdoch’s £1m bill for hiding dirty tricks. This stated that the PCC had been misled when it had been told by News International that Mr Mulcaire’s activities were “aberrational”.
14. As a consequence of the allegations made in The Guardian, on 9 July 2009 the Third Defendant commenced an investigation as to whether it had been misled in 2007. This investigation was independent from that being conducted by the Select Committee.
15. On 2 September 2009 the Claimant gave evidence to the Select Committee. He reported that whilst conducting Mr Taylor’s claim he had attended court in order to make an application for the disclosure of documents from the MPS. Whilst outside court he had a conversation with Detective Sergeant Mark Maberly, who was attending on behalf of the MPS. The Claimant’s evidence to the Select Committee was that:
DS Mark Maberly said to me: “You are not having everything but we will give you enough on Taylor to hang them.” Those were his words: “to hang them”. . . He also mentioned the number of people whose phones had been hacked. Whether that was an aside . . . but they said that there was evidence about, or they had found there were something like 6,000 people who were involved. It was not clear to me whether that was 6,000 phones which had been hacked or 6,000 people including the people who had left messages.
16. The Claimant’s evidence was published and attributed to him by name as follows:
16.1. it was broadcast live via Parliament’s website where a video recording and transcript of the relevant evidence was also published one or two days after the evidence was given. This material continues to be published on this website [From 16:44];
16.2. it was reported upon by The Guardian in an article entitled PCC finds no evidence that it was misled in phone hacking inquiry. The article was first published on 9 November 2009 and has continuously been published on The Guardian website since; and
16.3. it was published by the Third Defendant on 7 November 2009 in paragraph 11.1 of the PCC report on phone message tapping allegations (see paragraph 19 below), which has been published on the Third Defendant’s website since that date.
17. The Claimant’s evidence became widely known to journalists and to those who were interested in the telephone hacking controversy.
18. Immediately prior to the Claimant’s evidence to the Select Committee, Assistant Commissioner John Yates and Detective Chief Superintendent Philip Williams gave evidence to it in regard to the MPS investigation into telephone hacking by Mulcaire and Goodman. The Select Committee made it clear that it believed that the investigation had not been properly conducted by the MPS because it had failed to investigate the extent of the News of the World’s involvement in telephone hacking.
19. On 7 November 2009 the Third Defendant published the conclusions which it had reached as a result of the investigation which it had commenced on 9 July 2009: PCC report on phone message tapping allegations. At paragraph 13.2 it concluded that no evidence had emerged since its 2007 report which indicated that the practice of telephone tapping was engaged in by anyone other than Mulcaire and Goodman or that News of the World executives knew about those activities.
20. The PCC report on phone message tapping allegations was publicly derided:
20.1. Adam Price, a Plaid Cymru MP and member of the Select Committee stated: “I think it would be depressing if this PCC report was perceived by the public as a closing of the ranks within the industry.”; “I think the Guardian really was right to publish its story, was right to raise these questions. And I think it would be a shame if this report was in any way, shape or form interpreted as a slap across the wrists of the Guardian, which I think was raising legitimate questions.”; and that the Select Committee’s forthcoming report “would be able to give a fuller picture of the context of this story”.
20.2. Labour MP Paul Farrelly, a member of the Select Committee, described the PCC report as a “whitewash” and stated that “We (which in context meant the Select Committee) are seriously concerned about the effectiveness of the PCC and self-regulation in the industry,” He also said. “Any whitewash thrown over these events by the regulator will only heighten concerns that will be explored in our report.”
20.3. The above statements received substantial publicity in The Guardian, which also criticised the PCC report on phone message tapping allegations and the Third Defendant.
(I) PUBLICATION BY THE FIRST DEFENDANT
21. On 30 September 2009 Tim Toulmin, a director of the PCC, emailed DI Maberly (who had been promoted since the conversation with the Claimant had taken place). Mr Toulmin stated that whilst the Claimant had indicated to the Select Committee that DI Maberly had told him that “6,000 people were involved in the practice” of “phone message tapping at the News of the World”, John Yates and Andy Hayman (who had given evidence to the Committee on behalf of the MPS) had indicated that “only a handful of people were involved.” Mr Toulmin asked for an indication of the scale of the interceptions.
22. Emma Harraway of the MPS’ Directorate of Legal Services took instructions from DI Maberly. On 9 November 2009 she replied by letter on behalf of the First Defendant that DI Maberly had been “wrongly quoted” by the Claimant. She stated that the correct position was set out in the evidence of Assistant Commissioner John Yates and DCS Philip Williams given to the Select Committee.
23. On 11 November 2009 Mr Toulmin responded to Ms Harraway by email, asking if the correct position was that: “the suggestion that DI Mark Maberly claimed 6000 people were involved in the unlawful practice is wrong.” Ms Harraway responded by email at 16.10. This email included the following words which defamed the Claimant:
Your understanding is correct that DI Maberly has been wrongly quoted, and that you should rely on what Assistant Commissioner Yates and DCS Williams told the Select Committee.
24. In their natural and ordinary meaning or in their innuendo meaning the words complained of meant and were understood to mean that:
The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.
Particular of innuendo
25. The context in which the words complained of were published was provided by those communications set out in paragraphs 21 and 22 above. Given that it had been stated in the correspondence that the MPS case was that there had been a handful of interceptions, the only explanation for the Claimant’s allegation that he had been told by the MPS that 6,000 persons had been involved in phone hacking was that he had invented that figure.
(II) PUBLICATIONS BY THE SECOND AND THIRD DEFENDANTS
(1) The statement
26. On the 15 November 2009 the Second Defendant, acting in her capacity as the Chairman of the Third Defendant, issued a statement to the Society of Editors Annual Conference at the Radisson Blu Hotel, Stansted (“the conference/the statement”). It was published directly by the Second and Third Defendants in the following ways:
26.1. written copies were distributed at the conference;
26.2. it was published orally by the Second Defendant at the conference. The audience included journalists who were reporting upon rather than participating in the conference;
26.3. it was published on the Third Defendant’s website from that date forward; and
26.4. it is to be inferred that the Third Defendant also published it directly to newspapers, magazines and broadcasters as part of a press release or by other means (as was the case with the Second Defendant’s speech to the conference).
27. The statement contained the following words defamatory of the Claimant:
I would like to use this opportunity to say something on a subject that I know has been of great interest to some in the media and politics.
Last week, the PCC published a report following allegations we were misled by the News of the World during an inquiry we conducted in 2007 into how the phone message hacking situation involving Glenn Mulcaire and Clive Goodman could have arisen.
Having reviewed all of the information available, we concluded that we were not materially misled.
While most people seemed to understand our reasons, one or two were less sure. I have chosen not to debate those matters in public, because our report speaks for itself.
But new evidence has come to light.
Those of you who are familiar with the case will recall the significance that was attached to the apparent evidence of a then Detective Sergeant from the Metropolitan Police called Mark Maberly. It was he who was alleged to have said that around 6,000 people had had their phone messages hacked or intercepted.
The allegation was made in oral evidence to the Select Committee on Culture, Media and Sport, and has also been published in the press. It was repeated just last Monday in some coverage questioning our report.
Since the publication of our report last Monday, the PCC has heard from Detective Inspector (as he now is) Maberly through lawyers for the Metropolitan Police.
This letter says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an e-mail confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a “handful” of people being potential victims.
In light of this, I am doing two things.
First, I am of course putting this new evidence to my colleagues in the Press Complaints Commission, because they will want to update our report to take account of this development.
Second, I have just spoken to the Chairman of the Select Committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention. Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.
28. Furthermore, after reading the statement the Second Defendant answered questions from journalists. She was asked by Chris Tryhorn, a reporter acting on behalf of Media Guardian, whether the letter from the MPS “had effectively withdrawn Maberly’s evidence”. She replied:
Maberly has been wrongly quoted in saying that 6,000 people were involved. He didn’t say it. He is said to have said it.
29. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking. Paragraphs 16 to 16.3 above are repeated.
30. In their natural and ordinary meaning the words set out in paragraph 27 above meant and were intended to mean that:
The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.
31. In their natural and ordinary meaning the words set out in paragraphs 27 and 28 (i.e. the slander, the reading out of the statement followed by the Second Defendant’s answer to the Mr Tryhorn’s question) meant and were intended to mean that:
The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.
32. The words complained of were calculated to cause harm to the Claimant in his profession as a solicitor. A solicitor cannot properly practise unless he is a fit and proper person. In litigation, it is crucial that a solicitor’s statement of truth is accepted at face value.
33. The Second and Third Defendants knew and intended that the statement and any words added orally at the conference would be republished in the media:
33.1. The issue of telephone hacking by the News of the World was a matter of huge public interest.
33.2. The Second and Third Defendants intended to undermine the recent criticisms of the Third Defendant (and by implication the Second Defendant) by publishing the defamatory words set out above. The criticisms which they were seeking to undermine are outlined in paragraphs 20 to 20.3 above.
34. Alternatively it was reasonably foreseeable that the statement would be republished in the media.
(1) The Society of Editors website
35. On or shortly after 15 November 2009 the Second and Third Defendants caused a copy of the statement to be published in full on the website of the Society of Editors, where it continues to be published. A video recording of the statement was also published on the same website from or shortly after 15 November 2009 to a date which is currently unknown.
36. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking:
36.1. Paragraphs 16 to 16.3 above are repeated.
36.2. In Police lawyers deny 6,000 people had phones hacked, an article written by Andrew Woodcock, the Press Association’s Chief Political Correspondent, which was published from 15 November 2009 onwards on the Society of Editors website, the Claimant was identified by name as the person who had given the evidence as to what DI Maberly had told him.
37. In their natural and ordinary meaning the words set out in paragraph 27 above meant and were intended to mean that:
38. The Second and Third Defendants caused an article with the headline Report by Alexandra Fletcher and Adam Thorn to be published on the website of the Society of Editors from 15 November 2009 or shortly afterwards, where it continues to be published. This report included the following words which defamed the Claimant:
The SOE Lecture 2009
Baroness Buscombe, Chairman of the Press Complaints Commission
Chaired by Nigel Pickover, President, Society of Editors
. . .
Read the full text of Baroness Buscombe’s speech here (Word format)
Read Baroness Buscombe’s statement on new evidence in the phone message hacking episode (Word format)
Report by Alexandra Fletcher and Adam Thorn
The chair of the Press Complaints Commission dealt a blow to allegations of widespread phone tapping by the News of the World on Sunday when she revealed a key witness was misquoted.
Addressing the annual conference of the Society of Editors, Baroness Buscombe revealed that then Detective Sergeant Mark Maberly’s evidence related to only a handful of potential victims – and not the 6,000 quoted in some news reports.
She said lawyers for the Metropolitan Police this week contacted the PCC with the new revelations, which have now been passed on to the John Whittingdale, chair of the Commons Select Committee on Culture, Media and Sport, which is investigating allegations that News of the World staff routinely hacked into text messages in pursuit of stories.
The allegation about Maberley saying there were thousands of possible victims ‘’was made in oral evidence to the Select Committee … and has also been published in the press,” the baroness said. This week’s letter from the Metropolitan Police lawyers “says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an email confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a ‘handful’ of people being potential victims.”
Buscombe said she would be putting this new evidence to her colleagues on the Press Complaints Commission, ‘’because they will want to update our report to take account of this development.’’ A recent PCC report concluded that the body had not been misled about the allegations.
She added that she had already told Whittingdale about the new evidence. “Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.”
. . .
Chris Tryhorn, a reporter from the Media Guardian, which first reported the phone tapping allegations, asked Buscombe whether the letter from the Metropolitan Police had effectively withdrawn Maberly’s evidence. Buscombe replied that Maberly: “has been wrongly quoted in saying that 6,000 people were involved. He didn’t say it. He is said to have said it.”
39. The particulars of reference set out at paragraphs 36 to 36.2 are repeated.
40. In their natural and ordinary meaning the words set out in paragraph 38 above meant and were intended to mean that:
The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Sergeant Maberly.
(2) The Independent
41. On 16 November 2009 the Second and Third Defendants caused a report of the statement to be published in the print edition of The Independent and from that day forward on its website. It contained the following words which defamed the Claimant:
Parliamentary inquiry misled on phone hacks
Detective denies saying messages to 6,000 people were intercepted
A parliamentary inquiry into phone hacking by tabloid journalists may have been seriously misled, it emerged yesterday when lawyers acting for a Scotland Yard detective denied that he had ever claimed that messages to 6,000 people had been intercepted.
The chairman of the Press Complaints Commission, Baroness Buscombe, said that she had been written to by the Metropolitan Police lawyers acting for Detective Inspector Mark Maberly, who, according to evidence given to the House of Commons Select Committee on Culture, Media and Sport, had said that 6,000 people were victims of a culture of phone hacking at the News of the World, Britain’s biggest-selling Sunday tabloid. Baroness Buscombe was told that DI Maberly had “been wrongly quoted”. The police lawyers told her that the “reliable evidence” given to the committee was from Assistant Commissioner John Yates, who had said that only a “handful” of people were targeted.
“I have just spoken to the Chairman of the Select Committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention,” Baroness Buscombe was expected to tell the annual Society of Editors conference last night.
“Any suggestion that a Parliamentary Inquiry has been misled is an extremely serious matter.”
42. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking. Paragraphs 16 to 16.3 above are repeated.
43. In their natural and ordinary meaning the words set out in paragraph 35 above meant and were intended to mean that:
(3) Press Gazette
44. On 16 November 2009 the Second and Third Defendants caused a copy of the statement and a report of it to be published on the Press Gazette website, where they are still being published.
45. The Press Gazette’s report contained the following words which defamed the Claimant:
Buscombe: Police lawyers deny 6,000 phones hacked
The Commons’ inquiry looking into allegations of phone hacking by journalists may have been misled it emerged last night as Metropolitan Police lawyers acting for a senior officer on the force investigating reporters at the News of the World denied he had ever claimed 6,000 calls had been intercepted.
In a letter to the Press Complaints Commission, police lawyers said that evidence suggested only “a handful” of people were targeted rather than the thousands that were claimed in recent evidence given to the Commons’ Select Committee examining alleged phone-hacking.
PCC chairman, Baroness Buscombe, revealed the existence of the letter to delegates after her opening address to the Society of Editors conference, at Stansted, last night.
Baroness Buscombe said: “The PCC has heard from Detective Inspector – as he now is – Maberly through lawyers for the Metropolitan Police.
“This letter says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an email confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a ‘handful’ of people being potential victims.”
Evidence of phone hacking first emerged in 2007, when former News of the World royal editor Clive Goodman and private investigator Glen Mulcaire were jailed for eavesdropping on royal aides and celebrities.
The News of the World then told a PCC inquiry that no one else at the paper was involved.
The inquiry’s findings were reviewed earlier this year after reports in The Guardian suggested that the practice was more widespread at the Sunday tabloid than previously believed.
In a report published last week, the PCC said it had found no evidence that it was misled by the News of the World in the original inquiry.
The PCC report was then criticised by a number of MPs, calling it a “whitewash”, and by Guardian editor Alan Rusbridger who said it was “worse than pointless”.
Last night Buscombe said the commission would update its report in the light of the new information supplied to it about the evidence presented to the CMSC last month by solicitor Mark Lewis.
Lewis told the committee that he had been informed by Maberly that “they had found there were something like 6,000 people who were involved.”
“It was not clear to me whether that was 6,000 phones which had been hacked, or 6,000 people including the people who had left messages.”
Buscombe told delegates: “In light of this [lawyers' letter], I am doing two things.
“First, I am of course putting this new evidence to my colleagues on the Press Complaints Commission, because they will want to update our report to take account of this development.
“Second, I have just spoken to the chairman of the select committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention. Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.”
46. In their natural and ordinary meaning the words set out in the republication of the statement and in the words set out immediately above meant and were intended to mean that:
47. The Claimant was motivated by a strong sense of public duty in giving evidence to the Select Committee. He believed that his evidence would contribute important information to its investigation into the telephone hacking affair. The fact that in return for performing a public duty he has been so seriously libelled by the Defendants, all whom hold very senior positions in society, has contributed very greatly to his sense of injustice.
48. The distress caused to the Claimant by the First Defendant’s publication was aggravated because:
48.1. DI Maberly falsely denied the Claimant’s account of their conversation.
48.2. During the Mulcaire/Goodman investigation the MPS had seen or had taken into its possession documents which indicated that the number of potential victims of phone hacking carried out by Mr Mulcaire on behalf of the News of the World was substantial, running into the thousands. At the very least this evidence made it clear that the number involved far exceeded a “handful” (which term had been intended to mean and did mean no more than five or ten).
48.3. It is to be inferred that before Emma Harraway published the words complained of, she consulted not just with DI Maberly but also with senior officers who had been responsible for the Goodman/Mulcaire investigation. Those officers knew, by reason of the material referred to in the preceding paragraph, that it was far more likely that DI Maberly had referred to thousands rather than a “handful” of persons as potential victims of telephone hacking.
48.4. By these deceptions the employees and/or officers of the MPS who were involved in passing the relevant information to the Third Defendant cynically and untruthfully set out to undermine criticisms that had been made of the MPS, most notably by the Select Committee, for failing properly to investigate the true extent of the News of the World’s telephone hacking activities. Paragraph 18 above is repeated.
Second and Third Defendants
49. The distress caused to the Claimant by the publications brought about by the Second and Third Defendants was aggravated because:
49.1. Prior to making the statement, neither the Second nor the Third Defendant contacted the Claimant to inform him that DI Maberly had denied saying words to the effect set out in the Claimant’s evidence to the Select Committee.
49.2. The failure to contact the Claimant prior to publication was in breach of the Third Defendant’s own Code of Conduct regarding the obligation of the press not to “publish inaccurate, misleading or distorted information”. In its guidance to observing the code, the Third Defendant stresses that certain steps prior to publication are important in observing this rule, most particularly giving a “likely complainant . . . an adequate opportunity to respond”.
49.3. In not contacting the Claimant prior to publication the Second and Third Defendants have not only acted with gross unfairness but also hypocritically.
49.4. The Second and Third Defendants cynically chose to promulgate the self-serving statement issued by the MPS because it also served their self-interest in heading off criticism of the Third Defendant’s telephone hacking investigation. Paragraphs 20 to 20.3 above are repeated.
49.5. The Second and Third Defendants disregarded the obvious fact that the Claimant had no motive to fabricate the evidence which he gave to the Select Committee whereas it was likely (and was the case) that the First Defendant was motivated by a desire to undermine criticism of its failure properly to investigate the true extent of the News of the World’s phone hacking activities.
49.6. It was particularly spiteful to engage in the publicity stunt of publishing to the world at large the fact that the Second Defendant had written to the Chairman of the Select Committee in order to report that the Claimant had misled it.
50. In all the premises, the Defendants demonstrated a callous contempt for the Claimant’s dignity, reputation and feelings.
51. Unless restrained by this Honourable Court the Defendants will further publish or cause to be published the said or similar words defamatory of the Claimant.
AND the Claimant claims:
(1) Damages for libel, including aggravated damages;
(2) An injunction to restrain the Defendants, whether by themselves, their servants or agents or otherwise howsoever, from further publishing or causing or permitting the publication of the words complained of or of any similar words defamatory of the Claimant.
While accident and emergency services face cuts,
frivolous libel cases receive a generous subsidy
The endemic abuse of the UK’s dysfunctional libel system to suppress inconvenient scientific evidence is now widely understood to be a threat to public health.
The enormous fees that libel lawyers are able to charge mean that a defendant can face crippling, unrecoverable costs even if they win their case. The situation is now so bad that the media is routinely exercising self-consorship over contentious public health issues rather than face the risk of legal action.
But there is another issue here, which has also has serious implications for public welfare, and which merits more scrutiny. While the claimant and defendant in a libel case have to foot the bill for their respective lawyer’s legal fees (with the majority of the costs typically falling on whoever loses the case), there are many other costs involved in a case – from the judge’s salary to the cost of heating and lighting the courtroom – that they never have to worry about.
These “invisible” costs are generously met by the UK state, using money from taxpayers that many of us might prefer to be put towards a more worthy cause – saving our local accident and emergency unit from closure, reducing class sizes in an inner city school, providing better equipment for our armed forces, or simply returning the money to taxpayers so they can decide for themselves how to spend it.
A typical salary for a High Court judge is in the region of £172,000. If the judge works for five days a week, 46 weeks of the year, this would equate to a rate of more than £740 per day. The judge is supported, in turn, by a whole team of clerks and other administrative staff. The court room itself must be kept warm, clean, and in good repair. Meticulous records must be kept of the court proceedings, with those records being filed and maintained for many years afterwards.
Without all of these “invisible” costs being met, there would simply be no lucrative court case for libel firms like Carter Ruck and Schillings to cash in on. So what’s actually happening here is that the UK taxpayer is indirectly subsidising the libel industry.
So what kind of cases are we subsidising? Well there’s the tennis player who sued the Daily Telegraph (unsuccessfully) for calling him the “world’s worst tennis pro”. There’s the Icelandic professor who got sued in the UK courts over a comment posted on the website of the University of Iceland. There’s the Ukrainian businessman who sued a Ukrainian news website in the UK courts over comments made on that website, in Ukrainian. There’s the now-notorious failed libel action by the British Chiropractic Association against science writer Simon Singh over his criticism of their scientific claims. There’s the two-year (and also famously unsuccessful) libel case by the blogger Joanna Kaschke against another blogger, Dave Osler, which was thrown out after two years on the basis that there was actually no case to answer. There’s the defamation case brought by John Bridle against the Health and Safety Executive, over comments allegedly made over the phone by an HSE inspector – the case was also thrown out (after much deliberation), with the court ruling that Bridle had been pursuing a “vendetta” against the HSE.
On top of the considerable costs imposed on the defendant, all of these cases required a hefty subsidy from the taxpayer in the form of court staff time and other administrative expenses – while (in most cases) the claimant’s law firm raked in the profits. It’s difficult to put a precise figure on how much money we are wasting each year on frivolous or trivial defamation cases like these – but it’s easy to think of better ways that this cash could be used.
The report they tried to ban…
The Anglo-Dutch oil company Trafigura goes on trial in the Netherlands on June 1st, over its role in the allegedly illegal exporting of toxic waste to the Ivory Coast. According to the Ivory Coast authorities, the dumping of this waste led to 15 deaths, with other reports putting the death toll at 17.
Trafigura is notorious for its willingness to use UK libel law – which is famously one-sided and prohibitively expensive for most defendants – to suppress critical coverage. As a result, while the Dutch, Norwegian and American media have reported the case freely, few UK newspapers will even cover it, let alone mention the alleged death toll (which Trafigura continues to dispute).
When Trafigura and their London-based law firm, MacFarlanes, were formally accused in the Dutch courts of bribing witnesses (a charge they deny), there was silence about it in the UK media. According to MacFarlanes themselves, such behaviour “would have been illegal and it would certainly have constituted serious professional misconduct”. Under normal circumstances, the laying of such charges against a UK law firm would have been a major news story. The fact that it has gone unreported in Britain shows how much damage our libel laws have done to freedom of speech and public interest journalism.
When the trial itself begins on June 1st, it will be interesting to see if any UK media dare to cover it. This will be a key test of how much power Trafigura now wields over the British press – and how much courage our journalists and editors have in resisting this company’s sustained attack on press freedom.
A few weeks ago Wikileaks published the 40-page court document in which the BBC laid out its defence against Trafigura’s libel claim, following this Newsnight report from May last year.
Trafigura had always insisted that the available scientific evidence vindicated them of blame for any deaths or serious injuries following the August 2006 Probo Koala toxic waste incident, and in December the BBC controversially withdrew their claims and agreed to pay damages. Yet Trafigura have never published the evidence which they say vindicates them, despite repeated requests.
Following the publication of the BBC document by Wikileaks, the blogger Calum Carr again contacted Trafigura to request their side of the story, but again to no avail.
Calum and I have now obtained this document ourselves. Given today’s very promising news about the libel reform campaign, we felt that this was a good moment to put the information out into the public domain, so that people can form their own view on this contentious issue.
Obtaining an electronic copy of this document has been an interesting process in itself. To do this, I had to:
1. Go to the High Court in person
2. Make a formal request for a copy of the document (giving full personal details including my home address)
3. Wait several days
4. Phone the High Court to see if the copy was ready
5. Visit the High Court again in person
6. Pay a not-insignificant photocopying fee
7. Pick up the paper copy of the document
8. Take the copy to a specialist document scanning company to get it turned into a PDF
9. Pay another fee
10. Wait another few days, before receiving the PDF via email.
This is apparently standard procedure for getting hold of key UK court documents. One would almost have thought that the legal authorities did not actually want the British public to have ready access to documents which are, at least in theory, available to all of us by right…
We might compare the above process to the mechanism involved in, say, accessing the text of a Parliamentary Question or a Select Committee report, eg:
1. Visit the Parliament website
2. Type in a relevant search term
2. Download the information (for free).
For all the concerns we might have about the current workings of the Parliament, its processes currently seem a whole lot more open transparent than those of the judiciary. Apart from anything else, the requirement that one has to visit the High Court in person to access a public document seems inherently discriminatory to anyone living a significant distance from London.
If and when we get some real progress on libel reform, it seems to me that opening up the judiciary to at least the same levels of scrutiny we have for Parliament could be an important next step.
A couple of weeks ago I wrote a blog post about Tony Baldry, the MP for Banbury, in which I referred to some rather surprising allegations that have been made about him by a grassroots anti-corruption group, the Nigerian Liberty Forum. I had been prompted to look into the issue after I read that the Independent had withdrawn an article about it, following libel threats from Tony Baldry.
A few days later, I myself was contacted by Baldry’s lawyers, Olswang, who claimed that my blog post was defamatory, and copied me on a letter that they had sent to my webhosts, WordPress, threatening to sue them for libel, and demanding that the entire post be taken down. In their email to me, Olswang also stated that “we will advise our client to take all necessary steps to protect his reputation should there be any repetition of these allegations”, which I took to be a threat of libel against me.
(Readers can make up their own minds about the degree to which the Olswang letter accurately reflects what I wrote. The original version of the blogpost is available here.)
What surprises me most about this was that, to the best of my knowledge, Tony Baldry has not made any threats of libel against my original source, The Nigerian Liberty Forum. Their allegations and are still freely available all over the internet, and their criticisms arguably far more detailed and damning.
The dispute centres around a letter that Tony Baldry wrote to the British government in September last year, in which he discussed a UK corruption investigation into James Ibori, the former governor of Nigeria’s oil-rich Delta State region, alongside a number of his associates. Tony Baldry (through his lawyers, Olswang) has been at pains to make it clear that he wrote this letter in his capacity as a barrister (one of his second jobs outside of Parliament), and that in writing this letter he was not seeking to get the criminal investigation shelved:
1. The letter was written on the notepaper of 1 Essex Court, and it states clearly that Mr Baldry has been instructed by solicitors to represent James Ibori. The letter was clearly written in Mr Baldry’s capacity as Counsel for Mr Ibori, not as an MP.
2. There is no suggestion anywhere in the letter that Mr Baldry is seeking any course of action which would benefit Mr Ibori. The letter specifically summarises its purpose by saying that perhaps after the outcome of the criminal proceedings is known, relevant agencies might want to reflect on lessons learned.
The Nigerian Liberty Forum has argued, and I agree, that the quickest and easiest way of clarifying this issue to everyone’s satisfaction would be for Mr Baldry – or the UK government – to publish the disputed letter in full.
Unfortunately, the Foreign Office has refused a Freedom of Information Act request from the NLF. Given the lack of resources allocated by the government to the Information Commission for FOI appeals, it also seems likely that the decision will not be reviewed for many months – if not years.
So we’re left wondering what exactly what was in that letter, and what the purpose of writing it really was.
The decision to take down my original blog post was made by me. I didn’t think it was fair that WordPress were getting threatened over something that was my responsibility. While I knew that Tony Baldry was insistent that he had written his September 2009 letter in his capacity as a barrister rather than an MP, and I had made that quite clear in the article, I hadn’t actually been aware that Tony Baldry disputed the purpose of that letter as it had been described by the Nigerian Liberty Forum. And it seemed somewhat futile to get into a dispute with the author of a letter I hadn’t seen, over that letter’s contents – especially as I had merely been referring to what others had alleged, rather than making that allegation myself.
I also figured that once I’d had the chance to look into it in depth I could always return to the issue again.
My point in that original blog post – as it is now – was really that even if we take only the facts about this story that are not contested, it seems to raise some worrying questions.
1. Potential conflicts of interest
Firstly, it seems to me very surprising that our Parliamentary system should allow MPs to hold a second job which involves a) acting on behalf of people who are under criminal investigation (perhaps especially when this involves allegations of large-scale corruption) by the UK courts over which Parliament ultimately has sovereignty and b) making representations on behalf of such people to the same government ministers they face daily on the floor of House of Commons in their capacity as an MP.
The potential for such an arrangement to create conflicts of interest seems very clear, and quite worrying. Even in the terms that Tony Baldry himself has described it, I believe that this case does not look good, and I doubt that it will look good to many outside of the “Westminster bubble”. If this is what the rules allow then it seems to me that those rules urgently need to be changed.
2. Transparency and accountability
Secondly, an effective democracy depends on our being able to scrutinise the activities of our elected representatives. Yet we are unable to do that fully in this case, because the letter that Tony Baldry wrote to the UK government is protected from FOI disclosure. As I believe the “exemptions” listed here make clear, one of the main reasons for this is precisely because he wrote it confidentially in his capacity as a barrister acting on behalf of a client.
(As it happens, it appears that the letter only came to light in the first place because its existence was leaked to the Nigerian Liberty Forum – had this not happened, then we and the voters of Banbury would presumably have never have even heard about this issue).
The Nigerian Liberty Forum have also alleged – and it should be clear here that I am referring to an allegation rather than endorsing it – that just days before writing his September 2009 letter to the UK government about James Ibori, Tony Baldry had met with the Nigerian President, and discussed the Ibori case with him.
Again, my point here is not to suggest that Tony Baldry broke any Parliamentary rules. My point is rather that it’s very difficult for us to scrutinise what, in practice, those rules are allowing, and form our own judgements about whether we agree that this is reasonable and appropriate behaviour for our elected representatives.
One analogy might be the controversy around MPs’ expenses. Parliament had published the broad rules guiding what MPs were, and were not, allowed to claim, and these seemed reasonable enough to many. Yet it was only when the specific details emerged of what, exactly, had been allowed under those rules, that we got a really meaningful picture of what had been going on. And at that point many of us came to the conclusion that the rules were not appropriate, and needed changing.
It seems to me that the more “second jobs” that an MP holds, the harder it is going to be to scrutinise their external activities, and satisfy ourselves that those activities are appropriate, whether or not they are “within the rules” that Parliament writes for itself.
Tony Baldry’s external activities are listed by They Work For You as follows:
1. Remunerated directorships
Chairman (non-executive), Westminster Oil Limited; a BVI registered company, development of oil licences and exploration.
West African Investments Ltd; investing in infrastructure and natural resource projects in Sierra Leone and elsewhere in West Africa.
Halcyon Oil Limited; a Hong Kong registered company focusing on oil exploration and discovery projects in Central Asia.
Mastermailer Holdings plc; development of stationery and stationery products. I am a non-executive director, and my duties involve attending board meetings…
2. Remunerated employment, office, profession etc
Practising barrister, arbitrator and mediator…
Executive Partner in Diamond Film Partnership; a UK partnership promoting UK film and television production rights.
Chairman of the Advisory Committee of Curve Capital Ventures Ltd, c/o Apex Fund Services (Mauritius) Ltd, Suite 2005, Level 2, Alexander House, 35 Cyber City, Evene, Mauritius; a sector neutral investment company that predominantly invests in India, China and Africa and advises companies on strategic growth and global expansion.
The Oxford Mail reports that since last July alone, Tony Baldry has earned more than £111,000 from his external interests – significantly more than his £64,766 MP’s annual salary.
3. Why was the letter written?
Thirdly, I remain very confused about why Tony-Baldry-the-barrister would have written this controversial letter to the UK government in the first place.
The lawyer and journalist Allen Green had these thoughts on that issue in this week’s excellent article in the Lawyer:
The other aspect of the Independent on Sunday apology which intrigued me was the notion of a barrister – especially in a matter where solicitors are instructed – writing a letter.
I have never before come across it.
Settling draft letters to go out under the letterhead of the instructing solicitor or the client is common. Indeed it is sensible if one takes litigation seriously, not least as it prevents the barrister from blaming the solicitor for screwing up pre-action correspondence.
But a barrister sending a letter under their own name? Whilst there is nothing at all wrong with this, it must be unusual. In my experience it sometimes difficult to get barrister to even sign the pleadings they are supposed to put their name to.
So Allen Green wrote to Tony Baldry and asked him:
Why did you write the letter on behalf of the client when solicitors were instructed?
(It is highly unusual for barristers to write any correspondence in their own name (rather than pleadings), especially when solicitors are instructed.)
But the only answer to this that Tony Baldry gave was:
The letter was written in my capacity as a Barrister, instructed by solicitors.
Tony Baldry states that in writing the letter he was not seeking to secure any “benefit” for James Ibori. We can take this at face value, yet still be confused about why a barrister would be employed to act in behalf of a client towards a particular purpose (eg. in this case writing to the UK government) if that purpose held no benefit at all for the client.
The picture gets even more confusing when we look at the reasons reportedly given by the UK government for refusing to disclose the letter following a Freedom of Information Act request. These include an exemption under Section 27(1)(a) of the Act, which “allows us to withhold information if its disclosure would or would be likely to prejudice relations between the United Kingdom and another state.”
What could possibly have been in that letter – which we’ve been told was written by a barrister acting solely in his capacity as a barrister on behalf of a client in a criminal investigation – that would have such wide-ranging political implications as to risk undermining international relations were it to be disclosed?
4. Libel should not be used to suppress political scrutiny and debate
Fourthly, it seems to me extremely worrying that an elected MP should be so quick to respond to public criticism by threatening to sue newspapers and web-publishers for libel. Tony Baldry is by no means alone in this. One of the reasons I became interested in this issue in the first place is that I’ve begun to lose count of the number of times an MP or Lord has used our notoriously draconian libel laws to try to get a news article censored.
Among the worst offenders was Michael Martin MP during his time as Speaker of the House of Commons. Martin’s multiple failures during the expenses scandal ultimately brought about his downfall (though he still got to sit in the House of Lords, where he has continued to do damage). But for a long time he had great success in using libel threats to get critical media coverage withdrawn.
These people are public figures whose actions in office can impact on us all. There is a clear public interest in being able to scrutinise and question their behaviour, freely and without intimidation. As public servants, it seems to me that our politicians therefore have a duty actively to support robust and open debate, and to avoid doing anything which might deter critical scrutiny.
Yet we have somehow got used to the idea that our MPs can routinely resort to heavy-handed legal tactics at the slightest of provocations. This week it was revealed that the Respect MP George Galloway was suing over a critical comment left on a blog. Regardless of the objectionable nature of the comment (and I’m no great fan of the website in question) this decision – and in particular the scale of damages being demanded - seems quite extraordinary. I hope that George Galloway, who interviewed me on his radio show (in his capacity as a radio presenter, not an MP, I hasten to add) when Don’t Get Fooled Again was first published, will soon realise how bad this looks to the neutral observer and reconsider what he’s doing.
There is now a palpable reluctance in large sections of the media to ask critical questions about our politicians’ behaviour, and the rules by which they govern themselves. It strikes me that this is very bad for our democracy. I think that our elected representatives need to develop a thicker skin, and we need to start being more critical when MPs make inappropriate libel threats.
I am genuinely amazed that Tony Baldry chose to address this controversy by threatening to sue my webhosts. I do not believe it reflects well on him that he chose to do so, especially as the airing of similar allegations in stronger terms elsewhere appears to have gone unchallenged.
Neither does it look good, as Allen Green has noted, that Tony Baldry demanded the removal not only of the comments he deemed inaccurate and defamatory, but the entire blogpost.
I have no desire to say anything about Tony Baldry which is untrue or unfair, and am happy to take corrections when necessary. But on the basis of the evidence I have seen, I do believe that there are serious questions that need to be asked about this case, and that asking those questions is manifestly in the public interest.
And the industry lobbying campaign against libel cost reform plans is led by… the BCA’s lawyers, Collyer Bristow. But who are “Lawyers for Media Standards”?
Who’s for a flashmob?
Earlier this month, Justice Secretary Jack Straw confirmed plans to tackle the notoriously high costs of defending a UK libel case by slashing the “success fees” that law firms can charge when prosecuting an alleged libel on a no win, no fee basis.
The Press Gazette yesterday reported that, in response:
A newly formed group, Lawyers for Media Standards, is threatening to seek judicial review over Justice Secretary Jack Straw’s plan to cut the maximum success fee which lawyers working on Conditional Fee Agreements cases can charge.
The group has demanded that Straw drops his plan to reduce success fees by ninety per cent in so-called no-win, no-fee cases and re-open the consultation which preceded his announcement.
Lawyers for Media Standards outlined the threat in a letter sent to Straw, earlier this month, by law firm Collyer Bristow.
It’s worth noting at this point that defending a UK libel case currently costs 140-times the European average, and that as a result defendants who lack the financial means to cover these costs are effectively denied their right to a fair trial.
The one case above all that has galvanised public opinion on this issue is that of Simon Singh, the author being sued by the British Chiropractic Association over criticisms he made about their scientific claims. Where many would backed down long ago, Simon Singh has refused to retract his comments because he believes them to be fair and true, and has already paid an enormous price as a result.
And it just so happens that Collyer Bristow, the law firm heading the libel industry’s counter-attack against efforts to reign in their exorbitant fees, is the self-same law firm that is representing the British Chiropractic Association in their controversial and much criticised case against Simon Singh.
But what else do we know about “Lawyers for Media Standards” (LMS)? Well, the naming convention certainly seems familiar to anyone who’s looked into the murkier dealings of the PR industry (remember “Swiftboat Veterans for Truth”, and “Citizens for a Free Kuwait”?).
According to Collyer Bristow, LMS is “an incorporated body whose members include a number of lawyers who represent both claimants and defendants in defamation cases with the benefit of Conditional Fee Agreements”.
According to the Law Gazette, the organisation “aims to influence the debate on libel reform by emphasising the rights to obtain redress of those damaged by the media”.
And according to the London School of Economics, the organisation was behind a recent academic report which described itself as “A Rejoinder to the Clamour for Reform of Defamation”, and warned that proposals for reform could spell the “death of libel” and “truly unleash a feral beast” if enacted wholesale.
When I looked up “Lawyers for Media Standards” on the Companies House website, I couldn’t find any company matching that name, but there is an intriguing entry for an organisation called “Lawyers for Media Rights”, which was formally incorporated just over a week ago, on the 10th of March 2010.
The address given is: 50-52 CHANCERY LANE, LONDON, UNITED KINGDOM WC2A 1HL. It just so happens that this is the same address as a law firm called Russell, Jones and Walker, whose work includes privacy and “defamation: libel and slander”.
For some reason, although this is officially public information, if you want to know more details, Companies House will charge you for them. So I had to spend £2 (and endure a somewhat cumbersome payment system), to glean the following additional information:
Lawyers for Media Rights has just one “officer”, the Director, Jeremy Clarke-Williams. It lists its objects as “to uphold the principles laid down in the European Convention of Human Rights in relation to the media, balancing freedom of expression with the right to reputation and privacy, and to protect and enhance access to justice for claimants harmed by the media”.
A Google search on “Lawyers for Media Rights” currently reveals absolutely nothing (though presumably this blog post will show up shortly). However, the top search result for “Jeremy Clarke-Williams” identifies him as Russell, Jones and Walker’s “partner in the Media, Libel and Privacy department”, where he “specialises in defamation, misuse of private information, media litigation, and reputation management” (1), and is apparently a “‘tough player and tireless adversary’”, admired for his “efficiency, swift responses and encyclopaedic knowledge”.
A search on “Lawyers for Media Standards“, reveals that Jeremy Clarke-Williams’ colleague at RJW, Sarah Webb, is a “founding member”. Other members reportedly include Jonathan Coad of media law firm Swan Turton and Dominic Crossley of Collyer Bristow.
The precise relationship between Lawyers for Media Standards and Lawyers for Media Rights seems unclear. But from the links between them, and the fact that they seem to be covering similar ground, I would guess that they might be quite closely related.
Interestingly, in 2005, Jeremy Clarke-Williams was quoted in a BBC article after a ruling by the European Court of Human Rights that the “McLibel two”, Helen Steel and David Morris, had been denied their right to a fair trial when they were refused legal aid in defending a libel case brought against them by McDonalds.
Clarke-Williams reportedly told the BBC it was unlikely the government would need to change the law in the light of the court’s ruling, because the cutback in legal aid and emergence of “no win no fee” agreements had largely plugged the hole in provision which led to the European Court action.
I suspect that many who’ve read the excellent report on libel abuse by the Libel Reform campaign would beg to differ. There’s obviously a great deal at stake here, and those who make money out of libel cases are presumably entitled to engage in political campaigning if they want to. But so too are we. Anyone for a flash mob?
*UPDATE* - Libel industry lobbyists have sought to characterise the Libel Reform campaign as driven primarily by the self-interest of big media groups. In fact it was initiated by two long-standing human rights organisations, Index on Censorship and English PEN, along with the skeptical campaigners Sense About Science, and enjoys broad support across civil society. Here’s the ferocious anti-corruption group Global Witness explaining why, in the context of libel, “no win no fee” agreements pose such a threat to its work.
(1) I should say, for the sake of clarity, that I take the above to mean that Jeremy Clarke-Williams specialises in taking action against defamation and misuse of private information, as opposed to any other meaning that might mistakenly be inferred…
England’s libel laws are unjust, against the public interest and internationally criticised – there is urgent need for reform.
Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.
The law is so biased towards claimants and so hostile to writers that London has become known as the libel capital of the world. The rich and powerful bring cases to London on the flimsiest grounds (libel tourism), because they know that 90% of cases are won by claimants. Libel laws intended to protect individual reputation are being exploited to suppress fair comment and criticism.
The cost of a libel trial is often in excess of £1 million and 140 times more expensive than libel cases in mainland Europe; publishers (and individual journalists, authors, academics, performers and blog-writers) cannot risk such extortionate costs, which means that they are forced to back down, withdraw and apologise for material they believe is true, fair and important to the public.
The English PEN/Index on Censorship report has shown that there is an urgent need to amend the law to provide a stronger, wider and more accessible public interest defence. Sense About Science has shown that the threat of libel action leads to self-censorship in scientific and medical writing.
We the undersigned, in England and beyond, urge politicians to support a bill for major reforms of the English libel laws now, in the interests of fairness, the public interest and free speech.
“Justice” Jackson’s charlatan’s charter – a self-serving stitch-up by our bloated legal establishment
It’s widely acknowledged that one fundamental problem with our draconian libel system is that it’s possible for a defendant to win their case in court, yet still lose thousands of pounds through unrecovered costs.
This effectively gives the super-rich an absolute right to impose what amounts to an arbitrary fine on anyone who criticises them – even when those criticisms are totally justified.
The ‘paradigm case’, (to borrow a phrase from today’s extraordinarily ill-conceived report by Lord “Justice” Jackson), is that of vitamin salesman and AIDS denialist Matthias Rath, who sued the Guardian newspaper and Ben Goldace after they pointed out some uncomfortable truths about Rath’s activities in South Africa. Rath lost the case in court, and the defendants were fully vindicated, yet the Guardian still lost over £100,000.
Justice Jackson has today proposed to make the situation even worse. Under the current system, successful defendants are at least able to recover a portion of their costs. Jackson – after consulting closely with, among others, members of the legal profession who benefit so handsomely from the current system – wants to change things around so that the defendant can recover nothing. Even if the overall burden of costs is reduced from its current extraordinarily high level, a defendant who has been found wholly innocent of the alleged libel will still end up thousands of pounds out of pocket.
To a rich, titled, former high court judge such as Lord Jackson, this may seem like a trifling matter. But to a writer or academic faced with the threat of a crippling libel suit by a powerful multi-national simply for speaking the truth about their activities, this will, in even more cases than now, mean that they have little choice but to settle the case out of court and issue a grovelling apology, even when the truth of the alleged defamation is clearly demonstrable.
Under the changes recommended by Justice Jackson, rich liars and charlatans will now find it even easier to suppress legitimate criticisms of their behaviour – and unscrupulous law firms will continue to profit as a result. Even more libel defendants than under the current system will effectively be denied their right to a fair trial. Even more than now, freedom of speech will be the exclusive preserve of the rich. It’s difficult to believe that it could not have occurred to “Justice” Jackson that this would be the effect of what he is proposing.
The Committee that drew up the report can be contacted here.
Time to reign in the rogue libel outfits?
I was gutted to be missing this event due to ongoing winter lurgee – but delighted to see that Malcolm Grant, provost of my old college UCL, was the first university head to sign up to the campaign:
A university leader has thrown his weight behind a campaign to reform England’s libel laws amid growing concern about so-called “libel tourism” and its impact on academia.
Malcolm Grant, provost of University College London and a trained lawyer, told Times Higher Education that the current laws were having an impact beyond Fleet Street and were stifling scientific debate and academic freedom.
“It is fundamental and critically important that the threat of libel law be lifted from scientific dispute,” he said, describing it as “quite chilling” that the laws were being used to threaten scholars with heavy financial penalties for making simple points about science.
Professor Grant is joining representatives from science, journalism, publishing and the literary sector this week to launch a new petition for libel-law reform, organised by the charity Sense About Science, the free-speech organisation Index on Censorship and English PEN, which represents authors.
He said: “There are not many vice-chancellors who are lawyers, and I am heading up a very strong science university, so I think it is important to be involved.”
The petition calls for “major reforms” of the English libel laws, saying they “inhibit debate” and “stifle free expression”.
Cross-posted from Amnesty blogs
I’m just back from the launch of a gobsmacking new report by Index and English PEN, highlighting the abuse of the UK libel system by rich individuals and corporations around the world bent on suppressing criticism of their activities.
UK libel law denies most defendants a fair trial because a) The system works on the presumption of guilt, rather than innocence and b) Almost nobody can afford adequate legal representation to defend their case – legal costs in the UK are 140 times the European average. A trial of just one week can easily top a million pounds in fees alone.
On top of this, the UK judiciary effectively asserts “universal jurisdiction” for libel cases (at the same time as genocide suspects on UK territory go undisturbed). Anything negative written about a rich person on a website anywhere in the world can end up being the subject of a defamation case in a UK court. Things have got so bad that US states have begun passing laws preventing the enforcement of UK libel rulings within their jurisdictions, on the basis that our law violates the basic human rights protections outlined in the US constitution.
Last year, the UN human rights committee warned that UK libel law “served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work”, and highlighted the threat posed to freedom of speech worldwide by the UK’s willingess to indulge so-called “libel tourists”.
Speaking at today’s event, the former Director of Public Prosecutions, Sir Ken Macdonald, branded UK libel law a national “disgrace” – and its effect on other countries a “double disgrace”. Macdonald argues that the need for reform is not only an issue of justice, but also of national pride.
To find out more, and to sign up for this urgent and timely campaign, visit www.libelreform.org.