Suing for libel is riskier by far than a night at the roulette table. Some litigants have gambled and won, of course, emerging from the courtroom vastly richer than they were when they went in, with the added bonus of having ensured that no one could repeat the wounding words that provoked the court case.
But not Andrew Mitchell. He limped out of court a broken man. His political career is effectively over. The reputation of being a snob who called police officers “plebs” will stay with him for life, and he can expect a legal bill of a size that would bankrupt most of us.
It was a gruesome conclusion to a two-year battle to put his privileged life back together, all the more so because it came after a string of victories. He had already proved that there was a police conspiracy against him. Five officers had been sacked, and one had gone to prison. The Metropolitan Police Commissioner had apologised to him in person. A cabinet job awaited him, if only he had quit while he was ahead – but some residue of seething anger drove him on to self-destruction.
It is hard not to feel a little sorry for him – while wondering how someone of his intelligence could make such a catastrophic blunder.
Perhaps he was beguiled by the historic reputation of British libel law, which has long been famous for being loaded in favour of those who sue. Most libel trials in the past have ended in victory for the litigant, particularly when the defendant is a newspaper company.
Some of these outcomes have been so bizarre that the state of New York passed a law saying that judgments arrived at in British courts did not apply over there; it did so to protect an American journalist who had been sued in her absence, in London, by a wealthy Saudi – a form of “libel tourism” that British courts now try to avoid.
If Andrew Mitchell had fought a traditional libel action against The Sun, in front of a jury, perhaps he too would have come away vindicated and very much richer – rather like the popular American entertainer Liberace, who sued the Daily Mirror in 1959 for calling him “a deadly, winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother love”.
In those days, homosexual acts were illegal and to accuse a man of being gay was defamatory. Liberace lied in court about his sexuality, while the newspaper put up the absurd defence that they were not suggesting that he was gay. He was awarded £8,000, equivalent to around £520,000 in today’s money. On being asked how he felt about the case, he reputedly answered: “I cried all the way to the bank.”
In the 1980s Private Eye – edited then, as now, by Ian Hislop – was sued by Sonia Sutcliffe, wife of the serial killer known as the Yorkshire Ripper, over an inaccurate paragraph that had appeared in the magazine eight years earlier. The jury awarded her £600,000 – about 10 times the total compensation paid out to all the victims of her husband’s sadistic activities. The public was left with the impression that she was another casualty of the Yorkshire Ripper story, a timid woman with mental issues who had not apparently tried to profit from her husband’s notoriety.
The verdict frightened other publications who had heard from Mrs Sutcliffe’s lawyers. They paid up without a fight, so that even when the award against Private Eye was reduced on appeal, she had accumulated easily enough money to live comfortably for the rest of her life.
But she lost it all when she went back into the gambling den one more time, to sue the News of the World. In that case, she was mercilessly exposed as a cold, selfish individual, with no sympathy for her husband’s victims – indeed as someone who seemed almost proud of his infamy – and she was hit for a huge legal bill.
That case perfectly illustrated that, even under the old system, suing for libel was a colossal gamble: the rewards might be enormous, but so might be the financial and reputational damage.
But libel law has changed since those wild days. Juries lost the power to set the level of damages years ago, after a sequence of stupidly high awards. Then the 2013 Defamation Act ended the presumption that libel cases would go before a jury. Expensive and complex cases like Andrew Mitchell’s are now heard by a judge.
Perhaps Andrew Mitchell would have fared better in front of a jury, but not everyone believes that a jury trial offers a better chance of a successful suit. Mr Mitchell’s fellow Tory MP Tim Yeo is a case in point. He has a libel case pending against The Sunday Times. The newspaper applied in a high court for a jury trial, while Mr Yeo asked for it to be heard by a judge. Apparently, neither side anticipated that a jury’s natural sympathies would lean towards the litigant. A judge has ruled that there will be no jury in the Yeo case – a precedent that suggests that jury trials in libel cases will be rarer in future.
But regardless of who hands down the verdicts, there is only one safe lesson to draw from Andrew Mitchell’s self-inflicted disaster. If you are thinking of suing for libel, ask yourself this: is the hurt you feel from what someone has written about you so awful that it is worth staking your entire reputation and hundreds of thousands of pounds on getting redress?
It might be, if you are exceptionally rich and do not much care what people think of you. Otherwise the best advice is simple: don’t go to law.
Libel litigants who paid a high price
The former Cabinet minister appeared to be on strong ground when he sued The Guardian for alleging that he had stayed in a Paris hotel at the expense of an Arab arms dealer. The law did not require Aitken to produce evidence to show who paid for the room: the onus was on the newspaper to prove the allegation. By an extraordinary combination of relentless investigation and sheer fluke, they did. Aitken not only lost the case: he went to prison for perjury.
The controversial historian took exception to a book published by Penguin in 1994, in which the American academic, Deborah Lipstadt, described him as a “Hitler partisan” and Holocaust denier who deliberately falsified the historical record. Irving sued in 2000, hoping that a court would accept that he was expressing an honest opinion. He lost, landing himself with a £2m legal bill.
The best-selling author and former deputy chairman of the Conservative Party seemed to prove to the nation that suing a tabloid newspaper for libel was an easy way to get rich. In 1987, the News of the World had photographed him handing £2,000 in a brown envelope to a prostitute, but when the Daily Star followed up with a story suggesting he had used her services and wanted to buy her silence, he sued and won damages of £500,000. In the end, however, his lies caught up with him. In 2001, he was sent to prison for perjury, and he had to repay the newspaper £1.5m.
In 1895, the flamboyant playwright and aesthete started one of the most foolish libel actions in legal history when he sued the Marquess of Queensberry for leaving a calling card with the mis-spelt message “For Oscar Wilde, posing somdomite”. Losing the case not only bankrupted him: it led to his arrest and imprisonment for his active homosexuality.
James McNeill Whistler
In 1877, the painter, a contemporary of Oscar Wilde, sued the critic John Ruskin, who had accused him of being a “coxcomb” who asked for “two hundred guineas for flinging a pot of paint in the public’s face”. Whistler, a well-known wit, seemed to do well on the witness stand, with the courtroom even bursting into applause after one of his replies – and the jury found in in his favour. The sting was that the damages were set at a farthing – a quarter of a penny in old money, or a tenth of a modern penny. The legal costs bankrupted him.
The popular Liverpool goalkeeper was accused by The Sun in 1994 of having been paid to fix matches. He was acquitted in the criminal trial that followed – and should have been content with that. Instead, he decided to sue The Sun. It went well – at first. He won £85,000 libel damages in 1999. That verdict was overturned by a Court of Appeal, but reinstated by the House of Lords. However, the law lords reduced his damages to £1 and ordered him to pay The Sun’s legal costs of £500,000. Victory left him bankrupt.
The then editor of The Sunday Times, an unmarried man, was sometimes seen in the company of Pamella Bordes, a former Miss India who held a House of Commons pass. A scandal broke when it emerged that she was also a high-earning prostitute. Neil had not known that, and sued the Sunday Telegraph columnist Peregrine Worsthorne, who had written that “playboys” should not edit newspapers. He won £1,000 damages. Some saw this as a victory for new journalism over the old; others suggested that such limited damages were greatly overshadowed by the embarrassment of the personal details that emerged during the trial – proving yet again that even suing successfully for libel does not guarantee that you will emerge unscathed.
The “spanking colonel”
The point had previously been illustrated by Lieutenant Colonel John Brooks, a solicitor and former mayor of Kensington, who thought it very damaging to his standing in the community when in 1974, the Sunday People – which very few of his friends would have read – accused him of luring young women on to his boat and assaulting them. He claimed he had their consent. The resulting court case gave the nation something to laugh about during grim economic times, when they learnt that he had invited a student on to his boat and induced her to allow him to smack her bare bottom about 30 times. He won the case, but was awarded only half a penny in damages, and achieved unwanted fame throughout the land as the Spanking Colonel.Reuse content