LAW REPORT : Libel award violated freedom of expression

Tolstoy-Miloslavsky v United Kingdom; European Court of Human Rights, Strasbourg; 13 July 1995

The European Court of Human Rights unanimously held that the size of libel damages - pounds 1.5m - awarded by a High Court jury against the applicant taken in conjunction with the national law at the relevant time gave rise to a violation of his right to freedom of expression as guaranteed by article 10 of the European Convention on Human Rights.

The European Court unanimously found no violation of article 10 in respect of an injunction made by the High Court restraining the repetition of the libellous statements. By eight votes to one it found no violation of the applicant's right of access to court under article 6 on account of the Court of Appeal's order that he provide pounds 124,900 in security for costs as a condition for hearing the applicant's appeal.

A pamphlet written by the applicant, Count Nikolai Tolstoy-Miloslavsky, alleged that the Warden of Winchester College, Lord Aldington, as a high-ranking British army officer serving in occupied Austria at the end of the Second World War, had been responsible for handing over 70,000 Cossack and Yugoslav prisoners of war and refugees to the Soviet authorities without the authorisation of the Supreme Allied Commander and knowing they would meet a cruel fate. The pamphlet was distributed to parents, boys and staff at Winchester College, members of both Houses of Parliament and the press.

Lord Aldington sued for libel. The jury awarded him damages of pounds 1.5m. The High Court granted an injunction restraining the applicant from repeating the libellous statements in the pamphlet. The applicant gave notice of appeal and Lord Aldington applied for an order requiring the applicant to give security for an amount that would cover the costs of Lord Aldington's representation should the appeal be unsuccessful. The applicant declined Lord Aldington's offer to settle for pounds 300,000 damages. The Court of Appeal decided there was little chance of the applicant's appeal's being successful and ordered he provide pounds 124,900 as security for costs.

The applicant alleged violations of his right to freedom of expression under article 10 and his right to access to court under article 6. The exercise of freedoms under article 10 was subject to penalties which were prescribed by law, necessary in a democratic society and pursued a legitimate aim.

The European Court of Human Rights said that the relevant legal rules concerning damages for libel were formulated with sufficient precision to be regarded as prescribed by law. The award and the injunction pursued a legitimate aim: the protection of the reputation or rights of others.

When considering whether the award fell within a penalty "necessary in democratic society" within article 10, contracting states should enjoy a wide margin of appreciation as to what would be an appropriate response by society to speech which did not or was not claimed to enjoy the protection of article 10. The sum awarded was three times the size of the highest libel award previously made in England and no comparable award had been made since. An award of the size in question must be particularly open to question where the substantive national law applicable at the time failed itself to provide a requirement of proportionality.

At the material time the national law allowed great latitude to the jury, as the Court of Appeal could not set aside an award simply on the ground that it was excessive but only if it was so unreasonable that it could not have been made by sensible people but must have been arrived at capriciously, unconscionably or irrationally. The scope of judicial control at the trial and on appeal did not offer adequate and effective safeguards against a disproportionately large award. Accordingly, having regard to the size of the award in conjunction with the state of national law at the relevant time, there had been a violation of the applicant's rights under article 10.

However there was no ground for holding that the injunction amounted to a disproportionate interference with the applicant's rights under article 10.

The security for costs order did not impair the very essence of the applicant's right of access to court and was not disproportionate for the purposes of article 6.

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