Who is Mr Justice Eady?
Inside the mind of Britain's most controversial judge
Saturday 04 December 2010
When he hands down judgment, the Hon. Mr Justice Eady dons his horsehair wig and the black and red robes that hang from the door of Room 108, his chamber at the Royal Courts of Justice on the Strand, central London, walks a few short paces along a red-carpeted corridor, past framed portraits of long retired judges, and opens the small wooden entrance to Court 13, the libel court. Eady is Britain's most controversial judge. He has presided over cases involving celebrity claimants such as Madonna, Tiger Woods, Elton John, the Formula 1 chief Max Mosley and the media magnate Richard Desmond.
Trials in his field of media law are increasingly rare these days and he hasn't been involved in one for some time, except for one ongoing case – his own. For more than two years, Eady, 67, has had his character reviled by the media, which portrays him as an enemy of free speech, intent on introducing a privacy law by the "back door".
In a calculated public attack, the editor of The Daily Mail, Paul Dacre, accused the judge of passing "arrogant and amoral" judgments and having "an animus against the popular press and the right of people to freedom of expression". The Mail columnist Quentin Letts portrayed him as "cold as a frozen haddock", an "almost bloodless figure who sits in deathly judgment" on the press.
Vitriol has also come from the liberal media. In a piece for The Guardian headlined "The Hanging Judge", George Monbiot complained of "Eady's reign of terror", that held "free speech to ransom". In The Independent, the media commentator Stephen Glover has complained that Eady has "largely developed" a judge-made privacy law.
Eady was even assigned added police protection after being subjected to death threats and his home address published on the internet. Ironically, that furore resulted from a judgment in favour of a newspaper; his ruling last year that The Times was within its rights to name the anonymous author of the Night Jack police blog outraged other bloggers.
After two years in a dock created by his media critics, Eady has been removed from his lofty position as the senior media judge, giving up his prestigious role as head of the Queen's Bench jury and non-jury lists. The Lord Chief Justice's announcement, two months ago, that Eady was being replaced by Mr Justice Tugendhat – who is seen as more sympathetic to the press – was reported with relish in the newspapers. Justice had been done unto Eady, no matter that after a decade in a role that normally lasts for three years, a change was overdue.
In legal circles, the character assassination of one of Britain's foremost judges has been a cause of deep concern. "The tabloid media have created a bête noire to vent their frustration that publishing intrusive stories, normally about the sex lives of people, is no longer lawful," says Mark Thomson, a media lawyer with London firm Atkins, Thomson.
The media law silk Desmond Browne QC believes such tactics are a threat to natural justice. "I think the kind of personalised attack that's made on a judge like him is pretty undesirable. I think that people don't realise the effect it has on the judge personally and there's always the risk that it will encourage the judge to modify his views in order to avoid further criticism." Even some campaigners for freedom of speech are uneasy, such as Mark Stephens, of the law firm Finers Stephens Innocent. "He is a lovely man, and much-maligned in terms of the way in which the media have visited at his door all the complaints about recent developments in media law. Fair-minded lawyers can see that the decisions he gives are rational and sensible," he says, expressing regret that the judge "didn't stand up for himself".
Mr Justice Eady, like all serving judges, does not do personal interviews. But during the past year the wounded judge has given six public speeches, to legal and academic audiences, and from these it is possible to construct his case for the defence.
"The media have nowhere to vent their frustrations other than through personal abuse of the particular judge who happens to have made the decision," he complained to one legal conference. "Certain individual judges, of course, have been singled out for the treatment – much to the innocent amusement of colleagues and friends. One in particular has been accused of 'moral and social nihilism', 'arrogance', 'immorality', and, for good measure, also 'amorality'."
Newspaper lawyers appearing before Eady would never assume that he would regard an attack on someone's reputation as being merely a matter for "innocent amusement". In a speech this year to the Chancery Bar Association, the judge remarked: "Lawyers tend to take a rather different approach when defining the public interest from that of journalists or paparazzi."
In turn, the tabloid press believes he regards it with distaste. "I feel the chances of us coming out well before Eady are not good," says one red-top lawyer. Alastair Brett, former legal manager at Times Newspapers, says: "If you are a tabloid legal manager I think you rather dread coming before him because he's as likely as not to decide that the person applying for an injunction or seeking some redress for breach of privacy has got a case." Brett has been before Eady many times, often in Court 13. "David is an owl-like character," he says. "He sits like a barn owl up on the bench looking down at you totally inscrutably."
Does Eady hate the tabloids? The case that convinced many editors and their lawyers of his hostility was his July 2008 decision to uphold a claim for breach of privacy made by world motorsport head Max Mosley against The News of the World, which had reported on Mosley's involvement in a sado-masochistic orgy with five prostitutes. The judge rejected the newspaper's claim that its report was in the public interest because the orgy had Nazi connotations. But he also rejected Mosley's claim for exemplary damages, making an award of £60,000.
Outside the High Court, Colin Myler, editor of The News of the World, claimed that "publication was justified by the public interest in exposing Mr Mosley's serious impropriety". The real backlash came three months later when, delivering a lecture to the Society of Editors, Paul Dacre, unleashed his cannonade, accusing the judge of carrying out "an unashamed reversal of centuries of moral and social thinking".
Prior to Mosley, Eady had been steadily getting under the skin of the tabloids. In 2006, he gagged the press from writing the story of a cheated husband whose wife had been seduced by a married sports star. The judge upheld a privacy injunction on the grounds that the celebrity's wife would be damaged by publication.
The media was also alarmed by an Eady judgment in 2005 which blocked an author, Niema Ash, from revealing secret details about the Canadian folk singer Loreena McKennitt, her close friend. The judge said McKennitt was entitled to a duty of confidence under Article 8 of the Human Rights Act (the right to privacy), which – in Eady's view – outweighed Ash's right to freedom of expression under Article 10 of the same legislation. The judge's finding was upheld by the Court of Appeal, which praised his "careful (and correct) judgment".
In a speech to City University in London in March, he acknowledged that a judge's task of weighing a case would sometimes provoke controversy. "It is inherent in this balancing process that different persons may come up with different answers on the same set of facts. There is often plenty of room for disagreement ... I understand, for example, that one or two people even disagreed with the result in the Mosley trial," he said, the aside being an example of his dry humour.
The judge displays similar wit when discussing that tabloid stock in trade, the kiss and tell. He enjoys good sport with the 2002 case of married footballer Gary Flitcroft, who tried to prevent two women telling the press of "their night of bliss with the Blackburn Rover". At City University he observed that "I have had experience of a number of cases involving paparazzi chasing celebrities through the streets or staking out their homes." Such comments, by someone educated at the 16th-century Brentwood School and Trinity College, Cambridge, hint at a disdain for the methods of the popular press.
Mr Justice Eady is undoubtedly conservative. He lives quietly with his wife Catherine in rural Kent and the couple have learned to ignore the brickbats he receives from the press. He dresses soberly in dark suits and black brogues. His silver hair above a high forehead is long at the back and sides, and he is an enthusiastic participant in drama productions at the Inner Temple but eschews the more outgoing lifestyle of other libel judges, such as the more sociable Mr Justice Gray. During term time, he often works through weekends, poring over the paperwork of a case, as chimes sound on the hour from the courtyard outside his window.
But is he an Edwardian prude, hopelessly out of step with modern society? During a speech given at the University of Hertfordshire in November last year, he joked mischievously at how the law on privacy has evolved in relation to sex.
"Where on the 'scale or matrix' would the judge have to place a tent at Glastonbury, or the back of a car which had run out of diesel deep in the New Forest?" he pondered. "Would the law afford greater protection for a married couple in a Ford Fiesta than to a newly engaged pair in the back of a Range Rover?"
The European Convention on Human Rights, drawn up 60 years ago in the aftermath of totalitarian regimes, was never meant to be about sex, as Eady pointed out in his Hertfordshire talk. "They were obviously not concerned at that point in history with tabloid newspapers, celebrity culture or sexual indiscretions."
With post-war changes to society came the modern popular press and intrusion became a media issue. Eady, called to the bar in 1966, found himself representing the media as well as those suing it. He was hired by Robert Maxwell's Daily Mirror and defended The Sun over defamation claims by the Coronation Street actor Bill Roache who was described as "boring". Eady was an ideal barrister for red top newspapers which hoped to persuade a jury that their interests were not overly salacious. "He's a cerebral kind of guy who never allows his voice to rise above a fairly low octave. He delivers every sentence in this slightly laborious monotone. I don't think he's ever got excited about anything," says one media lawyer.
He more enjoyed advising the Insight Team of Harold Evans's Sunday Times or BBC's Panorama under the editorship of current director general Mark Thompson. He was delighted to be involved in Panorama's exposé of Maxwell, shortly before the mysterious death of the media tycoon as he threatened legal action against the BBC.
But the tabloids were something else. The story that Eady always refers to in speeches is that of Gordon Kaye, star of the television comedy 'Allo, 'Allo, who was semi-conscious in hospital with head injuries when "journalists from The Sunday Sport came into his room disguised as nurses or doctors, took photographs of him and purported to conduct an interview," as he recently described the episode.
At the time of the Kaye incident, Eady was on the Calcutt Committee investigating growing press intrusion. He favoured a privacy law. "It seemed that the appropriate mechanism for introducing a law of privacy would be through the legislature," he recalled in an Oxford lecture this year. During Christmas of 1989, Eady drafted a tort but felt undermined by the press. "Even the Gordon Kaye episode failed to convince the journalists on the Calcutt Committee that legislation was required," he said.
Some believe Eady's recent findings have been an attempt to revive the legislation that he imagined 20 years earlier. In fact, two quite separate events largely shaped the laws on privacy we have today.
The first was the Human Rights Act of 1998, which came into law almost exactly a decade ago, giving equal importance to Article 8 on privacy and Article 10 on freedom of expression. Lord Irvine, then Lord Chancellor, said in 1997 it would be for judges to balance cases.
The second event was the model Naomi Campbell's successful 2004 appeal to the House of Lords on a claim that The Daily Mirror had breached her privacy by revealing that she was attending a drug rehabilitation clinic. That ruling, backed up by a Strasbourg case brought by Princess Caroline of Monaco shortly afterwards over paparazzi pictures published in Germany, changed the law on privacy. "There was opened up the possibility of claims by an individual citizen against a newspaper or media group," said Eady in Oxford. "That clearly had the potential to make a significant difference, although it was not noted at the time by most journalists just how significant this was going to be."
As the senior media judge, Eady continued to take the bulk of the cases. Critics say he should have shared cases around more, but though there are 71 judges in the Queen's Bench Division, few other than Eady, Mr Justice Tugendhat and Dame Victoria Sharp have a background in media law.
In fact, not all of Eady's judgments have gone against the media. In 2007, he found against the former Southampton chairman Rupert Lowe in an action against Associated Newspapers which extended the defence of fair comment. In 2009, he found that Google should not be held responsible for defamatory content found through its search engine.
On the other hand, he upheld an injunction sought by Tiger Woods over the publication of intimate photographs, prompting campaigners to say that such a ruling would never have been upheld in America.
Eady already stands accused of having encouraged libel tourism by making a declaration of falsity and an award of £10,000 damages against American author Rachel Ehrenfeld over a 2003 book which accused Saudi businessman Khalid bin Mahfouz of funding terrorism through London banks, though it only sold 23 copies in Britain. Eady's 2005 ruling prompted numerous American states to introduce laws protecting US citizens from foreign defamation judgments, and since August, this has become a Federal law.
Not everyone demonises Eady for this. The former Law Lord, Lord Hoffman observed: "The complaints about libel tourism come entirely from the Americans and are based upon a belief that the whole world should share their view about how to strike the balance between freedom of expression and the defence of reputation. And naturally the American view is enthusiastically supported by the media in this country."
Eady talks of "long-standing cultural differences" which mean that Britain should not worship an American model where the First Amendment has "sacrosanct status". "We are not part of the United States," he told City University. "That may, of course, only be a temporary arrangement, but at least for the moment we are part of Europe."
But following Strasbourg's jurisprudence also has its drawbacks. Eady is a traditionalist who dislikes the lack of clarity in the modern system, which he compares to "Mr Toad's wild ride", even if it is "settling down quite well". "There have certainly been times in our history when the law on freedom of speech has been clearer than it is today. One of those was in the reign of King Henry VIII," he said recently, praising Tugendhat for identifying Thomas More as a champion of free speech in 1523.
Tugendhat has the next room to Eady on the judges' corridor, just the other side of double doors. The press see them as having different views but they have much in common. Tugendhat, praised for overturning a privacy injunction brought by footballer John Terry, has recently granted other gagging orders, such as one to a married TV star who said his ex-wife was blackmailing him. In October, he made an unusually high award of £50,000 damages against an American website that published comments from a third party about two businesses.
Desmond Browne QC says it is dangerous to paint one judge as "a white knight". He says: "It's simplistic and there's a danger of affecting the objectivity of judges if they are treated either as objects of obloquy or of excessive admiration." Has Eady been damaged by this obloquy? Although he was rebuked by the House of Lords in 2006 for his hostility to The Wall Street Journal's use of the "Reynolds" libel defence of publishing in the public interest, his record as a judge since 1997 has been good. But in the past 18 months he has suffered damaging reversals in the Court of Appeal, firstly in author Tom Bower's defence of an action brought by Richard Desmond over a comment in a biography and then this year when the British Chiropractic Association lost its case against the writer Simon Singh, who alleged in a newspaper article that some practitioners promoted bogus treatments.
These setbacks, along with the ongoing controversy, probably explain why Eady has not been promoted to the Court of Appeal in spite of its shortage in judges with experience in media law. A cerebral, decent, hard-working public servant who has raised two children and lives quietly with his wife among his country orchards, finds himself winged, largely by the conservative media for the price he places on privacy.
Even lawyers like Mark Stephens, who strongly disagree with most of his findings, don't think it's just. "He wasn't working to any particular agenda," he says. "It's just [that] he is a person who naturally believes in the primacy of an individual's reputation and believes in privacy to an extent that I don't."
Lord Browne of Madingley
A judgment by Mr Justice Eady that Lord Browne had lied to the court caused the peer to resign his position as chief executive of BP in May 2007. Lord Browne was attempting to block 'The Mail on Sunday' from reporting intimate details of his relationship with former lover Jeff Chevalier. But the judge angered the newspaper by allowing it to report only part of Chevalier's information, relating to allegations of the misuse of BP funds.
Mr Justice Eady's finding, in July 2008, that the 'News of the World' had breached the privacy of the world motor sport boss Max Mosley by revealing his involvement in a sado-masochistic orgy with five prostitutes was denounced by the majority of the press. The newspaper failed to prove that the orgy involved Nazi role-play and that its report was in the public interest. 'The Times' said the ruling "tipped the scales in favour of privacy over press freedom".
In December 2009 Mr Justice Eady granted the golfer an injunction banning the English media from publishing details of his personal life. The decision was described as "unbelievable" by one media lawyer who said it would never have been granted in America. The judge has recently said there was "no inconsistency" because the injunction applied only to publication of "intimate photographs". The golfer's British lawyers had claimed that any images in circulation must have been doctored.
In June 2009, a serving officer with Lancashire Police, Detective Constable Richard Horton, sought an injunction against 'The Times' to prevent it from revealing that he was the author of blog Night Jack, for which he had won an Orwell Prize. Mr Justice Eady ruled that Horton had "no reasonable expectation of privacy" and 'The Times' unmasked the officer, who was then disciplined by his force. The blogging community was outraged by the episode and the judge was subjected to internet comments of such vitriol that police had fears for his safety.
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