In his war over lurid press stories about his sex life, Max Mosley, president of the Fédération Internationale de l'Automobile (FIA), has sued the News of the World in France (for defamation and invasion of privacy) as well as in England (for breach of privacy). It is not the first time media litigants have opened up a second front in France.
Shrewd use of the differences between French and English law can give a decisive advantage. I was acting for defendants recently who were sued for libel in London by a US resident. The English court can order foreign claimants to pay money into court in London as security for the defendant's costs, but will usually not do so if the claimant has property in Europe. Our claimant gave a property he owned in France as his official address in the litigation.
Recalling that French courts are more willing to place charges over property, we tried an unprecedented strategy – my legal confederate, the Rennes advocate Dominique de Fremond, obtained a judicial mortgage over the claimant's French house, guaranteeing their potential costs claim if the claimant lost his London libel action. The claimant launched an appeal which was never heard, because this and other tactical pressure forced him to abandon his action, and my clients got their costs back.
The Barclay brothers (owners of the Telegraph group) sued for libel in France over an article in The Times. The case was settled, but in preliminary hearings in Paris a judge ruled that the French courts did have the jurisdiction to deal with the action.
So is Mr Mosley wise to sue for libel in France? French libel law looks more draconian: libel is a crime. But there is no prison sanction, the maximum fine is just 12,000 euros (£9,400), damages are lower than here and there is far more limited provision for the winner to reclaim his costs (although costs are likely to be a lot lower). And the Barclays' French libel action took more than two years to resolve (longer than an English libel action). The only plus point is that (unlike here) the court can order a paper to publish a correction.
It is open to doubt whether that advantage makes Mr Mosley's French libel action a good idea. The privacy side of his French action is a different matter. The criminal penalties are tougher: a possible year in prison and €45,000 (£35,400) fine. And the French law of privacy is stricter and more efficient than in England. Only a week or so ago, the French actor Olivier Martinez won a privacy complaint in Paris against the websites of the Daily Mail and the Sunday Mirror – the French court accepted jurisdiction because the websites were naturally accessible in France.
The News of the World website is likely to be central to the Mosley case, especially the undercover video which leaves little room for doubt as to what he was up to. Mr Mosley failed to get an injunction in England stopping the video – and also failed in France (oddly, given the Martinez decision referred to above). But the French court did grant him an injunction over print copies of the paper, because there was self-evident "violation of the intimacy of his private life".
Mr Mosley will almost certainly get a swifter trial of his privacy complaint in Paris than in London. He stands a greater chance of it being in his favour than in London. Whether his strategy will pay off in this remarkable case only time and possibly a judge or two in Paris will tell.
Nick Armstrong is a media partner at the solicitors Charles Russell LLPReuse content