Tolstoy argues UK courts denied him record libel appeal

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Count Nikolai Tolstoy, who was bankrupted by record libel damages awarded to the former Conservative Party deputy chairman Lord Aldington, yesterday told the European Court of Human Rights the British courts had denied him an appeal. The damages were awarded to compensate Lord Aldington, 80, for a pamphlet written by Count Tolstoy that accused him of deliberately sending 70,000 Yugoslavs and Cossacks to their deaths when he was a brigadier in the British Army at the end of the SecondWorld War. The sum was fixed by a jury in December 1989 after a 41-day hearing, one of the most dramatic libel trials of the century.

When Count Tolstoy tried to appeal against the award, three times the previous record, the court of appeal told him he had to pay £124,900 in advance to indemnify Lord Aldington against his costs in opposing the action.

David Pannick QC, for the Government, which faces paying damages to Count Tolstoy if the court finds in his favour, told the 13 international judges in Strasbourg that the huge libel award had been reasonable. Lord Lester QC, for Count Tolstoy, said the requirement to indemnify Lord Aldington amounted to a total bar on access to the court.

He said: "The court of appeal was not prepared to allow the applicant more than 14 days to pay the money into court and therefore denied him any realistic opportunity to raise the money and bring the appeal. [It] failed to take into account the fact thatlegal aid is not available in libel actions...and that the applicant's impecuniosity was the direct result of the huge cost of defending the action".

The Court of Appeal had wrongly dismissed the fact that Lord Aldington's costs were being paid by the Sun Alliance Insurance Company, of which he had been chairman at the time of the libel. "In fact this was relevant because the purpose of the court of appeal's decision was intended to protect Lord Aldington in relation to costs, when he needed no such protection."

The European Commission of Human Rights, which makes preliminary studies of potential cases for the court, upheld Count Tolstoy's claim that the appeal court had interfered with his human rights, but said that his right to access to the courts had not been infringed. The court is expected to make a ruling later this year.