Libel litigation is not fit for purpose

A four year ordeal comes to an end.

Today the Court of Appeal finally brought to an end the misconceived and illiberal case brought against Labour bloggers John Gray and Alex Hilton. There is nowhere else for the claimant to go with this case in the United Kingdom. Her only way forward is to take the case to the European Court of Human Rights, but then her case will then be against the UK, and not these two Labour bloggers.

In one distorted way, this final defeat perhaps shows libel law is somehow working. That is certainly how apologists for the current mess which is English libel law would put it: the claimant's case was struck out by the courts applying English substantive and procedural case law, thereby no legal change is needed and so English libel law is working.

However, this is simply not correct. Last year, the High Court held correctly that the libel claim had no merit and struck the claim out as an abuse of process. But this was after three years of draining litigation which left the defendants facing the real possibility of bankruptcy. It also took the intervention of my friend Robert Dougans, with pro bono help from the likes of me and other veterans of the British Chiropractic Association v Simon Singh case. Had it not been for our involvement, the case could well have gone to full jury trial. It then could have gone to a full Court of Appeal, and so on. There could have been years more of this case. And remember, this was always a case with no merit whatsoever.

English libel law remains unfit for purpose. The courts quaintly presume any alleged libel has caused damage and that it is false. The claimant has very little to show before a claim can be launched or even threatened. It is then for the defendant to either prove the alleged libel is not a libel, or that it is false or honest opinion, or that it is an abuse of process as no damage has actually been caused. The claimant can just sit back whilst the defendant incurs immense costs and negotiates evidential problems. There also remains no useful public interest defence for political, science, or other bloggers and journalist to rely on. Libel law, both in substantive and procedural terms, is in an awful state.

There is the possibility that the government will publish a draft libel reform bill later this month. One hopes it is a sensible bill, which will make it more difficult for bad libel claims to be threatened and far easier for them to be got rid of when they are brought. However, the government may instead suggest mere tinkering. We have to wait and see.

But it must be emphasised: Alex Hilton and John Gray did nothing wrong, and still they had four years of genuine worry and inconvenience. It could have been any blogger or commenter in their place. The case against them has taken four years to bring to today's ultimate end. This cannot be right. To allude to a famous election poster: Libel isn't working.

 

David Allen Green is legal correspondent of the New Statesman and a practising media lawyer. He is a supporter of the Libel Reform Campaign.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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What does it mean for Ukip if it loses in Stoke-on-Trent Central?

The party’s prospects are in question if it fails to win over the “Brexit capital” in Thursday's by-election.

“The Only Way Is Up!” blasted through a hall in Stoke-on-Trent Central on a damp Monday evening earlier this month. It was the end of a public Ukip meeting, in which Nigel Farage and his successor and by-election candidate Paul Nuttall made their rallying cries to an audience of around 650 supporters.

But even then, a fortnight ago, the note of triumph in the dance classic was tinged with uncertainty. “We’ve won the war, but we’ve yet to win the peace,” Farage admitted to the sympathetic crowd. And while this message is supposed to make Ukip’s fight relevant even in the context of Brexit-bound Britain, it betrays the party’s problem: the battle that was its raison d'être is over.

Failing fortunes

Since then, the party has had more to contend with. Its candidate in the Labour seat has been caught lying about having “close personal friends” killed at the Hillsborough disaster. This comes on top of a number of other false claims, and an investigation into whether he falsely registered his home address as being in the constituency.

After these scandals – and a campaign seemingly unable to turn out apathetic voters (which I covered a couple of weeks ago) – Ukip’s chances in the West Midlands seat look worse than expected.

Initially the main challenger to Labour, Ukip is now being predicted for third or even fourth place in the seat, behind a Tory party that essentially stood aside to give Nuttall room, and to focus on a concurrent by-election campaign in Copeland.

It’s in Labour’s interest for the campaign to continue looking like a close Labour-Ukip fight, in order to keep hold of tactical voters. But both the Conservative and Lib Dem campaigns are feeling more buoyant.

“We are relatively confident that Ukip are not going to win, and that is quite a change,” the Lib Dem campaign coordinator Ed Fordham told me. “That has actually relieved lots of voters of the emotional risk of letting in what they perceive to be an unpleasant, far-right option . . . and voting for who they would like to represent them.”

One local activist chirped: “It will hopefully be a terrible result for Ukip.”

So what will it mean for Ukip if it loses?

Great expectations

Ukip has a lot riding on this seat. Farage called the by-election “absolutely fundamental” to Ukip’s future. Its new leader, Nuttall, took the risk of running as the party’s candidate there – riding his reputation on the by-election.

This created a lot of hype about Ukip’s chances, which the party has privately been trying to play down ever since. Even before the scandal surrounding Nuttall, he was emphasising that the seat had only been Ukip’s 72nd target, and told me he had taken a gamble by running for it. “The way it’s being written up as if this is the one – it wasn’t,” he insisted.

But Stoke-on-Trent, where 69 per cent voted Leave, has been labelled the “Brexit capital”. According to political scientist Rob Ford, the author of Revolt on the Right who has been studying Labour’s most Ukip-vulnerable seats: “It should be a pretty favourable seat for them, pretty favourable demographics, pretty favourable [negative] attitudes about the EU, very high Brexit vote there and so on.”

In other words, if Ukip can’t win here, against a weak Labour party, where can it win?

Struggle for seats

Brexit is central to Ukip’s by-election campaign. The party has highlighted Labour’s splits over Europe, pointed out the Labour candidate Gareth Snell’s Remainer credentials, and warned that the government needs to be held to account when negotiating Britain’s exit.

But Ford believes this rhetoric is unlikely to work, since the Tories are already pursuing a “hard” Brexit focused on immigration control. “A difficulty for Paul Nuttall and Ukip is that people are going to say: why would we vote for you when we’re getting what we want from the government? What’s the point right now?” he said. “I can have all the Brexity stuff, all the immigration control stuff, but with none of the incompetence and serial lying about Hillsborough – I think I’ll take that!”

So if rerunning the EU referendum doesn’t work, even in such a Brexit-heavy seat, this means trouble for Ukip elsewhere in the country. A Ukip councillor in a top Ukip target seat with similar demographics to Stoke believes it’s “crisis time” for the party.

“It is very sad to say, but Ukip has lost its way,” they told me. “It’s still a strong party, but after losing Nigel, it’s lost a little of its oomph. The new gentleman [Nuttall] has been silly with the comments he’s made. That’s a big worry in some regards. You need to be a people person. It’s a serious situation at the minute.”

If Ukip can’t prove it can win parliamentary seats – even in favourable by-elections – then it will be difficult to prove its authority as a political party come the general election.

Leadership lament

Should Nuttall lose, Ukip’s leadership will come into question. Again. During a tumultuous time late last year, when the favourite Steven Woolfe left the party after a physical altercation, and Diane James quit the leadership after 18 days, commentators asked if Ukip was anything without Farage.

When Nuttall eventually took over, the same voices warned of his threat to Labour – citing his northern and working-class roots. It’s likely this narrative will change, and Farage’s golden touch pondered again, if Nuttall fails to win.

But rather than panic about its national leader, Ukip must look carefully at those who commit to the party in local campaigns. On the ground in Stoke, running Nuttall as a candidate instead of a local Ukipper is seen as a mistake.

“I don’t know why they did that,” one local activist for an opposing party commented. “If they’d run Mick Harold, they would’ve won. He’s a Stokie.”

Harold, the deputy chair of Staffordshire County Committee, and chair of Ukip’s Stoke-on-Trent Central/North branch, won 22.7 per cent of the vote for Ukip in the constituency in 2015. He insists that he stands by his decision to step aside for Nuttall, but does highlight that Ukip should increase its vote share.

“If we’re increasing our percentage share of the vote, we’re still moving forward and that’s how we’ve got to look at it,” he told me. “I got 22.7 per cent in 2015. I would think this time we’re going to certainly get somewhere around the 30 per cent mark.”

Would it have been more likely to achieve this with Harold as candidate? “Whatever happens, happens, we’ve just got to move forward,” he replied. “If you’ve made a mistake, you move on from it.”

I have heard similar misgivings from local activists in other parts of the country – people who have achieved impressive results in local elections and the general election, but haven’t had much thanks from the national party. “We need to get professionalised now,” one such campaigner said. “Because we’ve got grassroots people who are not career politicians [doing all the hard work].” They say their local party is fed up with leadership being dictated by “personal grudges” at the top of the party.

***

As I’ve written before, I don’t think this is the end of Ukip. Once Brexit starts to bite, and it’s clear immigrants are still needed to fill jobs, there will be resentment enough to make space for them again. But losing Stoke will highlight the challenges – of purpose, leadership and local organisation – that the party will need to overcome for its next stand.

Anoosh Chakelian is senior writer at the New Statesman.