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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Andy Burnham and Sadiq Khan are both slippery self-mythologisers – so why do we rate one more than the other?

Their obsessions with their childhoods have both become punchlines; but one of these jokes, it feels to me, is told with a lot more affection than the other.

Andy Burnham is a man whose policies and opinions seem to owe more to political expediency than they do to belief. He bangs on to the point of tedium about his own class, background and interests. As a result he’s widely seen as an unprincipled flip-flopper.

Sadiq Khan is a man whose policies and opinions seem to owe more to political expediency than they do to belief. He bangs on to the point of tedium about his own class, background and interests. As a result he’s the hugely popular mayor of London, the voice of those who’d be proud to think of themselves as the metropolitan liberal elite, and is even talked of as a possible future leader of the Labour party.

Oh, and also they were both born in 1970. So that’s a thing they have in common, too.

Why it is this approach to politics should have worked so much better for the mayor of London than the would-be mayor of Manchester is something I’ve been trying to work out for a while. There are definite parallels between Burnham’s attempts to present himself as a normal northern bloke who likes normal things like football, and Sadiq’s endless reminders that he’s a sarf London geezer whose dad drove a bus. They’ve both become punchlines; but one of these jokes, it feels to me, is told with a lot more affection than the other.

And yes, Burnham apparent tendency to switch sides, on everything from NHS privatisation to the 2015 welfare vote to the leadership of Jeremy Corbyn, has given him a reputation for slipperiness. But Sadiq’s core campaign pledge was to freeze London transport fares; everyone said it was nonsense, and true to form it was, and you’d be hard pressed to find an observer who thought this an atypical lapse on the mayor’s part. (Khan, too, has switched sides on the matter of Jeremy Corbyn.)

 And yet, he seems to get away with this, in a way that Burnham doesn’t. His low-level duplicity is factored in, and it’s hard to judge him for it because, well, it’s just what he’s like, isn’t it? For a long time, the Tory leadership’s line on London’s last mayor was “Boris is Boris”, meaning, look, we don’t trust him either, but what you gonna do? Well: Sadiq is Sadiq.

Even the names we refer to them by suggest that one of these two guys is viewed very differently from the other. I’ve instinctively slipped into referring to the mayor of London by his first name: he’s always Sadiq, not Khan, just as his predecessors were Boris and Ken. But, despite Eoin Clarke’s brief attempt to promote his 2015 leadership campaign with a twitter feed called “Labour Andy”, Burnham is still Burnham: formal, not familiar. 

I’ve a few theories to explain all this, though I’ve no idea which is correct. For a while I’ve assumed it’s about sincerity. When Sadiq Khan mentions his dad’s bus for the 257th time in a day, he does it with a wink to the audience, making a crack about the fact he won’t stop going on about it. That way, the message gets through to the punters at home who are only half listening, but the bored lobby hacks who’ve heard this routine two dozen times before feel they’re in the joke.

Burnham, it seems to me, lacks this lightness of touch: when he won’t stop banging on about the fact he grew up in the north, it feels uncomfortably like he means it. And to take yourself seriously in politics is sometimes to invite others to make jokes at your expense.

Then again, perhaps the problem is that Burnham isn’t quite sincere enough. Sadiq Khan genuinely is the son of a bus-driving immigrant: he may keep going on about it, but it is at least true. Burnham’s “just a northern lad” narrative is true, too, but excludes some crucial facts: that he went to Cambridge, and was working in Parliament aged 24. Perhaps that shouldn’t change how we interpret his story; but I fear, nonetheless, it does.

Maybe that’s not it, though: maybe I’m just another London media snob. Because Burnham did grow up at the disadvantaged end of the country, a region where, for too many people, chasing opportunities means leaving. The idea London is a city where the son of a bus driver can become mayor flatters our metropolitan self-image; the idea that a northerner who wants to build a career in politics has to head south at the earliest opportunity does the opposite. 

So if we roll our eyes when Burnham talks about the north, perhaps that reflects badly on us, not him: the opposite of northern chippiness is southern snobbery.

There’s one last possibility for why we may rate Sadiq Khan more highly than Andy Burnham: Sadiq Khan won. We can titter a little at the jokes and the fibs but he is, nonetheless, mayor of London. Andy Burnham is just the bloke who lost two Labour leadership campaigns.

At least – for now. In six weeks time, he’s highly likely to the first mayor of Greater Manchester. Slipperiness is not the worst quality in a mayor; and so much of the job will be about banging the drum for the city, and the region, that Burnham’s tendency to wear his northernness on his sleeve will be a positive boon.

Sadiq Khan’s stature has grown because the fact he became London’s mayor seems to say something, about the kind of city London is and the kind we want it to be. Perhaps, after May, Andy Burnham can do the same for the north – and the north can do the same for Andy Burnham.

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Daniel Hannan. You can find him on Twitter or Facebook.