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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My latest Brexit worry? What will happen to our footballers

My week, from why we should “keep on running” to mansplaining in the Commons.

It’s a funny old game, politics. Just when you think you’ve got your head round the myriad consequences of the Brexit vote, yet another one springs to mind. This week, I stumbled upon another sector in which Britain leads the world that will be thrown into uncertainty by Brexit: football.

The background of this moment of clarity is that I’ve been trying to rescue a youth centre in my constituency that the council can no longer afford to run. Thankfully, the brilliant New Ferry Rangers want to take it over as their clubhouse. I tell the chair of the FA, Greg Clarke, about our plans.

In doing so, I realise that the European Union’s competition rules apply to the beautiful game, just as they do to every other business sector in the UK. In practical terms, the absence of these continental rules opens up the possibility of changes to who can play, own and broadcast our wonderful yet expensive national game.

“Will Bosman still apply?” a colleague asks me with relish, referring to the 1995 European Court of Justice ruling that allows EU footballers to transfer easily from one club to another. Who knows? Who knows who knows?

 

Three lions on the shirt

The football dilemma is a microcosm of the wider immigration issue. Some imagine that by barring foreign talent from our shores, we will advantage British-born players. If fewer foreigners are allowed to play and English lads get more playing time in the Premier League, perhaps leaving the EU might result in the long-wished-for success for the England national team?

Unfortunately, it’s not as simple as that. If you don’t have the skills to play alongside the best in the world, you probably don’t have the skills to beat the best in the world. As the Spanish La Liga and the German Bundesliga have shown, there is no incompatibility in allowing league teams to source great players from around the world and still having your home-grown stars come together to win international tournaments.

The most important intervention is to enable your people to develop the skills that they need to compete. This is as true for football as it is for everything else.

 

Hammond’s gilt trip

It’s Treasury questions in the House of Commons this week, and I want to ask about the cost of British government debt, which dwarfs even the monstrous levels of cash in modern football. It is a bitter irony that, following the global financial crisis that helped the Tories win the 2010 general election, the slow-burn economic crisis that the party has since brought about with David Cameron’s botched referendum has received scant attention. (Particularly in comparison with the Westminster lobby’s anxiety about Labour’s record on debt and the deficit.)

British debt owned by foreign investors has now breached the high-water mark of £500bn, its highest-ever level. As the value of sterling tumbles, we can only wonder what risks may lie ahead, as our creditors watch the value of these investments fall.

The Chancellor responds to me by explaining how gilts work. He doesn’t answer my question at all, however, leaving us all to wonder what horrors the Budget in March might bring. It’s a lovely reminder that I am not immune to mansplaining, even in the House of Commons, and that we call it “parliamentary questions” and not “parliamentary answers”.

It’s also a demonstration of how little economic policymaking is going on. The great nation of John Maynard Keynes, the inventor of global economic institutions that have steadied the world, is now reduced to skulking around Europe, seeking an embarrassing exit from the union that cemented his postwar peace settlement. Once, we led in Europe. Now we follow as the hard right barks its orders.

 

Trading down

Listening to Theresa May’s Brexit speech later on Tuesday, my heart sinks again. She puts paid to the idea that we might stay in the single market. Reducing immigration is her life’s work, apparently. It is a grave error and one that must be resisted. The biggest challenge to our country is not that people are prepared to come to work here and pay their taxes here. New Britons deserve our respect.

 

A sporting chance

On Wednesday, I meet the Speaker to discuss the ongoing work to build on the legacy of our friend Jo Cox.

Through these hard days, I am reminded constantly of two things. First, the words of her brilliant husband, Brendan, who said that we will fight the hate that killed her. Jo never gave up on a monumental challenge, and all our kids need us not to lose heart now. Second, that my experience of Jo was that she focused on the challenge ahead and never wallowed. She was the best of us, and I wish I were more like her.

One thing that Jo and I had in common was that we took part in the annual House of Commons tug of war. Unlike the Premier League, we women of the political world cannot boast world-beating talent in our sport. But we demonstrate the spirit of This Girl Can, Sport England’s campaign to empower women in their sporting endeavours (which returns to our screens soon).

 

Making tracks

While we wrestle in politics with the horrific events that happened last year and the risks ahead, I am trying to demonstrate the This Girl Can spirit and keep up with my physical activity. I would love to be better at football, the sport I adore, but there are not that many opportunities to play, given the parliamentary timetable. So I get up early for a jog along the Thames and tell myself that going slowly is faster than never going at all. Without a doubt, for progressives right now, “Keep on Running” is our theme tune.

Alison McGovern is the MP for Wirral South (Labour)

Alison McGovern is Labour MP for Wirral South.

This article first appeared in the 19 January 2016 issue of the New Statesman, The Trump era