A lesson of history about libel

The legal threat of Niall Ferguson.

The legal threat of Niall Ferguson over a hostile review in the London Review of Books by Pankaj Mishra of his Civilisation: The West and the Rest is, at best, unfortunate.

As with the case of British Chiropractic Association v Simon Singh, one suspects that this is the sort of dispute not well suited to a libel court. Whether Mishra's (frankly rather unreadable) review actually made the "insinuations" that Ferguson asserts, does not, in my view, lend itself easily to the libel litigation process. By the time Ferguson's meaning of the "words complained of" is determined, and all the applicable defences worked out, one or two years will have passed and hundreds of thousands of pounds will have been spent. And the case would still probably be no nearer trial.

A better way would be, as Ferguson has indeed done, to set out why Mishra's insinuations are incorrect. If Mishra was wrong-headed in, for example, comparing Ferguson's approach with that of a little-known vile American historian, then Ferguson's rebuttal will be all that is really needed. There appears to be no good reason for Ferguson to press on for an "apology" backed with the threat of expensive libel litigation. An apology in such circumstances would not have any real-world effect of vindication. In fact, it may well be said that Ferguson -- paradoxically -- will have damaged his reputation more with a threat of a libel action than any book review by Mishra would ever do.

One would instead urge the approach of historians of previous generations. For example, in the early 1960s, Hugh Trevor-Roper and AJP Taylor got into a vicious spat over the latter's Origins of the Second World War. Trevor-Roper, a professor at Oxford University, wrote an extremely aggressive review of his colleague's book, ending with the comment:

It [the book] will do harm, perhaps irreparable harm, to Mr Taylor's reputation as a serious historian.

But Taylor replied, tearing apart the Trevor-Roper review in an article "HOW TO QUOTE: Exercises for Beginners" which, in turn, ended:

The Regius professor's methods of quotation might also do serious harm to his reputation as a serious historian, if he had one.

(Source: Ved Mehta's wonderful contemporaneous account of many early 1960s intellectual disputes in England, The Fly and the Fly-Bottle)

Taylor and Trevor-Roper (and Toynbee, Elton, Thompson, and all the great historians) dealt with controversy by simply rolling up the sleeves of their tweed jackets and getting stuck into the next round of acrimony and recrimination. That, surely, is a better way than a claim in defamation.

This is not to say that Ferguson does not have a libel case. He may well do so. But all because one has a legal right, one does not necessarily have to exercise it. If anything, that is a lesson of libel history that even a historian can appreciate.

David Allen Green is legal correspondent of the New Statesman

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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How tribunal fees silenced low-paid workers: “it was more than I earned in a month”

The government was forced to scrap them after losing a Supreme Court case.

How much of a barrier were employment tribunal fees to low-paid workers? Ask Elaine Janes. “Bringing up six children, I didn’t have £20 spare. Every penny was spent on my children – £250 to me would have been a lot of money. My priorities would have been keeping a roof over my head.”

That fee – £250 – is what the government has been charging a woman who wants to challenge their employer, as Janes did, to pay them the same as men of a similar skills category. As for the £950 to pay for the actual hearing? “That’s probably more than I earned a month.”

Janes did go to a tribunal, but only because she was supported by Unison, her trade union. She has won her claim, although the final compensation is still being worked out. But it’s not just about the money. “It’s about justice, really,” she says. “I think everybody should be paid equally. I don’t see why a man who is doing the equivalent job to what I was doing should earn two to three times more than I was.” She believes that by setting a fee of £950, the government “wouldn’t have even begun to understand” how much it disempowered low-paid workers.

She has a point. The Taylor Review on working practices noted the sharp decline in tribunal cases after fees were introduced in 2013, and that the claimant could pay £1,200 upfront in fees, only to have their case dismissed on a technical point of their employment status. “We believe that this is unfair,” the report said. It added: "There can be no doubt that the introduction of fees has resulted in a significant reduction in the number of cases brought."

Now, the government has been forced to concede. On Wednesday, the Supreme Court ruled in favour of Unison’s argument that the government acted unlawfully in introducing the fees. The judges said fees were set so high, they had “a deterrent effect upon discrimination claims” and put off more genuine cases than the flimsy claims the government was trying to deter.

Shortly after the judgement, the Ministry of Justice said it would stop charging employment tribunal fees immediately and refund those who had paid. This bill could amount to £27m, according to Unison estimates. 

As for Janes, she hopes low-paid workers will feel more confident to challenge unfair work practices. “For people in the future it is good news,” she says. “It gives everybody the chance to make that claim.” 

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.