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.