In light of growing concern regarding the practices of the British press, significant amendments to the Editors’ Code of Practice, to which British newspapers and magazines voluntarily subscribe to and which is enforced by the Press Complaints Commission (PCC), took effect from 1 January 2012.

Following consultation with industry members and the PCC, the Editors’ Code Committee has announced that editors who breach the Code will now be required to publish the PCC’s critical adjudication in full and with due prominence agreed with the PCC’s Director.

Code Committee Chairman Paul Dacre, Editor of the Daily Mail and Editor in Chief of Associated Newspapers, stated that “rules requiring editors running corrections to agree prominence with the PCC in advance” had been introduced last year and had “helped to kill the myth that they are routinely buried in the paper.” Dacre added, “Now we have brought the publication of critical adjudications more in line with that. It should dispose of another misconception.”

In addition, new public interest rules will require editors who claim that a breach of the Code was in the public interest to show, not only that they had good reason to believe the public interest would be served, but how and with whom that was established at the time. This is a practice already adopted by the BBC in its Editorial Guidelines. 

Dacre stated that the new public interest rule “underwrites the need for editors and senior executives to give proper consideration before they consciously decide to breach the Code” and was careful to add that “This measure should be a safeguard, not a burden.”

The Editors’ Code of Practice has also come under scrutiny from UKnewspaper editors who have been giving evidence in relation to press ethics at the Leveson Enquiry. Editors argued that the Code represented a benchmark for journalistic professionalism which was widely respected and, in many cases, absorbed into the newspapers’ own code of conduct. Despite this, the overwhelming feeling was that the PCC needed to be toughened up and had lost credibility since its handling of the phone hacking scandal. However, it was also pointed out that “one of the difficulties of the PCC is that it stands condemned for things it was never able to do”. In other words, “to criticise the PCC for powers it doesn’t have is like criticising a judge for passing a lenient sentence when he doesn’t have those powers.” [2]

Comment on the amended Code has been limited as the practical effects of the changes have yet to be seen. However, it has been argued that the changes serve to reinforce the centrality of the Press Complaints Commission to the process. Or, in other words, “The Dacre message to Lord Justice Leveson and his team of advisers could not be more obvious: despite the axe swinging over self-regulation, it’s business as usual here.” [3]

Ultimately, it remains to be seen whether these changes will help to restore faith in the beleaguered PCC or come to represent a final swig in the “Last – Chance Saloon” [4]. 

Chaired by John Whittingdale MP and comprising 13 MPs and 13 Members of the House of Lords, the Committee in its report said online publishers must sign up to new press regulation; “new media cannot be seen to be outside the reach of the law”.  The Committee concluded that major corporations like Google should take practical steps to limit the potential for breaches of court orders. Google’s objections in principle to developing technology to monitor websites for material in breach of court orders was “totally unconvincing”; “Google and other search engines should take steps to ensure their websites are not used as vehicles to breach the law”. The Committee said the Attorney General should be more willing to exercise his power as guardian of the public interest to bring actions for civil contempt of court orders in respect of breaches of injunctions online. 

There is, the Committee concluded, no need for a new privacy law or a statutory definition of privacy or public interest; the law should be flexible and where the public interest lies in a particular case is a matter of judgment best assessed by the courts. The courts were best placed to balance the equally important rights to freedom of expression and privacy. 

The current system of self-regulation was found to be “broken and need fixing”. The Committee called for a new press regulator independent from the industry and from government which should have greater sanctions, including the ability to fine media organisations for infringements of privacy rights. The new regulator should set up a system for alternative resolution of privacy disputes that was cost-free. There should be sanctions imposed on publishers, including online publishers, who did not sign up to the rules of a new regulator. The Committee suggested that publishers could be made to sign up if advertisers agree only to advertise in those outlets that are members. 

On the resolution of privacy disputes in the courts, the Committee said the maximum level of damages was too low to act as a real deterrent and that the courts should have the power to award exemplary damages. Whilst there was no statutory requirement for prior notification, the Committee in its report concluded  that a newspaper intending to publish a story which concerns the private life of an individual should notify the subject in advance unless there were compelling reasons not to do so. Unjustified failure to pre-notify could lead to increased damages. Once an interim injunction has been granted by a court, parliamentarians should not reveal its details in parliament unless there is a good reason to do so, and it should be possible to enforce the injunction inScotland andNorthern Ireland. 

The Committee’s conclusions are bound to influence the shaping of a successor body to the PCC, and will no doubt be read with interest by Lord Leveson. 

Carter-Ruck gave evidence to the Committee and partner Alasdair Pepper was a witness.

In the article it was stated that accusations had been made about Sergeant Flood, a Detective Sergeant in the extradition unit at the Metropolitan police, that led Scotland Yard to investigate whether he was taking bribes to give information to Russian exiles.   

The police investigation ended with a finding that there was in fact no evidence that Sgt Flood had acted corruptly and the trial judge accepted Sgt Flood’s evidence on this point.  The Supreme Court’s ruling was confined only to the first limb of the appeal; whether the publication up to the point Times Newspapers Limited [“TNL”] was informed of the findings of the police investigation clearing Flood of wrong-doing attracted privilege. The second limb concerned the on-going online publication of the article. 

The critical issue for determination, in assessing whether the report was protected by Reynolds privilege, was whether the publication, and in particular the publication of the details about the allegation and the naming of Sgt Flood was in the public interest, and whether the journalists had taken reasonable steps to verify the information. On the “verification issue”, the question was whether a journalist is required to check whether the accusations made are well-founded, or, as the Judge ruled at trial, a journalist is required to do no more than verify that the accusations reported were in fact made. 

But first the Court had to look at meaning; you cannot decide whether the steps taken to verify are reasonable without first deciding what needs to be verified; this depends on meaning. Meaning should be a question for a jury at trial. According to Lord Phillips where there is a serious issue of Reynolds privilege, it will usually be for the parties to agree to trial by Judge alone so that the Judge can determine the range of meanings the article is capable of bearing. 

Lord Phillips categorically ruled out introducing a “single-meaning” rule for privilege cases; saying [51] “When deciding whether to publish, and when attempting to verify the content of the publication, the responsible journalist should have regard to the full range of meanings a reasonable reader might attribute to the publication”. 

In this case, the parties agreed that the article either meant there were strong grounds for believing that Flood had taken bribes or that there were grounds which objectively justified a police investigation. 

Either way, the Supreme Court found the journalists, in their attempts to verify, had to do more than merely verify that the accusations reported were in fact made; in this respect the Judge had been wrong [77].  If a journalist reported the details upon which an allegation was based, they should be reasonably satisfied that those supporting facts were true [81]. In this case, the journalists were found to have done enough; they had a reasonable belief in the truth of what was reported. The police action (suspending Sgt Flood pending investigation and searching his home) was in fact prompted by TNL’s own enquiries, but the journalist assumed it was as a result of information given earlier to the police; it was found to be reasonable for him to have deduced that the fact of police action in itself indicated there were grounds to investigate.  Moreover, the journalist’s evidence at trial was that his motive in publishing was to ensure that the police investigation was carried out promptly and properly; both the Judge and the Supreme Court found this worked in the journalist’s favour; it constituted a legitimate aim in publishing and was in the public interest to ensure that the investigation was carried out promptly. 

The question of whether the publication was in the public interest was subsumed into the verification issue, it being found [see Lord Mance at para 123] that “it will not be, or is unlikely to be, in the public interest to publish material which has not been the subject of responsible journalistic enquiry and consideration”. As to the naming of Flood in the article; whilst not ruling out cases in which it will be found not to be in the public interest to name an individual, particularly if they are not well-known figures (and regard must be had to the damage that will be caused to their reputation), on the whole the Court recognised that a story has greater impact if it is about named individuals and allowance must be made for editorial judgment in both the decision to name and the way in which the facts were reported.

Lord Brown [114] said he initially had doubts about whether it could be in the public interest to publish detailed allegations underlying a criminal investigation before even the police investigated. However he was persuaded that the impact of article 10 of the European Convention on Human Rights meant TNL could invoke privilege and he was satisfied that “not every anonymous denunciation to the police will attract Reynolds privilege”. The Court considered [196] that individuals damaged by an article were sufficiently protected by the requirement of verification, even if journalistic lines of enquiry and the evidence might fall short in some respects. 

The Supreme Court emphasised the importance of flexibility within the Reynolds defence; the need to assess the standard or responsible journalism in a broad and practical way and the latitude allowed for editorial judgment.

The effect of this judgment will be that in some cases, reputations will be seriously damaged by the publication of untrue allegations without a means of redress. It also may make it easier for someone with an axe to grind to work with a sympathetic journalist to prompt both a police investigation and highly damaging widespread press coverage. The Court of Appeal ruling, now over-turned, reflected the concern that very serious harm could be done to the subject of allegations where newspapers are free to report details of accusations made to the police before that person is charged or before that person has a chance to defend the accusations in the appropriate forum.

Comments by Andrew Stephenson, senior partner, Carter-Ruck 

The Report of the Joint Committee on the draft Defamation Bill (October 2011) identified a number of areas where it considered greater clarity was required. For the most part, the Government in its Response (February 2012) has accepted the recommendations made.

There remain, however, a number of areas where the effect that the proposed changes of the law will have in practice remains unclear. In several instances, the Government proposes “to consider further” points raised by the Joint Committee. These include matters such as “reportage” (the repetition of allegations made by others), how “peer-reviewed” papers and “public archive” material may be defined so as to be afforded the protection of statutory qualified privilege, the liability of “secondary publishers” such as booksellers, and the thorny topic of “publication on the internet”. As ever, the devil may lie in the detail, for which we shall have to wait.

It is clear from the Joint Committee Report and from the Government’s Response that a great deal more work is required before the Defamation Bill is put back before parliament.

Of many concerns with the Bill in its present form, I highlight two:

Substantial and/or Serious Harm

The draft Defamation Bill at clause 1 proposes that “A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant”. The Joint Committee recommended a stricter test of “serious and substantial” harm. The Government, taking the view that the use of both terms would cause uncertainty and litigation over what differences may exist between the two, now proposes “serious” harm. But what in practice would be the effect? The intention apparently is to raise the bar; but from where to where? In theory, the test of whether words are defamatory is objective, but in practice opinions may widely differ as to the seriousness of an allegation, not only between the parties but also between members of the judiciary.

Tugendhat J in Thornton v Telegraph Media Group [2010] EWHC (QB) 1414 concluded that there was already a “threshold of seriousness” recognised under common law and he favoured a definition that a statement was defamatory if it “…substantially affects in an adverse manner the attitude of other people towards [the claimant] or has a tendency so to do.” Whether a statement would have a tendency to cause harm (serious, substantial or otherwise) can be assessed simply by examining the statement itself. Whether a statement has caused or would be likely to cause harm may require detailed examination of the surrounding evidence; this might include the claimant’s existing reputation, any previous misconduct on the part of the claimant, the extent to which the same, similar or perhaps even different allegations have previously been published elsewhere.

Whichever term is introduced, “serious”, “substantial” or both, it is foreseeable that the way the clause is presently worded will result in frequent and expensively contested hearings.

“Libel Tourism”

In response to widely publicised concerns about “foreign” claimants bringing libel cases in England against “foreign” defendants, the draft Defamation Bill at clause 7 proposes that where the defendant is not “domiciled” in either the UK, another EU member state or in a state party to the Lugano Convention, the court would not have jurisdiction to hear the case unless satisfied that “of all the places in which the statement complained of has been published” England and Wales is “clearly the most appropriate place in which to bring action”. The Joint Committee, while stating that it believed that “the extent of libel tourism has been exaggerated in some quarters”, supported the thrust of this proposal, but sensibly recommended that the Bill should “make clear that residents in England and Wales may sue in this jurisdiction in respect of publication abroad provided there has been serious and substantial harm suffered by them.” Why should an English resident or domiciled claimant be denied the right to sue inEngland if the publisher happens to be domiciled outside Europe and a defamatory allegation has been published not only inEngland but also in one or more other countries?

The Government in its Response does not propose any change to the Bill but states that “legal advice suggests that amending the clause to exclude claimants domiciled in this jurisdiction could raise difficulties in relation to anti-discrimination principles in European law, as this would be giving more favourable treatment to claimants domiciled in England and Wales than claimants from elsewhere in the European Union” and “… could operate as a disincentive to the latter in exercising their freedom of movement…” Instead it proposes to clarify in its explanatory notes and during the passage of the Bill that it would “normally expect claimants domiciled in England and Wales to satisfy the requirements of the clause”.

European law already recognises that action for defamation may be brought either in the jurisdiction where the defendant is domiciled (where the claimant may sue in respect of the whole publication in whatever jurisdictions it has taken place) or in the jurisdiction where the harm is suffered (where the claim is limited to publication within that particular jurisdiction). In practice, the Government may be right that the English courts will more readily accept jurisdiction where the Claimant is domiciled inEngland andWales, but the current wording of the Defamation Bill leaves scope for new argument and more expense in contested hearings.

Andrew Stephenson

12 March 2012

The reason this relatively small claim was potentially very significant is because it was the first hearing of a claim against a UK bank regarding the misselling of an interest rate swap. Tens of thousands of these products were sold to small and medium size businesses byUKbanks in recent years and have brought many of those businesses to their knees.

In this particular case, the Claimants owned a small café and were sold a highly complex derivative product, namely an interest rate collar, with a notional amount of £850,000 and a term of 10 years. The product ended up costing the Claimants well over £80,000.

Unfortunately for interested observers the case settled after the hearing but prior to the handing down of judgment – meaning that the judgment will never now be published. While not unheard of, this is an unusual time to settle a case, not least because the costs of trial have already been incurred and the parties have already gone through the rigours of giving evidence etc. We can only speculate as to why the case was settled at this stage. However, it seems entirely possible that it reflected a very serious concern on the part of the bank that it was going to lose.  If that is right, it would hardly be surprising if the bank sued for peace given the publicity which would have followed had it lost and, importantly, the very real risk that an adverse judgment would open the floodgates to many similar claims. The Defendant in this action is not the only bank that would have feared such an outcome – we are handling a significant number of complaints against each and every majorUKhigh street bank.

While media attention on these claims is currently limited, with only the BBC and Sky News having devoted any time to covering the issue, a judgment in favour of a Claimant in one of these claims is likely to attract a huge amount of media interest, not least because many experts calculate that the collective exposure to UK banks on these claims is much greater than the millions they have put aside to cover PPI claims.

Sadly, as is the way with these things, the terms of settlement are wrapped up in a confidential agreement – pretty much standard practice when any financial institution settles litigation against it.

It is difficult to take any lessons from this case as we were of course deprived of the opportunity to study the judgment. It remains to be seen how the Court would have viewed the appropriateness of a high street bank selling the owners of a very small high street business a highly complex derivative product.

The next interest rate swap case was due to be heard this month, but it has also been settled. We understand the next in line is against Barclays and is due to begin on 16 April in Bristol Mercantile Court. Our lead case is in the High Court Chancery division and is due to be heard in October.

Whether these cases make it to trial is a different matter. The pattern to date has been for the banks to try and settle out of court. This may be a consequence of having one eye on the limitation period – there is a 6 year time limit to bring proceedings. As the majority of these products were sold in 2006 and 2007, the longer the banks can prevent claims getting to court the more potential Claimants fall outside the limitation period and find themselves debarred from pursuing a claim.

If you consider you may have a claim against a UK bank for the misselling of an interest rate swap, it is important you seek legal advice immediately or you may lose the right to claim.

We will continue to update this blog as matters develop in what is a new and relatively untested area of the law.

The Telegraph has published a series of articles highlighting the disastrous impact these products have had on small and medium size businesses in the UK – see below by way of example:

• > Bank mis-selling victims: from the chippy to the small hotel
• > Caught in the trap: ‘I trusted the bank and saw it just like a house mortgage’
• > Treasury reviews small business derivatives mis-selling claims
• > Farmers ‘hit hardest’ in rate swaps scandal
• > FSA called to account on interest rate swap concerns

The reforms, which appear within part two of the Legal Aid, Sentencing and Punishment of Offenders Bill, currently at the committee stage in the House of Lords, were expected to be implemented in October this year, and the delay follows one previously announced at the end of last year to the legal aid reforms in part one of the Bill.

The announcement has been welcomed by the Law Society.  Desmond Hudson, the Chief Executive, said:  “’The delay will give a welcome breathing space for the Ministry of Justice to now properly consider the damaging effect these changes to ‘no win, no fee’ agreements will have on access to justice, particularly for middle England and those ineligible for legal aid.

“The changes are complex and have been selected from a recent report from Lord Justice Jackson- despite his warning not to ‘cherry pick’ from the report.

“As presently conceived, we fear that the changes will advance the interests of insurance companies at the cost of access to justice and fairness. This delay gives time to pause and reconsider.

“We urge the government to consider all the representations made to them, including those made by victim groups and charities – so ably represented by members of the House of Lords in the debate on the changes last night – to the same extent that it has considered representations by the powerful insurance lobby.”

As Mr Hudson mentioned, a number of peers were critical of the proposed reforms during the committee stage debate on 30 January.  These included several who spoke about the impact of the proposals on defamation and privacy cases.  Lord Bach (who described the reforms in the context of professional negligence claims as “something of a rogues’ charter”) cited the example of the Dowlers, who used a conditional fee agreement to pursue their claim against News International over the hacking of their daughter Milly’s phone.  He quoted from their letter to David Cameron in which they said “We are sure you do not want to go down in history as the Prime Minister who took rights away from ordinary people so that large companies could print whatever they like and break the law without being able to challenge them.”  In response to a point made by Lord Lester that there are defendants in defamation cases who are not powerful Lord Bach also pointed out that “defendants can and sometimes do use CFAs in cases of this kind”.

Lord Prescott, who has pursued his own phone hacking claim against the News of the World, said that the Bill “moved power and resources to the wealthy and more powerful and away from the individual, and that the individual was going to be the victim because they were seeking legal redress.  These amendments will make it much more difficult to achieve that.  It is really about strengthening the more powerful in our society, particularly in regard to individuals and the press”.  Lord Martin, the former Speaker, said “This is what worries me about the lack of no win no fee.  I am not concerned about the rich and famous, I am concerned about ordinary men and women, who maybe only once in their life have been defamed by a newspaper.  At the Leveson inquiry one former editor said, ‘If it sounds good or if it sounds like the truth, just lob it in’ – just to lob it in for a woman or man who is living a private life is very cruel and hard.”

Carter-Ruck has represented many such “ordinary men and women” (see here for examples) on the basis of conditional fee agreements, not only in defamation and privacy cases, but also in claims involving professional negligence, including financial misselling, breach of contract and general commercial claims.  If the delay which is now to take place means that the voices of the critics of the Bill are heard and that the reforms when finally implemented continue to allow such “ordinary men and women” to have access to justice across the whole range of civil claims, then it is very much to be welcomed.

Carter-Ruck was one of the firms which pioneered a CFA scheme which over the years has allowed us to act for hundreds of litigants who would not otherwise have been able to afford to bring an action.

Initially, the majority of these cases were for libel, but we have acted on a no-win, no-fee basis in a number of other types of claim. Merely by way of example: 

> A class action by 45 individual claimants against two multi-national Banks for their part in the negligent mis-selling of a pension product that the claimants had purchased. The claim concerned a failed UK pension liberation scheme and offshore trust and administration services and was worth in excess of £20 million.

> A privacy claim for a soldier’s wife whose photograph was used by the Daily Mirror – entirely misleadingly – to illustrate a story about women being unfaithful to their husbands while serving in Iraq.

> A local councillor on incapacity benefits, who suffered serial libel and harassment over several years by a multi-millionaire businessman who accused her of theft and corruption.

> A breach of contract claim against a company which had failed to pay commissions earned by a sales agent.

> A claim for a retired academic against a record company, for breaching copyrights he held in four music editions and for refusing to acknowledge his rights or to pay him royalties.

> A (defendant) Danish radiologist sued for libel by US conglomerate GE Healthcare over allegations concerning one of its products.

> A Muslim IT worker whom the Daily Mail falsely alleged was to be suspected of unlawfully stabbing a man at his house and of being a supporter of Al Qaeda.

> A comprehensive school teacher, falsely accused in an internal Memorandum of inappropriate contact with female pupils. 

> Kate and Gerry McCann. 

Unfortunately, such litigants now face a return to the bad old days, where access to the courts was like access to the Ritz Hotel: open to anyone who could afford it.  This threat takes the form of the Legal Aid, Sentencing and Punishment of Offenders Bill; and as the House of Lords reconvenes after the Christmas recess, Members will continue to debate this Bill.

As its name suggests, the Bill – which currently stretches to 235 pages – contains a wide range of criminal and civil justice reforms championed by the government.  In addition to slashing the legal aid demands on the public purse, the government has made clear that it is determined to cut the costs of civil litigation. Contained in the middle of the Bill are a handful of provisions intended to have this effect, but which if enacted are likely radically to reduce access to justice for many – including individuals of limited means and small businesses.

In particular, the Bill seeks to overhaul the current CFA system, by seriously restricting the ‘success fees’ which may be payable by a losing opponent to a CFA-backed litigant. At present, lawyers acting on a CFA are entitled to charge a success fee of up to 100% of their basic costs.  These success fees are intended to compensate lawyers who run a CFA scheme for the cases which they lose (for which they will not be paid a penny), thereby giving lawyers an incentive to take the risk of acting on a ‘no-win, no-fee’ basis.

The Bill, however, would prevent any success fee from being sought from a losing opponent, and instead allow only a very limited success fee to be paid out of a winning claimant’s damages.

Without the ability to seek an appropriate success fee in winning cases, in a very large proportion of cases it is unlikely to be economically viable for lawyers to take a case on a Conditional Fee basis.  In turn this will mean that individuals of limited means will simply be denied access to justice.

These proposed reforms are likely to have a detrimental effect in a wide range of cases, including, for example: 

> Financial mis-selling cases against banks and other large institutions in relation to mis-sold investment plans, pension products, interest rate swap products and the like 

> Other professional negligence claims against surveyors, solicitors, insurance brokers etc 

> Breach of contract 

> Defamation and misuse of private information 

> Harassment

While the losses involved in such claims may not in themselves always be very large, they can nevertheless be devastating for the individual concerned.

There is wide agreement – including within the legal community – that the cost of litigation is too high and that reform is necessary.  Certainly that is a view shared by Carter-Ruck – albeit we believe the “problem” has been enormously over-stated, not least by a one-sided media which has a direct interest in preventing ordinary members of the public being able to seek redress by bringing claims for libel and privacy against them.  We do not, however, seek to defend a recoverable success fee of 100% and indeed for many years our standard CFA has involved a “staged” success fee which means that if a case settles relatively early on, the success fee claimed will be far lower.  

As part of the consultation process for new legislation we have submitted proposals to the House of Lords to reduce the maximum success fee payable by a losing opponent to 50%, in addition to a maximum of 25% of the damages paid to a winning claimant.  We believe that such a middle ground would allow for a substantial reduction of CFA related costs, while at the same time preserving access to justice for those who would not otherwise be able to afford it. 

As with so much of the draft Bill, it is to be hoped that common sense will prevail upon Parliament, and that these very important concerns are considered carefully in order to ensure that access to justice is not further eroded.  In the meantime, CFAs continue to be available and to provide a vital means of allowing meritorious claims to be brought.

But then the phone-hacking scandal turned public opinion on its head. No-one said any more that privacy did not matter or that freedom of expression should be an unfettered right. There was a line that had been crossed. The Murdoch empire appeared to be crumbling when the News of the World published its last edition in July. The Leveson Inquiry was set up and its remit extends far beyond phone-hacking; the whole of Fleet Street and Wapping is now under scrutiny.  Meanwhile, along the corridor from the parliamentary committees focussed on privacy and phone-hacking, legislators are working on reforms to the law of defamation and the funding of civil justice. There has never been a more challenging or interesting time to be a media lawyer, or, indeed, a journalist.

January

The year kicked off with a partial win for Mirror Group Newspapers in the European Court of Human Rights.  Naomi Campbell had long since won her claim for breach of privacy against MGN and was awarded her costs – but she was represented on a “no win, no fee” agreement or CFA. The ECHR found that the requirement that an unsuccessful defendant should pay a success fee on the claimant’s costs constituted an interference with the paper’s Article 10 rights to freedom of expression.  The ruling added fuel to the campaign to abolish the recoverability of success fees in media CFA cases.

The Court of Appeal Judgment in the case of JIH v Newsgroup Newspapers set the trend for privacy injunctions to become the subject of intense scrutiny in 2011.  The Court of Appeal granted anonymity to well-known sportsman JIH, finding that, although an order for anonymity was a derogation from the principle of open justice, the public interest was better served by the media being able to report on the detail of the case, which it could not do if the claimant was named.

February

Former private investigator Glenn Mulcaire was ordered by Vos J in the phone-hacking cases brought by Andy Gray and Steve Coogan to reveal who ordered him to hack phones.

March

The Justice Secretary Kenneth Clarke unveiled a draft Defamation Bill to reform the law of defamation in England and Wales.  The aims of the draft Bill were said to be the introduction of a new “public interest” defence; (to replace the common law Reynolds defence), a requirement for claimants to demonstrate “substantial harm” before they can sue, reducing so called “libel tourism” and preventing repeat claims for libel being brought every time a publication is accessed on the internet.

April

The High Court ordered that various phone-hacking claims against Newsgroup Newspapers Limited and Glenn Mulcaire would proceed by way of a trial “test cases”. 

Andrew Marr revealed he had taken out a privacy injunction in 2008.

May

The European Court of Human Rights rejected Max Mosley’s application for a ruling that, in order to give effect to Article 8, the media should be required to notify a subject before the publication of an article disclosing private information.  Mr Mosley had won his claim against the News of the World in 2008 and was awarded £60,000 in damages.  He argued in the ECHR that privacy, once lost could not be regained.  The ECHR took the view that a mandatory requirement of notification was a step too far.

Lord Stoneham on behalf of Lord Oakeshott asked a question in Parliament in which he identified Sir Fred Goodwin as the beneficiary of an anonymous injunction. The revelation led Mr Justice Tugendhat to vary the injunction so as to name Sir Fred but not the lady with whom he had a relationship.

In April, widespread speculation on Twitter and a report in a Scottish newspaper led to the identification of a “married footballer” who had been granted an injunction covering England and Wales.  The English court refused to vary the terms of the injunction following the coverage so as to name the claimant, saying the court should not buckle every time one of its orders meets widespread disobedience or defiance, and that if the claimant were to be named he would be engulfed in a “cruel and destructive media frenzy”.  The whole story entered the realms of farce when even the Prime Minister made clear that he and everyone else knew who the player was.  Meanwhile, in the House of Commons Liberal Democrat MP John Hemming named the footballer leading to a rebuke from the Speaker, but by then it was of course far too late.

A committee chaired by Master of the Rolls Lord Neuberger published its report relating to super-injunctions, anonymity and open justice.  The report gives mainly procedural guidance about the way in which the court should deal with applications for injunctions. The committee noted that the number of “super-injunctions” was in fact very small.  Carter-Ruck Partner Alasdair Pepper was a member of Lord Neuberger’s committee. 

June

This month saw the outcry against so-called “super injunctions” reach its peak.

The Court of Appeal led by Lord Neuberger declined to grant an injunction to Christopher Hutcheson, the father-in-law of Gordon Ramsey so as to restrain publication of the fact that he has for many years kept a secret second family.  

The Legal Aid, Sentencing and Punishment of Offenders Bill was published, prompting a campaign led by the legal profession opposing the proposed cuts in legal aid and prompting concerns about the proposals to abolish the recoverability of success fees in CFA cases.

Sienna Miller and Andy Gray accepted damages in settlement of their phone-hacking claims against the News of the World.

July

“Super-Injunctions” ceased to be news as phone-hacking hijacked the headlines.

At the beginning of the month The Guardian reported that the News of the World hacked the phone of missing school-girl Milly Dowler and deleted her voice-mail messages giving false hope to her parents that she might still be alive.  Three days later James Murdoch announced the News of the World would close. David Cameron announced that there would be a public inquiry into the scandal and Rupert Murdoch was forced to withdraw his bid for BSkyB. Rupert Murdoch and his son James were grilled by the Commons Culture, Media  and Sport Select Committee led by Tom Watson MP about their knowledge of phone-hacking at the News of the World.  For many, the highlight was Wendi Murdoch’s defence of her husband after he was attacked with a custard pie, a moment which turned the accused into a victim. James Murdoch was later accused of misleading the Committee over the extent of his knowledge about the now notorious “for Neville email”.

Commissioner of the Met Sir Paul Stephenson resigned over criticism for hiring former News of the World executive Neil Wallis.

August

A quiet month in legal terms but the riots disrupt the summer holiday plans of politicians.

September

Footballer Rio Ferdinand lost his privacy case against the Mirror Group over the publication of a “kiss and tell” story about an affair; the court was influenced by the fact that Ferdinand in his autobiography had declared himself a reformed man who had given up his “cheating” past and by the fact that the revelations could be said to call into question his fitness to be England captain.

October

The report of the Joint Committee on the Draft Defamation Bill was published, accepting most of the proposals in the draft Bill and recommending that the defence of qualified privilege be extended to cover fair and accurate reports of academic and scientific conferences and peer- reviewed articles. A Bill is expected to follow in next year’s Queen’s Speech.

Written submissions were made to the Parliamentary Joint Committee on Privacy and Injunctions. This Committee of both Houses of Parliament is hearing oral evidence and is expected to report in February 2012, well before the conclusion of the Leveson Inquiry.

November

Lord Justice Leveson’s Inquiry into phone-hacking begins. The remit of the Inquiry extends to the culture, practices and ethics of the UK media.  The Metropolitan police reveal that the number of victims of phone-hacking is estimated to be nearly 6,000.

James Murdoch appears again in front of the Culture Media and Sport Select Committee for a fresh round of questions about the extent of his knowledge of the hacking.

December

The Leveson Inquiry is told that Milly Dowler’s phone messages were in fact most likely to have been deleted automatically (contrary to the claims by the Guardian newspaper in July that the News of the World journalists had deleted them).

Happy New Year.

Boris Berezovsky, represented by Carter-Ruck, won £150,000 libel damages against Vladimir Terluk in February 2010; the appeal, which included an attempt to introduce evidence from Andrei Lugovoy, the man wanted by the British authorities for the murder, failed on every count.

The story began when Mr Berezovsky, a political opponent of the Putin regime in Russia, was granted political asylum in the United Kingdom in September 2003. A man named Vladimir Terluk had mysteriously turned up at hearings in Bow Street Magistrates court in 2003 and had volunteered information to Alexander Litvinenko that suggested to Mr Litvinenko that Mr Berezovsky might be in danger. Mr Terluk said he was from Kazakhstan and that he was seeking asylum in London. Nothing more was heard from Mr Terluk until April 2007, when the Russian State broadcaster RTR broadcast a sensational news piece accusing Mr Berezovsky of Mr Litvinenko’s horrific murder. His motive was said to be that Mr Litvinenko was a witness to a conspiracy in 2003 to avoid Mr Berezovsky’s extradition to Russia and obtain political asylum in the UK by procuring false testimony about an FSB assassination plot from a man the programme makers named “Pyotr”. The story told by “Pyotr” on the programme, though false, made it easy for Mr Berezovsky’s friends who had met him in 2003 to identify him as Vladimir Terluk. 

Mr Berezovsky sued RTR and Vladimir Terluk.  For months nothing was heard from Mr Terluk who was said to be in hiding in London under the protection of Scotland Yard. RTR tried and failed to get the case struck out on the grounds that Russian law prevented it from defending the case. After the Judge in July 2008 refused its application and ordered RTR to serve a defence, RTR retreated back to Russia and played no further part in the case.

Meanwhile, in March 2008, the Russian Federation General Prosecutors Office, determined to undermine Mr Berezovsky’s asylum status, issued its own criminal charges based on Mr Terluk’s claims, accusing Mr Berezovsky of having exerted psychological pressure on Mr Terluk with the aim of making him provide false testimony about an FSB assassination plot in order to help Mr Berezovsky obtain asylum. Mr Terluk was named the victim in the Russian criminal case. From that moment, the long arm of the Russian State Prosecutors’ Office was visible at every twist and turn in the English court proceedings.

When RTR failed to serve a Defence and with Mr Terluk still having failed to acknowledge the proceedings, Judgment was entered in default. A hearing date was set for March 2009 to have an assessment of damages; a mini-trial in effect. Then, out of the blue, just before the hearing, Mr Terluk turned up at Carter-Ruck’s offices with papers, wishing to set aside the Judgment.  He had met with Russian Prosecutors on 27 February 2009; they had offered to help him. The Judge allowed the case to proceed to trial.

In its Judgment, the Court of Appeal described the “welter of activity” pursued by the Russian Prosecutors in the case. They turned up at hearings, provided Mr Terluk with documents, tried to pass papers privately to the Judge and prepared applications for him. Mr Terluk also had help from a Georgian “McKenzie friend”, a woman named Ms Margiani, who valiantly appeared in court with Mr Terluk and made submissions for him, as Mr Terluk himself apparently spoke little English despite having lived in this country since 1999. 

At trial in February 2010, the Russian Prosecutors turned up en masse to help Mr Terluk, requested a set of ear-phones to follow the simultaneous translation of the proceedings and at one stage asked to cross-examine Mr Berezovsky. The Judge thought that a step too far.

After two weeks of hearing evidence the Judge found unequivocally in Mr Berezovsky’s favour. He said that there was no evidence before him that Mr Berezovsky had any part in the murder of Mr Litvinenko, and that the central allegation that was directly attributable to Mr Terluk in the programme (the claim that a false confession was procured from Mr Terluk in order for Mr Berezovsky to obtain asylum and avoid extradition) was false. The Judge said the allegation was “calculated to put at risk Mr Berezovsky’s refugee status and leave to remain in the United Kingdom” and awarded Mr Berezovsky £150,000 in damages.

Mr Terluk appealed on seven grounds, saying the damages were too high and the trial was not fair because it was conducted without a jury and without him having legal representation. Using funding from a Russian organisation called the Moscow Bureau for Human Rights, Mr Terluk found legal representation for his appeal.

He sought to introduce what he claimed to be fresh evidence from Andrei Lugovoy, the man elected to the lower house of the Russian parliament after the British authorities announced in May 2007 that he was wanted to stand trial for the murder of Alexander Litvinenko.

The appeal failed. The Court of Appeal observed that Mr Terluk was “not assisted by his perjured evidence at trial that he was not Pyotr”  and found that Mr Lugovoy’s evidence, in which he sought to implicate Mr Berezovsky in the murder was “not sensibly capable of belief”. The Court found that, given Mr Lugovoy’s own contact with the prosecutors in the context of Mr Litvienko’s killing and Mr Terluk’s contact with them in the context of this case, if Mr Lugovoy’s present account were genuine, Mr Terluk would have been armed with it at trial.

The Court refused to interfere with the damages award.

Mr Berezovsky has expressed his hope that justice will one day be done for Mr Litvinenko’s widow Marina and their son Anatoly.

This article was re-published by the Guardian on 4 January 2012.

Carter-Ruck represented Bath University undergraduate Merlin O’Doherty-Alb, who had inadvertently become caught up in the troubles when the police charged at a crowd in Camden shortly after he arrived there.   A photograph of a street in Camden which included Mr O’Doherty Alb was used by The Independent to illustrate one of its articles about the riots, giving the false impression that Mr O’Doherty-Alb had been a participant in the violence.

Following our complaint, The Independendent accepted that Mr O’Doherty-Alb was not guilty of any misconduct and published an apology to him and paid him damages for libel.

Mr O’Doherty-Alb is a good reminder – as if one were needed – of the fact that it’s certainly not just the rich and famous who are libelled by the media and of the importance of ensuring that ordinary individuals, charities and small businesses have fair and equal access to justice. We were only able to act for Mr O’Doherty-Alb thanks to the availabilty of a Conditional Fee (or no-win, no-fee) Agreement – a scheme which, like other aspects of the justice system, is currently the subject of potential reform through the Legal Aid, Sentencing and Punishment of Offenders Bill which is going through Parliament.  See here for an article by Andrew Stephenson on this issue which appeared in The Times, here for a letter written to The Guardian and here for Carter-Ruck’s submissions to the House of Commons concerning the Bill.