Even in the bleak midwinter of austerity Britain, one part of the tourism industry flourishes. Thanks to the efforts of Mr. Justice Eady, foreign litigants still find London an irresistible destination.
“Although it is fashionable to rail against ‘libel tourism’,” he declared just before Christmas, “there is no reason in law why the courts of England and Whales should decline jurisdiction.” Not even when – as in the case in which he was pronouncing – a Greek citizen living in Greece is suing an American newspaper and a Paris based website.
Which is good news for the claimant, Alexis Mardas, better known as “Magic Alex”, a former associate of the Beatles. Mardas is suing the New York Times over an article last February about the Maharishi Mahesh Yogi, whom he visited with the Fab Four in 1968. He is also suing the International Herald Tribune, which didn’t print the article but posted it on a website.
As Virgil nearly wrote: beware of Greeks baring writs. But is London a suitable jurisdiction? Although the figures are in dispute, a high court master found that there were 27 hits from the UK on the IHT website and four on the NYT website. (And of course some of these may have been from Scotland or Northern Ireland, which aren’t in the jurisdiction.) About 170 hard copies of the Times also reached the country, though it’s not known if any of the buyers read the piece. The master decided last year that there wasn’t sufficient publication in England and Whales to justify the time and expense of a trial. Eady has now overruled him.
Three years ago, the publisher of the Wall Street Journal succeeded in having a London libel action struck out as an abuse of process, since the offending online article had had only five hits – three of them from the claimant’s lawyers. But Eady says that whether or not a libel action goes ahead “cannot depend upon a numbers game, with the court fixing an arbitrary minimum”. He also denies that this case “can be characterized as a case of forum shopping”, even though Mardas isn’t suing in either of the more obvious forums, the US or France, where there was wider circulation. According to Eady, “that is besides the point”. So a New York newspaper and Paris website must now prepare for a full London trial of an action brought by a Greek litigant.
On the very day of the ruling in the New York Times case, by happy coincidence, Denis MacShane MP initiated a parliamentary debate on the libel laws ﾖ and referred to Eady’s imminent decision. “I do not know what the result will be, but why on earth is a British judge deciding on, or even hearing, a case against one of the world’s great papers, simply because the plaintiff does not have the courage to take his case to, or knows that it would not stand up in, a new York court?”
It’s just as well Eady was busy in the high court at the time: he wouldn’t have enjoyed the debate one little bit. “It is unbelievable,” MacShane thundered, “that the state legislature of New York and Illinois, and Congress itself, are having to pass bills to stop British courts seeking to fine and punish American journalists and writers for publishing books and articles that may be freely read in the United States but which a British judge has decided are offensive to wealthy foreigners who can hire lawyers in Britain to persuade a British court to become a new Soviet-style organ of censorship against freedom of expression.”
MPs from all parties seconded his denunciation of the English legal profession for silencing foreign authors and journalists. They were particularly concerned by Eady’s decision to order the destruction of the American author Rachel Ehrenfled’s book on terrorism at the behest of a Saudi banker, and by the ability of convicted fraudster Nadhmi Auchi to scrub the web of critical reports (Eyes passim).
Justice minister Bridget Prentice sympathized and said the government was considering limiting the obscene fees charged by libel lawyers. A barrister can make ten times as much defending a Saudi or Russian billionaire in the libel courts as a common or garden Brit in the criminal courts.
Tory MP Michael Gove observed that people “alleged to have links to extremism have used British courts to close down the investigation or publication of allegations that are in the public interest.” Norman Lamb for the Liberal Democrats referred to allegations in the Eye that Auchi and “his lawyers, Carter-Ruck, have been making strenuous efforts to close down public debate.”
Both went to the heart of the great issues of freedom of speech and national security. But none of the watching hacks noticed that what stirred the passions of the reformers’ largely right-wing opponents was MacShane’s attack on the legal profession for its role in impeding coverage of the global economic collapse. “The surreal nature of libel tourism can be found in the case of the Danish paper, Ekstra Bladet, which found itself being sued by the Iceland-based bank, Kaupthing, after it criticized it,” he said.
After bringing the action in London, Kaupthing of course went bust, endangering the security of thousands of British savers, and threatening to return Iceland to a rural economy in the process. But while it could still afford to hire lawyers, it found English solicitors more than willing to help it silence awkward questions from a Danish paper which is all but unread in the UK.
One would have thought that exposure of the bank’s practices would have been in the widest public interest, but no. The British libel firm, Schilling & Lom – it certainly made plenty of shillings out of this case – which seems to specialize in touting for businesses, along with the infamous Carter-Ruck, acted for Kaupthing in London on the grounds that the articles critical of Kaupthing were available on the web.
Again, one might have hoped that a British judge would have simply thrown out the case; but of course libel law is a very lucrative business for those small numbers of solicitors and barristers who practice it… It would be helpful if the Law Society investigated the behaviour of firms such as Schillings and Lom and Carter-Ruck, because actively touting for business is a serous problem.
As for the judiciary, MacShane named no names but said that “consideration needs to be given to the role of one particular judge. He is an honourable man, but it cannot be right that one area of law is principally in the hands of a single judge.” (He meant Eady – Ed.)
Edward Garnier, a Tory MP. Barrister and member of the defamation bar, bristled at the implied criticism of Eady. The judge “is a friend of mine”, he confessed. “We used to share a room in chambers and [he is] an extremely bright, careful and sensitive man.”
Andrew Pelling, the MP for Croydon Central, was as agitated by MacShane’s criticism of Carter-Ruck. “I should like to make some declarations of interest,” he announced. “I am a client of the excellent Carter-Ruck and I am currently taking recourse to the libel courts regarding issues relating to the media.”
Pelling had the Tory whip withdrawn when the Met arrested and then released him without charge after his pregnant wife complained that he had assaulted her. He has had a hard time of it with the press ever since. But he was adamant that Carter Ruck and Schillings did not only protect the likes of him or the Saudi bankers, Russian and Ukranian oligarchs and rapacious Icelanders who use their services. Not a bit of it. The proposal to restrict the ability of libel lawyers to play the no-win-no-fee game “strikes me as being yet another blow against the lower middle class and their ability to access the courts.”
So there you have it. In the name of standing up for the little people, we must continue to allow English lawyers and judges to silence the critics of the world’s richest men.