The proof of the pudding…

christmas pudding with custardThe news that Lord McAlpine has started legal proceedings against Sally Bercow for libel over her tweets has been greeted in some quarters by dismay. I don’t see it that way: from an academic perspective, and potentially for future tweeters in related circumstances, it could end up being good news. One of the difficulties at the moment is that we really don’t know exactly where we stand. A high profile High Court battle could help us find out – and a high profile battle it seems likely to be, with Bercow having engaged those renowned lawyers Carter-Ruck. In the law in England and Wales, it’s hard to know where you are without a proper court case: the proof of the legal pudding is very much in the eating.

What’s more, in this case, all possible outcomes have their upside. I’m not going to speculate as to how the case will go – though you might want to look at my guide to defamation on twitter, which is here. I look forward to following the case closely, if it does actually come to trial – and it is important to understand what the main possible outcomes are, and what impact each of them might have. There are three main possibilities:

  1. Lord McAlpine could lose;
  2. Lord McAlpine could win, but be awarded relatively small damages; or
  3. Lord McAlpine could win, and be awarded substantial damages.

If the first happens, and Lord McAlpine ends up with a legal bloody nose, many tweeters will breathe a huge sigh of relief. The chilling effect will be effectively melted, and twitter will feel a freer, more comfortable place.

If the second happens, though the result won’t be as ‘freeing’ for tweeters, it might well mean that potential claimants are less likely to pursue people for defamatory tweets. If the damages to be gained are lower, and the costs are still substantial, why bother? Just ask for an apology, or move on. Cases that are pursued would only occur in very serious circumstances, or where the defamation is very clear and very damaging – in which case it may well be entirely appropriate! Twitter does need to have some kind of responsibility…

If the third happens, the result may be pretty hideous for Bercow herself – but it is important to understand that damages in libel cases in England and Wales are no longer as high as at their peak in the 80s. The £50,000 that Lord McAlpine is reported to have asked from Bercow would be a hefty figure by recent standards, for example. Even so, from the perspective of the future, there is an upside to this – it would make it crystal clear that defamation law, insofar as it relates to the social media, is in dire need of reform.

I have argued elsewhere for this – and for the development of a ‘defence of responsible tweeting’ to provide clarity and reassurance for tweeters. This is a key moment – for the first time in many years, a new defamation bill is making its way through parliament. If we are going to change the law, this is the moment. A case like the Bercow/McAlpine case could provide the ammunition that is needed to convince parliament that a change is needed, a change that would support the developing social media community.

That’s why I am not dismayed at Lord McAlpine’s move – I can see a good way forward whichever result comes from the case. In a way, the worst thing would be if it didn’t make it to court. That is also still entirely possible. Some kind of settlement might happen, or McAlpine might even drop the case. That would leave us with more uncertainty – and uncertainty is rarely good in a legal context. I’d like to see something out in the open, something proved.

42 thoughts on “The proof of the pudding…

  1. Again the febrile t’internet filled with misinformation. McAlpine has not sued Bercow for £50k like all those tweets claim. He has filed a libel claim which is in effect just another shouting of wolf in an attempt to put more pressure on Bercow to give in “without the need to proceed to a trial.”. If this case actually goes to trial I will be in the front row eating my hat.

    • You’re quite likely to be right – and the febrile internet is indeed full of misinformation. In this case, though, the information came primarily from the mainstream media – that august publication the Guardian and that fount of wisdom the BBC…. I for one hope she doesn’t cave in, but I wouldn’t be worried for your hat or your digestion quite yet…

      • This whole thing started with the BBC and was ended a week later by a Guardian ‘scoop’ so forgive me if when they imply there will be legal action it doesn’t convince. This is not about libel it is about using the threat of libel to bully and intimidate.

      • Let’s say everything in the mainstream media is at face value. Surely a 50K hit for Sally Bercow would add a financial value to her brand well over that figure. I am not trying to imply she is thinking this way I think she’s decent but it is a factor related to your points.

      • For sure, and she might well be getting advice along those lines too. There are many angles to this whole business, and the ‘publicness’ of the whole thing makes a huge difference too.

  2. My bet is this will not make it past the first hearing. Likely to be an abuse of process as McAlpine has been compensated already. There are numerous libel cases which have been thrown out for this reason. Read up about over compensation and read below. McAlpine is going about this the completely wrong way and cannot demand substantial sums off individuals. The tweets need to be view as a whole – and that means the combined tweets not just one. Also there is question marks over whether the protocol has been observed.

    Judge Eady observations in one libel case involving multiple defendants:

    10. At the very least it is possible to conclude, even at this stage, that the strategy of “divide and rule” is inappropriate, as I have explained to Mr Smith this morning and as he is already aware. This is especially so in libel proceedings because, if they are appropriate at all, damages can only be assessed in the round (that is in the context of the overall picture). In particular, any distress and hurt feelings suffered by Mr Smith would have to be compensated by reference to the totality of the publications and not on the artificial basis of the sum total of the impact upon his feelings by one individual publication; otherwise there would, as I think he understands, obviously be a significant risk of overcompensation.

  3. More from Judge Eady – based on this the McAlpine V Bercow case is a non starter. Also some similarities in the conduct of the litigation – O.K Lord M is not fee exempt but is he using his money to gain an unfair advantage?

    http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean

    9. It is obviously a relevant question to ask whether someone who had to pay court fees would have thought it proportionate to any legitimate gain to issue 37 sets of proceedings (with apparently more to come). If there is a genuine desire for vindication over any significant defamatory allegation, it is reasonable to suppose that this objective could generally be achieved by a more targeted strategy. Inevitably, one is left with the impression that Mr Smith and his solicitors are determined, as I described it on 12 May, to pick off the potential defendants one by one and to make it clear to them that it would be cheaper to apologise and pay up at an early stage. It may be, therefore, that his fees exempt status is being used as a tactical weapon. What is more, one of the common complaints from the litigants in person is that this impression is confirmed by the failure to comply with the defamation protocol by spelling out the exact nature of the complaint before issuing proceedings.
    46. This is a most unsatisfactory state of affairs. Not only, yet again, did Mr Smith and his legal advisers fail to comply with the defamation protocol, but they failed even to identify what he is alleged to have said – over a year later. It is possible that the solicitors, being engaged on a conditional fee agreement, were trying to keep down costs by not exerting themselves beyond the bare minimum. If so, that is a philosophy which does not serve the interests of justice or of fairness to these multiple defendants.
    73.First, there was the potential risk of over-compensation (to which I had referred on 12 May). It was clearly necessary for any award of damages to be made in the context of all the claims (including those settled last year). It would not be right to compensate for either injury to reputation or for hurt feelings as though any individual’s publication(s) had been the sole cause.

    • Thank! All very interesting, and entirely relevant – you may well be right! If so, then presumably Carter-Ruck will be advising Bercow accordingly… which will make the next stages very interesting from the perspective of Lord McAlpine.

      Having said that, I’ve also had experts tell me exactly the opposite – that it’s an open-and-shut case the other way. That’s why it would, in my view, very interesting to see it come to court. I’d like to know which arguments hold sway – and whether there are some other arguments to make.

  4. Yes – I have also had people argue that it is open and shut. These people are lawyers too. However, I’ll let you into a little secret. Very few lawyers know how defamation law works in practice. It has changed a bit in the last few years and lots of people are unaware of just how many libel cases have been booted out.

    The fact lawyers have brought many of these ludicrous cases into the courtroom speaks volumes in my opinion.

    See Dee V Telegraph, Lenigas and Lonzim V Sprague, the above case, Lait V Evening Standard, and another case involving Nancy Dell’Oio. All represented by lawyers too – so I do not pay too much attention to the so call experts.

    Anyway, I’d be happy to read any opposing views with reasons.

    • I tend to agree – I’m an academic, not a practicing lawyer, of course, but what you say matches with what I know. Dare I say it, our libel laws may be rather less ‘claimant friendly’ than some libel-reform campaigners might lead us to believe.

  5. Paulbernal

    I think that is fair point. However I also think it is that judges are interpreting the existing laws more favourably for defendants nowadays. In the past I believe judges did not properly consider context which is really what defamation is all about. Judge Eady really got to grips with it in Smith V ADVFN. That judgement is very useful for many cases in my opinion because it discusses many angles, including all the defences. I could probably develop a few other reasonable arguments for Sally Bercow based on that one case. Sadly I am no lawyer so I will leave that for Carter Ruck.

    Also to see how things have changed, an interesting comparision is with Godfrey v Demon, another internet libel case. That was about the first internet libel case and clearly the judges were not up to speed and the claimant won. Widely recognised as very unjust. I think Mumsnet was another case which went sour for the defendants but again a few years ago now.

    I think the reason why judges are more defendant friendly now is simply because there have been so many abusive libel claims lately. Its one area of the law which attracts the worst kind of litigant.

  6. By the way, I’ve been taking a look around this site. It has some good articles and if this topic is anything to go by, some realistic and balanced views from readers. I have found good coverage of this case lacking in the mainstream media and even on many other legal and media blogs/forums. Refreshing to find a site which does not over complicate this case and readers not swept along by the hysteria and the media circus.

    All the best

  7. Whatever the legal position Sally Bercow’s behaviour has been pretty outrageous. Unlike George Monbiot who gave McAlpine a full and dignified apology, she has continued to treat the whole business as a joke. She has failed to acknowledge that McAlpine is a human being who is entitled to object to vile lies being told about him. She lacks a moral compass.

    And I suspect that £50,000 is chicken feed to her and her husband who is highly skilled at claiming expenses.

    http://www.telegraph.co.uk/news/politics/9731888/PIX-and-PUB-Why-Kate-Middleton-will-break-with-royal-tradition-of-nannies.html

  8. I am no fan of Sally Bercow but I must admit to being surprised by the reaction to the whole thing and to her in particular. Maybe I have missed something and I must admit to being unfamiliar with the full workings of Twitter so correct me if something I say is wrong. But let’s for a moment take this from her point of view.

    It is my understanding that this all arose due to rumours circulating on the internet which I gather were caused by two things – namely some allegations which had been around for some time which might have been known by a few, being revived by talk that a BBC programme was possibly about to name someone. In the climate and speculation which prevailed, some Twitter users before Mrs Bercow reached a conclusion that McAlpine was going to be named. Based on a supposedly credible source as the BBC report, this might have possibly been a logical conclusion to reach. Mrs Bercow then posted something which I guess would not have meant anything to people who had not previously been party already to the speculation.

    Then the whole matter blew up and next we were confronted with numerous TV press interviews involving McAlpine’s solicitor talking of suing Tweeters and particularly targeting higher profile users. Then more threats were made in the media telling people it would be cheaper to apologise and pay up, followed by accepting £310,000 in settlements from BBC and ITV. Then we have Sally Bercow and a few higher profile Tweeters being named in the media and another kind of witchthunt take place and many unpleasant things being said about Sally Bercow. Finally the solicitors concerned then set up a ‘reconcilation’ facility on their website inviting people to provide their details after which they will be told how much McAlpine is demanding from them to be paid to his charity.

    When all this started I did have sympathy with McAlpine but I am afraid it evaporated with the events which followed. My view is that Mrs Bercow’s only ‘crime’ was that she was unwise to get involved in the speculation and post what she did. But was there any malice on her side? Did she post anything that she believed to be untrue? Were these comments completely baseless and therefore reckless or was hers a reasonable (albeit wrong) conclusion to reach based on the turn of events described? Did her comments actually cause any damage which had not already been caused or would not been caused without her involvement?

    In my view, putting aside the over-compensation issue, the fact the claimant was quickly vindicated and abuse of process arguments aside, a court would have to consider the context in which she made her comments. Would a court really conclude that she was malicious and therefore liable? I seriously doubt it and what really worries me about this is the way this litigation was initially conducted by McAlpine’s solicitor in the media which was then followed by personal attacks on her.

    I actually do have quite alot of sympathy with her. I suspect as this unfolds and the case against her unravels, others will start to see this and perhaps her in a different light.

    Finally, briefly back to the legal points this perhaps might be relevant, again from the judgement above I mentioned.

    107. Opinions may be expressed in exaggerated and strident terms; the only requirement is that they be honestly held. It is fanciful to suppose that any of these people did not believe what they were saying. Even if they reached their conclusions in haste, or on incomplete information, or irrationally, the defence would still avail them. It would be wasteful to let proceedings go forward merely on the footing of a series of formulaic assertions to the effect that the individual concerned did not honestly believe what he was saying. There is accordingly no realistic prospect of any such claims achieving the only legitimate goal of vindicating reputation.

    • I agree with almost all of that – though I suspect the argument from McAlpine’s team would be that she wasn’t offering an opinion but implying a highly-damaging fact. I don’t mean that I agree with them, but I think that’s how they’d put it. I do still wonder very much whether it will ultimately make it to trial, and we’ll get to hear the arguments, warts and all!

  9. I see LM is due to collect his combined £310,000 payout from the BBC and ITV tomorrow. Personally it annoys me that the BBC is spending the licence fee on paying off libel litigants. O.K it is understandable they were down for this one. But the Robert Dee apology and possible payout several years ago certainly suggests their lawyers are not up to the job.

    http://www.robertdee.org/apologies_and_corrections/1/5

    COURT 14
    Before MR JUSTICE TUGENDHAT
    Tuesday, 18th December 2012
    At half past 10
    Jury List
    ROBED
    STATEMENTS IN OPEN COURT
    SIOC/12/1311 Lord Alistair McAlpine v British Broadcasting Corporation
    SIOC/12/1312 Lord Alistair McAlpine v ITV Plc & anr

  10. I see there are some news stories circulating that Alan Davies may settle with McAlpine for £200,000. For all the reasons given above that would be rather stupid of him if he settles for anything near that sum. Plus it would help Sally Bercow. Add £200,000 to the £310,000 plus received already and there is an even less compelling argument for her to pay up.

    One can only assume the stories are premature or that Alan Davies has been receiving very poor legal advice. I wonder what the Solicitors Regulation Authority are doing about this after the complaints which went in to them. They are there to reign in solicitors and protect the public against this kind of thing. Even protecting fools against their own stupidy.

  11. First hearing at the High Court this coming Tuesday apparently. It will be interesting to see if this nonsense is allowed to continue. In my view, all the precedants and considerations about multiple defendants, proportionality and being compensated already would suggest it cannot succeed. Letting it go beyond a first hearing would be delaying the inevitable (again if the previous guidance is not disregarded by the judge) Due to the circus which has accompanied this litigation I am concerned that Sally Barcow’s case might not get treated correctly or that the process/procedure does not translate into a common sense disposal at an early stage.

    http://m.guardian.co.uk/media/2012/dec/13/sally-bercow-lord-mcalpine

  12. Paul

    Just the confirmation and time tomorrow. Justice Tugendhat is a good judge I believe and I think Head of the Jury List, replacing Eady a while ago. He presided over the latter part of Smith V ADVFN Plc (multiple defendant case also with demands made for huge sums of money) so should be well versed in the over-compensation points, context and all posts/BBC role to be viewed as a whole and not Bercow’s tweet in isolation as if it was the sole cause of damage.

    I guess you may write another article depending on whether we learn anything.

    COURT 14
    Before MR JUSTICE TUGENDHAT
    Tuesday, 16th April 2013
    At half past 10
    UNROBED
    APPLICATION NOTICE
    IHJ/13/0155 The Lord McAlpine of West Green v Bercow

  13. From the court. I guess more of a procedural hearing. Perhaps the judge found a compromise and this will be decided soon. Do not understand the thing about two hearings – that would seem to presume that he will get quantum but I can see there are two important and distinct areas. For example in theory he might win on meaning but lose on quantum for the reasons already discussed.

    Josh Halliday ‏@JoshHalliday 3m

    Judge rules that Sally Bercow libel trial should be heard in two stages, as Lord McAlpine wanted.

    Jack of Kent ‏@JackofKent 5m

    #McAlpine v #Bercow: judge orders seperate hearings for meaning and quantum, but all to take place before end of July.

  14. A little more from the Guardian.
    ………………………….
    .http://www.guardian.co.uk/media/2013/apr/16/lord-mcalpine-libel-sally-bercow

    Speaking outside court, McAlpine’s solicitor, Andrew Reid, was quick to claim victory. “Clearly the will of the court is not the will of Mrs Bercow,” he said.

    “The judge found himself to be somewhat baffled in dealing with her defence, and equally from the claimant’s solicitor’s point of view, we have found it very difficult dealing in this matter.”

    It is expected that the first part of the libel trial will be heard in or before July.
    …………………………

    Rather predictable behaviour from Reid. I suspect if the judge was baffled about anything it had nothing to do with the merits as I doubt they were really addressed and I would have thought they had no bearing on the decision to have two hearings. I do recall a similar case involving many of the same issues where the claimant and solicitors claimed an early victory and then were later slapped down in spectacular fashion. I guess a process has to be followed and we are going through the usual direction stages. However it would be interesting to get a view on how Carter Ruck are proceeding with this defence.

  15. […] The whole idea of ‘free speech’ has had a few challenges this last week or so. The Paris Brown saga (about which I’ve written here), the decision by the BBC not to play ‘Ding, Dong, the Witch is Dead’ though it reached number two in the charts, the various attempts to block protests at Margaret Thatcher’s funeral, the late amendments to the Defamation Act to remove the proposed controls over companies’ abilities to sue for libel, and the arrival in court of the Sally Bercow/Lord McAlpine twitter defamation trial about which I wrote this in December). […]

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