Chilling effect of defamation costs structures
Eady J said: ‘The claimant in these proceedings is seeking damages against News Group Newspapers Ltd, as publishers of The News of the World, in respect of articles appearing in the editions of that newspaper dated 3 November 2002 . . He issued his claim form under an assumed name (Alin Turcu), almost at the end of the one year limitation period, on 31 October 2003. He only revealed his true identity in early February of this year, about two months before trial, as Bogdan Stefan Maris. He was born in Romania on 26 July 1980 and is thus now aged 24. He appears to have borrowed the name Turcu from someone he knew in prison in Romania.
The claimant’s false identity is not the only respect in which this case is unusual. The claimant has not taken part in the trial and has not even served a witness statement. Mr David Price, a solicitor advocate, has represented him on the basis of the instructions he received from his client, but without the advantage of his evidence to back up those instructions. Mr Maris is apparently residing somewhere in Romania. Indeed, Mr Price told me before the trial began that he had last had contact with his client shortly after the true identity was revealed and, at the commencement of the trial, he remained out of touch and thus was only able to proceed on the basis of past instructions. He did, however, indicate that telephone contact was resumed at some time during the first week of the trial – but still no witness statement was forthcoming.
The evidence adduced by the defendant, which has not been challenged, is that the claimant is a petty criminal with a list of criminal charges or convictions at least in Romania, Germany, Italy and England. According to the evidence of a senior police officer from Neamt in Romania, ‘he is known as a very intelligent criminal’. He came to England in August 1999 using his assumed name of Turcu and made an application for political asylum on the basis of a statement, which has been produced in evidence, and which contains a largely concocted account of his life and circumstances. His application was rejected, but he was allowed exceptional leave to remain in this jurisdiction until 2004, purely because he had lied, apart from anything else, about his age. He was thought to be 16 years old, whereas in fact by that time he was 19. He had already been sentenced in Romania on three occasions to terms of imprisonment. Had his true identity and age been revealed, he would not have been allowed to remain in this country.
When he was arrested in 2002 he was found to be in possession of forged Greek and Italian identity documents bearing his photograph but false names. I can readily infer that the claimant had those documents to facilitate the commission of crimes and to mislead the law enforcement authorities. He had been arrested in Italy only eight days before his arrival in England and that may possibly explain why he was seeking pastures new.
He eventually obtained employment in London on the basis that he was here legally, and thus he deceived his employers also . .
The claimant now seeks a large award of damages, including aggravated and exemplary damages, against the proprietors of The News of the World, who were denied the opportunity not only of cross-examining him but also of even seeing evidence from him denying their published allegations, or to support the serious charges of dishonesty made on his behalf in the course of the trial. He is able to pursue his claim purely because Mr Price has been prepared to act on his behalf on the basis of a conditional fee agreement. This means, of course, that significant costs can be run up for the defendant without any prospect of recovery if they are successful, since one of the matters on which Mr Price does apparently have instructions is that his client is without funds. On the other hand, if the defendant is unsuccessful it may be ordered to pay, quite apart from any damages, the costs of the claimant’s solicitors including a substantial mark-up in respect of a success fee. The defendant’s position is thus wholly unenviable.
Faced with these circumstances, there must be a significant temptation for media defendants to pay up something, to be rid of litigation for purely commercial reasons, and without regard to the true merits of any pleaded defence. This is the so-called ‘chilling effect’ or ‘ransom factor’ inherent in the conditional fee system, which was discussed by the Court of Appeal in King v Telegraph Group Ltd . .This is a situation which could not have arisen in the past and is very much a modern development.’
and ‘English law is generally able to accommodate the policy factors underlying the Article 10 [the right to freedom of expression] jurisprudence by means of established common law principles; for example that a defamatory allegation need only be proved, on a balance of probabilities, to be substantially true. The court should not be too literal in its approach or insist upon proof of every detail where it is not essential to the sting of the article… So too the demands of a defence of justification are sometimes mitigated by the terms of section 5 of the Defamation Act 1952 (although not of relevance here).
Each case obviously depends on its own unique circumstances and the application of these considerations of public policy will to a large extent be a matter of impression.
In deciding whether any given libel is substantially true, the court will have well in mind the requirement to allow for exaggeration, at the margins, and have regard in that context also to proportionality. In other words, one needs to consider whether the sting of a libel has been established having regard to its overall gravity and the relative significance of any elements of inaccuracy or exaggeration. Provided these criteria are applied, and the defence would otherwise succeed, it is no part of the court’s function to penalise a defendant for sloppy journalism . . I must set all that to one side . . and focus only on substance.’
Eady J
[2005] EWHC 799 (QB)
Bailii
Defamation Act 1952 5
England and Wales
Cited by:
Cited – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .
Cited – MGN Limited v United Kingdom ECHR 18-Jan-2011
The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous . .
Appeal from – Turcu v News Group Newspaper Ltd CA 26-May-2006
The appellant had failed in his action for damages against the newspaper which had accused him of a plot to kidnap the wife of an England footballer. He now sought leave to appeal.
Held: Evidence unavailable at the trial now suggested that the . .
Cited – O’Dwyer v ITV Plc QBD 30-Nov-2012
The defendant sought to have struck out the claim for defamation based on the defendant’s ‘Homes from Hell’ TV programme.
Held: The pleaded meanings failed, and an application to amend the particulars was refused. The action was struck out.
Cited – Dhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .
Cited – Turley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .
Lists of cited by and citing cases may be incomplete.
Defamation
Leading Case
Updated: 01 November 2021; Ref: scu.224558