The London libel courts have featured prominently in the news recently, including the Johnny Depp/Amber Heard case and the Colleen Rooney-Rebekah Vardy “Wagatha Christie” dispute.
However, the aftermath of the Russian invasion of Ukraine has also shone a spotlight on the English legal system in a much more serious context.
Rich and powerful
The courts, like the Ritz, are notionally open to all, but some critics perceive the libel courts to be at risk of becoming a plaything for the rich and powerful.
The leading media lawyer Geoffrey Robertson KC has written a new book, “Lawfare”, highlighting the impact of libel laws on free speech.
Russia’s invasion of Ukraine has, he said in a Guardian interview, “brought up the way in which oligarchs, as rich people, have been able to intimidate British journalists and British publishers”.
He points to the case of Yevgeny Prigozhin, who was, until May 2022, taking proceedings in the London courts against Eliot Higgins, an investigative journalist who has tweeted articles in which Prigozhin was linked to the Wagner paramilitary organisation. Yet in September 2022 Prigozhin acknowledged that he had founded the organisation.
Despite UK sanctions having been imposed upon Prigozhin following the invasion of Ukraine, his British lawyers received special dispensation from the Treasury to take the claim.
Robertson commented that it was “ironic and ridiculous that the UK’s Sanctions Act permits oligarchs who are sanctioned for their human rights abuses, and therefore have no reputation, you would think, [to] bring in money to pay their lawyers to repair their reputation that they don’t have”.
There is no suggestion, of course, that the lawyers involved have done anything wrong. Many lawyers would point out that what they do in a professional capacity is not to be taken as indicating that they personally endorse the activities or character of their clients. If it is not controversial that alleged murderers or terrorists can instruct lawyers, why should representation not be available to people who happen to be Russian and rich?
Exorbitant costs
Returning to Robertson, he also highlighted the costs involved in bringing or defending proceedings, which itself can have a chilling effect on free speech. “A simple libel case that takes two or three days in court is certain to run into over £1m in costs for either side,” noted Robertson. Some publishers may be reluctant to fight cases purely on account of the significant financial exposure.
HarperCollins, the publisher of “Putin’s People” by Catherine Belton, agreed to revise the text of the book to make clear that Belton’s comment that Roman Abramovich had purchased Chelsea FC at Vladimir Putin’s instigation did not represent a statement of fact.
On this basis, Abramovich settled a libel case against Belton which, if it had proceeded to a full trial, would have been likely to have involved legal costs in excess of £10 million. Such a sum would be likely to make even the largest publishing house pause for thought.
More recently, the conduct of Nadhim Zahawi, now sacked as Tory Chairman, has attracted considerable criticism, including his use of his lawyers to write to the tax expert Dan Neidle, who was investing Zahawi’s tax affairs.
High-profile and powerful individuals may seek to use threats of libel and privacy actions to quell the activities of investigative journalists or other critics, a perennial tactic which has notoriously been used in the past by the likes of Robert Maxwell.
Proposed reforms
Robertson proposes many changes to the system, including only permitting foreign oligarchs to bring lawsuits in London which are “closely connected” to the UK.
He also advocates reversing the burden of proof, such that it is for the claimant to prove his case, rather than for the publisher or author defending the claim to have, in effect, to disprove it.
A further innovation recommended by Robertson would be to televise the libel courts. The matter would be ventilated not just in the law courts but the court of public opinion, and the glare of publicity would provide food for thought for those contemplating legal action.
Robertson’s book represents a valuable contribution to the debate and will be closely studied by practitioners and others as public concern continues as to whether the legal system is striking the right balance in the fields of defamation and privacy.
For inquiries or concerns regarding libel law, please reach out to our expert Tony Roberts at tony.roberts@ilaw.co.uk
