Can a criminal hold the press to ransom?

By Dominic Ponsford

Dismissing the “Beckham kidnap plot” libel action against the
News of the World, Mr Justice Eady didn’t mince his words: “Mr Mahmood
may be hard-bitten and cynical,” he said – referring to Mazher Mahmood,
the paper’s investigations editor – “but I find no support for the
proposition that he made the whole thing up.”

His 51-page judgment broadly vindicates Mahmood’s undercover methods, which exposed a five-man plot to kidnap Victoria Beckham.

The
judge also criticised the no win, no fee system which allowed
impoverished claimant Alin Turcu to bring the action at no risk to
himself, but at a cost to News Group Newspapers of £400,000.

A
trial involving five defendants, based on evidence collected by the
NoW, collapsed in June 2003 and there have been suggestions since then
that far from being the “crime of the century”

as claimed, the whole story was set up by the paper.

The
libel trial was the first time the affair had been fully aired in a
court of law – and according to the judge, there was indeed a credible
plot to kidnap Victoria Beckham.

Turcu is an illegal immigrant
from Romania with an assumed name and a string of criminal convictions
across Europe, who was unable to even offer a statement to back up his
case.

And even though he lost, News Group will never be able to recover its own costs.

The judge admitted that in financial terms the NoW might have been wiser to pay Turcu off.

He
pointed out that under no win, no fee, “significant costs can be run up
by the defendant [News Group] without any prospect of recovery if
successful”.

He added: “On the other hand, if the defendant is
unsuccessful it may be ordered to pay, quite apart from any damages,
the cost of the claimant’s solicitors including a substantial markup in
respect of a success fee. The defendant’s position is thus wholly
unenviable.

“Faced with these circumstances, there must be a
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…
This is a situation that could not have arisen in the past and is very
much a modern situation.”

The judge said that even if Turcu had
won, damages would have been “nominal”, perhaps as little as £1. The
fees for his lawyer, David Price Solicitors, would have run well into
six figures.

To back up its case, the News of the World presented
taped conversations obtained by its paid informant, Florim Gashi, on
three separate occasions in which he spoke with the other “gang
members” about the kidnap plot.

Although the subject of the
kidnap was raised by Gashi on every instance but one, Mahmood argued in
court that if there was no plot, there was no reason for them to
discuss it in the first place.

Turcu’s solicitor David Price argued that the discussions were “idle pub banter” by a “bunch of idiots”.

However,
the judge said it was difficult to reconcile this with the fact that
one of the gang, Adrian Pasareanu, was a qualified doctor (whose “best
friend” was his Mauser gun) – and that another gang member later
pleaded guilty to stealing a high value turban from Sothebys.

The judge added: “There was clearly a plot to kidnap Victoria Beckham, however desultory some of the discussions may have been.”

Noting
that there was “sloppiness and inaccuracy” in NoW and Sun reports of
the plot, he said the gang was not on the brink of a kidnap, there was
no evidence that Turcu was its surveillance expert, and there was
nothing to back up The Sun’s claim that the gang had been watching the
Beckhams’ Cheshire home.

But he also pointed out that “a
defamatory allegation need only be proved on a balance of probabilities
to be substantially true”.

The judge dismissed suggestions that
Mahmood “knew that the story was false and that he picked on vulnerable
asylum seekers, who would not be able to sue the newspaper, just to
sell more newspapers”.

He said: “I have no reason to think Mr
Mahmood did not believe the story to be true in its essentials” and
“most investigative journalists would be only too well aware of the
willingness of some solicitors to support impecunious claimants in
libel proceedings by means of conditional fee arrangements”.

He added: “The days are gone when one could assume that any particular individual could be characterised as a soft target”.

The case for no win, no fee

‘WHAT’S THE ALTERNATIVE IF YOU HAVE NO MONEY?’

Press Gazette asked Turcu’s solicitors, David Price, to defend the
widely criticised conditional fee agreement (CFA) system which enabled
them to take up the case.

The firm responded: “We accept that there are potential difficulties
with CFAs and lawyers who do this work need to act responsibly.

“We
litigated this case in the most proportionate manner possible and this
is reflected in our costs, which are less than half of the News of the
World’s.

“If a newspaper is faced with an impecunious claimant it
should also be looking to its lawyers to litigate in the most
proportionate manner possible.

Instead it is the national media which hires the most expensive lawyers and have the largest legal teams.

“The
result is that claimants are often unable to afford after-the-event
insurance to cover the newspaper’s costs. It is open to a defendant to
cap the claimant’s costs.”

Responding to the suggestion that the system holds newspapers to “ransom”

they said: “There will always be pressure to settle when faced with someone who doesn’t have money.

“But
what is the alternative? Poor people not having access to the courts?
There is no state funding so poor people would either have to represent
themselves, or we accept that newspapers are allowed to write what they
like about people who don’t have the means to defend themselves.”

The firm also said that the “chilling effect” on freedom of expression of CFAs had been exaggerated.

“News Group Newspapers made £147m in the year the Beckham kidnap story was published.

“It
is unrealistic to think that they won’t publish an article out of fear
that the person being written about will then be represented under a
CFA.

“The chilling factor may be a different matter where local
papers and smaller publications are concerned. However, it is open to
these publications to be represented under a defendant CFA scheme, such
as the one offered by our practice.

“The balance of power is still very much in favour of wealthy media organisations such as News Group Newspapers Ltd.”

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