Can Lord Hutton fight back over his treatment by the media?

The recent publication of the Hutton Report into the death of Dr David Kelly prompted a huge amount of discussion, condemnation, wild allegations and even some relevant information.

There seems to have been an assumption on the part of the media that Lord Hutton was an unarmed drone, unable to fight back. But is this really the case? No.

The media learnt a few years back, through a press release, that the Lord Chancellor’s Department would fund the legal costs of members of the judiciary who were unfairly pilloried in the press.

Usually the issue is whether a judge has fallen asleep during a trial or actually made or merely was reported as having made ridiculous comments (usually about the length of a victim’s skirt or that a convicted paedophile is a jolly nice chap).

It is, in fact, old news that judges sue. In 1992 the libel judge Mr Justice Popplewell sued the Today newspaper, which had inaccurately asserted that he might have fallen asleep during a case. Using the services of an arbitrator (rather than risking criticism by seeking the more generous amount likely to have been awarded by a jury), the judge was awarded £7,500.

Hutton, who was lauded before the report was published, has been called many highly defamatory things recently that would fall outside the defences the media may believe it possesses.

For example, the qualified privilege defence requires fairness and accuracy to work and the public interest test requires that serious allegations be put to the victim, which does not seem always to have occurred (if at all) before the “whitewash?” headlines were written.

And it is worth remembering that the addition of a question mark (“Judge Joe Bloggs a Communist?”) does not turn a defamatory allegation into a safe one.

Hutton was also infuriated by the leaking of his report – which he took great steps to keep confidential and unspun by the Government – by The Sun hours before he made the findings public. The judge is considering the legal position here (according to newspaper reports) and, again, there is case law in his favour. When The Sun leaked details of the Queen’s Christmas message it ended up paying substantial damages.

The same issues that were considered then might be relevant here – the contents were going to be made widely public in the near future anyway, were of considerable interest to the public, as wells as any contractual obligations imposed by an embargo request and the like.

Comfort would also be given to Hutton’s legal team by the outcomes of cases involving, for example, the leaking to the media of draft company accounts, which, in due course, get published anyway (a whole series of cases, including Bill Goodwin’s famous defence of source’s case in the Nineties). The law is on the judge’s side.

So the inquiry may be over and the report published, but the legal battles may be only about to commence.

Duncan Lamont is a media lawyer at City solicitors Charles Russell

Duncan Lamont

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