The courts head where angels fear to tread

Mr Justice Gray earlier this week dismissed the libel claim of Captain Sarah Pedder and Sergeant Alan Dummer against The Sun for a series of articles published in February 2002. The stories branded them “desert love rats” after reporting how the two carried on an adulterous affair while on exercise in Oman in late 2001 following the tragic events of September 11.

The Sun articles were followed by articles on a similar theme in the Evening Standard, Daily Mail and The Daily Telegraph. The judge held that it was “incontrovertible” that The Sun and the Mail/Standard articles were “substantially the same”.

Libel proceedings were issued by Pedder and Dummer against the two publishers of these newspapers as well. Claimants can (and do) commence serial libel actions and, as noted by Mr Justice Gray, there is nothing remotely improper about this.

However, if they lose the first action of the series at trial then they stand at risk of the subsequent actions being dismissed as an abuse of the process. Pedder and Dummer and their solicitor advocate acting on a conditional fee agreement (CFA) fell foul of this risk.

The Mail and Standard claim came to trial in July 2003. After 10 days of evidence the jury found against the claimants and the claim was dismissed with costs.

The claimants, however, appeared intent on pursuing their serial claim against The Sun and an application followed by The Sun to strike that claim out as an abuse. The judge, following the dicta of the Court of Appeal in the case of Oates v Associated Newspapers (2000), undertook a “realistic assessment” of the outcome of the earlier trial and the three newspapers’ respective articles. He also took account of the dicta of Mr Justice Eady in the case of Schellenberg v BBC (2000) and adopted a “practical attitude” and ventured into areas where “angels have traditionally feared to tread”.

Taking account of the claimants’ right to bring serial litigation, the judge found an “additional element” needed under the existing case law (although it was queried whether this was still a requirement) to deem their claim against The Sun as an abuse.

That additional element was the claimants’ CFA with their solicitor and the fact that they had not taken out insurance cover to pay The Sun’s costs were they to lose a second trial.

With trial costs likely to run into hundreds of thousands of pounds, it was a fair assumption that the claimants would never be in a position to pay The Sun’s costs if they lost.

The judge accepted that were the case to proceed to trial with such a cost burden to The Sun (win or lose) then this would have a chilling effect on The Sun’s freedom of expression.

The Court of Appeal is due to consider similar arguments on the “ransom factor” of the CFA regime in libel actions in January 2004 in the case of Musa King v Telegraph Group.

The Sun faced a “real unfairness” if the claim was allowed to proceed [and the judge awarded The Sun its costs of the whole action]. Whether such costs are ever recoverable is another matter. Under the CFA, the claimants have no obligation to pay their own solicitor if they lose and if they win their solicitor recovers his costs plus an uplift (of up to 100 per cent) from the losing defendant.

The outcome of this case may at least have a “chilling effect” on serial CFA libel litigation in the future.

Benjamin Beabey is a solicitor in the media team at Farrer & Co

by Benjamin Beabey

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