Max Mosley’s QC has emphasised the “phenomenal scale” of the promotional advantage and growth achieved by the News of the World’s Mosley expose.
Making his closing speech in the motorsport boss’s landmark privacy action at the High Court, James Price QC said: “This story arrived like manna from heaven.”
Price accused the newspaper of “contemptuous disregard for the claimant’s rights”.
He told the court: “The defendant’s motivation was to publish a scandalous expose. End of story. Nothing else.”
The News of the World’s QC has accused Mosley of making out that what the newspaper called a “sick Nazi orgy” was “nothing more than hanky-spanky”.
Mark Warby QC told the High Court that the events in a Chelsea flat in March were “truly grotesque and depraved”.
“There was a general attempt both in the written evidence of the women and in oral evidence to present it as some kind of worthy activity attended by the most strict health and safety precautions as though it was all being carried out under the guidance of the Bondage and Sadomasochism Regulatory Authority,” he said.
“It was even compared with Cowboys and Indians, as though it was nothing more than a dressing-up party for grown-ups.
“There was an attempt, we suggest quite deliberately, to turn it all into some kind of farce, or to make it sound like a tremendous giggle.”
He told Mr Justice Eady in London: “If nanny stumbled in on Jason and Flora playing the game you have seen on the videos, she would be more than concerned – appalled – and so would the children and grandchildren of the victims of the Nazis.”
The true picture was very different from what Mr Mosley and his witnesses had tried to depict, and involved “psychological darkness”.
“There is a form of corruption of the personality and there is, we suggest, true depravity.”
Mosley, the 68-year-old son of the 1930s Fascist leader Sir Oswald Mosley, says that his life was devastated by the expose and is asking for an unprecedented award of punitive exemplary damages.
James Price QC, has said that the “gross and indefensible intrusion” was made substantially worse by the entirely false suggestion that Mr Mosley, president of the FIA (Federation Internationale de l’Automobile) was playing a concentration camp commandant and a cowering death camp inmate.
The newspaper’s editor, Colin Myler, has said that he believed the story was one of “legitimate public interest and one that I believe was legitimately published”.
Warby said that the case involved a “clash of taboos” – that of peeping in on people having sex as against behaviour, such as the deliberate infliction of pain and suffering for no good reason, which society would consider disgusting.
He said there was no basis for punitive damages, because the newspaper, as Myler and reporter Neville Thurlbeck had said in evidence, honestly believed what was written and that it was legitimate to publish.
“We say that whatever one may think of the merits of their views, we suggest they were patently sincere in what they said about those views.”
There was also a complete failure to put any case of cynical calculation of wrong-doing for financial motives.
Warby asked why, if there was nothing Nazi about the session, Mr Mosley and woman A were so desperate to try and cover up what went on, such as through the deletion of emails.
He added: “If it’s not meant to be Nazi, then what on earth is it meant to be?”
The role-playing brought to mind the Nazi era rather than a modern German scenario which, he said, would be typified by not crossing the road when the lights were against you or pinching all the sunbeds.
Counsel said that even in a tolerant and broadminded society, there were some things that were fundamentally contrary to western values, such as the brutality of the Nazi era.
The FIA’s membership had a right to expect their elected leader to comply with proper standards, both in his professional and private life.
There was also the fact of Mosley’s background, and that he was a committed adherent to his father’s party until he was 23.
“I invite you to conclude that what went on in the flat suggests that, just as he has remained committed to an unfortunate interest in S and M, some of the old racist sentiments which he was prepared to endorse also remained with him – and the public are entitled to know that.”
He said that the canings which Mr Mosley received might not be at the top end of S&M activities but did reach the point of criminal wounding.
Mosley’s “unhealthy addiction” was vicious, and the amount of money he devoted to it – £75,000 in one year – was a measure of how much it had taken over his life.
Making his closing speech, Price said Warby’s words were aimed at the press in court, rather than the judge, and were deliberately designed to increase Mr Mosley’s humiliation in return for him having the temerity to bring the action.
He told Mr Justice Eady, who is expected to reserve his ruling when the case concludes this afternoon: “We shall invite you to reflect the outrageous things which have just been said in your award of damages.”
Price argued that compensation for intrusion of privacy should be greater than those for defamation “because invasion of privacy can never be repaired and the claimant has to live with it for the rest of his life”.
An award of exemplary damages should be made “to show that the law cannot be mocked as it was in this case”.
He told the judge that it was “now beyond argument that there was no Nazi element”.
It was not accepted that if there had been a Nazi aspect it would have justified the intrusion or publication of the salacious detail and film.
The QC said the outrage from the Nazi era was the abuse of human beings and human rights: “To dress up in Nazi clothing is tasteless and puerile, but it is not an abuse of human rights.”
The “most significant admission by a long way” was made in evidence by Myler, he said, which “collapses the defendant’s case”.
Price argued that it amounted to a “straight acceptance” by the editor that the participants on March 28 were sincere in interpreting the event as a “prison, not a Nazi scenario”.
In his evidence, Myler said that other people could “not unreasonably” have interpreted it in another way.
If the editor had taken the trouble “before rushing into print” to have the video transcribed, obtain a transcript of the German being spoken, or taken a statement from the paid informant, Woman E, “he would have reached the conclusion that it was not a Nazi scenario”.
Those who took the decision to publish “deliberately refrained from taking these obvious steps which would have revealed the truth”, said Price.
The obvious reason was the “phenomenal scale of the material advantage to be gained from publication”.
Price told the judge: “We say that the examination of the evidence of the film in the course of this trial has sunk any suggestion that there was a Nazi theme.”
Price said that at the time Thurlbeck decided to use a clandestine device to film the orgy, there was no indication that it would be anything other than a “commonplace S and M session”.
He said: “It’s wholly obvious that the enjoyment of lawful consensual S and M activity in private cannot justify the use of a hidden camera recording for publication.”
Branding Thurlbeck’s evidence as dishonest, counsel added: “He is not a reporter on whom a responsible editor could place any reliance on any matter of importance, and that must have been clear to those in charge of that newspaper.”
He went on: “This is not a newspaper that is looking to find out the truth – that is irrelevant. What it is doing is looking to publish the story.”
Referring to the fact that informant Woman E was not called as a witness, Price said: “There was not a scrap of evidence that she was not fully fit to come to court and give her evidence.”
The “true reason” she was not called “is one or other of two things”.
He added: “Either the defendant could not risk her going into the witness box and telling the truth, as told by Women A to D, or she herself feared that the truth would emerge from the cross-examination.”
The QC submitted that the “intrusive nature” of the material published was at the “highest end of a possible spectrum”, as was the extent of its dissemination, “so compensation should be at the highest level available”.
He added: “The News of the World is an enormously well-funded organisation and puny damages will be no deterrent, and privacy rights will be set at nought.”
Adding that the aggravating features of the litigation were at the highest level of seriousness, Mr Price highlighted the enormous further intrusion generated by the trial.
“It has taken huge determination for the claimant to bring this matter to trial. The defendant should have faced up to the fact that there was no proper justification and made amends.
“The failure to do so was done with eyes wide open and the consequence in damages should be very heavy.”
The judge reserved his ruling, saying that he hoped to deliver his judgment in the middle of next week.