My attention was caught by this news report:
https://twitter.com/jimwaterson/status/1118518659830505472
Now many who read my blog will know that I was, in the 1991-2008 period, at various times a practising barrister (in England) and an employed barrister (mostly overseas). Defamation was not one of my specialisms. I would have liked it to have been. It is an interesting and lucrative field, often involving interesting and/or famous people, though certainly not demanding the highest legal skills or intellectual gifts (contrary to the general public belief).
I did a few cases of libel while at the Bar, though all were advisory; none reached a substantive court hearing. I did advise, pro bono (unpaid), and when only a student, on a libel matter the result of which made the front pages of the more serious newspapers: Flegon v. Solzhenitsyn [1987].
Unable (as a mere student) to appear before the judge and civil jury (all defamation cases then had a jury), I nonetheless attended court most days, sometimes all day, wrote (mostly ignored) instructions and good advice for the plaintiff (now dumbed-down to “claimant”), and advised generally on tactics etc (also mostly ignored). I was told by another attendee that once, I having told Flegon’s assistant to give Flegon a note while he, Flegon, was (speaking very loosely) “cross-examining” a witness, I bowed myself out of [High] Court, only for the judge to demand of Flegon, as soon as I had gone, “to see that note that you have just been given”. Apparently, the judge read the note and told Flegon (who was proving a massive pain to the judge in various ways) to “listen to the good advice that you have been given, Mr. Flegon”! My first commendation by the Bench!
The Daily Telegraph said, when Flegon died (16 years later, in 2003):
“His remarkable success at repeatedly getting manuscripts out of the Soviet Union led to the widespread view that he must have had contacts in the KGB; but in 1987 he won £10,000 libel damages in the High Court from Solzhenitsyn over an allegation to that effect in the Russian version of The Oak and Calf. Unable to afford a barrister’s fees, Flegon conducted his case himself, in faltering English.”
Well, returning from the past to the present, we often see people, usually on Twitter, either talking about suing this or that person (often another “tweeter”) or expressing an opinion on defamation cases before the courts.
The average Joe has no idea about legal matters, and yet many opine about the law and practice of defamation, perhaps because it tends to attract msm publicity. For example, the tweet below betrays no hint that the tweeter knows that people have never been allowed to get legal aid for matters of defamation.
Despite having been expelled from Twitter, I read the tweets of others, particularly those whom I consider “persons of interest”. Often, en passant, I see tweets by various idiots either threatening others with legal action or recommending that others sue —often named— other parties in defamation. Few seem to understand either the relevant law (which has changed somewhat in recent years) or the practical aspects.
In the Kezia Dugdale case reported today, the Scottish judge decided that the words written were defamatory, but that the defendant, Ms. Dugdale, had a defence (that of fair comment). By the way, note that that defence has now been replaced, in England and Wales, by a defence of “honest opinion”, but this case was heard in Scotland under Scottish law.
Now the claimant in that Kezia Dugdale case, a Mr. Campbell, obviously does not understand the law, having tweeted only today that the law or legal system is, in effect, asinine because the judge decided that the words were defamatory and yet had decided against him! Like many many others on Twitter etc, the said Mr. Campbell does not seem to understand that even if words are defamatory on their face or by implication, the defendant might yet have one or more of the available defences.
Time and again on Twitter (I am not on Facebook) I see people, innocent of any useful legal knowledge, claiming that words which are not defamatory anyway are defamatory, or (where the words might be defamatory) ignoring the available defences.
Prominent among the above are Jews on Twitter, who often invoke the name of “Mark Lewis Lawyer” (the Jew-Zionist lawyer who recently fled to Israel after being found guilty of professional misconduct: see Notes, below). In fact, his publicized defamation cases were all (the ones I saw anyway) very simple and straightforward, requiring little real legal expertise. My honest opinion is that he is a copper-bottomed self-publicizing poseur.
Take a look at the above paragraph. It might or might not be considered in part “defamatory” (or it might be considered as a whole or in part a “mere vulgar insult”, which would not be actionable in any event). Also, even if the statements above, or some or one, were to be considered defamatory, I have defences open to me should the supposed “top defamation specialist” reach out from his mobility scooter or wheelchair in Israel to sue me (he has so far not done so in respect of any of the rather many blog posts which I have written about him in the past months). I have the defences of, inter alia, “Truth”, “Honest Opinion”, and “Publication on a matter of public interest” available to me.
There again, the armchair lawyers of Twitter rarely consider other factors, chief amongst which is whether the defendant has any funds. If not, large sums (in some cases, hundreds of thousands of pounds) might be expended in pursuit of a defendant who (like me) would simply declare bankruptcy if faced with a money judgment. Bankruptcy in England is now little more than an inconvenience lasting for a year (in most cases) for someone without capital (whether in cash or real or other property) or income. There are few advantages to being broke (as I now am and, incidentally, as “Mark Lewis Lawyer” now is); one of them, though, is the useful one of being effectively “unsueable”.
There are other factors, but this is a blog post, not a legal treatise.
It is usually the case that the best advice that can be given to a potential litigant in defamation is “don’t”! Three examples:
- Oscar Wilde. Wilde need not have brought the libel action which eventually led to his disgrace, imprisonment, exile and early death;
- David Irving. A fine and persecuted (by the Jew lobby) historian, but not a lawyer. Need not have brought the case against Deborah Lipstadt, an American Jew-Zionist academic supported and funded by the worldwide Jewish/Zionist lobby. Insisted on appearing for himself. Said to have lost £2M in costs to the other side, at least on paper. He also, more importantly, had his books removed from large bookshop chains; some were even pulped. Large publishers dropped him;
- Count Nikolai Tolstoy. The only one of the three whom I have ever met (once). The only one of these three who was the defendant (there was also a co-defendant in his case). He lost, but eventually paid only £57,000 of the £1.5M awarded against him initially; he paid the £57,000 years later and only after the death of the plaintiff, Lord Aldington.
So, Twitter armchair lawyers and the perpetually outraged: don’t put your daughter on the stage, never wear brown in town and stop threatening libel suits against people, even if you can get lawyers you can rely upon…
Notes
https://ru.wikipedia.org/wiki/%D0%A4%D0%BB%D0%B5%D0%B3%D0%BE%D0%BD,_%D0%90%D0%BB%D0%B5%D0%BA
https://www.dworskibooks.com/index.php?route=information/news&news_id=3
https://www.telegraph.co.uk/news/obituaries/1430648/Alec-Flegon.html
https://en.wikipedia.org/wiki/Oscar_Wilde#Wilde_v._Queensberry
https://en.wikipedia.org/wiki/David_Irving#Libel_suit
https://en.wikipedia.org/wiki/Nikolai_Tolstoy#Controversy
https://www.amazon.co.uk/Books-David-Irving/s?rh=n%3A266239%2Cp_27%3ADavid+Irving
http://www.legislation.gov.uk/ukpga/2013/26/section/3/enacted
http://www.legislation.gov.uk/ukpga/2013/26/crossheading/defences/enacted
Blog Posts About “Mark Lewis Lawyer”
https://ianrmillard.wordpress.com/2019/01/11/update-re-mark-lewis-lawyer-questions-are-raised/
https://ianrmillard.wordpress.com/2018/12/22/mark-lewis-lawyer-latest-update/
Ian Robert Millard 