- Public Scandal, Odium and Contempt: An Investigation of Recent Libel Cases by David Hooper
Secker, 230 pp, £12.95, September 1984, ISBN 0 436 20093 7
Years ago, the Sunday newspaper I had joined as a junior reporter sent me one Saturday afternoon to see Sir Thomas Beecham, then at the height of his fame as a conductor. The paper had written his profile, and I was told to take a proof and show it to him, to ensure that it was factually correct. Clutching the galleys, I rang the bell at his house in St John’s Wood. Sir Thomas himself opened the door. He did not seem friendly. However, he allowed me into his drawing-room, though without offering me a chair, and himself sat down and began to read. Never before or since have I seen anyone so slowly and yet so inexorably come to the boil. His face flushed, his back straightened, and his eyes widened. Then he rose to his feet, and finally he exploded. ‘If this article is published, young man I shall sue your newspaper for one hundred thousand pounds.’
A hundred thousand pounds seemed a lot of money in those days. Controlling my instinct to bolt, I must have stammered out some question about the nature of the libel he was sure we had committed. In answer, he picked up a pencil, scratched at the proof, and thrust it back at me. ‘Take this to your editor.’
In the taxi, I examined Sir Thomas’s pencil scratchings. One of them occurred early in the article, where it said that the founder of the Beecham family fortunes had started his business success by selling Beechams Pills under an umbrella in the streets of Liverpool. The other scratch indicated a passage saying that Sir Thomas had an imperfect understanding of Wagner. Back at the office I hurried in to see the editor. By now it was half-past four and the first edition was due to go to the printers at half-past five. In the editor’s office, I found not only the editor but the business manager, both happily unaware of the catastrophe about to strike. I blurted out my tale. To my astonishment, neither man appeared in the least disturbed. The manager smiled. ‘Well,’ he said. ‘An action for libel between Sir Thomas Beecham and the Observer ... the publicity value would be very great. It would do us nothing but good.’
For a few minutes, the atmosphere in the editor’s office was almost euphoric. In those days, newspapers used to divide libels into ‘good libels’ and ‘bad libels’. The distinction was between actions that would allow the paper to appear in a good light – fearless, champion of the liberty of the press and of the people’s right to know – and actions that made a paper appear in a bad light – vindictive, careless, trivial. Here, obviously, in respect of Sir Thomas, was a ‘good libel’.
Slowly, however, doubts crept in. Suppose the paper really had libelled the great man? Lawyers were telephoned. I did not make the calls but I became aware that caution was being advised. The facts might be true about the ancestor and the umbrella: but were they perhaps being phrased in such a way that they tended to bring Sir Thomas into ridicule? And Wagner: might not that reference seem to reflect adversely on Sir Thomas’s competence and musical knowledge? Might not some impresario planning a concert by Sir Thomas read the article and, if Wagner was on the prospective programme, change his mind? Was the Observer sure that no such concert was in the wind?
Modified panic replaced the euphoria. The profile was ordered out of the paper (such things were possible before the arrival of the new technology); the writer was told to amend the piece; I was sent off with the reset galleys to find Sir Thomas. He and Lady Beecham were at a theatre, sitting in the stalls, with the curtain about to go up. Kneeling, I handed Sir Thomas the revised version and, as the lights went down, he read it. He did not speak, but he condescended to nod. Two emotions then assailed me. I was relieved, but I was also – and this emotion has stayed with me – humiliated. Why should this vain man be able to cause the prose of an honest writer to be changed, and weakened, merely because his judgment might be thought by a jury to dent an established reputation? Perhaps the vanity, and the reputation, should be dented.
Such thoughts, in the head of a tyro reporter, were of course naive. But the central point of this episode still stands. It relates to the uncertainty of the libel laws. Nobody had much idea then, and nobody in a similar case would have much idea now, what the outcome of a libel action taken by Beecham would have been. The law in general is full of surprises, even to lawyers: but the libel laws are especially untidy and unpredictable. The other day, writing a column, I described someone as a Marxist. My newspaper’s lawyer read this term and asked for my evidence. I had none that I knew beyond doubt that I could produce in court. So the word was excised, while the lawyer said, only half-seriously, that possibly another lawyer would take a different view as to whether, in this context, the word ‘Marxist’ was, or might be held to be, defamatory by a jury.
To this uncertainty is added another: the cost. Who knows what damages may be awarded? Who knows at the start of a libel action what the lawyers’ bills will turn out to be? The Daily Mail defended a case against the Moonies. The paper had said that the church was in the habit of brainwashing its converts. When the first writ arrived from the Moonies on the desk of the Daily Mail management, who could have predicted that before the case was over the legal costs would be reckoned at £750,000?
The author of this book, Mr David Hooper (Eton and Balliol, the blurb tells us), practised at the bar before becoming a solicitor. He acts as an adviser to his present publishers, but, as the blurb also tells us, was not consulted about this particular book. This faintly ironic tone is characteristic of Mr Hooper’s writing – or should I say ‘of Mr Hooper’s own writing’? He has had the excellent, useful idea of examining the operations of the libel laws during this century, and of retelling the liveliest court actions. He tops and tails these stories with reflections on the libel laws as they now stand.
One must be careful, writing a review of a book that features living persons once involved in court actions, not to say that X was made to appear especially ridiculous, or that Y was clearly telling lies. One may say, however, I hope without fear of retribution, that almost all (the use of the word ‘almost’ is a notorious escape hatch) the people involved in these cases appear, in my opinion (another such device: stress the fact that what you are stating is your own personal view), comic. Of course, many libel actions are brought, and defended, because genuinely serious issues are at stake. It was a serious matter when the Sunday Telegraph accused Mr Jack Hayward, a successful businessman, of being involved in a criminal conspiracy to murder Norman Scott, the friend of the Rt Hon. Jeremy Thorpe MP. It was a serious matter when a book by David Irving was read as suggesting that Captain Broome RN, the commander in 1942 of the destroyer escort of a wartime convoy taking supplies to Russia, had disobeyed orders and had been indifferent to the fate of the merchant ships in the convoy and their crews. But if these were serious matters (both Hayward and Broome won their actions) many of the cases recounted here by Mr Hooper are reminiscent of the proceedings before Mr Justice Cocklecarrot in Beachcomber’s ‘By the Way’ column.
Long ago – it is more prudent to take examples from years past, hoping that all concerned are safely dead – an advertisement appeared in the Evening Standard:
Beware of the Yo-Yo. It starts as a hobby and ends as a habit.
Take warning from the fate of Mr Blennerhasset, as worthy a citizen as any that ever ate a lobster at Pimm’s or holed a putt at Walton Heath. ‘Sound man, Blennerhasset,’ they said on Throgmorton Street. ‘Nice people, the Blennerhassets,’ was the verdict over the teacups and in the local tennis clubs. But Yo-Yo got him ... and today he is happy in a quiet place in the country and under sympathetic surveillance he practises Yo-Yo tricks, having succumbed to the fascination of Yo-Yos. So beware of Yo-Yos which start as a hobby and end as a habit.
The advertisement had been inserted by Novelty Sales Services Ltd to promote their Cheerio 99 Yo-Yo, a child’s toy. On the day it was printed a stockbroker named William Blennerhasset was greeted with laughter when he went onto the floor of the London Stock Exchange. He decided to sue. His problem was to prove that there were enough similarities between the Blennerhasset in the advertisement and himself for people reasonably to associate the two. He was, he said, in the habit of lunching at Pimm’s, a well-known restaurant of the day. He liked lobster. He was the only stockbroker named Blennerhasset, and the only person of that name associated with Throgmorton Street.
Under cross-examination by Sir Patrick Hastings, however, Mr Blennerhasset admitted that he did not play golf, did not play with a Yo-Yo and had never been in a lunatic asylum. Not making much progress on the confusion of identity argument, Blennerhasset then called one of his partners into the witness-box to prove an allegedly damaging innuendo in the advertisement. The partner suggested that people might think that the advertisement was an attempt by Blennerhasset to promote himself to the public, which would involve disciplinary action by the Stock Exchange, since advertising was strictly forbidden. ‘It may have seemed a good point,’ remarks Mr Hooper, ‘until he was asked by Sir Patrick: “If you wanted to advertise yourself as a member of the Stock Exchange, would you select a picture of yourself being escorted into a madhouse with a Yo-Yo?” ’
Sometimes the absurdities that often hover about libel actions involve the judges. The Daily Mirror columnist, William Connor, was sued for making false accusations of homosexuality against Liberace. Under cross-examination Connor was asked about his ‘vitriolic’ manner of writing and questioned about a reference he had once made to poodles ‘mincing and prancing in attendance on the fancier tarts of the town’. Summing up, Mr Justice Salmon found himself drawn into a defence of poodles: ‘what many people thought a very brave and rather sporting race of dogs’.
One of the most thought-provoking chapters in the book concerns the famous libel action brought against the Spectator by Aneurin Bevan, then Shadow Foreign Secretary, Morgan Phillips, Secretary of the Labour Party, and Richard Crossman, a member of the Party’s National Executive. They had gone as official delegates to a congress of the Italian Socialist Party in Venice, and the Spectator had said that they ‘puzzled the Italians by their capacity to fill themselves like tanks with whisky’, and that the Italians ‘were never sure if the British delegation were sober’. The case ended in victory for the politicians and has been much discussed ever since. Mr Hooper has been back over the evidence. In his acknowledgements, he thanks for information several of those involved in the case and its aftermath: Ian Gilmour, then the proprietor of the Spectator; Brian Inglis, its editor; Michael Foot, Bevan’s biographer; and Iain Adamson, the biographer of Gilbert Beyfus QC, who appeared for the politicians. Having argued the case again, with the benefit of new information, Mr Hooper concludes: ‘the plaintiffs’ case was an untrue one.’ The Spectator lost because of perjury.
Many libels arise by accident. The Spectator did not intend to libel the politicians. Jokes can be especially dangerous, never seeming funny after they have been repeatedly read out in court and dissected by lawyers. As the editor of Private Eye once ruefully remarked, libel actions are rarely laughed out of court. Mr Blennerhasset was an exception.
Mr Hooper is in no doubt that the libel laws are in need of reform: he calls them ‘very uncertain in operation, extremely expensive in practice and unduly technical in application’. Everyone who has had anything to do with libel would agree with him. A High Court judge, Mr Justice Faulks, chaired a high-powered committee that recommended reform in March 1975, nearly ten years ago. Nothing has been done. Neither Labour nor Conservative governments are ready to find time for legislation, and the reason may be that politicians think the unreformed laws suit them. Probably they are right. In the House of Commons politicians can say what they like about anyone, however outrageous or malicious. They enjoy absolute privilege.
Nobody suggests that individuals or news organisations should be equally unfettered. But these organisations are at present seriously hampered. For instance, local newspapers should be local ombudsmen. Mr Hooper points out, however, that local newspapers ‘run a considerable risk in ventilating some matters of local controversy if the information they are given and publish in good faith turns out to be inaccurate’. A paper may be in trouble if it prints a story, for example, about the way a company disposes of toxic chemicals and gets some of the technicalities wrong. So editors and their libel lawyers incline to caution. There should be ‘a shift in favour of the media by permitting a defence of fair information on a matter of public interest’.
A more rational means of dealing with the money involved in libel suits is equally urgent, and equally unlikely to be found. No legal aid is available for libel, which means that ordinary people are unable, or at least unwise, to contemplate actions unless they have an open and shut case. Even the victor in a libel action can find himself badly out of pocket. A libel jury cannot be given guidance about damages; its members may be told, unhelpfully, that damages should be ‘substantial’ or ‘modest’. So they pluck a figure out of the air. In Australia, in a case involving alleged allegations that cricket matches between the West Indians and Australia in the Packer-sponsored World Series were rigged, a jury has awarded Clive Lloyd, the West Indies captain, a hundred thousand Australian dollars. The other members of the two teams, plus the umpires, plus Mr Kerry Packer, are lined up in Clive Lloyd’s wake, so that the newspaper’s final bill could come to two or three million dollars. The same thing could easily happen here.