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Written
evidence from Tom Bower (PS 141)
Richard
Desmond issued a writ for libel against me in 2007 concerning two paragraphs in
a biography I had written about Conrad Black which referred, in passing, to
him. Pertinently, the writ was only issued against me as the author and not
jointly (as is usual) against the publisher Harper Collins (HC). Desmond may
have assumed that without the publisher's
support, I would be daunted by the inevitably huge costs (my successful defence
would eventually cost in excess of £1 million) and would immediately
capitulate. It is true that without the support of HC and its insurers, Hiscox,
I would have had to do so, in which case Desmond would have been able to claim,
falsely, that he was vindicated. I am advised by my solicitors that this
happens in many libel cases, where individuals or small publishers simply
cannot afford to defend themselves. Alternatively, his intention may not have
been to seek compensation for a trivial mention in the Black biography but to
prevent the publication of a biography which he knew I had written about him,
provisionally entitled 'Rough Trader', which has been vetted and passed by lawyers and
set for printing but has still not yet been published.
In issuing his writ against myself, Richard Desmond knew that the
unauthorised biography I had written about him contained accurate descriptions
of his past activities which he would prefer to remain unknown. Seeking a high
profile as the owner of Express Newspapers, OK magazine and dozens of other
publications, he rightly feared that the book's publication would damage his
reputation. By discrediting myself in the Black litigation he hoped to
permanently prevent the publication of 'Rough Trader'.
Desmond v Bower, as the case became known, raises the following
issues:
1] Libel writs are being used by the rich to suppress objective
discussion of the truth;
2] Specialist solicitors are encouraged by the attitude of the
courts to issue threats knowing that the cost of rebuttal by the media has
become prohibitive;
3] There is a prejudice by some judges against journalism;
4] The administration of the libel laws lacks even-handedness.
Desmond's complaint referred to two paragraphs in a
biography about Conrad Black. The substance of the facts as reported were
correct: indeed they were hardly in contention. The two newspaper owners
jointly owned a printing plant in East London.
In the midst of many arguments about its management and ownership, which had
resulted in Court proceedings in which Desmond's
witness was found to be unreliable, Desmond (the defence alleged) launched a
campaign denigrating Black in a section of the Sunday
Express called 'Media Uncovered'.
This section constantly published negative stories about the various media
owners, including Black. I referred specifically to a report on 3 November 2002
in which, under the headline, 'Bank
pulls the plug on Black', it was
claimed that TD Securities, a Canadian bank, had withdrawn a loan from
Hollinger, Black's publicly quoted
company, because Black's finances
were in jeopardy.
Although
he denied that the story was true at the time, Conrad Black was reported to be
horrified because the substance of the report was in fact true, although the
facts were not then known in the UK and the Express
report was slightly ambiguous on one point. In the course of my research, I
established that a director (who was not willing to be identified) serving on
both TD's and Hollinger's board knew that Black, publicly accused by a
shareholder in New York
of being a 'thief', was struggling to prevent a financial collapse. Black
had previously used the UK
libel laws successfully to his advantage to suppress the truth. On this
occasion also, Black sued Desmond and Express
Newspapers for libel. Soon after, Black uttered a defamatory aside about
Desmond, which was reported by the Telegraph,
allowing Desmond to issue a writ against Black in a 'tit
for tat'. Initially Desmond defended
the claim about Black's finances on
the basis that the Express's story
was true. As criticisms of Hollinger started to surface through the course of
the proceedings, he threatened to amend the defence to include these facts to
substantiate the original story of Black's impending financial collapse. Yet
despite this bullish behaviour, Desmond eventually agreed to mediation and as a
result both claims were settled: Critically, in the settlement Desmond
publically accepted Black's
assurances that Black's company was
not suffering any financial crisis, apologised and agreed to pay Blacks legal
costs. Shortly after, Hollinger did collapse and Black was forced to resign his
directorships.
I
considered it ironic that Desmond had been induced to apologise for something
that was, in fact true, when the Express
was not well recognised for its investigative journalism. Throughout the
previous chapters in the book, I had referred to Black's
propensity to use the libel laws to crush his critics. The paragraph in the
Black biography ended, 'Victory
against Desmond, a tough operator, vindicated Black's
remorseless pursuit of challengers. Grinding his critics into the dust never
failed.'
Desmond's
complaint against me was not based on the underlying facts referred to in the
paragraphs - there could be no dispute that the two sides had engaged in
litigation over West Ferry and in the libel proceedings, or that he had
withdrawn from the Express' scoop and had apologised to Black. His complaint
was with regard to my interpretation of those facts. He claimed that: 1] He
never interfered in the content of his newspapers and had not ordered the
publication of the story about Black and that 2] that the book's description of
Black's victory and the settlement outrageously portrayed him 'as a wimp' and
he thereafter would not be taken seriously by the business community.
My
defence was that the words did not bear those 'high' meanings at all, particularly if looked at in the
context of the book overall and that furthermore: 1] Desmond always interfered
in the content of his newspapers, and to say that a proprietor did influence
his paper was not defamatory; 2] that Desmond had apologised for telling the
truth, in that Hollinger was indeed in serious trouble and Black's writ had suppressed the truth. But beyond that, I
wanted to show that Desmond's
reputation was such that no jury properly aware of the facts could believe that
his reputation would genuinely be damaged by the trivial suggestion that he had
interfered in his newspapers'
content or could believe anyone would think he was a 'wimp'.
In
the words of my defence statement:
"The
words complained of are neither self-evidently offensive nor damaging to the
Claimant...The Claimant is notorious for the unorthodox manner in which he, as a
newspaper and magazine proprietor, exercises personal control over the content
of his publications, and for his dictatorial manner towards his staff, in
pursuit of his own agenda, interests and prejudices. In spite of the fact that
stories of his unusual conduct in these respects have been published widely and
repeated in the media... the Claimant has not challenged or successfully
challenged these allegations."
At
an early stage, my defence team applied to the Court for an order that the
words published were not arguably defamatory. Had they succeeded, the claim
would have ended at that point, at relatively little cost. I now understand
that for the claim to have been struck out at that stage it was necessary to
show that a jury would actually be perverse to find the words were defamatory,
and the Court of Appeal had shortly before made it clear this decision was for
the Jury, not the judge. Mr Justice Eady, who heard the application, indicated
that he thought that the jury might well find the words were not defamatory at
all, but he could not usurp that function. The net effect of this decision was,
though, that rather than having a claim that should have been recognised as
trivial at best struck out or contained at an early stage, the parties were now
left with incurring the costs of defending the claim to trial or giving in. The
structure of libel claims is such that the costs of so doing would inevitably
be totally disproportionate to any award of damages.
As
a result of this ruling, a full defence needed to be prepared. Although my team
did not believe that the words bore the 'high' meanings Desmond claimed, they
had to prepare a defence on that basis, as well as on the basis of what we
believed any reasonable reader would believe the words meant, or there would be
a risk the jury would disagree and we would then be left with no protection.
This requirement that a very expensive defence be prepared on the basis of
something the defendant believes to be a vacuous position is one of the
failings of the current law.
One
of the issues, as noted above, was the extent to which Desmond influenced the
contents of his newspapers. My investigations had unearthed evidence that
Desmond regularly interfered on an unprecedented scale, and that this was
consistent with the pattern of his business practices throughout his career. I
believed the information I had received was true and this should be included in
the defence so that the jury had the full picture of his pattern of behaviour.
I was also concerned that Desmond had built his empire through publishing
pornography. This was well known in the media, and I believed it was a relevant
fact the jury should understand. It was, possibly, that it was due to his deep
involvement in that sector that Desmond had what might be called a more robust
style compared to other media moguls. I was quite prepared to call a large
number of witnesses to prove the allegations.
Following
service of the defence, Desmond's
side went very quiet - although a Claimant has the responsibility to push their
case forward. Desmond, it appeared, was delaying the litigation which he had
initiated. Accordingly, my lawyers applied to the court for a trial date and
for directions rather than leaving this hanging over my head. Mr Desmond then
sprung a surprise. On the day that lists of documents were due to be exchanged,
Desmond's
solicitors suddenly announced they were going to make an application to cut
down the defence. At the hearing of the application, Desmond's
side argued that the meaning of the words I published should be strictly
interpreted so that the defence would be limited to pleading only material that
directly related to Desmond's
campaign about Black, and that the jury would not have the benefit of knowing
that this was part of his typical pattern of Desmond's behaviour. Mr Justice
Eady sided with Desmond and ruled that all the material that did not refer to
Black had to be excised from the defence. Subsequently he ruled that even
material that referred to Desmond's
attitude to the Telegraph - such as
the notorious 'Nazi'
incident - also had to be excised. This meant that Desmond was able to come to
court with a 'clean
slate'
- he argued that he had no personal grudge against Black, that the insults he
had published were just 'banter'
and that he did not influence what was reported in his papers. Equally
important, Mr Justice Eady ruled that the defence could not mention Desmond's
involvement with pornography or anything else detrimental to his reputation. Considering
the damaging and verifiable evidence set out in my defence reflecting the truth
about Desmond's past, Mr Justice Eady's ruling created a wholly artificial
position. We were fighting a battle where the odds were already against us, as
a result of the generous presumptions English libel law makes in favour of the
Claimants. But now, our hands were tied behind our backs and we were gagged
from producing evidence of Desmond's
behaviour with regard to other rivals, to his staff who did not do what he
demanded, and to his willingness to use his papers to advance his business
interests when it suited him (consistent with his previous methods of
business). We were not to be allowed to show that: 'the
Claimant (ie Desmond) treated Express
Newspapers as his personal vehicle to serve his own agenda'.
In early 2009, after the judge's
ruling, a new example of Desmond's interference arose in a High Court
settlement. My lawyers sought to introduce that settlement into my trial.
The uncontested evidence was that on 10
July 2008, Desmond had a telephone conversation with Jafar Omid, the Manager of
Pentagon Capital Management which had previously invested millions of pounds
belonging to Desmond. The vast majority of the money had been repaid to Desmond
and the fund was in the course of being liquidated but Omid was compelled on
legal advice to continue to hold £75,000 of Desmond's
son's money temporarily. Desmond was
outraged. Omid sought a peaceful settlement and called Gerald Ronson, the
property developer who was a friend of both Omid and Desmond. In a conversation
that was taped by Omid as a matter of routine for PSA compliance purposes, Ronson
warned Omid that Desmond was angry and was threatening to publish a damaging
story about him. Specifically, Ronson warned Omid, 'he's going to get carried away doing a big article.' As a result, Omid telephoned Desmond and Desmond
was recorded, again as a matter of routine, threatening that unless the money
was immediately returned he would publish damaging material. Desmond said, 'Let me tell you something Jafar. As good a friend
as I am, I'm the worst fucking enemy
you'll ever have.' In evidence during my
libel trial, the editor of the Sunday Express admitted hearing Desmond
talk about his complaint against Omid the following day, a Friday. Two days later, a two page article was
published in the Sunday Express
which among many false allegations, falsely stated that Omid had 'ripped off hundreds of small investors for an
astonishing £1 billion.' Omid sued
for defamation and Desmond surrendered in January 2009. In a statement to the
court, Desmond admitted that the story had been published as a result of his
remarks, and that there was no foundation for the material published. This
appeared to be incontrovertible evidence of proprietorial interference, very
similar to the circumstances in which we said Desmond published damaging
material about Conrad Black. In evidence during my libel trial, the editor of
the Sunday Express
admitted hearing Desmond talk about his complaint against Omid the following
day, a Friday, but both he and Desmond himself sought to distance Desmond from
the publication of the defamatory story. Desmond even suggested that he had
made the admission in the statement to the Court only for 'commercial reasons'.
My team considered it vital that the Jury should hear the tape for themselves
and judge if Desmond ordered the publication or if it had been at the Editor's initiative.
To be clear: my lawyers wanted to rely
on the Omid settlement as proof that Desmond was prepared to order the
publication of false stories in his newspapers in pursuit of a grudge. This was
similar fact evidence to the Express
article about Lord Black. My lawyers believed that the similar fact evidence
should be offered to the jury and wanted to produce the tapes and call Jafar
Omid as a witness. Mr Justice Eady refused to allow this. Initially, he declared
that the Omid case occurred after the Express' publication of the Black story in 2003 and was
therefore 'irrelevant' and inadmissible. He refused to let my team issue
a witness summons to compel Omid to bring the tapes to court and give evidence
as required.
His decision was appealed on 6 July
2009, on the day the trial started. Quoting a crucial precedent, the case of 'O' Brien', two appeal judges overruled Mr Justice Eady and
confirmed that a witness summons for Omid could be issued, for production of
the tapes and for him to testify. The appeal judges declared that Mr Justice
Eady was wrong in law to say that similar fact evidence had to relate to events
which occurred before the issues in the Desmond v Bower case. http://www.bailii.org/ew/cases/EWCA/Civ/2009/667.html
Despite the Court of Appeal's ruling,
Mr Justice Eady was not prepared to allow the defence to put in all of this
evidence.
In the course of the trial, Desmond
told the jury, 'I did not have a
grudge' against Omid. The jury could
only decide whether that was true if they heard all the evidence and saw the
consequence of the taped conversation in the Sunday Express article. The similarities
with his battle against Lord Black were so striking, so not surprisingly
Desmond's lawyers strenuously sought
to exclude the evidence. To their satisfaction, Mr Justice Eady did not
consider that the Court of Appeal's
ruling meant the evidence should be put before the jury. Although the jury had
heard Desmond's denials of a grudge
against Omid, Eady declared that the jury could not hear the tape recorded
conversation in which Desmond uttered his threat, or hear Omid's testimony.
Mr Justice Eady referred back to his
initial ruling: at the beginning of the trial, Mr Justice Eady had ruled that
the contents of the tape and the repercussions in the Sunday
Express could not
be put to Desmond unless through his evidence he opened up the issues himself. At
the end of the defence case, Mr Justice Eady was asked whether it would now be
possible to introduce the evidence, as supported by the Court of Appeal's decision, in order to contradict Desmond's explicit testimony that he did not have a grudge.
Mr Justice Eady now declared that it was too late because both sides had
completed their evidence and it would be 'unfair
to (Desmond) for me to re-open this question'.
However Mr Justice Eady accepted that he had originally ruled that any decision
about introducing the evidence should be left until the end of the Claimant's evidence. Now he said that he did not want to
prejudice Desmond's case. Instead,
his ruling risked prejudicing the defendant's
case. Accordingly, Mr Justice Eady refused my lawyers' application for leave to return to the Court of
Appeal. Notwithstanding this, in unprecedented circumstances and at short
notice, the Court of Appeal agreed to hear a second appeal. On 17 July, three
judges heard the arguments.
In a unanimous judgement, the Court of
Appeal agreed the evidence of the taped conversation should be admitted. Lord
Justice Hooper said, 'I have no
doubt the judge was wrong to exclude the evidence of the telephone call...Indeed
I would go further and say not to allow it would risk the possibility of a
miscarriage of justice.' Lord
Justice Wilson agreed: 'The trial
judge's decision can be clearly
shown to be wrong or otherwise to have produce injustice.'
http://www.bailii.org/ew/cases/EWCA/Civ/2009/857.rtf
Even so, Mr Justice Eady's response was not fulsome. He would not allow a
transcript of the conversation to be provided for the jury, which might have
made it easier for them to follow the tape, which was played just once through
a PC computer using inadequate speakers in the courtroom, and he refused to
order Omid to testify.
In the event, the jury's verdict was against Desmond. Considering that the
balance in libel trials considerably favours the plaintiff, and that so much
evidence was excluded, this outcome was by no means certain. Moreover, I could
never have afforded to defend myself without the support of my publishers and
their insurers. Had I been forced to back down, I would always have felt a
sense of great injustice.
I believe Mr Justice Eady should have
been able as a matter of law to respond positively to my lawyer's application to strike out the case at the outset.
He accepted that the words Desmond complained about were barely defamatory and
might be held by a Jury not to be defamatory at all. In such circumstances, it
would have been disproportionate for Desmond to have ever been awarded any
substantial amount of damages - but by being unable to stop the case at that
stage both sides were left in a position where they would have to expend
totally disproportionate amounts of money to present their case. For such a
case to proceed, at such risk of costs, against an individual who does not have
the resources of the Claimant, a billionaire, risks a serious miscarriage of
justice, not least because Desmond's
reputation was never seriously at risk. It was ludicrous for him to be able to
suggest that anyone would seriously think he was a 'wimp' as the result of the words I wrote, or that it
would affect him in business in any way. Desmond's
complaint was contrived to suppress the unauthorised biography of himself. No
author, or even publisher, should risk losing £3 million in a suppressive libel
action. Many people have speculated as to why
Desmond continued with the case once it was clear I had financial support for
my defence. I believe that Desmond was encouraged to proceed by the fact Mr
Justice Eady refused to let me adduce evidence about Desmond's reputation and business practices generally,
since this may well have encouraged the newspaper proprietor to believe that he
could exploit the Jury's ignorance
and win the case. Without that encouragement, the case may have been resolved
very much sooner.
November 2009
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