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