Examination of Witness (Question Number
120-139)
MR MAX
MOSLEY
10 MARCH 2009
Q120 Chairman: Given that the opportunity
to take an action for libel is running out fast, you are saying
at the moment you have not reached a definite decision as to whether
or not to do so.
Mr Mosley: That is correct. There
are arguments both ways. One of the problems is, first of all,
there might be a perception that I was overdoing it. People would
say "You have been to court, you have won, why are you doing
this?" It would seem almost as though I was money grabbing.
The other thing is the money grabbing is more apparent than real
because if I sue for libel and win it is doubtful that the damages
plus the costs that the other side would pay, or the amount of
money the other side would pay towards my costs, would equal the
bill that I would get from my lawyers. It is a fairly open question
whether it is worthwhile. Obviously we are looking at it. Also
they said I was a liar and it has been proved beyond any doubt
that I was not so a lot of people would say why are you bothering
to sue, you have been vindicated on that point already. The further
final point is there are proceedings on the Continent, particularly
in Italy and France, which are primarily criminal proceedings
against the editor and the chief reporter, and possibly other
people, but to these criminal proceedings I have been able to
attach a civil action for libel. Those actions are going through
anyway. Always as someone in my position you have this feeling
do not over do it. There seems to have been, judging by the blogs,
enormous public sympathy and you tend to lose that sympathy if
you pursue something in a way that might almost appear vindictive.
Q121 Chairman: You suggested that
the principal reason you went for a privacy action rather than
libel was the speed at which it could be heard in court. Had it
been possible to have the same sort of timetable for a libel action,
would you have chosen libel?
Mr Mosley: I would have done both.
To me it was clear that there were two elements to this. There
was the element which was true but very private and very embarrassing
and then the element which was untrue which was the Nazi allegation.
I would have pursued both because even if there were no Nazi allegation
at all and they had simply revealed that I had been involved in
a sadomasochistic party, I prefer to call it, that was, to my
mind, a grossly illegal and unacceptable invasion of privacy because
it was completely private. No-one outside had any knowledge or
anything to do with it. That, to my understanding, was a breach
of the law not just since the 1998 Act but even a breach of the
earlier law on confidentiality and a large number of issues. I
would have attacked under that anyway but I would have been very
happy to attack under libel at the same time.
Q122 Chairman: The assumption has
been on the part of the newspapers that somebody in your position
would not want to go to court because it would simply lead to
day after day of further details of what you have said was extremely
embarrassing for you. To what extent was that a consideration
or were you determined that you wanted to pursue this?
Mr Mosley: It was certainly a
consideration because at the very first meeting I had with the
lawyers they pointed out to me, first of all, that there would
be an offer, in all probability, from the newspaper. If I did
not accept that offer and insisted on going to court and subsequently
recovered less than they had offered, I would pay all the costs
from three weeks after the date of the offer until the thing was
finished. That was the first thing that was pointed out. It was
also pointed out that damages awarded in privacy actions tended
to be very low indeed, single figure thousands. Single figure
thousands are a lot of money but by comparison with the costs
involved it is almost negligible. That was the first consideration.
The second thing they pointed out was they said if you go to court
and you win, everything works, first of all you are going to have
the entire matter debated in public; that which has been published
which you did not want published, that which was private that
you did not want published, will be published all over again in
more detail with them able in court to make any allegation they
like about you because it is absolute privilege if their witnesses
say things. You will get all that in the papers again and then
after that is over if you win if you add the damages that you
have recovered to the costs that you recovered from them as well
those two things together will be less than the amount of money
you are going to have to pay your lawyers. What you get is a whole
repetition of the damaging publicity, you get the thing all over
again, plus you get a large bill which you have to pay so you
end up paying the damages.
Q123 Chairman: You are saying that
the costs awarded were not sufficient to cover the total costs.
Mr Mosley: Indeed. In round figures
my costs were slightly more than £500,000. The costs that
the News of the World had to pay, the so-called taxed costs,
were £420,000, there were £60,000 damages, and then
there were other bits and pieces of expenses that I had to meet
myself. I was left with a bill of something of the order of £30,000
altogether. To me it was worth it but to an awful lot of people
they would say "If in addition to getting everything repeated
again, exactly that which I wish to keep private, I am going to
have to pay a big bill, I will not do it." That of course
is exactly what the newspaper's calculation is as you said at
the beginning of your question. Most people, in fact you could
almost say a rational person, would not sue. I just felt that
it was so outrageous and also, because of the Nazi element, they
had put me in a position where the entire world knew this; it
was not just England. In my present job I am elected by more than
200 organisations worldwide, the National Motor Sport Authority
of about 120-odd countries plus large motoring organisations in
those countries. If it had just been England it would not, from
my point of view, have mattered so much but it was not just England.
It was on the internet and everybody knew and then it was picked
up all over the world by different newspapers and so on. Although
I am not a significant figure in England, because of my position
in motor sport I am quite significant in certain other countries.
Q124 Paul Farrelly: You have said
in your very succinct submission that "The News of the
World has shown its contempt for the law", given the
decision that was made in your case, "by applying for the
title of `Newspaper of the Year' on the basis of my case."
You have helpfully attached the News of the World's submission
for the award. One could understand, and the public might understand,
in those circumstances you going for the newspaper again to have
a punitive element to your pursuit of them so one might understand
why you might go for libel as well. I am not sure I am convinced
by your case on costs because I would have thought there would
be umpteen firms of lawyers queuing up at your door offering you
a CFA to go to the News of the World in which case it would
almost surely settle before it came to court.
Mr Mosley: There is an element
of that. You are absolutely right that it is quite likely that
I could negotiate a CFA—I think that is what it is called—and
it would be attractive to a law firm because their chances of
success would be very high and therefore their chance of recovering,
I think it is double or significantly more, costs would be high.
It is attractive and that is one of the things we are thinking
about. The other element to bear in mind is I have to be careful
not to appear to be trying to be money grabbing or vindictive.
An awful lot of people standing back from it tend to say "You
have got what you wanted. You have proved that they did not tell
the truth." Also punitive damages, which are the things that
really upset people, do not seem to be available. You might get
a jury that was really incensed by their conduct and awarding
a very big sum but then those sums tend to be reduced on appeal.
It seems that the maximum in libel is not that big. Of course
what they would be saying in court is "Here is this man.
He has got a certain amount of money himself. He is coming after
this newspaper and trying to help himself to more." They
could make it sound as though I was behaving badly.
Q125 Paul Farrelly: One of the areas
we are interested in exploring and inquiring into, not necessarily
in your particular case, is the potential of CFAs for abuse, that
it becomes a racket for the lawyers and that people who are well
able to fund their own cases have resorted to CFAs because it
has more of a chilling effect on newspapers. You might not have
such sympathy for newspapers but these are perception concerns
that you are bearing in mind at the moment.
Mr Mosley: Yes. To my way of thinking,
CFAs are absolutely vital as part of the English legal system
in order to protect the interests of people who cannot afford
themselves to bring one of these actions, and without those it
is very, very difficult for somebody with ordinary means, even
somebody earning quite a lot of money, to think about bringing
a case. A big libel action you are talking about £1 million
and an ordinary person cannot do that and even quite a wealthy
person has to think very, very long and hard. If I had lost my
privacy action against the News of the World I would have
ended up with a total bill very close to £1 million. Ordinary
people cannot do that. How do you protect ordinary people if you
do not have a really draconian criminal law to deal with libel
and privacy invasion? The only way that I can see are these CFAs.
If they exist, and I think it is quite right they should, it is
slightly an abuse of the system if somebody who can afford to
bring an action themselves then uses that as a way to punish the
newspaper and because the editors watch every move particularly
I make in this area I am sure they would not hesitate to point
that out. I would not want to do anything that might cast any
doubt whatsoever about the need for those CFAs in order to protect
the vast majority of people in this country who cannot afford
to put £1 million on the line in order to protect their reputation.
Q126 Mr Evans: I am a little confused
as to exactly what is going through your mind at the moment as
to whether you are going to sue for libel or not. As Paul suggested,
you could do a conditional fee arrangement which is there but
you are doubtful because you do not wish a jury or the court of
public opinion to think that you are acting badly so you are going
to show some Christian compassion towards the News of the World.
Mr Mosley: I do not think you
could ever accuse me of having Christian compassion towards the
News of the World. No, it is a slightly different thing.
First of all, the court of public opinion, it is interesting you
have raised that point because when the BBC did a big interview
on the entire issue there were 715 entries on their blog and it
came out at just a shade under 80% on my side and just a shade
over 20% on the News of the World side so the court of
public opinion is very clear. The public opinion polls I have
seen which are relevant are very clear. The public do not like
the degree of intrusion into privacy that the current tabloids
go in for. It does not mean they will not read it. Very few of
us confronted with a completely outrageous story about some pop
star and what they did or did not do and you are on the train
and it is there but it does not mean that you think it is right
that it should be there. Public opinion is fine. What I do not
want is to appear to be somehow a bully in this thing. Also bear
in mind that with all these actions going on on the Continent
people might start to say are you not overdoing it. The obvious
thing for me is to wait and see how the actions on the Continent
evolve and what actually happens. There is a possibility that
the editor and the chief reporter could go to prison. If that
happened, or if it looked seriously like it was going to happen,
that would change the perception completely. It is one of those
things where I will know a lot more when it comes to make your
mind up time than I know now.
Q127 Mr Evans: If they go to prison
you will think they have suffered enough but when you see front
pages of the News of the World with those sorts of headlines,
what went through your mind when you saw that for the first time?
Mr Mosley: It is very difficult
to describe something like that coming completely out of the blue.
Do not forget it is not as if I had done something a bit "iffy"
on the Friday and there it is in the paper on Sunday. I had been
doing this for 45 years and there had never been a hint, nobody
knew, and suddenly at 10 o'clock on Sunday morning I get a phone
call saying "Have you seen the News of the World?"
I said "No, I have not." I never see the News of
the World. I went to the local newspaper shop and bought two
copies and I was horrified. The sensation is a little bit like—and
it has never happened to me fortunately—coming home and
finding your front door open and everything in your house removed
by thieves. You would be shocked, annoyed, angry, outraged. You
would have a deep sense that the law had been broken but an even
greater sense that you had been invaded. It is sort of like I
imagine that would feel. Thank God it has never happened to me
but it is the same sort of sensation. What a lot of people do
not appreciate is it is a little bit like road accidents: you
read the statistics but people do not actually think about the
individual family and the knock on the door by the policeman coming
to tell you the terrible news about the father, the brother, the
son, the daughter or whatever. One does not realise when you read
these things, where certain people say they should be allowed
to publish because it is sells newspapers, the appalling impact
on the family. It is the most terrible thing you can imagine.
I sit here I hope quite rational, reasonable and so on but it
is a terrible thing. It is like imposing on someone the most enormous
penalty. It is like taking all your goods, taking all your money;
in fact it is worse because if someone took your goods and your
money you have some chance of replacing it—even if you are
not insured you can work—but if somebody takes away your
dignity, for want of a better word, you can never replace it.
No matter how long I live, no matter what part of the world I
go to, people will know about it. It is not that I am ashamed
of it like I am not ashamed of my bodily functions but I do not
want them on the front page of the newspaper.
Q128 Mr Evans: Are you still going
through it? When you go to functions, do you hear people sniggering
behind your back and making jokes?
Mr Mosley: No, people are too
dignified for that. People do not do that but you know that they
know. No-one would ever be rude enough to make an unpleasant joke.
People who know me very well will make jokes about it and that
is fine; I am a grown-up adult. You go into any place, a restaurant
or anything and nobody says anything but you know they all know.
You know that in any country you go to, and I go all over the
world, I know they all know and that is not very nice for me.
What is appalling is for my family. My wife did not do anything,
my sons did not do anything, but they are the ones that feel more
embarrassed than anyone. Putting myself in the position of my
sons, imagine seeing pictures like that of your father; it is
appalling. If there was a huge genuine public interest in subjecting
a family or individuals to that sort of thing, of course one should
do it but it has to be a very big public interest because the
suffering you impose not just on the victim but on his family
is really, really serious.
Q129 Mr Evans: That is the point
I wanted to bring out to talk about pre-notification where you
have suggested there is a loophole in the law. In your written
submission you say if an editor wishes to publish an item which
he knows or suspects is an illegal invasion of privacy it is in
his interests to keep his intentions secret from his intended
victim so that by the time the victim finds out it is too late
to do anything. You contend that is exactly what happened in your
case.
Mr Mosley: Indeed.
Q130 Mr Evans: Could you tell us
about pre-notification? How do you think this requirement for
pre-notification would work? How would it have worked in your
case do you think?
Mr Mosley: Of course it could
be represented to be a huge inconvenience to newspapers but if
one looks at the reality you have got a mass of cases where they
publish something about somebody where there could be no possible
suggestion that that person might object and then you have a number
of cases where the person might object but it is clearly in the
public interest. A classic case of that would be the recent exposé
in The Sunday Times about peers accepting money for allegedly
discussing legislation. In between there is a small band of publications
which could be said to invade privacy, where the editor knows
perfectly well that it is an invasion of privacy and it is probably
illegal, and it is on those occasions that they go to enormous
lengths to keep it secret from the victim. The way in which they
do this—and they did in my case and also in the case of
the chef Gordon Ramsay—is they publish what they call a
spoof first edition. They have a story in the first edition that
bears no relation to the real story because they know the first
edition is probably available on the streets in London around
about 10.00 pm on Saturday night. You could get that first edition
if you were lucky, particularly if you had any sense of being
watched, which I must say I did not because I never have the papers
on Saturday night, and then have time to get on the phone, get
the lawyer and get the judge if you have the right connections.
They publish the spoof first edition and then the real edition
comes out in the middle of the night and it is impossible for
the victim to do anything. They would not do that if they did
not think that the victim would have every chance of getting an
injunction. In my case they knew perfectly well that if I had
known about it and gone to a judge I would have got an injunction.
You can say "Good for them, they have found a loophole in
the law", but what I am saying is there should not be a loophole
in the law. What I am saying is they should be obliged in cases
where they know that the person is going to object to that publication
and there is a substantial chance that he will go to court and
could get an injunction that they should notify him. In my submission,
the case for that is unarguable and I will explain why. The moment
you say that it should not be obligatory to give the individual
an opportunity to take the matter before a judge what you are
really saying is that in carrying out this sometimes very delicate
weighing balance between Article 8 of the Convention and Article
10 the best and most qualified person to carry out that delicate
weighing up of interest is not a High Court judge but the editor
of a tabloid, and not just an editor of a tabloid but the editor
of the tabloid who is dying to publish the very story which is
the subject matter of this weighing. That follows absolutely logically,
at which point to say that the editor is better qualified than
a High Court judge is so manifestly absurd that I do not think
any rational person could support that argument. Then it becomes
a question of convenience. The relatively small numbers of cases
which are not either clearly in the public interest, like the
peers, or clearly completely innocuous and harmless, are a relatively
small number and in those cases they should notify the victim
and the victim then gets an opportunity to go. It may inconvenience
the newspaper slightly but if I owe somebody money and they want
to come and seize my goods because I have a large debt that I
have not paid it is a little inconvenient for them to go to court
but that is what they have to do. Not even the most powerful body
can come in and seize your goods without first going to a judge
and getting an independent person to say you can do it and yet
we currently allow the editors of these tabloids, without referring
to any outside body, without any sanction whatsoever, to simply
by-pass the law and put the victim in a position where he has
no remedy. Once a privacy matter is published you have no remedy
because it is out there in the public mind. Not even the most
powerful judge in the land can take from the public mind that
which has been put in it and put it back into privacy; it is gone;
it is out; it is there. That is the essential difference between
privacy and libel. People often confuse these. In libel somebody
accuses you of doing something outrageous, you go to court, you
prove you did not do it, and the court, first, says you did not
do it and, secondly, gives some damages: you are vindicated. You
can say to the world "I am not a thief" or whatever
it happens to be. With privacy all they can do is say it should
not have been published, but it has been. You are in the situation
now with a privacy action, once it is out in the open, like somebody
who has had his leg broken by negligence and goes to court and
gets his other leg broken because he gets another helping of publicity
and a large bill into the bargain. It cannot be right in my submission.
Q131 Mr Evans: We had the libel lawyers
in last week, as you may know, and they were talking about the
practice of accountants sitting down with lawyers working out
that a story is completely wrong but still going ahead with it
because they think it will be good for sales and good for circulation.
You believe that pre-notification would be able to nip that in
the bud and that it would go to a judge and they would make that
decision.
Mr Mosley: I think it would. One
has to remember that under the Human Rights Act the press through
their lobbying managed to erect a big hurdle that you have to
get over in order to get an injunction. The myth is put around
by Fleet Street that if you know you just go and get an injunction.
This is absolutely fundamentally untrue. Lord Wakeham, in more
or less his last speech as chairman of the Press Complaints Commission
(PCC), was quite fulsome about the lobbying success that they
had had in getting Section 12 of the Act put in there. Section
12(3) says you have to satisfy the judge that you are likely to
win the action. It is a much higher test to get an injunction
in a privacy matter than in the law generally. The classic example
in the law generally is you have a tree at end of your garden
and I say I have the right to cut it down and you say I have not.
You will probably get the injunction because the judge will say
once he has cut the tree down you cannot put it up again so the
balance would be on your side getting an injunction rather than
my side which would be to cut the tree which is completely rational.
The press managed to get that changed in the case of privacy where
the judge would not just say "Hang on a minute because if
this goes out into the open everyone will know about it",
which would be the normal test, it is a higher test which is "Am
I, the judge, satisfied that this is a case which this claimant
is likely to win." It is quite difficult to get an injunction.
If you can go to a High Court judge and satisfy him that you are
likely to win the privacy action, it cannot be right that the
paper should publish it. Even more it cannot be right that you
do not get the opportunity to do that so that your rights are
completely bypassed and you are left with no remedy. It is also
a breach of the Convention on Human Rights because the Convention
puts on the UK government the duty to provide you with a remedy.
In my submission, as things stand at the moment for the reasons
I have explained, we do not have a remedy.
Q132 Mr Sanders: There are a couple
of problems with pre-notification and the first is that there
is a tension between Article 8, the right to privacy, and Article
10, the freedom of expression and the fact will pre-notification
actually stifle the freedom of expression of somebody that wished
to publish something. How would an ordinary member of the public,
who is phoned up on a Saturday to be told there is something that
will be in the paper on Sunday, actually know how to contact a
judge in order to get an injunction? Where would you start, ring
up your local solicitor? They are not open on a Saturday. How
would an ordinary member of the public do that?
Mr Mosley: That is a very good
point. On the first point about stifling, the whole task of a
judge confronted with finding a balance between Article 8 and
Article 10 of the Convention and Section 8 of the Act, is that
he weighs the balance of the public interest against the interests
of the individual whose privacy is being invaded. That is what
the judge does. How can it possibly be said that the judge is
the wrong person to make that assessment. All it would stifle
would be people like the Editor of the News of the World
who deliberately breached privacy, find their way around the law
and find a way of doing it in breach of the law. What the News
of the World did to me, and what numerous newspapers do to
numerous individuals, is a complete breach of the law. They know
it is a breach of the law and that is why they publish the spoof
edition. When it goes to a judge, the judge actually weighs precisely
the point that you have been good enough to make. It is a balance
between the two: do we stop it being published because the public
interest may require it to be published or do we allow it to be
published despite the privacy of the individual. The idea that
any time you ask a judge for an injunction you get one is a myth
for reasons I have already explained. If you imagine, for the
sake of argument, the unfortunate peers in The Sunday Times
case. They had a clandestine recording made of what they said
which prima facie is a breach of privacy. If one of them
went to a judge and said "My privacy has been invaded",
the judge would say "Your privacy has been invaded but let
us look at the public interest. You are a peer. You are responsible
for legislation" and all the obvious arguments and the judge
would throw them out and quite rightly. For exactly that reason
The Sunday Times did not hesitate to approach each of those
peers and ask them what they thought. There was prior notification
because there was no need not to notify them previously. It always
comes back to the same thing as to who is the right person to
take the decision: is it an independent High Court judge, who
after all are probably some of the most straightforward, honest
independent people in the land, or is it a tabloid editor who
has a massive commercial interest in publishing them. To me there
is no discussion, plus we have the law of the land and it is up
to the courts to follow it. On your second point, that is a very
valid point and the way to deal with that, in my submission, is
to require that prior notification be given with sufficient time
so that people have an opportunity to do something. As you quite
rightly point out, even I would be in difficulty on a Saturday
night, or not now because I have had all this and I know exactly
who to ring, where to ring and I have their home numbers. Any
normal person, even somebody prominent, is not necessarily going
to have a lawyer with expertise in this area who knows exactly
who the duty judge is in the High Court and to get hold of him
and ring him. You are absolutely right that you need a period
of time; you need two, three or four days' notice. For example,
the News of the World in my case knew what was going on
but they only did the filming on the Friday. There would be no
difficulty about publishing that a week later. They could have
held that over to the following Sunday; it is not a problem. When
you weigh the minor inconvenience for the editors against the
appalling consequences for the family of the victim in my submission
there is no discussion. They should give reasonable notice and
enough time so that anyone can get hold of a local solicitor who
will then say "I am not an expert but I can tell you in two
minutes who is" and he opens a book and gets hold of them.
Then if it was somebody who needed it, and most people would,
there would be a conditional fee arrangement if it was a strong
case.
Q133 Paul Farrelly: I should say
that I used to be a journalist and I worked for Reuters, The
Independent and The Observer, organisations which either
would not or could not afford to pay money for a story so I do
not think your sort of story would have fallen into my lap for
free and therefore presented my editors with the dilemma of publishing
or staying true to more highbrow principles if they had them.
We would be put in a position where we would have a real dilemma
supporting the lines you were advocating where it came to investigative
stories which we would think would be in the public interest:
investigating dodgy business deals, acts by government and so
forth. We would always want to get a comment but we would not
necessarily want to give very much time for that comment with
the knowledge that organisations such as big business or government
might seek an injunction on any grounds they could simply to stop
the story, be it privacy, libel, national security or breach of
confidence. From my experience I do not share your faith in the
discerning nature of judges. I have been on the end of an ex
parte injunction from a judge who just granted it willy-nilly.
Can you explain why you think judges are as discerning as you
make out?
Mr Mosley: Everybody is fallible,
there is no question, but when you say they go on any grounds
and then you cite privacy, libel or national security, first of
all it is as near as impossible as can be said to get an injunction
on libel. If somebody pleads justification, there are a number
of leading cases that say you do not get an injunction; nevertheless
somebody could ask for an injunction. The thing is that it all
comes down to who decides. We do employ judges and they are carefully
selected. They are supposed to be the best there are and they
are independent manifestly. They may not be perfect but they are,
in my submission, an awful lot better than the tabloid editor
in deciding this matter particularly as he has an interest. When
we come to serious investigative journalism and when you talk
of Reuters, The Independent and The Observer, those
are newspapers and an organisation which one associates with that.
It is, I would suggest, inconceivable that a judge, where there
is serious investigative journalism unless there are other factors
which one cannot speculate on, would give an injunction because
that is exactly the basis of a free press, that you can have investigative
journalism and it is in the public interest. I keep mentioning
it because it is the most recent but the peers in The Sunday
Times is a classic example of there being no question of an
injunction. It is the areas where neither The Observer
nor The Independent nor Reuters would venture that the
red tops and the tabloids go. That is where you get the terrible
abuse of the rights of an editor and the whole thing of free speech
and freedom of the press. They actually abuse freedom of the press
which is a very valuable thing and they damage the whole of the
press by their abuse. I would be the last person to say there
should not be serious investigative journalism. If I were doing
something wrong in the FIA, or doing something wrong to do with
Formula One, they would have absolutely every right to publish
it; that is what papers are for. One should not confuse that with
wishing to publish things about someone's sex life that is of
no interest to anyone except the individual and his wife.
Q134 Paul Farrelly: There are cases
where judges have issued an injunction. My concern is that while
some people may be very sympathetic to your case and other invasions
of privacy and the culture amongst tabloid newspapers, the ramifications
of changing the law may be using a sledge hammer to crack a very
big nut in terms of the potential effect it may have on other
legitimate forms of journalism. Just in terms of the workability
of what you are proposing, you say in your evidence that a reasonable
period should be given for pre-notification before publishing
a story. I have said I might want to approach people for comment
but not give them much time. Can you explain what you mean by
a reasonable period?
Mr Mosley: This is my opinion
and it would be a matter for considerable thought. I would say
that if it was for the Sunday you would need to be told on the
Thursday. You need one clear working day. If you are going to
do something, anybody should be able to do it in one clear working
day. 72 hours would probably be the right figure. You would need
to be, for the Sunday, asked on the Thursday. If it was for publication
during the week, then one clear day between: published on the
Wednesday, tell you on the Monday. I understand what you say that
you would like to ask at shorter notice but what you are really
saying is "I want to ask in sufficiently short notice so
this person cannot go to a judge." What you are then saying
is "The reason I do not want them to go to a judge is I do
not trust the judges." That follows absolutely logically
from what you said and we cannot have that. If we do not trust
the judges, what do we do? We cannot have a society in which we
say "I do not want a judge to look at that because he might
decide against me."
Q135 Paul Farrelly: Let me give you
an example of where I might have difficulty with one day. One
of my concerns about what you are proposing does not simply relate
to going for injunctions. Newspapers and news organisations are
not homogeneous, some are nests of vipers and sometimes you cannot
trust your colleagues not to leak your stories if they know about
them. I will give you one example. I used to work for Reuters
and one day I had nothing better to do than leaf through Robert
Maxwell's prospectus from the back and I found that he had not
actually complied with Stock Exchange listing rules on how he
valued his assets. At the time Robert Maxwell was a board member
of Reuters. We carefully checked the story with my news editor
who was very sympathetic and we ran the story that he had broken
the Stock Exchange listing rules. We ran it giving the broker,
then Michael Richardson of Smith New Court and latterly of Rothschild
who was working for Maxwell, a very short time to comment because
we knew that had he been given one day Maxwell would have killed
the story. In fact, he was on the phone shouting down the phone
and people were approaching us there saying "Is this really
worth it?" In retrospect, given what happened with Maxwell,
it was worth it. There is a particular circumstance where one
day might not be satisfactory because I might have run that story
just before the deadline for people to subscribe to Maxwell shares.
Reuters is a real-time news organisation and he may have wanted
to influence that and one day may have been too late to do that.
Mr Mosley: I completely follow
what you are saying but it actually goes away from the point.
First of all, if you had gone to a judge and said "I want
to publish the story" exactly as you have described it, the
judge would have said "Why not, obviously you are entitled
to publish it." The person you were fearful of was not the
judge but Mr Maxwell and that is a different thing altogether.
He happened to be a board member. He should not have been a board
member but he was so he could kill the story. Those particular
circumstances that you were in obviously posed a difficulty but
that is absolutely not an argument for not going to a judge. A
judge would not have killed the story, Maxwell would because he
does not want people to know. I do not really see the problem.
When you say "But if this had been one day before",
you can think of circumstances but in the end you are not, with
great respect, putting forward any point which invalidates the
suggestion that if it is right to publish that the judge will
allow you to publish and if it is not right to publish he will
stop it. In that case he clearly would have allowed it.
Q136 Paul Farrelly: I agree with
you that changing the Code is probably not going to work because
the Code is going to be hedged around with all sorts of hedges
on the public interest, and it is at the discretion of editors
and editors will break the Code just to sell newspapers as you
have described, but actually instilling this in law would be practically
unworkable and would have far more ramifications on good journalism
than what you are trying to address.
Mr Mosley: I wonder why. The journalist
has to inform the victim he is to publish the story. The victim
now has a choice: he can go to court or he can just leave it alone.
What damage does that do? I should not be asking the questions
but how does that stop the journalist doing his job? Other than
a minor inconvenience, why is that a problem?
Q137 Chairman: Can I come back to
one thing you said? You suggested that you got a phone call out
of the blue at 10 o'clock on a Sunday morning saying have you
seen the News of the World and you were horror struck when
you discovered what it concerned. You also said that you had been
attending parties with a client for 45 years. You are a public
figure and you know the British press. You know the appetite of
the British press for stories of this kind. Had you not always
felt this was a time bomb that sooner or later was going to go
off?
Mr Mosley: I have to confess I
did not. For the first 25 years I was really not well known. I
have only become a little bit known. I was well known in motor
racing circles, out of that I was not really known. The fundamental
thing about that world is it is incredibly secretive because of
the embarrassment factor. It is a little bit like gays were 50
years ago because of course in their case it was actually illegal.
You had to be really, really careful so there is this secretive
world. In the, if I may call it, S&M world it is not even
talked about outside the circle so you would never tell someone
who was not part of that world anything about it. Nobody knew.
My closest friends did not know. My wife did not know. The fact
that it had worked so well and that among the sort of people that
I was concerned with it had never leaked out, made me feel very
confident. Obviously there was a small chance. I must say that
Mr Justice Eady in his judgment said that perhaps I had been slightly
"reckless" I think was his word. My response to that
is I know that when I go for a walk in Monaco the chance of being
mugged is infinitesimal. I know when I go out to dinner in London
there is a chance but I think it is unacceptable for someone to
say "You went out to dinner in London so it is our own fault
that you got mugged." It is actually very, very unlikely
and if something is very unlikely I do not think it is being reckless
or careless to do it. I am conscious of what you say but we live
in a world of probabilities. I am always trying to say to my wife
that it is quite safe to go on an airline, it is dangerous to
get in a car but she does not like flying. The reality is it was
very unlikely and therefore I felt quite safe.
Q138 Chairman: You say it was very
unlikely but you also say you have been a public figure for 20
years and you have been going regularly. However low the probability,
if you keep on taking the risk sooner or later it is likely to
come up.
Mr Mosley: Yes, but if one followed
that to its logical conclusion you would never fly, you would
never get in a car. There are all sorts of things you would never
do. You would not go out at night in London. You are right but
you have to assess the risk in everything you do and my assessment
knowing these people, bearing in mind that the worse aspect for
the Women A to D, as they were known, was the fear their parents
or their children, as the case may be, would find out, they were
probably more anxious than I was for it not to get out. They were
terrified of their mothers. You have people there with a common
interest in the activity but a deep common interest in not revealing
it.
Q139 Chairman: Nevertheless, it was
one of those who did go to the News of the World.
Mr Mosley: It was. I think the
problem is that the one who revealed it was the great friend and
fellow babysitter, et cetera, et cetera, of the main woman, Woman
A. Woman A trusted her and because I knew Woman A was absolutely
trustworthy I perhaps foolishly assumed that it was all right
to trust Woman E and I think it would have been but the problem
was her husband, the MI5 man, put her up to doing it. He made
all the arrangements with the News of the World. I think
he put her under pressure. What was unfortunate is that she told
him and of course most of the people in that world would not have
told their partner. These things happen.
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