Press standards, privacy and libel - Culture, Media and Sport Committee Contents

Examination of Witness (Question Number 120-139)


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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