Desmond v Bower

I am a great fan of Tom Bower.

I once met him, hovering outside one of the courtrooms at the Royal Courts of Justice. I was a very junior lawyer and he was following a case I was working on.

It was not a libel case, and he was curious about certain basic points of law and procedure. He then signed for me a copy of his then just published biography about the personality central to the case.

Last week Tom Bower scored a fantastic libel victory - and he has now written a wonderful account of his defeat of the awful Richard Desmond.

But it is a technical point about the case which interests me here.

One of many interesting features about libel law is the elephant trap of pleaded meanings.

When a libel claim is threatened, and sometimes even when it is launched, the claimant "bigs up" the alleged meaning of the words complained of, to make the libel sound as serious as possible.

This is all very well - when the claim succeeds, or if the case settles.

However, if a claim is defeated, the "bigged-up" alleged meaning is still there - undefeated - to haunt the claimant.

Richard Desmond is now in this position.

The passage in Mr Bower's book about which Mr Desmond complained was:

"Rumours of a crisis [within Black's firm Hollinger] reached Richard Desmond, the owner of Express Newspapers in London. Desmond shared a printing plant with the Telegraph, which had led to an argument and a court case two years earlier between himself and Black. At the end of the trial the judge, Sir Andrew Morritt, had declared Desmond's evidence to be unreliable and found in Black's favour. Now Desmond ordered the Daily Express to report that Hollinger was '"facing its biggest crisis ever" after a credit facility was cancelled by its bankers'. Black was horrified … To protect himself and suppress the truth, he sued Desmond and the Express for libel. 'There is no cash crisis, nor any prospect of one,' he said in a short statement. To rapidly defuse the row, a mediator was appointed and Black and Desmond were told to go into a room and hammer out a deal … [Eventually] a settlement was agreed, accepting Black's insistence that there was no financial crisis. Victory against Desmond, a tough operator, vindicated Black's remorseless pursuit of challengers. Grinding his critics into the dust had never failed."

We often don't get pleaded meanings in case reports.

According to a Court of Appeal decision on excluding "similar fact" evidence of Desmond wrongly influencing editorial decisions (the evidence was eventually not excluded, and the rulings of Mr Justice Eady were overturned, and see the article on the evidence which remained excluded), Mr Desmond said the alleged defamatory meaning of the passage just quoted was:

"that motivated entirely by his personal desire to get revenge against Conrad Black for losing an earlier court battle with him, the Claimant had directly ordered the Editor of the Daily Express to run a horrifically damaging story about Mr Black's (and Hollinger's) financial dealings, wholly indifferent as to whether the story was in fact true or false, in a vindictive and completely unjustified attempt to damage Mr Black's reputation and that despite his reputation for being a tough businessman and the fact that the story was actually true, the Claimant allowed himself to be ground into the dust by Mr Black by accepting an abject and humiliating settlement."

Serious allegations indeed: just count the colourful words.

On this meaning, Mr Desmond lost.

His defeat does not, by itself, make the statements in the pleaded meaning necessarily true.

It may be that the jury held that Mr Bower "justified" the meaning alleged by Mr Desmond; or that the jury felt the passage in the book was not a libel in the first place; or that Bower's alternative pleaded meaning was true:

"(a) the Claimant, [who treated Express Newspapers as his personal vehicle to serve his own agenda,] dictated that Lord Black and Hollinger, against whom he bore a grudge, be the subject of damaging attacks, not caring about the truth and fairness of what was written; and
(b) the Claimant, having insisted upon Lord Black and Hollinger being attacked by Express Newspapers to satisfy his own animus against Lord Black, climbed down when in the presence of Lord Black at a mediation of Hollinger's libel claim, allowed himself to be taken in by Lord Black's assurances of the financial health of Hollinger and submitted his newspaper to a public settlement that gave vindication to Lord Black's pursuit of his critics."

The newspaper reports are simply not clear as to the basis of the jury's decision, and I was not in court.

But a strident plea of meaning like that of Mr Desmond is sometimes dangerous, especially when it being used for tactical purposes at the start of a case, and it can end up discrediting the claimant all the more.

So a bad day for Mr Desmond; and a good day for Mr Bower and investigative journalism.