Thursday, 13 May 2010

Dave Osler's Splendid Victory - but a Libel Fail

[Please read COMMENTS MODERATION below before commenting.]

This morning the High Court struck out the entire libel claim brought by Johanna Kaschke against Dave Osler.

This was a stunning and indeed commendable ruling by Sir David Eady.

The case report is here. (I plan to post an analysis at the weekend.)

The claim was struck out for Abuse of Process.

She has to pay costs.

Sir David Eady also refused permission for Johanna Kaschke to appeal.

The great Robert Dougans was the solicitor "on the record" (see Press Release).

Robert also did all the advocacy.

He and I shared the six months' legal work required for the defence and applications pro bono, assisted recently by the ever-excellent William McCormick QC.

Robert and William, of course, acted for Simon Singh in his successful defence against the similarly misconceived claim brought by the now discredited British Chiropractic Association.

(Before the hearing I also received a libel threat from Johanna Kaschke in respect of my blogpost of yesterday. In accordance with good blogging practice, she can of course have a right of reply, but else I will refer her to Arkell v Pressdram (1971).)

As Robert Dougans rightly said in court, Johanna Kaschke has long "thrown libel writs like confetti". A number of bloggers and journalists have been threatened or served with libel claims by her.

Accordingly, Robert and I will be applying for a restraining order (a sort of ASBO for vexatious litigants) against Johanna Kaschke at the earliest opportunity.

This is a great victory: it is rare for an entire libel case to be struck out for Abuse of Process.

Dave Osler has two years' stress and loss of time for a blogpost which simply was not actionable.

Until today he also faced personal bankruptcy in the event of a subtantial award of damages after a full jury trial which was to take place later this year.

I repeat, today's decision shows that the blogpost was not actionable in the first place.

These two years of litigation, and the six months of extensive pro bono work (which otherwise would have cost Dave tens of thousands of pounds at least), show this to be a "fail" for English libel law.

It was only because of the expertise and time spent of Robert, William, and myself, that we were able to identify the technical bases for the application to strike out; there was no way that any lay person could have realistically done this. This case would have proceeded to trial.

Libel abuse has to stop.

So please, if you have not already done so, sign the libel reform petition at and write to your MP to demand legislative reform as soon as possible in the new Parliament.

Oh, and do send Robert Dougans a congratulatory email at Robert.Dougans [a]

He deserves it.


No comments mentioning expressly or implicitly Johanna Kaschke will be published. This is to protect the commenter.

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.


Sceptical Letter Writer said...

I hope that, amongst your many and perhaps vexatious messages on Twitter congratulating William McCormick and Robert Dougans, you can find some time to congratulate yourself.

This has been another timely reminder of the urgency of libel reform.

Mark Jones said...

Many congratulations again Allen and the team; you're doing sterling work for the cause.

But now that the litigant has to pick up costs, is it not possible to bill for your time?

Pickled Whispers said...

Great news. Congratulations.

That's the first time I've heard of Arkell v Pressdram - Giggling like a loon.

Steve Jones said...

Congratulation to David Osler and bloggers and commentators in general should be grateful to him. The case itself was utterly without merit. I would think that anybody taking objective legal advise beforehand would have been told that. Of course that's not the main point - it is the chilling effect of the threat of action which could act to stultify debatewhich is the public interest here.

Also, off topic, I did go and look at his website. I sincerely hope the latest article isn't an example of his normal standards. In all seriousness, it exhibited many of the aspects of tribal politics which most put me off of the subject in my student days. The use of terms such as "betrayal" used about Nick Clegg's party revives dreadful memories for me and puts me in mind of the language used byt he likes of Piers Corbyn.

It was surely people like David Osler, and their apparent rejection of consensus politics (at least other than on their terms), which surely helped bring the likes of Margaret Thatcher to power. I wonder if he realises that?

Rather than an analysis of policy he seems, based on a few other articles I read there, to base much of his analysis on rather old fashioned Marxist class politics.

I'll judge this current coalition by the actions and results plus some basic maths, not on some tribal loyalty.

Mike from Ottawa said...

I wonder, is it possible to have a conditional fee arrangement on the defence side? It would seem iniquitous to me that someone like Dave Osler has to rely on the kindness of strangers in defence and that your (and those of Robert Dougans and William McCormick) efforts should go unrewarded even when successful, while a claimant gets to act with far less at stake. Surely the defendant's right to be left alone and not impoverished is at least as important as a claimant's right to reputation. It seems to me the person who chooses the hammer of litigation should be no less vulnerable to the risk of loss than person it is used against.

Of course, there may be some reason I don't see (not in itself surprising) why a CFA wouldn't have been appropriate in this particular case or why they aren't available to defendants.

In any event, congrats to you and to Mr Dougans and to Dave Osler.

Daniel said...

Allen, fantastic work by your good self and your partners in 'crime', Robert and William.

It does stress the need for libel reform, and hopefully something the ConDemNation will soon see.

Rightwinggit said...

Ken Clarke at justice ..the wind is turning.

Benjamin Gray said...

@markjones no, he can't, but in pro bono cases you can seek a Section 194 order to get the party to pay an amount to a specified charity. (s.194 Legal Services Act 2007)

Mark Jones said...

Thanks for the answer Benjamin.

Brian Pears said...

Wonderful news. Congratulations to all involved.

Benjamin Gray said...

You're welcome. I had to slave over that piece of legislation on an internship, so glad it came to be of use.

ModernityBlog said...

Your coverage has been excellent, please forgive, I nicked some of your posts!

Old Holborn said...

That's the way to do it.

Reluctant Blogger said...

What a relief!

I think that your blog should be required reading for all of us who blog or tweet. There is a belief that this kind of thing can only happen to you if you write a political blog with a large readership. But it can happen to anyone.

I was threatened with legal action for libel in respect of a couple of posts I wrote on my own personal blog (now private, but then with a small readership of individuals mostly known to me) about a former lover who had taken to stalking me. The posts were factual, not vindictive and did not mention her by name. The threat of legal action was even more frightening than the stalking and I NEVER want to live with that fear again so I am now too scared to write anything about either my stalking experiences or the horrible time I had worrying about the legal action (which thankfully never happened). Doesn't seem quite "right" to me.

Well done on this victory and for all the work you do to campaign for libel reform.

mpj said...

Congratulations Jack, this is a fantastic win! Thanks to all of you for the tremendous amount of work you've done.

And kudos to Justice Eady, especially in light of a certain earlier astonishingly illiberal ruling. I was wondering, though, how much Simon's case has changed the approach to and application of libel legislation in the UK. It may be too early to speculate, but any thoughts?

Quirk said...

Hooray for Dougans, McCormick and yourself. Yours is a much reviled profession, and to find that it contains such public-spirited men is a pleasing revelation. I am put in mind of the old Greek and Roman notions of "civic virtue", and seldom have I seen finer expression of it than in the good fights against those who would use the imperfections of our current libel system.

Max Cooter said...

Congratulations to Dave and to all of his legal team. Dave was a colleague of mine from the magazine branch of the NUJ, so I followed this case with particular interest.

I sincerely hope the incoming government tackles libel reform as a matter of urgency because there's going to be a proliferation of these cases until the law is brought into the 21st century.

Well done on your sterling work in this case and for your always excellent blog.

Mona said...

Well done all of you and the first time that I heard of Arkell v Pressdram too. Love it!

kris said...

I saw the tweet yesterday re the Knights Templar and was told by the bar staff that I had just missed you guys.

I'm sorry I did because I would have liked to have shaken your hands: Dave for his bravery and you for taking up the cause on a pro bono basis.

No matter what, if any, reforms come to pass, there will remain a need for lawyers to stand up against injustice.

Luckily enough, standing up against injustice is the reason why most people become lawyers.

PTC said...

Congratulations, and thanks +5 for Arkell v Pressdram (1971).

pb said...

Not quite sure how this case is an example of the need for libel reform: seems to have worked just fine here. Somebody felt they had a right infringed, they were granted access to the courts to argue it, and an impartial judge ruled that it wasn't. The problem seems to have been the claimant's response (a horrendous over-reaction, coupled with, quite clearly, an inability to recognise when something is not libellous) to her (rightly observed) persecution. But what do you want to do - deny her access to the judiciary when she had a grievance?

Someone, a long time ago, in her entourage, should have sat down and talked her out of responding like this.

Now, had the case gone against Mr Osler, that would be a far clearer indication (from this instance, not that there aren't enough from others) that libel law is bust.

I think if it's going to be tightened up to make it harder to succeed in court, it has to offer a solution to claimants as well, that doesn't involve litigation. I'd love to see the Libel Reform lobby consider suggesting that a legal duty be placed on persons to reasonably offer reply (including equal access to the platform on which the allegedly libellous claims were published).

Right to Reply is perhaps every bit as important to free speech as is immunity from vexatious litigation. Or am I wrong?

Mojo said...

Congratulations to everyone involved!

Looking at paragraphs 25 and 26 of the judgment, the judge appears to have concluded that the claim was an abuse of process because the damages likely to be awarded "would be out of all proportion to the time and money spent on this litigation". Given the usual level of costs in defamation proceedings, what proportion of them would be considered to be abuses of process if this approach was applied across the board?

Michael Kingsford Gray said...

Eady is to be lauded for this sensible decision.