The background to the Gray and Hilton libel case

At about 2pm this afternoon the High Court will rule on whether the libel claim against Labour bloggers John Gray and Alex Hilton can be struck out for abuse of process.

My friend Robert Dougans, who of course acted for Simon Singh, is formally representing Alex Hilton, and I am in turn one of the lawyers helping Robert Dougans.

To understand why this strike out application - and the case as a whole - matters for all bloggers subject to the jurisdiction of the London High Court, one has to go a little into the background to the claim.


In the 1970s the Claimant lived in West Germany.

One day, without having done anything wrong, she was arrested and imprisoned.

She was detained, mainly in solitary confinement, for six months.

The arrest warrant - quite wrongly - mentioned the suspicion that she was somehow involved in a criminal gang which was in turn connected to terrorism.

There was of course nothing in this suspicion, and she was released without any conviction and was paid a substantial amount in compensation for wrongful imprisonment.

However, when she was released, the German high-circulation magazine Der Spiegel quite wrongly listed her along with actual terrorists in a lengthy article.

It would be fair to say that the Claimant had been treated extremely badly by both the West German state and mainstream media. It really must have been the most horrendous and traumatising experience.

The Claimant soon after moved to England, got married and raised a family.


Some thirty years later, the Claimant starts blogging. Sometimes this was to do with her business activities, sometimes about her views on public affairs, and sometimes she wrote about her experiences, including the wrongful arrest and how she was treated by Der Spiegel.

However, the Claimant is also becoming politically active. She joins the Labour Party and seeks to be a candidate for Parliament. She fails, and then announces she is joining the Respect Party.

At this point, Labour Party blogger Dave Osler writes a blogpost about the Claimant.

Dave is a professional journalist and his blogpost, which links back to a particular webpage written by the Claimant, is both responsible and sympathetic. It is contained in my blogpost here.

John Gray then blogs about the Claimant, linking to both Dave's blogpost and the Claimant's original page. John then posts the same blogpost on Labour Home, which was run by Alex Hilton.


This greatly upsets the Claimant.

What particularly upsets her is that both Dave and John refer to Baader-Meinhoff.

It is clear that the reason they refer to that particular terrorist group is that the Claimant mentions them herself on her webpage.

After correspondence, deletions of the posts, and offers of rights of reply, the Claimant proceeds to sue Alex and John for libel, and she also sues Dave for libel in a separate action.

At some point the webpage to which both Dave and John link is removed. This means that they are unable to refer to the very page they were linking to and summarising as part of their defence.


In May this year, Robert was able to get the case against Dave stuck out for abuse of process. This was on two grounds. First, the Claimant had brought the claim outside the limitation period and could not show that Dave's blogpost had been read (ie published) outside of that period.

Second, Robert was able to show Mr Justice Eady that on what appeared to to be the agreed facts, what the Claimant had published about herself was so close to what Dave had written that, to use the lawyer's phrase, the "game was not worth the candle".


One would think that following the successful strike out of the claim against Dave, a strike out of the claims against John and Alex would be a formality.

However, at the strike out application earlier this month, the Claimant disputed or did not accept a range of facts which had previously been thought agreed.

This meant that Robert had to abandon any reliance on the extensive witness evidence we had collected setting out what her original website had said.

(Once that evidence was in dispute, it could not be accepted by the court without the Claimant having the right to cross examine the witnesses.)

There was simply no way the High Court could now strike out the libel claim against John and Alex on the same basis as it had struck out the claim against Dave.

So unless we could establish an alternative basis for a strike out, then the claim would have to proceed to trial (or at least there would have to be another hearing to give the Claimant the opportunity to cross examine the witnesses).

So, on his feet (with me behind him frantically scouring cases, textbooks and other documents - and also with the input of William McCormick QC - Simon Singh's barrister - who luckily happened to pop in just to see how Robert was doing), Robert had to instantly piece together a very complex submission, not covered entirely by previous case law, and which relied on statements which the Claimant could be shown to have made herself.

At 2pm today we find out if he was successful.

If he is not, then the case is likely to now proceed to a two week jury trial where John and Alex will be exposed to an award of damages which could bankrupt them. After all, this is (on one view) an allegation of suspicion of being involved in terrorist offences.

This blog will then loudly adopt this case, as it did with the misconceived case brought by the (now discredited) British Chiropractic Association, as the basis for why libel reform is required.

If Robert is successful, then it will be a great relief for John and Alex (and for Robert, who really did not enjoy his two days in Court), but libel reform will still be needed.

There was nothing inherently wrong for the Claimant to seek to bring a claim if she thinks she has been defamed.

However, for hearing after hearing, this claim has been allowed to proceed, and had it not been for the intervention by Robert and me, would have by now proceeded to full trial.

And, notwithstanding Robert's sterling efforts, the High Court may decide that because of the new disputes over evidence, it is just not in a position to strike out this case.

If so, John and Alex will have to endure a lengthy jury trial and the real prospect of personal bankruptcy, over a blogpost which (in my opinion) did nothing wrong.

The villain in all this is not the Claimant.

It is the libel system in this country that allows claims like this to get so far.

If the claim is struck out today it will be because a specialist libel lawyer was able to put together a highly sophisticated submission which would have been beyond even a generalist media lawyer (like me), let alone a litigant in person.

And if it not struck out, then we have a system of libel which allows bloggers who have done nothing wrong to be sued to the point of potential bankruptcy.

There is something wrong about the law of libel which is allowing this to happen.


Whatever the result today - and I am an invariable Tigger to Robert's relentless Eeyore about this application, and indeed any of Robert's libel work - it is a "fail" for libel law.

So please, if you have not already, go now to www.libelreform.org and sign the petition to keep the pressure on for libel reform to become a reality.


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