ANOTHER VOICE
A personal response to the challenge of the libel law
AUBERON WAUGH
Alexander Chancellor's cri de coeur in the Sunday Telegraph this week may not have touched many hearts, but it certainly touched mine. He described how he was taking one of his rare and richly deserved holidays as editor of the Spectator in August 1982 when the magazine published a column by Taki describing how the columnist had been turned away from a luncheon party in some foreign country given by a rich lady whom none of us had ever heard of. By the time Chancellor left the Spectator two years ago, this was resolving itself into a libel action on the somewhat abstruse point of whether or not the hostess had previously agreed to Taki's attending the luncheon party. If she had agreed, Taki won; if she hadn't, Taki lost — so did the Spectator and its then editor, Mr Alexander Chancellor.
Chancellor heard no more about the libel action until receiving a telephone call a few weeks ago from the defending solici- tors which informed him that the case was about to cane to court and that he would not be required as a witness. The call, he explains, was a courtesy one, merely to warn him that, as a defendant, he might find his name in the press. And so he did. He read that he was denying the claim of libel and claiming jus- tification; that the plaintiff's lawyers re- garded his non-appearance in the witness box as deeply suspicious; and finally that he had had damages of £15,000, plus an estimated £150,000 legal expenses awarded against him and the other two defendants. With greater mathematical acumen than many would have suspected, he worked out that his share of this massive debt would be £55,000. What should he do - sell his house, his wife and two daughters? Before we all start putting in bids for at any rate the last three, he explains a gener- al 'assumption' that libel expenses are met by employers. He is quite right in saying that such an assumption exists, although it is complicated in this instance by the maga- zine's having changed hands in the mean- time, with outstanding civil liabilities being retained by the former owner, and by Taki's declared readiness to bear half the burden himself. Many will wonder how Taki will do it. Not to put too fine a point on it, I gather that the Theodorakopoulos empire is not quite what it was. Well may Chancellor sweat.
I feel there is a perspective missing in all this, which is also missing from the classic textbooks on libel law — Gatley, Carter- Ruck, Neill and Duncan — and from most discussion on the matter, although I dare say it features in delicate, private conversa- tions between lawyers while assessing the potential of any civil suit. It revolves around the loser's ability to pay costs as well as damages, but the nub of it is the little-known fact, which it might be consi- dered bad taste to mention, that barristers cannot sue for their fees. Damages, of course, have to be paid on the nail; lawyers have to accept delayed payment as the les- ser evil to receiving none.
When I became editor of the Literary Review I inquired into the matter of liabil- ity in libel and received the usual assurance that such liability was the responsibility of the limited company which owns the maga- zine. As the servant of Literary Review and Quarto Ltd, or whatever it is called, I am happy to assure contributors that the company accepts responsibility for any- thing it prints which is later judged to be defamatory. The company has no assets and no income, making a loss of several times its total revenue. The question in- evitably arises whether I, as second defen- dant in any libel action, would inherit the liability when the first defendant defaults.
When I started writing for Private Eye 16 years ago, I saw the possible dangers and arranged for all the homes, gardens, ple- saunces and agricultural acres I occupy to be owned by someone else, namely my wife. In fact I own nothing but my clothes, possibly my bed and a few cooking uten- sils, and some pens. Unfortunately I also have an income from my scribblings in Spectator, Daily Mail, Sunday Telegraph and elsewhere, but this income ceases the minute I stop scribbling. Rather than spend the time scribbling for the benefit of a successful litigant and his lawyers, one would obviously prefer to stop scribbling, apply for supplementary benefit and spend one's time writing drivellish novels which nobody wants to buy and very few people want to read.
A vindictive plaintiff could still sue the Literary Review and, if successful, close it down, but one wonders how many barris- ters would be prepared to accept such a brief in the knowledge that, if successful, they would receive no fees. Perhaps many of them are secretly idealistic enough to be happier if their huge fees are never paid, but the logic of such a proposition must be that solicitors would accept such instruc- tions (and barristers such a brief) only from rich clients and only when they were reasonably confident that the client was going to lose. There would certainly be no material incentive to exert themselves in any exaggerated way towards winning the case. Even judges, whose first loyalty must be to the Rule of Law (their concern for the prosperity of the legal profession a poor second) have sometimes seemed to be influenced by a certain extra admiration for plaintiffs who, by going to court, cont- rive to keep the whole show on the road.
None of which applies to Mr Justice Otton in the case of Marcie-Riviere versus Theodorakopoulos and Others. I listened mesmerised to his summing-up. We had heard witnesses for the defendants claim- ing that Marcie-Riviere had agreed that Taki should come to the luncheon, witnes- ses for the plaintiff that she was unmistak- ably and genuinely surprised when he did so. The judge did not refer to a curious statement by Mr `Bluey' Mavroleon, a wit- ness for the plaintiff, that there was an air of tense expectancy at the luncheon party before Taki arrived.
Instead, he ventured the opinion (which nobody had yet suggested) that Marcie- Riviere may have agreed to Taki's coming to lunch, but assumed that he would not do so — acting in good faith. She assumed that, although invited, he would refrain from turning up. If this view was adopted, he said, the jury should find for the plain- tiff and award compensatory damages. He did not mention the alternatives of token or contemptuous damages (for which the defendants had asked) but proceeded to advise at great length on the level of these compensatory damages, supplying them with various interesting 'facts' of his own discovery — that the circulation of the Spectator was 'only' 100,000 (this would tend to reduce the award — the circulation figure was later corrected) but, being founded by Steele and Addison in 1711, it was a highly respectable publication (this would tend to increase the award, as against a similar libel published in the reck- less gutter press).
The jury's finding is a matter of history. I would feel rather badly if mine turned out to be the successful bid for Chancellor's beautiful wife and two exceptionally pleas- ing daughters.
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