Scalding ink burns holes in pockets

Libel litigants swarm around the English courts, says lawyer Nick Braithwaite, because these courts offer better chances of success than most other legal systems, and high damages. Judges seldom give jurors meaningful advice on appropriate damages, says Braithwaite - a valid point when his book was published in October but one that has been overtaken by the pronouncement in the Court of Appeal that judges may in future talk figures when summing up to juries in libel cases. It was expected the decision would lead to a dramatic reduction in the level of awards.

Another important development has been the lord chancellor's introduction into the House of Lords on February 8 of a defamation bill containing a number of procedural changes which ought to reduce damages in many cases.

But, as Braithwaite points out, damages were only one of the elements that attracted litigants to London. The salient defect in the law, he says, is that the defendant must prove truth rather than the plaintiff falsity, and so the dice are heavily loaded in the plaintiff's favour. "Time and again I British editors have had to pay damages over stories they know, but cannot prove, to be true."

There is a sharp contrast here with the position in the United States, set out in a chapter by American lawyers R. Bruce Rich and Susan L. Amster. The decision in the landmark Sullivan case of 1964 is well known: press critics of official conduct cannot be punished for false speech alone. Instead it must be shown that the publisher acted with "actual malice".

In England, the House of Lords decided in 1992 that local authorities cannot, as public bodies, sue for libel in their own right. Braithwaite argues the case leaves the way open for English law to develop a defence analogous to the US public-figure defence. He cites recent decisions in India and Australia which "now appear to render such a development inevitable."

But has he underestimated the conservatism of English judges? When in December 1995 Sir Michael Davies, sitting as a High Court judge, was asked by The Guardian to recognise the public-figure defence in a case where five police officers sued the newspaper he struck out that part of the paper's defence "without hesitation" .

It seems a very big change in the British judicial and political climate will be necessary if journalists are ever to have the freedom of speech ensured in the US by the first amendment.

Tom Welsh is joint author of McNae's Essential Law for Journalists, the 13th edition of which was published in 1995.