Information Note on the Court’s case-law No.
July 1995
Tolstoy Miloslavsky v. the United Kingdom - 18139/91
Judgment 13.7.1995
Article 10
Article 10-1
Freedom of expression
Size of damages awarded (£1.5 million) by a High Court jury and injunction by same court restraining defendant from repeating libel: violation; no violation
Article 6
Article 6-1
Access to court
Civil rights and obligations
Order by Court of Appeal requiring him to provide security for plaintiff's costs as a condition for his appeal to be heard: Article 6 § 1 applicable; no violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 10 OF THE CONVENTION
Present case limited to complaint about amount of damages awarded and injunction.
Not contested that applicant's freedom of expression was interfered with.
A.Prescribed by law
Only contended that amount of damages awarded, but not injunction, failed to fulfil this requirement.
Principles of Court's case-law reiterated.
Relevant legal rules concerning libel damages were formulated with sufficient precision: the libel as found by the jury was exceptionally serious - considerable degree of flexibility in national laws justified in this area, so Article 10 could not require that applicant, even with appropriate legal advice, could anticipate with any degree of certainty the quantum of damages - although principle of proportionality as such may not have been recognised under relevant national law, decisions on awards were subject to number of limitations and safeguards - in jury trials, lack of reasoning for awards of damages was the norm and was to large extent unavoidable - in short, the award was "prescribed by law".
Conclusion: no violation (unanimously).
B.Legitimate aim
Protection of the reputation or rights of others.
C.Necessary in a democratic society
1.The award
Court's review was confined to the award as assessed by the jury, in the circumstances of judicial control as it existed at relevant time, and did not extend to the jury's finding of libel - follows that Court's assessment of facts even more circumscribed than if complaint had also concerned latter - Contracting States accorded wide margin of appreciation as to what would be appropriate response by society to speech which does not or is not claimed to enjoy protection of Article 10.
Offer by plaintiff to applicant to settle for lesser sum did not diminish respondent State's responsibility under the Convention - jury had been directed not to punish applicant but only to award an amount that would compensate non-pecuniary damage - sum awarded was three times the size of highest libel award previously made in England and no comparable award made since - an award of present size particularly open to question where substantive national law applicable at the time failed to provide a requirement of proportionality.
At material time jury allowed great latitude as Court of Appeal could not set aside award simply on grounds that it was excessive but only if it was so unreasonable that it could not have been made by sensible people - Court endorsed observations by Court of Appeal in Rantzen v. Mirror Group Newspapers Ltd to the effect that scope of judicial control, at the trial and on appeal, did not offer adequate and effective safeguards against disproportionately large award.
The award, having regard to its size and the state of national law at the relevant time, was not "necessary in a democratic society".
Conclusion: violation (unanimously).
2.The injunction
Injunction was only a logical consequence of finding of libel and was framed precisely to prevent applicant from repeating libellous allegations against plaintiff - nothing to indicate that injunction went beyond this purpose - nor any other ground for holding that measure, either taken alone or in conjunction with award, amounted to disproportionate interference with applicant's rights under Article 10.
Conclusion: no violation (unanimously).
II.ARTICLE 6 § 1 OF THE CONVENTION
A.Applicability
According to established case-law, Article 6 § 1 applies to proceedings brought by persons who thereby seek to protect their own reputation - must also apply to a defendant in such proceedings, where outcome directly decisive for his or her "civil obligations" vis-à-vis plaintiff.
Conclusion: applicable (unanimously).
B.Compliance
Principles of Court's case-law reiterated.
Security for costs order pursued legitimate aim: protection of plaintiff from being faced with irrecoverable bill for legal costs if applicant were unsuccessful in the appeal - also in interest of fair administration of justice.
The order did not impair very essence of applicant's right of access to court and was not disproportionate for purposes of Article 6 § 1: great importance attached to fact that he enjoyed full access to High Court where case heard extensively - his complaint about lack of fairness of proceedings in High Court declared inadmissible by Commission as being manifestly ill-founded - nothing to suggest that sum required - £124,900 - was unreasonable or that applicant would have been able to raise money had he been given more than a fortnight - justification for order, notably applicant's impecuniosity and lack of merits of the appeal, did not disclose any arbitrariness - decision was based on full and thorough evaluation of relevant factors - national authorities did not overstep their margin of appreciation in setting the conditions which they did for the applicant to pursue his appeal in Court of Appeal.
Conclusion: no violation (eight votes to one).
III.ARTICLE 50 OF THE CONVENTION
A.Request for a "declaratory" judgment: rejected as Court not empowered under Article 50 to make such declaration.
B.Pecuniary damage: claim dismissed since no causal link established.
C.Costs and expenses: inappropriate to adopt uniform approach to assessment of fees under Article 50 - partial reimbursement ordered.
Conclusion: respondent State to pay specified sums to applicant
(unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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