EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18139/91
Nikolai Tolstoy Miloslavsky
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 6 December 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14). . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4 ). . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 9) . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 10 - 14) . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 30) . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 15 - 26) . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 27 - 30) . . . . . . . . . . . . . . . . .11
III. OPINION OF THE COMMISSION
(paras. 31 - 57) . . . . . . . . . . . . . . . . . . . .15
A. Complaints declared admissible
(para. 31) . . . . . . . . . . . . . . . . . . . .15
B. Points at issue
(para. 32) . . . . . . . . . . . . . . . . . . . .15
C. As to Article 6 para. 1 of the Convention
(paras. 33 - 44) . . . . . . . . . . . . . . . . .15
D. As to Article 10 of the Convention
(paras. 45 - 55) . . . . . . . . . . . . . . . . .17
E. Recapitulation
(paras. 56 - 57) . . . . . . . . . . . . . . . . .21
DISSENTING OPINION of Messrs. Weitzel, Busuttil, Gözübüyük,
Reffi and Cabral Barreto. . . . . . . . . . . .22
APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .23
APPENDIX II PARTIAL DECISION AS TO THE ADMISSIBILITY . . . . .24
APPENDIX III FINAL DECISION AS TO THE ADMISSIBILITY . . . . . .33
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a United Kingdom citizen born in 1935. He lives
in Southall, Berkshire, and is represented before the Commission by
Messrs. Theodore Goddard, solicitors, London.
3. The application is directed against the United Kingdom whose
Government are represented by their Agent, Mrs. A. Glover, Foreign and
Commonwealth Office, London.
4. The application concerns libel proceedings brought against the
applicant following the distribution of a pamphlet accusing
Lord Aldington, Warden of Winchester College, of war crimes in May and
June 1945. It raises issues under Article 6 para. 1 and Article 10 of
the Convention.
B. The proceedings
5. The application was introduced on 18 December 1990 and registered
on 26 April 1991.
6. On 20 February 1992 the Commission declared the application
partly inadmissible and adjourned its examination of the remainder of
the application.
7. At the invitation of the Commission written observations were
submitted by the respondent Government on 2 June 1992 and observations
in reply were submitted by the applicant on 6 October 1992.
8. An oral hearing was held on 12 May 1993 after which the
application was declared admissible. At the hearing the parties were
represented as follows: for the Government: Mrs. A. Glover, Agent,
Mr. David Pannick QC, Mr. J. Witherston and Mrs. Emma Matthews, Lord
Chancellor's Dept., Mr. Iain Christie, Foreign & Commonwealth Office;
for the applicant: Mr. Anthony Lester QC, Ms. Dinah Rose.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
11. The text of this Report was adopted on 6 December 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
13. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. In March 1987 a pamphlet written by the applicant was circulated
by a Mr. Watts to parents, boys and staff at Winchester College. The
pamphlet was also circulated to Members of Parliament, Members of the
House of Lords, the press and to former members of the school.
Mr. Watts had a grievance against Lord Aldington, Warden of Winchester
College, in his capacity as Chairman of an insurance company. The
pamphlet is entitled "War Crimes and the Wardenship of Winchester
College" and it refers to events in Austria in May and early June of
1945. The pamphlet stated, inter alia, the following:
"Between Mid-May and early June 1945 some 70,000 Cossack and
Yugoslav prisoners-of-war and refugees were handed over to Soviet
and Titoist communist forces as a result of an agreement made
with the British 5 Corps administering occupied Austria. They
included a large proportion of women, children, and even babies.
The majority of Cossack officers and their families handed over
held League of Nations passports or those of the Western European
countries in which they had found refuge after being evacuated
from Russia by their British and French Allies in 1918-20, and
were hence not liable to return under the terms of the Yalta
Agreement, which related only to Soviet citizens.
...
As was anticipated by virtually everyone concerned, the
overwhelming majority of these defenceless people, who reposed
implicit trust in British honour, were either massacred in
circumstances of unbelievable horror immediately following their
handover, or condemned to a lingering death in Communist gaols
and forced labour camps. These operations were achieved by a
combination of duplicity and brutality without parallel in
British history since the Massacre of Glencoe. Outside Lienz may
be seen today a small Cossack cemetery, whose tombstones
commemorate men, women and children shot, clubbed, or bayonetted
to death by British troops.
...
The man who issued every order and arranged every detail of the
lying and brutality which resulted in these massacres was
Brigadier Toby Low, Chief of Staff to General Keightley's
5 Corps, subsequently ennobled by Harold Macmillan as the
1st Baron Aldington. Since 1979 he has been Warden of Winchester
College, one of the oldest and most respected of English public
schools. Whether Lord Aldington is an appropriate figure for
such a post is primarily a matter for the College to decide. But
it is also surely a legitimate matter of broader public concern
that a man responsible for such enormities should continue to
occupy a post of such honour and prominence within the community,
in particular one which serves as exemplar for young people
themselves likely one day to achieve high office and
responsibility.
... The truth is, however, that Lord Aldington knows every one
of his pleas to be wholly or in large part false. The evidence
is overwhelming that he arranged the perpetration of a major war
crime in the full knowledge that the most barbarous and
dishonourable aspects of his operations were throughout
disapproved and unauthorised by the higher command, and in the
full knowledge that a savage fate awaited those he was
repatriating.
... Those who still feel that a man with the blood of 70,000 men,
women and children on his hands, helpless charges whom the
Supreme Allied Commander was making every attempt to protect, a
suitable Warden for Winchester might care to ask themselves (or
Lord Aldington, if they can catch him) the following questions:
...
Lord Aldington has been repeatedly charged in books and articles,
by press and public, with being a major war criminal, whose
activities merit comparison with those of the worst butchers of
Nazi Germany or Soviet Russia. ..."
16. Lord Aldington sued for libel. The proceedings were originally
brought against Mr. Watts and the applicant was joined later at his own
request.
In his statement of claim Lord Aldington claimed that
"In their natural and ordinary meaning the words contained in the
said document meant and were understood to mean:
1. That the plaintiff in the full knowledge of the savage fate
of his victims and in the full knowledge that his actions were
throughout disapproved and unauthorised by higher command,
arranged every detail of the massacre of 70,000 men, women and
children, and by a combination of duplicity and brutality without
parallel in British history since the massacre of Glen Coe,
compelled his subordinates to commit horrifying and nightmarish
atrocities and was guilty of gross violation of the laws of war
and humanity and flagrant contravention of the Geneva Convention
on Prisoners of War, and
2. That the plaintiff was a major war criminal whose activities
merit comparison with those of the worst butchers of Nazi Germany
or Soviet Russia."
17. The defence pleaded "justification" and "fair comment", the
particulars of justification including the following:
"The plaintiff was therefore responsible for the torture, brutal
treatment and/or death of about 35,000 Yugoslavs following the
Second World War."
18. Lord Aldington initially wanted the trial to be before a single
judge, but the applicant exercised his right to a jury trial.
The trial began on 2 October 1989. The judge devoted some
10 pages of his summing-up to the question of the assessment of damages
if defamation was established. He advised the jury, inter alia, as
follows:
"... Let us now, members of the jury, ... deal with the aspect
of damages... I have to give you this direction in law because
damages may arise ... If the plaintiff wins, you have got to
consider damages ... the means of the parties - the plaintiff or
the defendant - is immaterial ...
Neither, as I think I said earlier but I say it now, is the
question whether Lord Aldington or Count Tolstoy, or for that
matter Mr. Watts, have been or will be financially supported by
any well wishers as to damages relevant at all. Nor is it
relevant the undoubted fact that legal aid is not available in
libel cases to a plaintiff or a defendant. All irrelevant, and
if it is to be changed it is up to Parliament to do something
about it...
... what you are seeking to do, what a jury has to do, is to fix
a sum which will compensate the plaintiff - to make amends in
financial terms for the wrong done to him, because wrong has been
done if you have got to the stage of awarding damages. It is not
your duty or your right to punish a defendant ...
What [Lord Aldington] does claim, of course, is for 'general
damages', as lawyers call it, a sum of money to compensate him.
First of all, you have to take into account the effect in this
case, as in every case where there is libel, on the position,
standing and reputation of the successful plaintiff ...
Members of the jury, of course, you must not, as a result of what
I have just said, just bump and bump the damages up. You must,
at all times, as they say, keep your feet on the ground.
... You have to take into account the extent and nature of the
publication.
... whilst you must leave aside any thought of punishing the
defendants if you find for the plaintiff, juries are always
entitled, as I have hinted already, to take into account any
conduct of the defendant which has aggravated the damages - that
is to say, made the damage more serious and the award higher -
or mitigated them - made the damage done less serious and the
award smaller.
...
Now, two general remarks which I make in every case: nobody asks
you how you arrive at your verdict, and you do not have to give
reasons like a Judge does, so it is exceedingly important that
you look at the matter judicially, and that means that you should
not be outrageously or unreasonably high, or outrageously or
unreasonably low.
The second matter I say to every jury is: please, I beg you, if
you come to damages, do not pay the slightest attention to any
other case or the result of any other case you may have read
about or heard about. The facts and the legal considerations are
like to have been completely different. There is no league of
damages in defamation cases. There is no first division, there
is no fourth division, there is no Vauxhall conference, if any
of you are interested in football.
So, members of the jury, please forget other cases. Use your own
common sense about it. How do you translate what I have said
into money terms? By our rules and procedure, members of the
jury, counsel can use, and a judge can use, words like 'very
substantial' or 'very small', but we do not either of us, counsel
or judges, mention figures. Some people again, who have not
really considered the matter very carefully, wonder about that,
and they say juries should be given guidance, and I say to you
what I say to every jury in these cases, it would not be a great
deal of help for you, because inevitably, it is human nature and
it would be their duty - counsel for the plaintiff would be at
the top end of the scale and perhaps in some cases, I do not
suggest this one, off the clock, and counsel for the defendant
would be at the bottom end of the scale in the basement. Now,
that would not be much good to anybody. As for the Judge, well
the jury might think - you may have an exactly opposite view -
a jury might think; 'Well, on the whole, whatever other people
say about this particular Judge in this case, we think he tried
to be fair, why doesn't he suggest a figure to us?'
Supposing a Judge, myself in this case, were to suggest a figure
to you, or a bracket between so and so and so and so, there would
be two possibilities: one is that you would ignore what I said
and either go higher than my figure or bracket, or much lower,
in which case of course the losing party that did not like it
would be off to the Court of Appeal saying: 'Look, the Judge
suggested a figure and the jury went above it or below it'.
Supposing you accepted my suggestion, and gave a figure that I
recommended, or close to it. Well, all I can say is that you
would have been wasting your valuable time in considering the
matter of damages because you would just have been acting as a
rubber stamp for me, or the Judge, whoever it was. So we do not
have that over-bidding or under-bidding, as the Court of Appeal
has called it, by counsel, and we do not have Judges trying to
lay down to juries what they should award, and I do not hesitate
to say, whatever other people say, I hope and pray, for the sake
of our law and our court, we never get the day when Judges
dictate to juries so that they become rubber stamps.
I am, however, allowed - indeed encouraged - by the Court of
Appeal just to say a little bit more. I say it not perhaps in
the words of the Court of Appeal, but in my own way, which may
be too homely for some, but I say to you that you must remember
what money is. You do not deal in Mickey Mouse money just
reeling off noughts because they sound good, I know you will not.
You have got to consider money in real terms. Sometimes it is
said 'Well, how much would a house cost of a certain kind', and
if you are giving a plaintiff as compensation so much money how
many houses is he going to buy? I do not mean to suggest that
Lord Aldington or any other plaintiff would take his damages and
go and buy a house or a row of houses, but that relates it to the
sort of thing, if you will allow me to say, you and I do know
something about, because most of us have a pretty good idea how
much houses are worth. So remember that."
19. On 30 November 1989 the jury returned its verdict that the
statements of fact made in the pamphlet were not substantially true,
that the pamphlet contained expressions of opinion, that those
expressions of opinion were not fair, in the sense that they could not
honestly be made by a fair-minded man, that they found for Lord
Aldington and not for the defendants, and awarded damages amounting to
£1,500,000. An order that the applicant should pay Lord Aldington's
costs was also made.
20. The applicant gave notice of appeal, setting out eight grounds
of appeal:
1. The learned judge displayed throughout the course of the hearing
overt animosity towards the defendant.
2. The learned judge sought unfairly to discredit this defendant's
case by continual interruption, sarcasm and abuse of counsel
acting on his behalf.
3. The learned judge insulted and disparaged witnesses called on the
defendant's behalf.
4. At no time did the learned judge display any such animus or
prejudice towards the plaintiff, his counsel or his witnesses.
5. The learned judge invited the jury to accept statements made by
Dr. Robert Knight on behalf of the plaintiff about matters of
expertise regarding which Dr. Knight was manifestly unqualified
to speak.
6. Above all, the learned judge, throughout his summing-up wholly
or in large part suppressed or ignored many of the most important
aspects of the case for the defence, presented others in so
confused, abbreviated or disparaging a manner as to nullify their
effect; and distorted others in a fashion calculated seriously
to mislead the jury on issues central to this defendant's case.
7. When directing the jury on the question of damages, the tenor of
the learned judge's remarks was in large part to urge the jury
to award high damages to the plaintiff and to discount the
alternatives which were reasonably available on the evidence.
8. The damages awarded were in any event unreasonable and excessive.
21. Lord Aldington applied for security for costs under Order 59,
Rule 10, para. 5 of the Rules of the Supreme Court 1965, that is, that
the applicant should be required to give security in an amount which
would cover the costs of Lord Aldington's representation if the appeal
were to be unsuccessful. It was not disputed that the applicant would
not be able to pay Lord Aldington's appeal costs if the appeal were
unsuccessful.
22. The application for costs was heard by the Registrar of the Court
of Appeal. In the course of the hearing he reduced Lord Aldington's
solicitors' estimate of their costs on appeal from £188,000 to
£124,900. The Registrar gave a reserved, 22-page judgment on
18 May 1990. He recalled that impecuniosity was not a ground for
awarding security for costs at first instance, although it was in
respect of the costs of an appeal to the Court of Appeal. In deciding
whether, in the exercise of its discretion, it would award security for
costs, the Court would take into account the merits or otherwise of the
appeal concerned. The Registrar referred to an open offer by
Lord Aldington on 2 February 1990 of an undertaking not to enforce
£1,200,000 of the damages awarded. The Registrar considered that,
subject to the question of whether an appeal on quantum only would be
academic because of the offer to accept reduced damages, security for
costs should not be awarded in respect of the appeal on quantum. As
to liability, the Registrar considered the facts raised by the
applicant, together with purported new evidence, and concluded that,
in respect of five points, his case had "just enough strength to lead
[him] to conclude that security for costs should not be awarded in this
case." He stated that
"...It may be that, if (and I emphasise if) Count Tolstoy
succeeds in convincing the Court of Appeal that he has not had
a fair trial, and his case has not been fairly and clearly put
to the jury, the Court of Appeal might well conclude that a new
trial had to be ordered (following the approach adopted recently
by this Court in X v. Cain), notwithstanding the fact that the
chances of the appellant succeeding on the new trial were slim.
Having reached the conclusion that security should not be awarded
even on the liability appeal, it is not necessary for me to deal
with the question whether security on a quantum only appeal would
be called for on the grounds that it was academic."
He decided that security for costs should not be awarded.
23. Lord Aldington appealed against the Registrar's decision to the
full Court of Appeal, which heard the matter for six days from
9 to 17 July 1990 and gave judgment on 19 July 1990.
Sir Stephen Brown, presiding, recalled the law, and recalled that the
Court now had to consider the application afresh and to decide whether
to order security would amount to a denial of justice to the applicant,
having regard to the merits of his appeal. He then went through the
proceedings, noting that no criticism was made in the applicant's
grounds of appeal of the judge's directions on the law. Criticism was
directed particularly at the way in which the judge behaved to the
applicant and the way in which the judge dealt with three particular
issues of fact. He went on:
"Each member of this court has perused the transcripts with great
care. I have read the transcript of the summing-up and the
transcripts of the addresses of counsel, both before and after
hearing the criticisms which have been made by Count Tolstoy.
I do not consider that Count Tolstoy's criticisms are justified.
The judge clearly left to the jury the decision on the facts of
the case. All the major matters were in my judgment dealt with
fully and fairly.
The judge's repetition of Mr. Rampton's questions at the end of
his summing-up quite clearly brought to the jury's minds the
matters which the defence contended were of primary significance.
Counsel were given full opportunities to raise matters of alleged
error, and when they deemed it necessary they did so.
Furthermore the principal witnesses were in the witness box for
some 13 days in all. Lord Aldington, who was the central witness
in the case in the sense that it was his conduct which was the
subject of examination, was in the witness box for no less than
six and a half days. It is inconceivable that the jury did not
take fully into account and act on the evidence of the principal
witnesses who were so comprehensively examined and cross-examined
upon all the material issues in the case.
This was essentially a case for a jury. It is to be observed
that at a preliminary stage when Lord Aldington had asked for the
case to be tried by a judge alone, Count Tolstoy resisted his
application. The case was duly tried by a jury. In my judgment
it was correct that this case should have been tried by a jury.
It was a classic case for a jury to decide. It is further clear
from the judge's enquiry made in the course of the trial as to
the status of the jurors, though not their identities, that this
was an intelligent jury.
In the result I do not believe that Count Tolstoy has any
reasonable chance of making good his grounds of appeal or any of
them. There is no merit in them.
...
... on the issue of liability I am unable to discern any merit
in the appeal.
The quantum of damage is a very large sum. However, there is no
doubt that the learned judge gave an impeccable direction on
damages. Count Tolstoy has argued that the judge invited the
jury to give excessive damages. A correct reading of the
transcript shows that he did just the opposite. There is no
merit in that submission. The award was entirely within the
jury's discretion and they received a very full direction about
it. I have no doubt that it was meant to mark their view of the
enormity of the gross libel which had been published and
persisted in.
...
In my judgment this is a clear case for an order for security for
costs. The Registrar at the hearing before him considered the
amount of the estimated costs of the plaintiff on the proposed
appeal and he reduced his solicitors' estimate of £188,000 to
£124,900, using his knowledge and expertise in this particular
field. I would adopt the learned Registrar's approach on that
particular matter. Accordingly I would allow the plaintiff's
appeal from the Registrar, and order that security for costs be
provided by the defendant in the amount of £124,900 within
14 days."
24. Lord Justice Russell, agreeing, added:
"The court will be very slow to interfere with the jury's verdict
unless there has been some material irregularity in the
proceedings which renders the verdict unsafe or unsatisfactory,
or it can properly be said that the verdict is perverse. Much
the same considerations must apply in the instant case.
As to any irregularity in the proceedings, I detect none. ...
This case, and the jury's verdict, depended essentially upon the
veracity of Lord Aldington. No document or documents were
produced which on their face could destroy Lord Aldington's
credibility. If the jury had disbelieved Lord Aldington, there
would have been an end of his case. The fact that the jury found
in his favour and awarded him the damages that they did
demonstrates that upon the vital issues of the case they must
have accepted the plaintiff's evidence. Was that a course which
was open to the jury? In my judgment, it plainly was.
The reality of this case is that Count Tolstoy at all stages
wanted the verdict of a jury. Lord Aldington, because of the
costs involved, wanted trial by judge alone. Count Tolstoy's
preference prevailed. He has fought this case and he has lost.
He has lost because it was the jury that found against him. They
saw and heard the witnesses. They were not misled by the judge.
The verdict was the jury's verdict and Count Tolstoy should now
accept it. If he cannot accept it he should at least acknowledge
that it was a verdict the jury was entitled to return.
There is not in my judgment the remotest chance of the Court of
Appeal interfering with the jury's finding in the plaintiff's
favour and directing a retrial of that issue, either on the basis
that the verdict cannot stand or on the basis of fresh evidence
which Count Tolstoy seeks to introduce. ...
Finally, upon the issue of damages, Count Tolstoy had been
offered in an open letter the substitution of £300,000 for the
one and a half million pounds awarded by the jury. The libel
remains as serious a libel as it is possible to imagine. Any
appeal upon quantum alone would be no more than an academic
exercise. Count Tolstoy wishes to re-open the whole case. In
my judgment, the defendant being impecunious, justice demands
that he should provide security for the plaintiff's costs of any
appeal."
25. Lord Justice Beldam, also agreeing, considered that:
"It would be difficult to conjecture an allegation more
calculated to bring the respondent into the hatred and contempt
of his fellow men and the evidence showed that it was
deliberately circulated with the aim of encouraging the
respondent to sue him, thus giving the appellant the opportunity
to challenge in public the respondent's conduct 45 years ago. ...
That this archaeology of the archives failed to convince the jury
of the truth of the very grave charges levelled against the
respondent was amply demonstrated by their award to the
respondent of the unprecedented and enormous sum of damages of
£1.5 million. It was as resounding a demonstration of public
reproof of the appellant's conduct as could possibly be
imagined."
He also stated:
"It is not for this court to grant a retrial after the verdict
of a jury, even if it thought that a reasonable jury ought to
have found differently. The test which, on the hearing of the
appeal, this court would have to apply is whether the finding of
the jury is absolutely unreasonable that it can be said that they
have not performed the judicial duty cast upon them. Again I
have listened to the skilful development of the facts and
evidence by the appellant. He has failed to satisfy me that he
has any reasonable chance of success in this appeal. Even if he
persuaded the court to grant a retrial on the issue of the amount
of the damages, I would regard as negligible the prospect of any
jury, doing their judicial duty, awarding the respondent [Lord
Aldington] less then the sum which he has in reality already
offered to accept in compromise of this appeal."
26. The Court ordered the applicant to provide security for Lord
Aldington's costs in respect of the appeal in the sum of £124,900. The
Court further ordered that in the absence of such payment the
applicant's appeal stand dismissed. A request by the applicant for
more than 14 days to attempt to raise the money was refused. The
applicant was ordered to pay Lord Aldington's costs in the security for
costs proceedings. The Court's judgment runs to 23 pages.
The applicant did not furnish the required security and his
appeal was dismissed on 3 August 1990.
B. Relevant domestic law and practice
27. Halsbury's Laws of England describes the domestic law on libel
and slander as follows:
"In English law ... every man is entitled to his good name and
to the esteem in which he is held by others, and has a right to
claim that his reputation shall not be disparaged by defamatory
statements made about him to a third person or persons without
lawful justification or excuse.
If a defamatory statement is made in writing or printing or some
other permanent form the tort of libel is committed and the law
presumes damage.
...
The actions of libel and slander are ... private legal remedies,
the object of which is to vindicate the plaintiff's reputation
and to make reparation for the private injury done by the
wrongful publication to a third person or persons of defamatory
statements concerning the plaintiff. The defendant in these
actions may prove the truth of the defamatory matter and thus
show that the plaintiff has received no injury. For although
there may be damage accruing from the publication, yet, if the
facts published are true, the law gives no remedy by action.
...
A defamatory statement is a statement which tends to lower a
person in the estimation of right thinking members of society
generally or to cause him to be shunned or avoided or to expose
him to hatred, contempt or ridicule, or to convey an imputation
on him disparaging or injurious to him in his office, profession,
calling, trade or business.
...
Actionable libel. A libel for which an action will lie is a
defamatory statement made or conveyed by written or printed words
or in some other permanent form, published of and concerning the
plaintiff to a person other than the plaintiff."
[from: Halsbury's Laws of England, Fourth Edition, Vol. 28,
paras. 1 and 10].
28. Order 59 Rule 11 of the Rules of the Supreme Court provided at
the relevant time
"(1) On the hearing of any appeal the Court of Appeal may, if it
thinks fit, make any such order as could be made in pursuance of
an application for a new trial or to set aside a verdict, finding
or judgment of the court below.
(2) The Court of Appeal shall not be bound to order a new trial
on the ground of misdirection, or of the improper admission or
rejection of evidence, or because the verdict of the jury was not
taken upon a question which the judge at the trial was not asked
to leave to them, unless in the opinion of the Court of Appeal
some substantial wrong or miscarriage has been thereby
occasioned.
(3) A new trial may be ordered on any question without
interfering with the finding or decision on any other question;
and if it appears to the Court of Appeal that any such wrong or
miscarriage as is mentioned in paragraph (2) affects part only
of the matter in controversy, or one or some only of the parties,
the Court may order a new trial as to that party only, or as to
that party or those parties only, and give final judgment as to
the remainder.
(4) In any case where the Court of Appeal has power to order a
new trial on the ground that damages awarded by a jury are
excessive or inadequate, the Court may, in lieu of ordering a new
trial -
(a) with the consent of all parties concerned, substitute
for the sum awarded by the jury such sum as appears to the
Court to be proper;
(b) with the consent of the party entitled to receive or
liable to pay the damages, as the case may be, reduce or
increase the sum awarded by the jury by such amount as
appears to the Court to be proper in respect of any
distinct head of damages erroneously included in or
excluded from the sum so awarded;
but except as aforesaid the Court of Appeal shall not have power
to reduce or increase the damages awarded by a jury.
..."
29. With effect from 1 February 1991 the Court of Appeal has power
in certain circumstances to substitute its own assessment for that of
the jury by virtue of Section 8 of the Courts and Legal Services Act
1990, which provides as follows:
"(1) In this section 'case' means any case where the Court
of Appeal has power to order a new trial on the ground that
damages awarded by a jury are excessive or inadequate.
(2) Rules of court may provide for the Court of Appeal, in
such classes of case as may be specified in the rules, to have
power, in place of ordering a new trial, to substitute for the
sum awarded by the jury such sum as appears to the court to be
proper.
(3) This section is not to be read as prejudicing in any
way any other power to make rules of court."
30. In consequence a new Rule 11 para. 4 was instituted which
provides as follows:
"(4) In any case where the Court of Appeal has power to
order a new trial on the ground that damages awarded by a jury
are excessive or inadequate, the court may, instead of ordering
a new trial, substitute for the sum awarded by the jury such sum
as appears to the court to be proper, but except as aforesaid the
Court of Appeal shall not have power to reduce or increase the
damages awarded by a jury."
In the case of Rantzen v. Mirror Group Newspapers [Times Law
Reports 6 April 1993] the Court of Appeal exercised its powers under
Section 8 (2) of the Courts and Legal Services Act 1991 and under new
Order 59, Rule 11 (4). It held, inter alia, as follows:
"It is always to be remembered that the Convention is not part
of English domestic law and therefore the courts have no power
to enforce Convention rights directly. Nevertheless, as
Lord Bridge explained in Brind [1991] 1 AC 696 at 747 the United
Kingdom is obliged 'to secure to everyone within its jurisdiction
the rights which the Convention defines including both the right
to freedom of expression under Article 10 and the right under
Article 13 to 'an effective remedy before a national authority'
for any violation of the other rights secured by the Convention.
It is therefore clear that the Convention may be deployed for the
purpose of the resolution of an ambiguity in English primary or
subordinate legislation (see Brind at 760 per Lord Ackner), and
that where there is an ambiguity the courts will presume that
Parliament intended to legislate in conformity with the
Convention, not in conflict with it (see Brind at 747 per
Lord Bridge). It is also clear that Article 10 may be used when
the court is contemplating how a discretion is to be exercised
...
Where freedom of expression is at stake, however, recent
authorities lend support for the proposition that Article 10 has
a wider role and can properly be regarded as an articulation of
some of the principles underlying the common law. In Attorney
General v. Guardian Newspapers (No. 2) [1990] 1 AC 109 Lord Goff
at 283 referred to the requirement that in order to restrain the
disclosure of Government secrets it had to be shown that it was
in the public interest that they should not be published. He
continued:
'... I can see no inconsistency between English law on this
subject and Article 10 of the European Convention on Human
Rights. This is scarcely surprising, since we may pride
ourselves on the fact that freedom of speech has existed in
this country perhaps as long as, if not longer than, it has
existed in any other country in the world.
...'
How then should the Court of Appeal interpret its power to order
a new trial on the ground that the damages awarded by the jury
were excessive? How is the word 'excessive' in Section 8 (1) of
the 1990 Act to be interpreted?
After careful consideration we have come to the conclusion that
we must interpret our power so as to give proper weight to the
guidance given by the House of Lords and by the Court in
Strasbourg. In particular we should take account of the
following passage in Lord Goff's speech in Attorney General v.
Guardian Newspapers (No. 2) (supra) at 283:
'The exercise of the right to freedom of expression under
Article 10 may be subject to restrictions (as are
prescribed by law and are necessary in a democratic
society) in relation to certain prescribed matters which
include 'the interests of national security' and
'preventing the disclosure of information received in
confidence'. It is established in the jurisprudence of the
European Court of Human Rights that the word 'necessary' in
this context implies the existence of a pressing social
need, and that interference with freedom of expression
should be no more than is proportionate to the legitimate
aim pursued. I have no reason to believe that English law,
as applied in the courts, leads to any different
conclusion.'
If one applies these words it seems to us that the grant of an
almost limitless discretion to a jury fails to provide a
satisfactory measurement for deciding what is 'necessary in a
democratic society' or 'justified by a pressing social need'.
We consider therefore that the common law if properly understood
requires the courts to subject large awards of damages to a more
searching scrutiny than has been customary in the past. It
follows that what has been regarded as the barrier against
intervention should be lowered. The question becomes: Could a
reasonable jury have thought that this award was necessary to
compensate the plaintiff and to re-establish his reputation?
...
A very substantial award was clearly justified for the reasons
which Mr. Hartley explained. ... Judged by any objective
standards or reasonable compensation or necessity or
proportionality the award of £250,000 was excessive.
We therefore propose to exercise our powers under Section 8(2)
of the 1990 Act and Order 59 r. 11(4) and substitute the sum of
£110,000."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
31. The Commission has declared admissible the applicant's complaints
that the requirement that he find security for the costs of his appeal
denied him access to court, contrary to Article 6 (Art. 6) of the
Convention, and that the award of £1,500,000 and the injunction against
him were such as to constitute an interference with his freedom of
expression which was neither prescribed by law nor necessary in a
democratic society.
B. Points at issue
32. The issues to be determined are:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention, and
- whether there has been a violation of Article 10 (Art. 10) of the
Convention.
C. As to Article 6 para. 1 (Art. 6-1) of the Convention
1. Applicability
33. Article 6 para. 1 (Art. 6-1), first sentence, provides as
follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law."
34. The Commission recalls that the right to enjoy a good reputation
is a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention (cf. Al Fayed and Others v. the United Kingdom, Comm.
Rep. 7.4.93, para. 69, with further references, [pending before the
European Court of Human Rights)]. The applicability of Article 6
(Art. 6) to the proceedings at issue has not been contested. The
Commission finds that the proceedings in the present case determined
the applicant's civil obligations within the meaning of Article 6
(Art. 6) of the Convention.
2. Compliance with Article 6 para. 1 (Art. 6-1)
35. The Commission has already declared inadmissible the applicant's
complaints of unfairness of the proceedings brought against him (see
Appendix II to the present Report). The sole question left to be
determined is whether the applicant's access to the Court of Appeal was
denied by the requirement that he give security for costs before being
allowed to proceed with his appeal against the first instance decision
of 30 November 1989.
36. The applicant considers that the requirement of security for
costs denied him the access to court to which he is entitled under
Article 6 para. 1 (Art. 6-1) of the Convention.
37. The Government submit that the requirement to find security was
reasonable in that the applicant's appeal was found to have little or
no prospects of success, and that if the appeal had been allowed to
continue and had failed, Lord Aldington would not have been able to
recover the costs which would have been ordered in his favour as the
successful party.
38. The Commission here recalls that where an appeal is provided,
the way in which Article 6 (Art. 6) is to be applied must depend on the
special features of such proceedings (cf, in the context of a criminal
case, Eur. Court H.R., Delcourt judgment of 17 January 1970, Series A
no. 11, pp. 14,15, paras. 25 and 26). In particular, the Commission
must take account of the entirety of the proceedings in the legal order
and the role of the appellate court therein (Eur. Court H.R., Helmers
judgment of 29 October 1991, Series A no. 212-A, p. 15, para. 31). In
general in considering limitations on access to court, the Commission
must examine whether the limitation on access impaired the essence of
that right, pursued a legitimate aim and bore a reasonable relationship
of proportionality to that aim in the circumstances (see above-
mentioned Al Fayed and Others, Comm. Rep. 7.4.93, paras. 71 and 72 with
further references)
39. The present case relates to a requirement that an appellant
should find security for the opponent's costs in the event of the
opponent being successful on appeal and being awarded costs. There is
no question of the State imposing a financial requirement, by way of
court costs, on the individual purely on grounds of impecuniosity.
Rather, the domestic authorities had to balance the applicant's
prospects of success on appeal against the chances of his being able
to find costs to satisfy an appeal judgment against him. The
Commission finds that the aim of the restriction on access to court in
the present case was to safeguard the interests of the other party to
the proceedings. Moreover, the order related only to the costs before
the Court of Appeal, and not to the other costs incurred in the
proceedings. Such an aim is compatible with the requirements of
Article 6 (Art. 6) of the Convention.
40. As to the proportionality of the actual limitation on access to
that aim, the Commission first notes that the limitation was not
imposed without due consideration. The Registrar of the Court of
Appeal initially considered that the applicant should not be required
to give security. He heard the parties and gave a 22-page reserved
judgment on 18 May 1990. He concluded that there was just enough
chance of the applicant succeeding on appeal for him not to order
security. He also considered in some detail the likely extent of
Lord Aldington's costs on appeal, and reduced the estimate from
£188,000 to £124,900.
41. The Court of Appeal then heard further argument for the parties
for six days before concluding that security should be required. The
Court of Appeal found that there was no merit in the procedural
complaints, that its own powers of ordering a retrial were restricted,
that an appeal on quantum was not what the applicant wished and that
in any event it was academic because of the open letter from
Lord Aldington offering to accept a lower sum of damages. The Court
of Appeal's judgment of 19 July 1990 on the interlocutory issue runs
to 23 pages.
42. It is not for the Commission to re-decide the issues before the
Court of Appeal. It is, however, clear that very extensive
consideration was given to the question of whether to order security,
and indeed the merits of the appeal were canvassed in some depth.
Moreover, whilst a requirement to find security for costs in the amount
at issue in the present case could well raise different issues under
Article 6 (Art. 6) of the Convention if an individual was thereby
prevented from having a hearing of his case at all, the Commission must
bear in mind in the present case that although the applicant's access
to the Court of Appeal was ultimately effectively barred, the issues
before the courts were heard at three instances: at first instance, and
then again (in the security proceedings) before the Registrar of the
Court of Appeal and before the Court of Appeal itself. Before the full
Court of Appeal the parties were present in court to put their
arguments for six days.
43. In the light of these considerations, the Commission is of the
opinion that the requirement that the applicant find security for costs
before being allowed to pursue his appeal did not impair the essence
of his right of access to court, or transgress the principle of
proportionality.
Conclusion
44. The Commission concludes by ten votes to five that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention.
D. As to Article 10 (Art. 10) of the Convention
45. The applicant considers that the order of damages and costs and
the injunction against him violated his right to freedom of expression
under Article 10 (Art. 10) of the Convention. Article 10 (Art. 10)
provides, so far as relevant, as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, ... for the protection
of the reputation or rights of others, ..."
46. The applicant considers that the fact that jury awards at the
time in question were effectively subject to neither guidelines nor
review necessarily meant that the award against him was both a
disproportionate interference with the Article 10 (Art. 10) rights, and
that it was not "prescribed by law", as required by Article 10
(Art. 10). He points out that the next largest awards of libel damages
until 1992 were of £600,000 (set aside by the Court of Appeal), and
£500,000 and that there were three awards in the £400,000 - £499,000
band. He also considers that the injunction imposed on him was too
broad to be compatible with Article 10 (Art. 10).
47. The Government submit that the applicant was found by a jury to
have uttered a defamation which was as serious as it was possible to
conjecture, that the aim of damages in defamation cases is to put, so
far as possible, the victim in the position he would have been in had
the violation not occurred, that the applicant had deliberately had the
pamphlet distributed amongst a group of individuals in relation to whom
Lord Aldington had a special relationship, and that the applicant
voluntarily joined the action. With regard to the costs, the
Government submit that it is a normal and proper incident of civil
proceedings for the unsuccessful party to pay the adversary's costs.
In connection with the injunction against the applicant, the Government
consider that a final injunction, as in the present case, need not be
as closely scrutinised as an interlocutory injunction, that it was
right to prevent the applicant from repeating the civil wrong he had
been found to have committed, and that the applicant had said that he
would not be able to pay the award of damages, so that the risk of
repetition was greater. The Government also point out that it remains
open to the applicant to apply for a variation of the order, and that
he has not done so.
48. The European Court of Human Rights has recently summarised the
major principles of its case-law on the "necessity" test in Article 10
(Art. 10) of the Convention as follows:
"(a) Freedom of expression constitutes one of the essential
foundations of a democratic society; subject to paragraph 2 of
Article 10 (Art. 10-2), it is applicable not only to
'information' or 'ideas' that are favourably received or regarded
as inoffensive or as a matter of indifference, but also to those
that offend, shock or disturb. Freedom of expression, as
enshrined in Article 10 (Art. 10), is subject to a number of
exceptions which, however, must be narrowly interpreted and the
necessity for any restrictions must be convincingly established.
(b) These principles are of particular importance as far as the
press is concerned. ...
(c) The adjective 'necessary', within the meaning of Article 10
para. 2 (Art. 10-2), implies the existence of a 'pressing social
need'. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with a European supervision, embracing both the law
and the decisions applying it, even those given by independent
courts. The Court is therefore empowered to give the final
ruling on whether a 'restriction' is reconcilable with freedom
of expression as protected by Article 10 (Art. 10).
(d) The Court's task, in exercising its supervisory
jurisdiction, is not to take the place of the competent national
authorities but rather to review under Article 10 (Art. 10) the
decisions they delivered pursuant to their power of appreciation.
This does not mean that the supervision is limited to
ascertaining whether the respondent State exercised its
discretion reasonably, carefully and in good faith; what the
Court has to do is to look at the interference complained of in
the light of the case as a whole and determine whether it was
'proportionate to the legitimate aim pursued' and whether the
reasons adduced by the national authorities to justify it are
'relevant and sufficient'."
(Eur. Court H.R., Sunday Times (No. 2) judgment of
26 November 1991, Series A no. 217, p. 29, para. 50).
49. The Commission notes that the present case involves not the
imposition by the State of a penalty for breach of criminal law, but
a decision by the State, represented by its courts, in a dispute
between two individuals. The results of the dispute are therefore the
State's conclusions in the balancing exercise, inherent throughout the
Convention but particularly in Article 10 (Art. 10), which must be
undertaken in setting the rights of one individual or group of
individuals against those of others. It is not, however, contested,
and the Commission finds, that the findings and orders made against the
applicant constitute an interference with his freedom of expression
under Article 10 (Art. 10) of the Convention.
50. The Commission next notes that the Court of Appeal underlined the
narrowness of its ability to remit a case to the court of first
instance or to substitute its own opinion of what would be an
appropriate figure of damages in a particular case. Thus
Sir Stephen Brown considered (cf. para. 23 above):
"The quantum of damage is a very large sum. However, there is
no doubt that the learned judge gave an impeccable direction on
damages. Count Tolstoy has argued that the judge invited the
jury to give excessive damages. A correct reading of the
transcript shows that he did just the opposite. There is no
merit in that submission. The award was entirely within the
jury's discretion and they received a very full direction about
it. I have no doubt that it was meant to mark their view of the
enormity of the gross libel which had been published and
persisted in."
Lord Justice Russell stated (cf. para. 24 above):
"The court will be very slow to interfere with the jury's verdict
unless there has been some material irregularity in the
proceedings which renders the verdict unsafe or unsatisfactory,
or it can properly be said that the verdict is perverse. Much
the same considerations must apply in the instant case."
Lord Justice Beldam found that (cf. para. 25 above):
"It is not for this court to grant a retrial after the verdict
of a jury, even if it thought that a reasonable jury ought to
have found differently. The test which, on the hearing of the
appeal, this court would have to apply is whether the finding of
the jury is absolutely unreasonable that it can be said that they
have not performed the judicial duty cast upon them. Again I
have listened to the skilful development of the facts and
evidence by the appellant. He has failed to satisfy me that he
has any reasonable chance of success in this appeal. Even if he
persuaded the court to grant a retrial on the issue of the amount
of the damages, I would regard as negligible the prospect of any
jury, doing their judicial duty, awarding the respondent [Lord
Aldington] less than the sum which he has in reality already
offered to accept in compromise of this appeal."
51. The position in domestic law has changed substantially since the
events in the present case occurred. In particular, Section 8 of the
Courts and Legal Services Act 1990 has given rise to the new
paragraph 4 of Order 59, Rule 11 of the Rules of the Supreme Court
(para. 30 above). The new provision in terms applies only to cases
where the Court of Appeal has power to order a new trial, and it does
not purport to affect that power. However, it is clear from the
judgment of the Court of Appeal in Rantzen v. Mirror Group Newspapers
[TLR 6 April 1993] that the common law power to order a new trial has
been reconsidered in the light of the amendment brought about by
Section 8, in particular in the passage, also set out above (at
para. 30), which reads as follows:
"...it seems to us that the grant of an almost limitless
discretion to a jury fails to provide a satisfactory measurement
for deciding what is 'necessary in a democratic society' or
'justified by a pressing social need'. We consider therefore
that the common law if properly understood requires the courts
to subject large awards of damages to a more searching scrutiny
than has been customary in the past. It follows that what has
been regarded as the barrier against intervention should be
lowered. The question becomes: Could a reasonable jury have
thought that this award was necessary to compensate the plaintiff
and to re-establish his reputation?"
52. It is apparent to the Commission that in jury cases in the United
Kingdom at the relevant time, the judge could give only general
guidance as to the criteria to be used (for example, relating damages
to the cost of a house) in assessing damages, but could not make any
reference to other cases or specific sums of money. Moreover, the
findings of the jury give no indication of the reasons for assessing
damages at one level rather than at another. It appears from the
statements of law in the courts in the present case and from the
subsequent development outlined above, that the Court of Appeal was
unable in any real way to review or to control the size of the jury
awards in the present case.
53. The Commission notes that in the present case the award of
£1,500,000 was three times the size of the next largest award ever
made. The Commission accepts that the allegations made against
Lord Aldington (and found by the domestic courts to be unjustified)
were very serious. However, the Commission cannot accept that an award
of £1,500,000 to vindicate pure damage to reputation, as distinct from
compensating actual financial loss, can be proportionate to the
legitimate aim pursued.
54. In the light of these considerations, the Commission finds that
there is no need to consider whether the interference was sufficiently
foreseeable to be "prescribed by law", or whether the injunction
against the applicant was in violation of Article 10 (Art. 10) of the
Convention.
Conclusion
55. The Commission concludes unanimously that there has been a
violation of Article 10 (Art. 10) of the Convention.
E. Recapitulation
56. The Commission concludes by ten votes to five that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention
(para. 44).
57. The Commission concludes unanimously that there has been a
violation of Article 10 (Art. 10) of the Convention (para. 55).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English )
DISSENTING OPINION of MM. Weitzel, Busuttil, Gözübüyük,
Reffi and Cabral Barreto
We are unable to agree with the Commission's conclusion
concerning Article 6 of the Convention (para. 44 of the Report).
Article 6 guarantees the right of access to court, and that
includes access to appeal courts, although the criteria will not be
identical to the criteria for access to courts of first instance.
Limitations on access to court may be permitted provided that they
pursue a legititimate aim and are proportionate to the pursuit of that
aim.
In this case the aim of the restriction was not the effective
administration of justice as such, but a desire to avoid the risk to
Lord Aldington that he would not be able to recoup his costs if Count
Tolstoy's appeal was unsuccessful.
We accept that it will often be appropriate for a successful
litigant to be awarded his costs involved in pursuing or defending a
claim. However, the sum required by way of security in the present
case (£124,900) was so enormous that, even if it may be permissible to
require a litigant to compensate his opponent for his reasonably
incurred costs after the event, it is not for the State to put such a
substantial barrier in the way of an appeal before the event.
Moreover, we note that Count Tolstoy was refused an extension
of the extremely short period allotted for finding security.
We find that the denial of access to the Court of Appeal in the
present case bore no relationship of proportionality to the aim which
was being pursued.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
18 December 1990 Introduction of the application
Registration of the application
Examination of Admissibility
20 February 1992 Commission's partial decision and
decision to invite the Government to
submit observations on the
admissibility and merits of the
application
2 June 1992 Government's observations
6 October 1992 Applicant's observations in reply
8 February 1993 Commission's deliberations and
decision to hold an oral hearing
12 May 1993 Oral hearing on admissibility and
merits, Commission's deliberations
and decision to declare remainder of
the application admissible
Examination of the merits
17 May 1993 Decision on admissibility transmitted
to the parties
16 October 1993 Commission's consideration of the
state of proceedings
30 November 1993 Commission's deliberations on the
merits and final votes.
6 December 1993 Adoption of the Report
Full & Egal Universal Law Academy