Alastair Brett – as he leaves The Times, an appreciation

The Times’ and Sunday Times’ long serving legal manager, Alastair Brett, has left the newspapers after more than 30 years. He has been a fixture on the legal media scene for as long as most practititioners can remember. We take this opportunity to recall some of the highlights of his long career at Times Newspapers Limited and his tireless contribution to the cause of press freedom.

Alastair Brett began working in the Times Newspapers’ legal department in the late 1970s shortly after qualification in a city firm of solicitors. He traded a world of dreary “time-sheets” for the joys of the in-house lawyer’s role on a newspaper. The list of Editors who benefited from his advice over three decades includes William Rees-Mogg, Harold Evans and Andrew Neil.

Alastair Brett’s first appearance in the law reports in the world of media law came after he attempted to read a statement in open court in the Abse v Smith libel case in October 1985. Then a ‘senior legal assistant’ at The Times, he ran a small private practice on the side and did the case for his friend, Cyril Smith. He thought the fees quoted for a barrister to read the statement were ridiculously high. He said that he would do it for £25 as against £75 for the cheapest barrister. However, this value-for-money option was problematic as solicitors had no rights of audience at the time. The judge, having listened to the request to read the statement in the privacy of his room (made by Alastair Brett in person), insisted upon a full court hearing, with representation for the applicant and an “amicus curiae” (as a “friend of the court” was then known): the proposal that a mere solicitor should be permitted to address the court (albeit to read words that had already been agreed) would be an unprecedented departure from established practice. Despite having engaged a young David Pannick to argue the case on his behalf, Alastair Brett was unsuccessful at first instance and in the Court of Appeal. But, while the case was lost, the battle was (eventually) won. The court made clear that the judge did have discretion to permit solicitors to read such statements. The College of Judges subsequently announced that solicitors would be permitted to appear in formal and unopposed proceedings and on 13 May 1986, Alastair Brett was one of the first solicitors to read such a statement. This was the first step towards solicitors acquiring rights of audience.

During Alastair Brett’s career at The Times and The Sunday Times, those newspapers were at the forefront of cases developing the law, not only in defamation, but also breach of confidence.  His then boss, Anthony Whitaker, ran a series of cases which advanced the boundaries of freedom of expression in a number of important areas.  The Sunday Times fought for the right to publish Peter Wright’s Spycatcher – freely available in much of the rest of the world but, in those pre-internet days, kept out of the country by order of the court. The case started in the High Court and ended up in Strasbourg – long before the passing of the Human Rights Act 1998.  It was The Sunday Times that established that local authorities cannot sue for libel – in the landmark Derbyshire v Times Newspapers decision. The “Reynolds” defence was invented in a case defended by Times Newspapers Limited (over a Sunday Times article) – a case which, although unsuccessful on the facts, was another landmark ruling in the development of defamation law. Another advance came in McCartan Turkington Breen – also taken to the House of Lords by Times Newspapers – which established that statutory privilege extended to reports of a press conference on a matter of public interest.

This campaigning tradition was continued by Alastair Brett.  He was behind attempts to change the practice relating to the law of damages: in Kiam v Neil [1995] EMLR 1 the challenge was to the rule that defendants cannot reveal to a jury how much they have offered to the claimant (so the jury can assess the reasonableness of the stance adopted by the newspaper). Although that challenge failed, a hugely significant advance was gained in Burstein v Times Newspapers Limited [2001] 1 WLR 579: following that decision, a defendant can set out directly relevant factual context in relation to damages, which has stopped juries (or judges) from having to assess damages in blinkers or a blindfold. In that case, although the newspaper did not want to try to prove that the claimant had organised bands of hecklers to wreck performances, it did want the court to know that he had been associated with a group called the “Hecklers”, who opposed atonal music and encouraged booing, but only at the end of a performance, and that he had booed at the end of a performance himself. Information which, it might be thought, was obviously relevant to the assessment of damages. But it took a Court of Appeal decision, changing the law, to establish this.

In 1989 Alastair Brett set up the “Fleet Street Lawyers’ Society”, a group comprising solely lawyers working for newspapers. This group campaigned for press freedom for nearly two decades before the formation of the Media Lawyers Association.

One of the cases most closely associated with Alastair Brett is Carmen Proetta’s claim for libel against The Sunday Times. Proetta had witnessed the SAS shooting of two (of three) members of an active service unit of IRA terrorists in Gibraltar in March 1988. The circumstances of their deaths were hotly contested. Proetta sued a number of British newspapers over allegations published about her. At one interim hearing in The Sunday Times case, emotions ran so high that Alastair burst into tears in court – leading to his being dubbed ‘Blubber Brett’ by Private Eye. Eventually, after long litigation, The Sunday Times (like the other newspaper defendants) settled the claim, agreeing to pay Proetta costs and damages. But that wasn’t the end of the litigation. Alastair Brett later brought his own libel action against Channel 4 over a “Hard News” programme which had falsely suggested that he had filed inaccurate copy to The Sunday Times as part of a deliberate smear campaign against Proetta.  In January 1994, Channel 4 and the programme makers agreed to pay him damages and costs and made an apology. And as for his persistence, reports of his Freedom of Information request is to be found on the Information Tribunal’s website (August 2009). The decision records that it is his intention to write a book about the events in Gibraltar.

Another, more recent, case closely associated with Alastair Brett was Loutchansky’s claim for libel. This resulted in two important Court of Appeal judgments on the parameters of the Reynolds defence for reporting on matters of public interest. It also resulted in an unsuccessful application to the House of Lords for permission to appeal and a decision of the European Court on Human Rights. Having taken that case as far as possible through the courts, Alastair Brett continued to press for changes to bring the law up to date – particularly, to deal with the question of ongoing internet publication.

The latest Times case on the Reynolds defence was the case involving police officer Gary Flood. The Times won at trial (on all but part of the ongoing internet publication). This was the first time a British national newspaper had succeeded in the Reynolds defence. But victory was short-lived: the Court of Appeal allowed an appeal by the claimant. Whether the case will go further remains to be seen.

Alastair Brett has been central to many campaigns for the reform of libel law and procedure over more than two decades, writing in The Times, lobbying Government and Parliament and speaking frequently at legal conferences. He recently chaired a working sub-committee for Lord Justice Rupert Jackson on a Civil Legal Aid Fund for libel actions. He was a key player in the team advising Lord Lester on his Defamation Bill (making particularly valuable contributions on the importance of media archives and problems of internet publication). He is secretary to Sir Charles Gray’s Committee on an Early Resolution Procedure for libel actions. The mediation/arbitration scheme – initiated by Times Newspapers – has operated with considerable success in resolving cases early.

Last summer, Alastair Brett chaired a committee which looked into a Civil Legal Aid Fund for libel and privacy actions for Lord Justice Rupert Jackson and his High Court costs review. His most recent bravura performance came at the Westminster Policy Forum on Libel Reform where – having lost his powerpoint presentation somewhere on the way to the Forum – he delivered a passionate speech on what is needed to reform defamation law and practice.  Despite over 30 years in the business, he remains committed to the idea that things can be changed for the better.

A 2003 profile in The Times described him in the following terms:

“[He] is known for his impassioned commitment to press freedom – so impassioned that he has been described as “certifiably insane”. Capable of an intimidatory snarl or two, and prepared to be stubborn, Brett is far from mad. He is erudite, charming (so the ladies say), and not known for sitting on the fence. If his sanity has, tongue firmly in cheek, been questioned, one thing not open to doubt is that Brett epitomises the old school Fleet Street lawyer”.

Fleet Street has moved on – and, now, so has Alastair Brett.  We await, with interest and anticipation, his next dynamic appearance in the media-law world.