David Hooper, now retired from practice as a media lawyer, but who has certainly not lost his touch for adventure, has written a good book about some bad people. These are people who have used their financial might with the assistance of some greedy lawyers to stop the truth from getting into the public domain.
On the basis of their egregious conduct, he argues, the law and procedure of defamation should be changed to make it more difficult for rich, largely foreign, bullies to exploit our laws and our courts to protect their self-esteem, burnish their reputations and suppress free speech, and to enable the victims of their misconduct, usually journalists, newspapers and other media outlets to write about them, expose their misdeeds and questionable behaviour to the public and to so without being ruined or forced to keep quiet for fear of being ruined.
This is a book about SLAPPS, strategic lawsuits against public participation in which David Hooper takes on a journey through the recent past recounting how millionaires – indeed billionaires – have thrown money at an inconvenience, the truth, because they can and because there have been British lawyers happy to help them for a fee. The story Hooper tells is not a pretty one and it reflects badly on some who perhaps should have known better than to act as enablers to these bullies.
Some of the bullies David Hooper writes about are household names who lived here: for example, the late Robert Maxwell, the former owner of the Mirror Group and all round charlatan; the late Mohammed Al-Fayed, the former owner of Harrods, fantasist and would-be father-in-law of the late Princess Diana; the late Sir James Goldsmith, famous for trying to bombard Private Eye into extinction with libel writs for linking him to the Lord Lucan cover up after the murder of his children’s nanny.
I was Richard Rampton’s pupil in 1976/77 at the time he was led by Lewis Hawser QC on behalf of Goldsmith: call me a naïve or excitable youth but in all the months I was with Goldsmith during the various stages of the civil and criminal libel cases, he never came across to me as anything other than justifiably angry at being defamed and determined to do something about it. That he had the means to do so and to keep going when others might have had to back down because of financial constraints is not in issue.
Perhaps more interestingly, and certainly to me at the time, it was when the defendant distributors tried to strike out his libel claim against them on the grounds of abuse of process (Goldsmith v Sperring [1977] EWCA Civ J0223-1) in the appeal presided over by Lord Denning MR that Bridge LJ, with whom Scarman LJ expressly agreed, publicly chastised the Master of the Rolls as follows:
“The Legal Liability of the Distributors. What the Master of the Rolls says under this heading is unacceptable for four reasons. First, it amends the grounds of the appellants’ summonses. They claim to have the action dismissed or stayed as an abuse of process, not as disclosing no reasonable cause of action. No one but the Master of the Rolls has ever suggested or considered this latter ground. Secondly, it claims, in effect, that the Master of the Rolls’ private researches demonstrates the law, as stated in the leading text book, to be not only wrong but unarguable. Such a claim is untenable. Thirdly, whatever virtue there may be in private judicial researches in other circumstances, they can have no place in interlocutory proceedings for a summary remedy. But the fourth and most important reason is that this part of the Master of the Rolls’ judgment decides against the plaintiff on a ground on which Mr. Hawser, for the plaintiff, has not been heard. This is because Mr. Comyn never took the point and the Court did not put the point to Mr. Hawser during the argument. Hence there is a branch of the rule of audi alterem partem which applies alike is issues of law as to issues of fact, and in a court of inferior jurisdiction this would be a ground of certiorari, and I do not think that this court should adopt as its own procedure any lower standards than those it prescribes for others.”
You could have heard a pin drop, and I can still see Denning’s sheepish grin as the judicial rebuke spiralled round the Court.
The arguments made by Jimmy Comyn QC and Desmond Browne, his junior, in 1977 about suppression of freedom of speech, and ulterior or collateral purposes, did not gain purchase with the Court of Appeal then (because the evidence was not available to sustain them) but I suspect that they would receive a more welcoming hearing in the Court of Public Opinion and in Parliament nowadays.
Indeed, Sections 194 and 195 of the Economic Crime and Corporate Transparency Act 2023 now permit the courts to recognise a SLAPP in limited circumstances to do with suppressing free speech about economic crime. Had the Act been in force even within the last 15 years many of the cases cited by David Hooper in his powerful book would never have got past first base and the publishers against whom threats of action or proceedings initiated might have been able to get their stories out unhindered and unaltered.
Unquestionably times have changed, and the balance of power has shifted. Publishers, especially newspapers, are not as rich and powerful as they used to be. Long gone are the days when they could afford to wear down a claimant with continuous interlocutory applications. Now these same publishers, battered by phone-hacking claims and with a few reporters even convicted and jailed, are demanding more powerful support from the law when they write about the rich, the corrupt and the greedy. David Hooper’s book will be a useful weapon they can happily rely on.
Lord Garnier KC is a barrister at 4 Pump Court
Buying Silence was published by Biteback Publishing on 31 October 2023
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