Lord McAlpine shares his views on how to deal with the media
In his 1999 book, The New Machiavelli: The Art of Politics in Business, Lord McAlpine, who successfully defeated Sally Bercow in a libel action today stated:
“Another option is for the businessperson to learn the art of dealing with the media, using all the tricks that go with that trade – such as the false defeat: when a person seems to lose, in order to gain public sympathy, or the false triumph: where a person seems to win in order to appear strong – thus giving credibility to any number of dubious propositions that person may wish to make in the future. Neither of these ploys are examples of the use of true facts, rather of false facts given to the media to chew on, much as a dog chews on a bone”.
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Bercowed
Sally Bercow loses libel case brought by Lord McAlpine This morning a judge at the High Court ruled that Sally Bercow’s tweet last November about Lord McAlpine suggested that he was a “paedophile who was guilty of sexually abusing boys living in care” and therefore libelous.
“Another useful ploy is the false accusation. First, create a situation where you are wrongly accused. Then, at a convenient moment, arrange for the false accusation to be shown to be false beyond all doubt. Those who have made accusations against both the company and its management become discredited. Further accusations will then be treated with great suspicion. Always remember that people’s memories are very frail, remembering only both the high spots and the lows of a person’s career, and then seldom remembering accurately. People believe in the facts that it suits them to believe”.
As Margaret Thatcher herself once said of this work, this is a “shrewd commentary”. Those who take to Twitter should take heed.
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19 comments
Very enlightening…would it be libelous to ask where all the paintings went (or was that someone else)
http://www.seancopland.com/articles/sex_offenders_register_free_online_search.html
Worth a read
Shocking High Court decision. Alot of people on Twitter pointing out vast differences on approach between this case and a similar libel case involving multiple libels and defendants.
No consistency between the approach at all. The result here was solely based on meaning but this was allowed to overide all other crucial libel considerations such as the totality of publications and over-compensation.
In the other case, several defamatory statements were identified but the whole case was dismissed as an abuse of process but all relevant legal points properly considered. In McAlpine, meaning was the only factor considered so a distorted and disproportionate outcome followed. Either the McAlpine case is plain wrong or the courts have ditched previous legal guidance which prevents libel litigants trying to reward themselves on a case by case basis.
Seems this litigation was put into a legal strait-jacket where there was no mechanism or opportunity to introduce or develop crucial arguments. The fact the judgement might read as reasonable is not the point – the wider context has been ignored.
Clearly this departure from legal precedent has now caused a difficult situation. Libel claimants will now be able to demand huge sums off individuals without any consideration that the claims have to be considered together and compensated in the context of the totality of the publications and compensation received to date. A truly shocking case.
The legal community and judges were given notice about the danger of looking at this case in the old traditional one dimensional way. Now they will no doubt live with the consequences of courts yet again being clogged up with ill conceived and vexatious litigation and ‘speculative invoicing’ making a return. Still, keeps them in a job I guess.
I was not aware the Court had made ANY ruling as to amount of damages? I thought that the hearing was simply on a preliminary issue, namely, whether the Tweet was (or was capable of being) libellous. The ruling being that it was, Sallow Bercow conceded defeat on the areas that had not been tried.
I find it difficult to follow how this case, decided on its facts, will have the adverse consequences claimed.
Gerald
Having a separate hearing to decide meaning has resulted in the same adverse consequences. The argument being made is that in other cases meaning AND all the other relevant factors (over-compensation) were all considered together. Here the case has been managed on the presumption that if the case is lost of meaning some damages follow. The outcome of a case should not be decided just on meaning but also on a wider context.
In many other recent libel cases, defamatory statements have been made but the case has been sensibly declared an abuse of process because the costs of pursuing these will outweigh further vindication and damages which can be achieved. I believe this is one case where that approach should have been adopted by the judge.
If you read Smith v ADVFN (25/7/08) it might become clearer.
I think that I will need to read a lot of additional material (including the case to which you refer) in order to understand the points you make – further comments or questions from me are therefore not to be indulged in, save only this: Sally Bercow’s Tweet seemed to me to be vindictive and exultant in the manner of its directing her followers to the naming of Lord McAlpine as the Paedophile. Her Tweet (along with a handfull of others – who have paid) was particularly wide-spread: she is in a different class from individual unknown members of the public. She resisted the interpretation (surely unanswerable) of the tweet as libellous. She maintained (risibly) that she was merely asking a question. The Tweet being held defamatory, it is difficult for me, not being a libel lawyer, to see why she should not suffer in damages for the suffering she indubitably caused McAlpine.
Lord McAlpine is a distinguished old English Gentleman that represents the Establishment. So is the Presiding Judge.
Gerald
If I may ask a question because I am interested in your opinion. Considering the following facts would you agree that there is at least an argument for the judge to have taken a different approach than he did and reach a decision that the claim versus Bercow is an abuse of process? (in other words the costs of pursuing a case against her outweighs any further vindication or compensation he could receive) Also that the judge should have intervened – as he has done in other multiple defendant libel cases to ensure that compensation cannot be demanded on a case by case basis.(and thus reduce the risk of over-compensation and this kind of unfair outcome.
1) The highest ever libel award is in the region of £250,000
2) McAlpine has received at least £310,000 in other settlements. There are other possible actions in the frame.
3) Consideration of the fact the allegations have been on the internet for years, the police role in this, BBC and ITV mistakes.
4) Thousands of other Tweets besides Sally Bercow saying or repeating the same.
5) The fact McAlpine was vindicated very quickly.
6) Apology and a settlement offered by Bercow not taken into account whatsover.Might have been perfectly reasonable.
7) Previous legal precedent that posts etc need to be considered together and in the context of the totality of the publications to avoid the danger of over-compensation and ‘divide and rule’ tactics. This precedent/guidance states that you cannot make demands or receive awards from one individual publication as if it was the sole or main cause of the damage.
If you consider all that then surely if Bercow had made a token offer, that should have been enough. I appreciate the point you make but I really think this case was managed in such a way where all the above points have been ignored and the focus purely on meaning has produced a completely absurd result. Do you not agree that the direction in this case was inappropriate for a multiple libel and defendant case?
See my earlier reply.
I have a memory (possibly false) of Lord Archer receiving in excess of £500,000 …
Looking at the questions you ask (and I, too, am very interested to know the answers – it would be a terrible thing if there truly were, as some have suggested, an establishment conspiracy – or if this judge for no good reason dealt with the case exceptionally) were any of the queries you make taken by Sally Bercow’s legal team, and rejected by the judge? Her team was hardly inexperienced, and if the matters were not raised it may point to their not being sound.
I see that I have gone public (name given). Who are you?
Sir Michael Tugendhat acted as an advocate for the Beckham’s and Catherine Zeta-Jones , Michael Douglas.
He excelles in high profile cases. However unpopular his decision in this case maybe. He must still be congratulated.
Gerald
It is a fair question to ask why a different approach was taken here. So far, no one has really come up with a reason. All I can only say is that it was the way the judge decided to manage this particular case for reasons
we can only speculate.
As for the defence team, I know the barrister is good because I have seen him in court. I cannot say I have come across the work of Carter Ruck in a defence capacity but I would not have chosen them myself. From reading the judgements I think Carter Ruck said in the original skeleton argument/defence papers that McAlpine had effectively been vindicated shortly after the allegations and also raised the point about him receiving substantial compensation for similar libels from the ITV and BBC.
I have not seen anything to suggest that the defence team picked up on Smith V ADVFN. Had they done so one would have thought that they could have developed these arguments from not only simply demonstrating they mitigate the damages but to the point where this could be argued to be an abuse of process. But to me the case was managed in such a way where these arguments could not be made – unless there was some provision within the separate damages hearing (which did not happen in the end) where the judge could say that no damages were payable – or at least no more than Bercow had offered. The fact that Bercow gave up would suggest that they calculated that some substantial compensation would be awarded against her. If I am correct all this seems bizarre and wrong legally.
I also feel that if certain points are not made by the defence team, the judge would not ignore them if they were compelling. I believe the Smith V ADVFN points are compelling and directly comparable to this case. In that case many of the points in favour of the defendants were raised by the judge himself. The defendants were all unrepresented and therefore I guess there was some onus on him to do this. To me though it seems inconceivable that a judge would allow a clearly distorted and wrong decision to stand because a defence has not done its job.
If you have a read of Smith V ADVFN my points might be clearer. It explains the background and it also confirms that the judge thought some comments were defamatory. However all the cases were struck out. There are many reasons why those claims failed and you may say some are different to this. But that is my whole point. The judge in that case dealt with the issues in one hearing and covered so many issues which are relevant to so many libel cases. Here are some paragraphs in that case on multiple libel claims and over-compensation.
As for me, I am not a lawyer so you will not know me. But I know and supported people involved in the case I mentioned.
…………………………….
10• At the very least it is possible to conclude, even at this stage, that the strategy of “divide and rule” is inappropriate, as I have explained to Mr Smith this morning and as he is already aware. This is especially so in libel proceedings because, if they are appropriate at all, damages can only be assessed in the round (that is in the context of the overall picture). In particular, any distress and hurt feelings suffered by Mr Smith would have to be compensated by reference to the totality of the publications and not on the artificial basis of the sum total of the impact upon his feelings by one individual publication; otherwise there would, as I think he understands, obviously be a significant risk of overcompensation.
73.First, there was the potential risk of over-compensation (to which I had referred on 12 May). It was clearly necessary for any award of damages to be made in the context of all the claims (including those settled last year). It would not be right to compensate for either injury to reputation or for hurt feelings as though any individual’s publication(s) had been the sole cause.
74. A further factor was the protection afforded to defendants by s.12 of the Defamation Act 1952. The tribunal in question would, in due course, have to bear in mind, when making an award in any given case, any other award for similar allegations made, or about to be made, against any other defendant. Any risk of over-compensation would thus be significantly reduced.
103. On the other hand, they do need to be seen in the context of the litigation as a whole. Not least, I have to bear in mind the undoubted need for these cases, if they are ever to be heard, to be heard together so as to avoid inconsistencies and over-compensation. They need to progress, if at all, in harness. Since I am proposing to maintain the stay in relation to those cases which have not yet been served, it would seem consistent for these reasons to maintain the stay also in the cases which have hitherto been active.
I can’t shake off a feeling that it was not up to the judge to raise the points that concern you – either at all (abuse of process was for McCormick to raise) or at the particular hearing which took place (multiplicity of actions, and over-compensation were not relevant to the preliminary issue “libellous or not”).
I look forward to reading Smith v ADVFN in full (when I have time! I’m even working today and tomorrow…this is light relief). From the paragraphs you have cited however, it does not appear to be applicable, because in McAlpine v Bercow there was only one claim ‘on the table’: the others were already settled by consent – there were no “cases to be heard together”. And I have no doubt whatsoever that if the ‘damages hearing’ had taken place, the rule against over-compensation would have been firmly in the mind of Tugendhat J, and applied accordingly.
Neither the judge nor the system can be blamed for SB’s running a hopeless liability defence, nor her settling the issue of damages. If she had been unrepresented, a judge could be expected to have been more interventional; but she was represented by leading counsel.
I have no business to an opinion, however, and certainly not to an expressed opinion, on a subject which is alien to me; and I will back off, rather too late perhaps.
Now I must get back to work!
Gerald
I will leave you to read it at your leisure and we can catch up another time. However, you will see that settled claims not further pursued such as the BBC and ITV are relevant (as mentioned in the paragraph 73) . As regards cases heard together, strictly speaking there is the possibility of other actions in the pipeline – so as in Smith V ADVFN you would think the judge at some point would be establishing what other possible actions there were. Given what was said in Smith V ADVFN about damages being considered ‘in the round’, it would not be right if McAlpine now starts demanding large sums of money off others – but arguably this judge has just given the green light for him and others to do that. In Smith V ADVFN the leading judge criticised this behaviour.
As for whose responsibility to raise these points, this is probably a grey area and a matter of discretion for the judge. When dealing with unrepresented litigants I have noted that judges do make points for them. The courts are supposed to be less adversarial these days and rightly so. For that reason I really do not think a judge could ignore a compelling argument even if it was not raised.
Please do not get me wrong. Court processes are not my strong point and I may be on the wrong track about the management of the case. I also accept that the decision on meaning may be considered logical and correct. I believe this decision is wrong based on what Sally Bercow said herself in her press statement but I cannot argue against it from a legal perspective.
What I am questioning from a legal viewpoint is why there did not appear to be provision to argue the specific points I have made (i.e abuse of process). My point is that there seems to be a presumption that if she lost on meaning, she would have to pay some damages, no matter what. That seems odd to me when she made an offer (which the judge said he did not know how much for) and with all the multiple libel specific considerations I have listed.
For me, the over-compensation point for the reasons I listed, translates into a good argument that Bercow should not be liable to pay any damages – or nominal at best. I have no doubt that at least some of these factors would have been in the judge’s mind during the hearing on damages had it taken place but I do not think the provision or opportunity existed to argue my point (as in Smith V ADVFN and other cases) .Either that, or perhaps I am wrong about the damages hearing and a provision to argue this was available, but Sally Bercow just decided to give up.
Loverat
I think that all your concerns about over-compensation and other actions (whether settled, or in the pipeline) would have been addressed at the damages hearing, if SB had wanted to have one.
G
“The Rumble in the Jungle” Kinshasa 1974. To this day, I remain convinced that George Foreman took a dive.
A knockout feigned by pre-arrangement between prize- fighters and their managements.
I was always under the impression that the recipe for the “art of dealing with the media” was created by Don King and Top Rank’s Bob Arum. The boxing world have exploited it for decades, so have the entertainment industry.
We live and learn.
It appears that if you are one of the Establishment you can ‘collect’ photos and paintings of little naked girls but if you are just a pleb then you can’t even open your mouth or tweet on Twitter.
You are all wrong. Lord McAlpine was a decent and wronged man. Nobody should ever have attacked him in the first place but I must say that Mrs Berkcow got what she deserved.