The demand for £300,000 incurred by the MP Andrew Mitchell in the immediate aftermath of the plebgate libel action is a sharp reminder of why so few defamation cases make it to trial in the high court. The Tory politician could ultimately face a bill of up to £1.5m.
Three top-class legal teams were involved in gathering evidence, researching legal precedents and refining arguments for the best part of a year. The combined expenditure of the legal action may prove to be as high as £3m.
Preparations involved four preliminary pre-trial judgments – establishing what could be presented in the hearing – and culminated in a battle royal before Mr Justice Mitting that lasted almost two weeks at the Royal Courts of Justice in London.
Libel has invariably been the pursuit of the wealthy and those fortunate enough to have the support of well-resourced backers.
The police officer in this case, Toby Rowland, was funded by the Police Federation, an organisation experienced in funding legal actions by its members.
Legal aid has almost never been available for libel claims, although it was eventually awarded in the McLibel Two case, where the two campaigners were sued by the McDonald’s food chain.
The extent of Mitchell’s liabilities are complicated by the fact that his solicitors, Atkins Thomson, said they would represent him on a no-win, no-fee basis after they were late filing estimates to the court. They had previously submitted a £506,425 costs budget for the case.
Mitchell’s side was said to have run-up expert fees of more than £150,000, obtaining advice and testimony about what was said at the gates of Downing Street. The Police Federation costs alone are believed to be almost £1m.
The former Tory chief whip is facing an interim order to pay £300,000, to be shared between the Sun newspaper and PC Rowland, by 3 January. The judge, Mitting, indicated that Mitchell might only have to pay one set of costs since only one factual circumstance was in dispute. But a further costs hearing has been scheduled for the new year when the precise extent of his liabilities will be fixed.
Nigel Tait, a partner at the leading libel law firm Carter Ruck, estimated that the MP could end up paying £1m-£1.5m.
Tait explained: “Part of this case, against the Sun, was funded by a no win, no fee agreement but Mitchell was paying his solicitors for his defence against [Rowland]. He certainly won’t get any change out of £1m.
“The judge found that he did say the words so his own lawyers may be able to come after him. Usually libel cases are about something more important. No win, no fee arrangements are still available for claimants and defendants in libel cases but the government is reviewing it.
“If no win, no fee is abolished, middle-income people will no longer be able to contemplate suing newspapers. There are too many defences. The number of libel cases has dropped considerably. In 1995, there were 560 claims; last year there were only 142.
“A lot of that fall is to do with newspapers being more careful. Perhaps they may become braver with the new Defamation Act [which has a higher threshold for establishing damages].”
Dominic Crossley, a leading privacy lawyer and partner at the law firm Payne Hicks Beach, said: “This is a devastating judgment for Mitchell and vindication for PC Rowland and the Sun. It is rare that cases such as these come to trial, because the stakes are so high, but all three parties in this case held their nerve and left it to Mitting to decide.
“The case essentially turned on who the judge believed, and, unfortunately for Mitchell, he was not able to demonstrate the truth of his account when compared to the evidence of the police officers involved. Mitchell will have to learn to hold his tongue.”
Both Desmond Browne QC, who represented Rowland, and James Price QC, for Mitchell, are both old Etonians and each comes from the same set of chambers, 5RB which specialise in media and entertainment law.
The Mitchell case is likely to bolster the argument that a cheaper and faster system of press and media complaints is required. The real winners in this case, the public is likely to conclude, are the libel lawyers.
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