In the case of Tolstoy Miloslavsky v. the United Kingdom (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr B. Walsh,
Mr C. Russo,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Sir John Freeland,
Mr B. Repik,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 26 January, 24 February and
23 June 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 8/1994/455/536. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 11 March 1994, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 18139/91) against the United Kingdom of Great Britain
and Northern Ireland lodged with the Commission under Article 25
(art. 25) by Count Nikolai Tolstoy Miloslavsky, who is a British
citizen, on 18 December 1990.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the United Kingdom recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Articles 6 para. 1 and 10 (art. 6-1, art. 10) of the
Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyers who would
represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 24 March 1994, in the
presence of the Registrar, the President drew by lot the names of the
other seven members, namely Mr B. Walsh, Mr C. Russo, Mrs E. Palm,
Mr I. Foighel, Mr R. Pekkanen, Mr B. Repik and Mr P. Jambrek
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the United Kingdom
Government ("the Government"), the applicant's lawyers and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the
Registrar received the applicant's memorial on 23 September 1994 and
the Government's memorial on 27 September. On 28 October the Secretary
to the Commission indicated that the Delegate would submit his
observations at the hearing.
5. On 14 October the applicant submitted further observations on his
claim under Article 50 (art. 50) of the Convention.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
21 January 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr I. Christie, Assistant Legal Adviser, Foreign and
Commonwealth Office, Agent,
Mr D. Pannick, QC, Counsel,
Mr M. Collon, Lord Chancellor's Department, Adviser;
(b) for the Commission
Sir Basil Hall, Delegate;
(c) for the applicant
Lord Lester of Herne Hill, QC,
Ms D. Rose, Barrister, Counsel,
Ms K. Rimell, Solicitor,
Mr M. Kramer, Solicitor, Advisers.
The Court heard addresses by Sir Basil Hall, Lord Lester and
Mr Pannick, and also replies to questions put by one of its members
individually.
AS TO THE FACTS
I. Particular circumstances of the case
7. Count Nikolai Tolstoy Miloslavsky, a British citizen, lives in
Southall, Berkshire, in the United Kingdom. He is a historian.
A. The impugned pamphlet
8. In March 1987 a pamphlet written by the applicant and entitled
"War Crimes and the Wardenship of Winchester College" was circulated
by Mr Nigel Watts to parents, boys, staff and former members of the
school as well as to Members of Parliament, Members of the House of
Lords and the press. Mr Watts bore a grievance against the Warden of
Winchester College, Lord Aldington, at the time Chairman of an
insurance company, concerning an insurance claim. The pamphlet
included the following statements:
"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, is
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 ..."
B. Libel proceedings
1. Proceedings in the High Court
9. Lord Aldington instituted proceedings against Mr Watts for libel
in the High Court of Justice (Queen's Bench Division). The applicant
was subsequently joined to these proceedings at his own request. The
defendants pleaded "justification" and "fair comment".
10. Lord Aldington asked that the case be heard by a single judge
without a jury. However, the applicant exercised his right to trial
by jury.
11. The trial began on 2 October 1989 and lasted until 30 November
when the jury of twelve returned its verdict. In the course of the
trial Lord Aldington gave evidence for some six and a half days and was
cross-examined. The applicant gave evidence for more than five days
and a number of witnesses were called.
Mr Justice Michael Davies devoted some ten pages of his
summing-up to the question of the assessment of damages if defamation
were to be established. He directed 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. Some would say that the only direction on
damages necessary in this particular case was to say: [the
applicant] says that if damages are to be payable he agrees they
should be enormous. Mr Rampton [defence counsel], I do not
think, in his final speech could quite bring himself to utter
that word, but he said they will be very generous - and I could
stop there. But that is not the way, you see, because the
parties do not dictate (even if they are making concessions) how
you should approach damages. You do it in accordance with the
law, and that is what I am now going to tell you. You have to
accept my directions about it, and you will apply them of course
as you think fit.
... 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 [the applicant], 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 ...
... If they [the allegations made in the pamphlet] were untrue
and not fair comment, where it is suggested that they were
comment, he is entitled to be compensated for that, so that that
will register your view of that.
Then you have got to consider ... the injury to his feelings.
I told you that he cannot, of course, claim on behalf of his wife
or any member of his family, although the affect on them may have
had an affect on him which is a reaction, which you are entitled
to take into account.
It is not just his feelings when he read this ... It is his
feelings during the time whilst awaiting the trial ... and the
publicity ...
... you have to consider ... what lawyers call `vindication' ...
You may think - it is a matter for you - that in this particular
case vindication - showing that he was right - is the main reason
for Lord Aldington bringing this action - that is what he says
anyway - to restore his character and standing ... 'An award,
an enormous award', to use [the applicant's] words - 'a very
generous award' to use Mr Rampton's words, will enable him to say
that put the record straight.
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[ly] 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."
12. In its unanimous verdict of 30 November 1989, the jury answered
the questions put by Mr Justice Davies as follows:
"1. Have [the applicant] and Mr Watts proved that the statements
of fact in the pamphlet are substantially true?
... No.
2. Does the pamphlet contain expressions of opinion?
... Yes.
3. Have [the applicant] and Mr Watts proved that those
expressions of opinion are fair, in the sense that they are such
as a fair-minded man could honestly make on the facts proved to
be true?
... No.
4. (1) Do you find for Lord Aldington or for Mr Watts?
... Lord Aldington.
(2) Do you find for Lord Aldington or for [the applicant]?
... Lord Aldington.
5. What sum in damages do you award Lord Aldington?
... 1,500,000."
Accordingly, Mr Justice Davies directed that judgment should be
entered against the applicant and Mr Watts for the above-mentioned sum,
which was approximately three times the largest amount previously
awarded by an English libel jury. In addition he granted an
application by Lord Aldington for an injunction (section 37 of the
Supreme Court Act 1981) restraining, inter alios, the defendants from
publishing or causing or permitting to be published or assisting or
participating in or conniving at the publication of the words contained
in the impugned pamphlet or
"any other words or allegations (however expressed) to the
following or any similar effect namely that the Plaintiff
[Lord Aldington] in connection with the handover in 1945 to
Soviet or Yugoslav forces of military or civilian personnel was
guilty of disobedience or deception or criminal or dishonourable
or inhumane or other improper or unauthorised conduct or was
responsible for the subsequent treatment of any such personnel
by the Soviets or the Yugoslavs the said defendants being at
liberty to apply to vary or discharge this injunction."
The applicant was also ordered to pay Lord Aldington's costs.
2. Proceedings in the Court of Appeal
13. The applicant (but not Mr Watts) gave notice of appeal to the
Court of Appeal setting out a number of grounds, several of which went
to the fairness of the proceedings. He criticised Mr Justice Davies
among other things for having displayed overt animosity towards the
defendants and for his continual interruption, sarcasm and abuse of
defence counsel. The Judge had, he alleged, insulted and disparaged
the defence witnesses. Throughout his summing-up he had wholly or
largely suppressed or ignored many of the most important aspects of the
case for the defence and had misled the jury on issues central to the
defendants' arguments. When directing the jury on the question of
damages, the tenor of the judge's remarks had been in large part to
urge the jury to award high damages to the plaintiff and to discount
the alternatives which had been reasonably available on the evidence;
the damages had in any event been unreasonable and excessive.
14. On 9 January 1990 Lord Aldington applied to the Court of Appeal
for an order requiring the applicant, under Order 59, Rule 10 (5) of
the 1965 Rules of the Supreme Court, to give security in an amount
which would cover the costs of his opponent's representation if the
appeal were to be unsuccessful. It was not disputed that the applicant
would be unable to pay the relevant costs.
15. In an open letter of 2 February 1990, Lord Aldington offered not
to enforce 1,200,000 of the damages awarded. In his reply the
applicant confirmed that he was unable to provide any security for
Lord Aldington's costs in the appeal proceedings and, maintaining that
the trial had been a travesty of justice, declined the offer.
16. In a twenty-two-page judgment of 18 May 1990 the Registrar of the
Court of Appeal examined the facts raised by the applicant and rejected
the application for security for costs. The Registrar stated that
impecuniosity was a ground for awarding security for costs in respect
of the costs of an appeal to the Court of Appeal. In exercising its
discretion in this regard, the Court of Appeal would attach particular
weight to the merits, or otherwise, of the appeal concerned. If the
appeal had little or no merit, a security for costs order would
normally be made against an impecunious appellant. If the appeal had
reasonable prospects of success, the court would be reluctant to order
security for costs.
The Registrar pointed out that he had not found it easy to decide
whether the applicant's appeal on liability had sufficient strength to
justify allowing him to proceed without furnishing security for costs,
given that, if his appeal failed, he would not have the funds to pay
Lord Aldington's costs of the appeal. He added that, with some
hesitation, he found that on several specific points the appeal had
just enough strength to lead him to conclude that security for costs
should not be awarded in this case. There was a possibility that if
the applicant succeeded in convincing the Court of Appeal that he had
not had a fair trial, and his case had not been fairly and clearly put
to the jury, the Court of Appeal would conclude that a new trial had
to be ordered, notwithstanding the fact that the chances of his
succeeding on the new trial were slim.
In view of the above conclusion the Registrar did not find it
necessary to deal with an argument made by counsel for Lord Aldington
that the appeal on quantum would be academic because of his offer of
2 February 1990 (see paragraph 15 above).
17. Lord Aldington appealed successfully against the Registrar's
decision to the full Court of Appeal, which heard the matter for six
days between 9 and 17 July 1990 and gave judgment on 19 July 1990. The
members of the Court of Appeal gave, in summary, the following reasons.
(a) The President, Sir Stephen Brown
The Court of Appeal had to consider the application afresh and
decide whether to order security would amount to a denial of justice
to the applicant, having regard to the merits of his appeal. The
criticism made in the applicant's grounds of appeal did not concern
Mr Justice Davies's directions on the law but, in particular, what the
applicant characterised as bias and partiality on the part of the judge
towards Lord Aldington and the way in which the judge had dealt with
three particular issues of fact. The criticism was however not
justified. Mr Justice Davies had clearly left to the jury the decision
on the facts of the case and all the major matters had been dealt with
fully and fairly. The judge's summing-up had quite clearly brought to
the jury's minds the matters which the defence had contended were of
primary significance. Counsel had been given full opportunities to
raise matters of alleged error, and when they had deemed it necessary
they had done so. Furthermore the principal witnesses had been in the
witness-box for some thirteen days in all. Lord Aldington, who had
been the central witness in the case in the sense that it was his
conduct which was the subject of examination, had been in the witness
box for no less than six and a half days. It was inconceivable that
the jury had not taken full account of and acted on the evidence of the
principal witnesses who had been so comprehensively examined and
cross-examined upon all the material issues in the case.
The case had been an entirely appropriate one for a jury and had
duly been tried by a jury. In this connection Sir Stephen noted that
at a preliminary stage, when Lord Aldington had asked for the case to
be tried by a judge alone, the applicant had resisted his application.
The new evidence adduced by the applicant did not carry any
weight in the light of all the evidence which had been given at the
trial.
The applicant's submission that Lord Aldington was supported by
Sun Alliance Insurance Company was irrelevant.
In the result, on the issue of liability there was no merit in
the appeal.
Sir Stephen Brown added:
"The quantum of damage is a very large sum. However, there is
no doubt that the learned judge gave an impeccable direction on
damages. [The applicant] 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.
[The applicant] has however made it clear that he is not really
interested so much in the question of the amount of damages as
in the issue of liability. He wishes to continue to pursue
Lord Aldington if he can and to persist in his allegation at a
new trial. In fact he was offered a substantial reduction in the
damages to the extent of 1.2 million. This he rejected. This
move was not a concession by the plaintiff's solicitors that the
award was too high, but was made recognising that the plaintiff
was unlikely to receive the amount awarded and was content with
the fact that the jury had by their verdict rejected in an
overwhelming manner the truth of the libel which had been
published."
(b) Lord Justice Russell
"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 ...
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 [the applicant] seeks to introduce.
...
Finally, upon the issue of damages, [the applicant] 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. [The applicant] wishes to reopen 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."
(c) Lord Justice Beldam
"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 ...
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 so 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. The
appellant has therefore failed to satisfy me that he has any such
real and substantial grounds of appeal as would justify this
court in saying that the special circumstances of his inability
to pay the respondent's costs if he fails can be disregarded."
18. The Court of Appeal ordered the applicant to provide security for
Lord Aldington's costs in respect of the appeal in the sum of 124,900
within fourteen days, failing which the appeal would stand dismissed.
It rejected a request by the applicant for more than fourteen days to
attempt to raise the money. In addition the Court of Appeal ordered
the applicant to pay Lord Aldington's costs (22,000) in the security
for costs proceedings. The judgment runs to twenty-three pages.
The applicant did not furnish the required security and his
appeal was dismissed on 3 August 1990.
19. No part of the damages or costs have to date been paid by the
applicant to Lord Aldington.
C. Proceedings pending before the domestic courts
20. In 1993 the applicant applied to the Court of Appeal for leave
to appeal out of time against the High Court's judgment of
30 November 1989 and for leave to adduce new evidence. The Registrar
informed him in September 1993 that the Court of Appeal had no
jurisdiction since the subject-matter was the same as an appeal which
had already been dismissed.
On 21 February 1994 the applicant issued a writ against
Lord Aldington in the High Court, applying for an order that the
judgment of 30 November 1989 be set aside on the grounds of fraud. He
also sought damages and other relief. Lord Aldington applied to strike
out the action as an abuse of process and as being vexatious and
frivolous.
By judgment of 14 October 1994, Mr Justice Collins struck the
case out as being an abuse of the process of the court, on the ground
that the applicant was unable to establish a reasonable possibility
that the new evidence might show that Lord Aldington had committed
perjury. In a judgment of 30 November 1994 Mr Justice Collins ordered
the applicant's solicitors, who had funded the new action by acting
without a fee, to pay 60% of Lord Aldington's costs in the proceedings.
An appeal by the applicant to the Court of Appeal is pending.
II. Relevant domestic law
A. Liability and damages in defamation cases
21. Under English law 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 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. Although there may be damage accruing from the
publication if the facts published are true, the law gives no remedy
by action (see Halsbury's Laws of England, Fourth Edition, vol. 28,
paragraph 1).
22. A strict liability rule applies to the tort of libel:
"A man in good faith may publish a libel believing it to be true,
and it may be found by the jury that he acted in good faith
believing it to be true, but that in fact the statement was
false. Under those circumstances he has no defence to the
action, however excellent his intention." (Lord Loreburn LC in
Hulton v. Jones [1910] Appeal Cases 20 (House of Lords), at
pp. 23-24)
The law presumes in the plaintiff's favour that the words are
false, unless and until the defendant proves to the contrary (Gatley,
Libel and Slander, Eighth Edition, paragraph 5, p. 6).
If the defendant attempts unsuccessfully to prove that the words
are true, this is likely to increase the damages (Duncan and Neill on
defamation, Second Edition, paragraph 18.14, p. 129).
23. The purpose of damages in the law of libel is as stated by
Lord Hailsham in Broome v. Cassell & Co. Ltd ([1972] Appeal Cases 1027,
at p. 1071, quoted by Lord Donaldson in Sutcliffe v. Pressdram Ltd
[1991] 1 Queen's Bench 153, p. 189):
"In actions of defamation and in any other actions where damages
for loss of reputation are involved, the principle of restitutio
in integrum has necessarily an even more highly subjective
element. Such actions involve a money award which may put the
plaintiff in a purely financial sense in a much stronger position
than he was before his wrong. Not merely can he recover the
estimated sum of his past and future losses, but, in case the
libel, driven underground, emerges from its lurking place at some
future date, he must be able to point to a sum awarded by a jury
sufficient to convince a bystander of the baselessness of the
charge. `... [A] man defamed does not get compensation for his
damaged reputation. He gets damages because he was injured in
his reputation, that is simply because he was publicly defamed.
For this reason, compensation by damages operates in two ways as
a vindication of the plaintiff to the public and as
consolation to him for a wrong done.' ... Quite obviously, the
award must include factors for injury to the feelings, the
anxiety and uncertainty undergone in the litigation, the absence
of apology, or the reaffirmation of the truth of the matters
complained of, or the malice of the defendant ..."
B. Functions of judge and jury in the High Court in defamation cases
24. If the words in question are reasonably capable of being
understood in a defamatory sense, the judge must leave it to the jury
to say whether they did, in fact, defame the plaintiff. If not, he
must give judgment for the defendant without leaving the case to the
jury.
The proper course to adopt for the judge in civil proceedings for
libel or slander, or criminal proceedings, where there is a case to go
to the jury, is to define what is libel in point of law, and leave it
to the jury to decide as a matter of fact whether the particular
publication falls within that definition or not.
The assessment of damages is peculiarly the province of the jury,
and the judge, unless sitting alone, must not himself decide the
amount. He should direct the jury as to the relevant factors, such as
the extent of publication, the degree to which the words would be
believed or the range of persons having special knowledge needed to
perceive an innuendo meaning, the position and standing of the
plaintiff, the conduct of the plaintiff and of the defendant and all
the circumstances of the case (see Halsbury's Laws of England, Fourth
Edition, vol. 28, paragraphs 225, 227 and 232).
25. There is no upper or lower limit to the sum of damages which a
jury in a libel trial may award. In the above-mentioned case of
Sutcliffe v. Pressdram Ltd, Lord Donaldson stressed that referring
juries to other cases would confuse rather than assist the jury and
that any attempt by counsel or the judge to discuss figures would lead
to unhelpful overbidding and underbidding and would risk usurping the
true function of the jury. However, the judge might give some guidance
to a jury to assist it in appreciating the real value of very large
sums of money, for example by inviting it to consider what regular
income could be obtained if the sum was invested (see the
above-mentioned case of Sutcliffe v. Pressdram Ltd, Lord Donaldson,
p. 178; see also Lord Nourse, p. 186, and Lord Russell, pp. 190-91).
C. Court of Appeal's powers to review a jury's award of damages
26. At the relevant time, under Order 59, Rule 11, of the Rules of
the Supreme Court 1965, the Court of Appeal had power to set aside a
High Court judgment and order a new trial. Rule 11 (1)-(3) read:
"(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) ..."
As to what test the Court of Appeal should apply in exercising
its powers to set aside a jury's verdict on damages, Lord Kilbrandon
in Broome v. Cassell & Co. Ltd ([1972] Appeal Cases 1027, p. 1135)
stated that it was not sufficient for the court to conclude that the
award was excessive; it had to ask whether the award could have been
made by sensible people, or whether it must have been arrived at
capriciously, unconscionably or irrationally.
27. According to Rule 11 (4), as in force at the material time, the
Court of Appeal had no power, in lieu of ordering a new trial, to
reduce or increase the damages awarded by the jury, unless the party
or parties concerned consented.
Since the entry into force on 1 February 1991 of the Courts and
Legal Services Act 1990, the Court of Appeal has a power under
section 8 (2) of that Act to substitute its own assessment of damages
for that of the jury irrespective of whether the parties agree or not.
Order 59, Rule 11 (4), as amended in the light of the above section 8,
provides:
"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."
28. In the case of Rantzen v. Mirror Group Newspapers (1986) Ltd
([1993] 3 Weekly Law Reports, p. 953) the Court of Appeal exercised its
powers under section 8 of the Courts and Legal Services Act 1990 and
under the new Order 59, Rule 11 (4). In interpreting its power to
order a new trial or to substitute another award on the ground that the
damages awarded by the jury were excessive, the Court of Appeal
observed that the grant of an almost limitless discretion to a jury
failed to provide a satisfactory measurement for deciding what is
"necessary in a democratic society" or "justified by a pressing social
need" for the purposes of Article 10 (art. 10) of the European
Convention on Human Rights. The common law, if properly understood,
required the courts to subject large awards of damages to a more
searching scrutiny than had been customary in the past. It followed
that what had been regarded as the barrier against intervention should
be lowered. The question became:
"Could a reasonable jury have thought that this award was
necessary to compensate the plaintiff and to re-establish his
reputation?"
As to what guidance the judge could give to the jury, the Court
of Appeal was not persuaded that the time had come to make references
to awards by juries in previous libel cases. Nor was there any
satisfactory way in which awards made in actions involving serious
personal injuries could be taken into account. It was to be hoped that
in the course of time a series of decisions of the Court of Appeal,
taken under section 8 of the Courts and Legal Services Act 1990, would
establish some standards as to what would be "proper" awards. In the
meantime the jury should be invited to consider the purchasing power
of any award which they may make and to ensure that any award they make
is proportionate to the damage which the plaintiff has suffered and is
a sum which it is necessary to award him to provide adequate
compensation and to re-establish his reputation.
The Court of Appeal concluded that although a very substantial
award was clearly justified in the case, judged by any objective
standards of reasonable compensation or necessity or proportionality,
the award of 250,000 was excessive. It substituted the sum of
110,000.
PROCEEDINGS BEFORE THE COMMISSION
29. In his application of 18 December 1990 (no. 18139/91) to the
Commission, Count Tolstoy complained that he had not had a fair hearing
by an impartial tribunal as required under Article 6 para. 1 (art. 6-1)
of the Convention. Moreover, invoking Article 13 (art. 13) of the
Convention (right to an effective remedy) initially, but subsequently
relying on Article 6 para. 1 (art. 6-1), the applicant further alleged
that the Court of Appeal's order making his right to appeal conditional
upon his paying 124,900 as security for Lord Aldington's costs gave
rise to a breach of his right of access to court. Finally, he claimed
that the award of 1,500,000 and injunction ordered by the High Court
constituted a violation of his right to freedom of expression as
guaranteed by Article 10 (art. 10) of the Convention.
30. On 20 February 1992 the Commission declared inadmissible the
complaint that the proceedings had been unfair; on 12 May 1993 it
declared the remainder of the application admissible. In its report
of 6 December 1993 (Article 31) (art. 31) the Commission expressed the
opinion that there had been no violation of the applicant's right of
access to court under Article 6 para. 1 (art. 6-1) (by ten votes to
five), but that there had been a breach of his right to freedom of
expression under Article 10 (art. 10) (unanimously). The full text of
the Commission's opinion and of the dissenting opinion contained in the
report is reproduced as an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 316-B of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
31. At the public hearing on 21 January 1995 the Government, as they
had done in their memorial, invited the Court to hold that the facts
disclosed no violation of Article 6 (art. 6) or Article 10 (art. 10)
of the Convention in the present case.
32. On the same occasion the applicant likewise maintained the
requests to the Court stated in his memorial to decide that there had
been violations of Articles 6 and 10 (art. 6, art. 10) and to award him
just satisfaction under Article 50 (art. 50) of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
33. The applicant alleged a violation of Article 10 (art. 10) of the
Convention, which reads:
"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. This Article (art. 10) shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
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, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
He maintained that the quantum of the damages awarded against him
could not be considered to have been "prescribed by law". In addition,
the size of the award and the breadth of the injunction had been
disproportionate to the aim of protecting Lord Aldington's "reputation
or rights" and had thus not been "necessary in a democratic society".
34. The Government disputed these contentions. The Commission shared
the applicant's view that the award was disproportionate but did not
state any opinion on his other complaints.
35. The Court observes in the first place that the case before it is
limited solely to a complaint concerning the amount of damages awarded
and the court's injunction. In this regard it is unlike the defamation
cases it has examined hitherto (see, for instance, the Lingens v.
Austria judgment of 8 July 1986, Series A no. 103, pp. 24-28,
paras. 34-47; the Castells v. Spain judgment of 23 April 1992,
Series A no. 236, pp. 20-24, paras. 33-50; and the Thorgeir Thorgeirson
v. Iceland judgment of 25 June 1992, Series A no. 239, pp. 24-28,
paras. 55-70), which have concerned either the decision determining
liability alone or both that and the sanction.
Both the award of damages and the injunction clearly constituted
an interference with the exercise by the applicant of his right to
freedom of expression, as guaranteed by paragraph 1 of Article 10
(art. 10-1) and this was not disputed before the Court. Such an
interference entails a violation of Article 10 (art. 10) unless it was
"prescribed by law", pursued an aim or aims that is or are legitimate
under Article 10 para. 2 (art. 10-2) and was "necessary in a democratic
society" to attain the aforesaid aim or aims.
A. Was the award "prescribed by law"?
36. As regards the amount of damages awarded, the applicant
complained that it was not "prescribed by law".
1. General principles
37. The expression "prescribed by law" in Article 10 para. 2
(art. 10-2) must be interpreted in the light of the general principles
concerning the corresponding words "in accordance with the law" in
Article 8 para. 2 (art. 8-2) (see the Sunday Times v. the United
Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, pp. 30-31,
paras. 48-49; cf. the Malone v. the United Kingdom judgment of
2 August 1984, Series A no. 82, p. 31, para. 66), which have been
summarised in the Margareta and Roger Andersson v. Sweden judgment of
25 February 1992 (Series A no. 226-A, p. 25, para. 75), as follows:
"... the expression ... requires firstly that the impugned
measures should have a basis in domestic law. It also refers to
the quality of the law in question, requiring that it be
accessible to the persons concerned and formulated with
sufficient precision to enable them - if need be, with
appropriate legal advice - to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given
action may entail. A law which confers a discretion is not in
itself inconsistent with this requirement, provided that the
scope of the discretion and the manner of its exercise are
indicated with sufficient clarity, having regard to the
legitimate aim in question, to give the individual adequate
protection against arbitrary interference."
The Court further reiterates that the word "law" covers not only
statute but also common law (see the above-mentioned Sunday Times
judgment, p. 30, para. 47).
2. Application of the above principles
38. The applicant did not deny that the award had a basis in domestic
law. However, he complained that the law in question did not enable
him to foresee to a reasonable degree that the amount would be as high
as 1.5 million.
At English common law there was no upper or lower limit on the
amount of damages. The extent to which a judge could give guidance was
strictly circumscribed. No specific figures could be suggested and
awards of damages in other libel cases or even in personal injury cases
had to be disregarded for the purposes of comparison. Guidance could
only be given to help the jury to appreciate the real value of large
sums of money, for instance by inviting them to reflect on the value
of a house (see paragraph 25 above). At the material time, there had
been no principle recognised in English law that required the award to
be proportionate to the aim of repairing the damage to the plaintiff's
reputation. The jury gave no reasons for its decision and the award
could be overturned by the Court of Appeal only if it was so
unreasonable that it could not have been made by sensible people but
must have been arrived at capriciously, unconscionably or irrationally
(see paragraphs 24, 26 and 28 above).
The applicant pointed out that, as a result of the above, in his
case the trial judge had not directed the jury to ensure that the award
was proportionate to the damage that Lord Aldington had suffered. The
jury had, on the contrary, been encouraged to consider "enormous
damages" and had been informed by the judge that "there is no league
of damages in defamation cases" (see paragraph 11 above). The award
made, although it had supposedly not included any punitive damages, had
been three times the largest amount previously awarded by an English
libel jury (see paragraph 12 above) and had been substantially greater
than the sum that would be awarded to a plaintiff suffering permanent
and extremely severe physical or mental disablement in a personal
injury action. It would have been impossible for the applicant's legal
advisers to predict that an award of the magnitude in question would
be made.
39. The Government argued that a remedy such as the libel award made
in the applicant's case needed to be flexible to accommodate the facts
of each individual case, especially the facts of so exceptional a case
as the present one. Only by maintaining such flexibility could the law
achieve the purpose of compensation under the law of libel, namely to
empower the jury to award, in the light of the relevant criteria at
common law (see paragraph 23 above), the sum that it considered to be
appropriate in the circumstances. In any event, it was not for the
Court to assess English libel law in the abstract.
40. The Court notes in the first place that the libel as found by the
jury was of an exceptionally serious nature. Indeed, during the
hearing at the High Court, counsel for the applicant and the applicant
himself had accepted that, if libel were to be established, the jury
would have to award a very substantial sum in damages (see
paragraph 11 above).
41. The Court accepts that national laws concerning the calculation
of damages for injury to reputation must make allowance for an
open-ended variety of factual situations. A considerable degree of
flexibility may be called for to enable juries to assess damages
tailored to the facts of the particular case. Indeed, this is
reflected in the trial judge's summing-up to the jury in the present
case (see paragraph 11 above). It follows that the absence of specific
guidelines in the legal rules governing the assessment of damages must
be seen as an inherent feature of the law of damages in this area.
Accordingly, it cannot be a requirement of the notion of
"prescribed by law" in Article 10 (art. 10) of the Convention that the
applicant, even with appropriate legal advice, could anticipate with
any degree of certainty the quantum of damages that could be awarded
in his particular case.
42. It is further observed that the discretion enjoyed by the jury
in the assessment of damages was not unfettered. A jury was bound to
take into account such factors as injury to feelings, the anxiety and
uncertainty undergone in the litigation, the absence of apology, the
reaffirmation of the truth of the matters complained of, vindication
of the plaintiff's reputation (see paragraph 23 above). It was for the
trial judge to direct the jury on the law. In addition, the Court of
Appeal had power to set aside an award, inter alia on the ground of
irrationality and to order a new trial. It therefore appears that,
although the principle of proportionality as such may not have been
recognised under the relevant national law, decisions on awards were
subject to a number of limitations and safeguards.
43. In jury trials, the lack of reasoning for awards of damages is
the norm and is to a large extent unavoidable. The applicant's
submission to the effect that the absence of reasons affected the
foreseeability of a particularly high award being made in his case is
thus not persuasive. Moreover, the argument could apply to any award
whatever the magnitude and concerns less the size of the award than the
very nature of the jury system itself.
44. Having regard to the fact that a high degree of flexibility may
be justified in this area (see paragraph 41 above), the various
criteria to be taken into account by juries in the assessment of
damages as well as the review exercised by the Court of Appeal, the
Court reaches the conclusion that the relevant legal rules concerning
damages for libel were formulated with sufficient precision. In short,
the award was "prescribed by law".
B. Did the award and the injunction pursue a legitimate aim?
45. The award and the injunction clearly pursued the legitimate aim
of protecting the "reputation or rights of others". This was not
disputed.
C. Were the award and the injunction "necessary in a democratic
society"?
1. The award
46. The applicant and the Commission were of the view that the amount
of damages awarded - 1.5 million - was disproportionate to the
legitimate aim of protecting Lord Aldington's reputation or rights.
The applicant pointed out that, at the relevant time, judicial control
over the award of damages in defamation cases had been insufficient to
ensure that such awards were proportionate.
He further emphasised that the jury had not been directed to
consider, in mitigation of damages, that the libellous criticism had
concerned acts performed by Lord Aldington as a public officer acting
in an official capacity, and had raised matters of very great public
interest. These factors, which militated in favour of the allowance
of wide limits to acceptable criticism, were not relevant under English
law.
The jury had also been directed that an attempt to justify the
allegations aggravated the damage suffered. This principle, in
conjunction with the strict liability rule in libel cases, resulted in
the imposition of a harsher penalty on a defendant who made his
allegations in good faith but who failed to prove them to be true, than
on a defendant who spoke knowing himself to be lying and did not
attempt to defend his allegations (see paragraph 22 above).
47. The Government maintained that there was a reasonable
relationship of proportionality between the amount of the award and the
aim of compensating the damage done to Lord Aldington and restoring his
reputation. They pointed out that Article 10 (art. 10) imposed "duties
and responsibilities". The applicant's pamphlet had been false and
unfair and had been expressly designed to provoke a libel action.
Although no reasons had been given by the jury, it was, as noted by the
Court of Appeal, obvious that the jury awarded so large a sum by way
of damages because of the enormity of the libel. The Court of Appeal
had been satisfied that the award of 1.5 million had been a rational
response by the jury to the exceptional circumstances of the libel
which they were considering. Otherwise, as amply demonstrated by its
ruling in Sutcliffe v. Pressdram Ltd, the Court of Appeal would have
been able to set the award aside and order a new trial.
The Government further submitted that in the Court of Appeal's
opinion the jury had received a very full direction from the trial
judge (see paragraph 17 above). Moreover, as explained by the judge
to the jury, it would have been inappropriate and unhelpful to the jury
for him to refer to other cases, because the facts and circumstances
were so different, or refer to specific sums of money, since the
quantum of damages was exclusively a matter for the jury (see
paragraph 11 above).
In addition, before the High Court both counsel for the applicant
and the applicant himself had acknowledged that if Lord Aldington won
his libel action, he must receive a very substantial sum (see
paragraph 11 above). In the Court of Appeal the applicant had been
unconcerned about the size of the damages award and he had earlier
declined Lord Aldington's offer to accept 300,000 (see paragraphs 15
and 17 above). The offer remained open and the applicant could at any
time reduce his liability by 1.2 million if he really wished to do so.
48. The Court recalls at the outset that its review is confined to
the award as it was assessed by the jury, in the circumstances of
judicial control existing at the time, and does not extend to the
jury's finding of libel. It follows that its assessment of the facts
is even more circumscribed than would have been the case had the
complaint also concerned the latter.
In this connection, it should also be observed that perceptions
as to what would be an appropriate response by society to speech which
does not or is not claimed to enjoy the protection of Article 10
(art. 10) of the Convention may differ greatly from one Contracting
State to another. The competent national authorities are better placed
than the European Court to assess the matter and should therefore enjoy
a wide margin of appreciation in this respect.
49. On the other hand, the fact that the applicant declined to accept
Lord Aldington's offer to settle for a lesser sum (see paragraph 15
above) does not diminish the United Kingdom's responsibility under the
Convention in respect of the contested damages award.
However, the Court takes note of the fact that the applicant
himself and his counsel accepted that if the jury were to find libel,
it would have to make a very substantial award of damages (see
paragraph 11 above). While this is an important element to be borne
in mind it does not mean that the jury was free to make any award it
saw fit since, under the Convention, an award of damages for defamation
must bear a reasonable relationship of proportionality to the injury
to reputation suffered.
The jury had been directed not to punish the applicant but only
to award an amount that would compensate the non-pecuniary damage to
Lord Aldington (see paragraph 11 above). The sum awarded was three
times the size of the highest libel award previously made in England
(see paragraph 12 above) and no comparable award has been made since.
An award of the present size must be particularly open to question
where the substantive national law applicable at the time fails itself
to provide a requirement of proportionality.
50. In this regard it should be noted that, at the material time, the
national law allowed a great latitude to the jury. The Court of Appeal
could not set aside an award simply on the grounds that it was
excessive but only if the award was so unreasonable that it could not
have been made by sensible people and must have been arrived at
capriciously, unconscionably or irrationally (see paragraph 26 above).
In a more recent case, Rantzen v. Mirror Group Newspapers Ltd, the
Court of Appeal itself observed that to grant an almost limitless
discretion to a jury failed to provide a satisfactory measurement for
deciding what was "necessary in a democratic society" for the purposes
of Article 10 (art. 10) of the Convention. It noted that the common
law - if properly understood - required the courts to subject large
awards of damages to a more searching scrutiny than had been customary.
As to what guidance the judge could give to the jury, the Court of
Appeal stated that it was to be hoped that in the course of time a
series of decisions of the Court of Appeal, taken under section 8 of
the Courts and Legal Services Act 1990, would establish some standards
as to what would be "proper" awards. In the meantime the jury should
be invited to consider the purchasing power of any award which they
might make and to ensure that any award they made was proportionate to
the damage which the plaintiff had suffered and was a sum which it was
necessary to award him to provide adequate compensation and to
re-establish his reputation (see paragraph 28 above).
The Court cannot but endorse the above observations by the Court
of Appeal to the effect that the scope of judicial control, at the
trial and on appeal, at the time of the applicant's case did not offer
adequate and effective safeguards against a disproportionately large
award.
51. Accordingly, having regard to the size of the award in the
applicant's case in conjunction with the lack of adequate and effective
safeguards at the relevant time against a disproportionately large
award, the Court finds that there has been a violation of the
applicant's rights under Article 10 (art. 10) of the Convention.
2. The injunction
52. The applicant further alleged that the injunction (see
paragraph 12 above) was disproportionate to the aim of protecting
Lord Aldington's reputation or rights. It was sweepingly broad and was
ordered as a consequence of a verdict of the jury for which no reasons
were given and which the judge had interpreted in the widest possible
way. It prevented any comment on the role of Lord Aldington in
relation to the handover of Cossacks and Yugoslavs, and the publication
of any critical comment on the activities of 5 Corps which would
reflect adversely on Lord Aldington, whether he was named or not. In
the absence of a successful appeal, an application to vary or discharge
the injunction could never have succeeded, given the state of English
law. It constituted a permanent and serious interference with the
applicant's opportunity to carry on his profession as a historian,
preventing him from publishing the fruits of his research on the events
in question.
At any rate, the injunction was disproportionate if considered
together with the award, as the measures served in part the same
function. The jury was not aware when it made the award that the judge
would order an injunction. It was thus very likely that the award was
intended not only to compensate Lord Aldington but also to deter the
applicant from publishing in the future.
53. The Government contested these allegations. They maintained that
in the light of the jury's verdict the judge had been entitled to
prevent future repetition of the libel by the applicant and this had
been the purpose of the injunction. Although the applicant's counsel
at the trial had been given the opportunity to comment on the wording
of the injunction, no objections had been made at the trial, or
thereafter. The applicant had not availed himself of the possibility,
which is still open to him, of asking for the injunction to be varied
or discharged; nor had he lodged an appeal against it. In these
circumstances the Court should not entertain the complaint.
As to the applicant's argument that the injunction overlapped
with the damages award, the Government stressed that, whilst the former
measure was aimed at preventing future injury, the latter was designed
only to compensate for the past loss and to vindicate Lord Aldington's
reputation.
54. As the Court has already observed, it is not claimed that the
jury's finding of libel was incompatible with Article 10 (art. 10).
The injunction was only a logical consequence of this finding and was
framed precisely to prevent the applicant from repeating the libellous
allegations against Lord Aldington. There is nothing to indicate that
the injunction went beyond this purpose. Nor is there any other ground
for holding that the measure, either taken alone or in conjunction with
the award, amounted to a disproportionate interference with the
applicant's right to freedom of expression as guaranteed by Article 10
(art. 10).
D. Recapitulation
55. In sum, the Court concludes that the award was "prescribed by
law" but was not "necessary in a democratic society" as there was not,
having regard to its size in conjunction with the state of national law
at the relevant time, the assurance of a reasonable relationship of
proportionality to the legitimate aim pursued. Accordingly, on the
latter point, there has been a violation of Article 10 (art. 10). On
the other hand, the injunction, either taken alone or together with the
award, did not give rise to any breach of that Article (art. 10).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
56. The applicant maintained, in addition, that there had been a
violation of his right of access to a court as guaranteed by
Article 6 para. 1 (art. 6-1) of the Convention on account of the order
by the Court of Appeal requiring him to pay 124,900 as security for
Lord Aldington's costs in the appeal as a condition for the applicant's
appeal to be heard by that court. In so far as is relevant Article 6
para. 1 (art. 6-1) provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law ..."
57. The Government and the Commission disagreed with the above
contention.
A. Applicability of Article 6 para. 1 (art. 6-1)
58. Notwithstanding the fact that the issue was not in dispute before
it, the Court must ascertain whether Article 6 para. 1 (art. 6-1) is
applicable in the instant case. The previous defamation cases dealt
with by the Court under Article 6 para. 1 (art. 6-1) have all concerned
applicants who have sought to protect their own reputation by bringing
proceedings before a court. According to established case-law, the
provision (art. 6-1) applies to such proceedings, the right to enjoy
a good reputation being a "civil right" within the meaning of
Article 6 para. 1 (art. 6-1) (see, for instance, the Helmers v. Sweden
judgment of 29 October 1991, Series A no. 212-A, p. 14, para. 27).
Article 6 (art. 6) must also apply in relation to a defendant in such
proceedings, where the outcome is directly decisive for his or her
"civil obligations" vis--vis the plaintiff.
Accordingly, Article 6 para. 1 (art. 6-1) applies to the present
case.
B. Compliance with Article 6 para. 1 (art. 6-1)
59. The Court reiterates that the right of access to the courts
secured by Article 6 para. 1 (art. 6-1) may be subject to limitations
in the form of regulation by the State. In this respect the State
enjoys a certain margin of appreciation. However, the Court must be
satisfied, firstly, that the limitations applied do not restrict or
reduce the access left to the individual in such a way or to such an
extent that the very essence of the right is impaired. Secondly, a
restriction must pursue a legitimate aim and there must be a reasonable
relationship of proportionality between the means employed and the aim
sought to be achieved (see, for instance, the Fayed v. the United
Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 49-50,
para. 65).
It follows from established case-law that Article 6 para. 1
(art. 6-1) does not guarantee a right of appeal. Nevertheless, a
Contracting State which sets up an appeal system is required to ensure
that persons within its jurisdiction enjoy before appellate courts the
fundamental guarantees in Article 6 (art. 6) (see, in particular, the
Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11,
pp. 14-15, para. 25). However, the manner of application of
Article 6 (art. 6) to proceedings before such courts depends on the
special features of the proceedings involved; account must be taken of
the entirety of the proceedings in the domestic legal order and of the
role of the appellate court therein (see, for instance, the Monnell and
Morris v. the United Kingdom judgment of 2 March 1987, Series A
no. 115, p. 22, para. 56; and the above-mentioned Helmers judgment,
p. 15, para. 31).
The Court's task is not to substitute itself for the competent
British authorities in determining the most appropriate policy for
regulating access to the Court of Appeal in libel cases, nor to assess
the facts which led that court to adopt one decision rather than
another. The Court's role is to review under the Convention the
decisions that those authorities have taken in the exercise of their
power of appreciation (see in particular the above-mentioned Fayed
judgment, p. 55, para. 81; and, mutatis mutandis, the Edwards v. the
United Kingdom judgment of 16 December 1992, Series A no. 247-B,
pp. 34-35, para. 34).
60. The applicant submitted that the requirement that he pay 124,900
within a mere fourteen days had amounted to a total bar on his access
to the Court of Appeal (see paragraph 18 above). It had impaired the
essence of his right of access to that court and was disproportionate.
In the first place, the court had not been prepared to allow him
more than fourteen days to pay the sum and had thereby denied him any
realistic opportunity to raise the money and to pursue the appeal.
Furthermore, it had placed on the applicant the onus of showing
that he had real and substantial grounds upon which to challenge the
judgment against him, rather than requiring Lord Aldington, the party
seeking the order which would effectively bar the right of appeal, to
show that the appeal was frivolous or had no prospect of success.
Also, the Court of Appeal should not have taken into account
Lord Aldington's offer to settle for a lesser sum (see paragraph 17
above).
Moreover, the Court of Appeal had failed to have regard to the
following factors. Legal aid was not available in libel actions, even
to defendants, like the applicant, who were defending their fundamental
right to freedom of expression. Lord Aldington's need for protection
was diminished in that the costs in the High Court had in large part
been covered by Sun Alliance Insurance Company, a well-endowed
corporation (see paragraph 17 above).
Finally, the fact that the case had been heard at first instance
was irrelevant to the question of effective access to the Court of
Appeal. Nor was it significant that it had heard arguments from the
parties before concluding that security should be required; it was the
Court of Appeal's decision which had evinced the lack of
proportionality complained of.
61. The Court considers that the security for costs order clearly
pursued a legitimate aim, namely to protect Lord Aldington from being
faced with an irrecoverable bill for legal costs if the applicant were
unsuccessful in the appeal. This was not disputed. Further, since
regard was also had to the lack of prospects of success of the
applicant's appeal, the requirement could also, as argued by the
Government, be said to have been imposed in the interests of a fair
administration of justice (see paragraph 17 above).
62. Like the Government and the Commission, the Court is unable to
share the applicant's view that the security for costs order impaired
the very essence of his right of access to court and was
disproportionate for the purposes of Article 6 (art. 6).
63. In the first place, the case had been heard for some forty days
at first instance before the High Court, in the course of which
Lord Aldington gave evidence for more than six days and was
cross-examined, the applicant gave evidence for more than five days and
a number of witnesses were called (see paragraphs 11 and 17 above).
It is undisputed that the applicant enjoyed full access to court in
those proceedings. It is true that he initially complained about their
lack of fairness. However, that complaint was declared inadmissible
by the Commission as being manifestly ill-founded.
The Court attaches great weight to the above considerations in
its assessment of the compatibility with Article 6 (art. 6) of the
restrictions on the applicant's access to the Court of Appeal. Indeed,
as indicated earlier, the entirety of the proceedings must be taken
into account.
64. Admittedly, the sum required - 124,900 - was very substantial
and the time-limit - fourteen days - for providing the money was
relatively short. However, there is nothing to suggest that the figure
was an unreasonable estimate of Lord Aldington's costs before the Court
of Appeal or that the applicant would have been able to raise the money
had he been given more time.
65. According to the relevant practice in the Court of Appeal,
impecuniosity was a ground for awarding security for costs of an appeal
to that court, but only on certain conditions. In exercising its
discretion as to whether to grant an application for such an order, the
Court of Appeal would consider whether the measure would amount to a
denial of justice to the defendant, in particular having regard to the
merits of the appeal (see paragraphs 16 and 17 above). If it had
reasonable prospects of success, the Court of Appeal would be reluctant
to order security for costs.
The disagreement between the applicant and Lord Aldington in the
security for costs proceedings concerned the merits or lack of merits
of the appeal. The Registrar of the Court of Appeal, with hesitation,
decided that the appeal had just enough strength to allow the applicant
to proceed without furnishing security for costs. This decision was
subsequently reversed by the Court of Appeal because the applicant had
failed to show real and substantial grounds for his appeal, both on
liability and on damages. On the point of damages, the Court of Appeal
observed, inter alia, that the applicant was not so interested in that
issue as in the question of liability and that he had declined to
accept Lord Aldington's offer to settle for 300,000. Therefore, an
appeal on damages only would have been no more than an academic
exercise (see paragraphs 16 and 17 above).
The Court does not find that the justification given by the Court
of Appeal for ordering security for costs disclosed any arbitrariness.
66. Moreover, the security for costs issue was first examined by the
Registrar of the Court of Appeal and then heard by the court for six
days (see paragraphs 16 and 17 above). The Court of Appeal's decision
was thus based on a full and thorough evaluation of the relevant
factors (see the above-mentioned Monnell and Morris judgment, p. 25,
para. 69).
67. In the light of the foregoing, the Court does not find that the
national authorities overstepped their margin of appreciation in
setting the conditions which they did for the applicant to pursue his
appeal in the Court of Appeal. It cannot be said that those conditions
impaired the essence of the applicant's right of access to court or
were disproportionate for the purposes of Article 6 para. 1 (art. 6-1).
Accordingly, there has been no violation of that provision
(art. 6-1).
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
68. Count Tolstoy Miloslavsky sought just satisfaction under
Article 50 (art. 50) of the Convention, according to which:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Request for a "declaratory" judgment
69. The applicant did not claim compensation for non-pecuniary damage
but requested the Court to give a "declaratory" judgment that would
ensure that he was liable, if at all, to pay to Lord Aldington only
such damages as were necessary to provide adequate compensation and to
re-establish the latter's reputation and that the Government would
indemnify the applicant for any greater sum which he was liable to pay
Lord Aldington.
70. The Government considered that because the applicant had not paid
any sums by way of compensation to Lord Aldington, no further remedy
was required.
71. The Delegate of the Commission did not offer any comments on this
point.
72. The Court is not empowered under Article 50 (art. 50) of the
Convention to make a declaration such as that requested by the
applicant (see, for instance, the Philis v. Greece judgment of
27 August 1991, Series A no. 209, p. 27, para. 79; the Pelladoah v. the
Netherlands judgment of 22 September 1994, Series A no. 297-B, p. 36,
para. 44; and the Allenet de Ribemont v. France judgment of
10 February 1995, Series A no. 308, p. 23, para. 65). Accordingly, the
applicant's request under this head must be rejected.
B. Pecuniary damage
73. The applicant also asked the Court to award him compensation in
an appropriate amount for his loss of opportunity to earn a living as
a historian by reason of the effects of the permanent injunction.
74. The Court does not find it established that there existed a
causal link between the matter found to constitute a violation (see
paragraph 55 above) and any loss or damage which the applicant may have
suffered as a result of the injunction. Therefore, his claim under
this head must also be dismissed.
C. Costs and expenses
75. The applicant further claimed reimbursement of costs and
expenses, totalling 104,000 Swiss francs (CHF) and 149,878.24, in
respect of the following items:
(a) CHF 70,000 for work (200 hours at SF 350 per hour) from
December 1990 to August 1992 by Mr C.F. O'Neall (resident in
Switzerland), in connection with the preparation and filing of the
initial application and written observations to the Commission;
(b) CHF 22,800 in respect of expenses incurred by Mr O'Neall in
travelling to London for consultation and preparation of the above
written observations to the Commission;
(c) CHF 11,200 for telephone, fax, postage, photocopying and binding
in connection with the above;
(d) 144,492.67 for Theodore Goddard, Solicitors, and counsel's work
from August 1992 to 23 January 1995 with the applicant's written and
oral pleadings to the Commission and Court;
(e) 2,621.40 for travel and subsistence expenses in connection with
the appearances of the aforementioned representatives before the
Commission and Court;
(f) 2,764.17 for photocopying and miscellaneous expenses (including
fax charges and fares) incurred between August 1992 and
23 January 1995.
76. The Government and the Delegate were of the view that the amounts
claimed under items (a) and (d) in respect of fees were excessive. The
Delegate of the Commission invited the Court to consider adoption of
a uniform approach, irrespective of national standards. The Government
did not object to any of the other claims, although they invited the
Court to take a critical look at the amount of costs claimed.
77. The Court will consider the above claims in the light of the
criteria laid down in its case-law, namely whether the costs and
expenses were actually and necessarily incurred in order to prevent or
obtain redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum.
On the point raised by the Delegate of the Commission, concerning
the reasonableness of lawyers' fees, the Court reiterates that it does
not consider itself bound by domestic scales and practices, although
it may derive some assistance from them (see the König v. Germany
judgment of 10 March 1980, Series A no. 36, pp. 18-19, paras. 22-23 and
25; the Sunday Times v. the United Kingdom (no. 1) judgment of
6 November 1980, Series A no. 38, p. 17, para. 41; and the Silver and
Others v. the United Kingdom judgment of 24 October 1983, Series A
no. 67, p. 10, para. 20). On the other hand, given the great
differences at present in rates of fees from one Contracting State to
another, a uniform approach to the assessment of fees under Article 50
(art. 50) of the Convention does not seem appropriate.
78. Turning to the applicant's claims, the Court is not satisfied
that all the costs and expenses were necessarily incurred. Considering
also that the applicant has succeeded only in respect of one of his
complaints under the Convention (see paragraph 55 above) and deciding
on an equitable basis, it awards CHF 40,000 with respect to items (a),
(b) and (c) and 70,000 with regard to items (d), (e) and (f).
FOR THESE REASONS, THE COURT
1. Holds unanimously that the award was "prescribed by law" within
the meaning of Article 10 (art. 10) of the Convention;
2. Holds unanimously that the award, having regard to its size taken
in conjunction with the state of national law at the relevant
time was not "necessary in a democratic society" and thus
constituted a violation of the applicant's rights under
Article 10 (art. 10);
3. Holds unanimously that the injunction, either taken alone or
together with the award, did not give rise to a breach of
Article 10 (art. 10);
4. Holds unanimously that Article 6 para. 1 (art. 6-1) of the
Convention was applicable to the proceedings in the Court of
Appeal;
5. Holds by eight votes to one that there has been no violation of
the applicant's right of access to court as guaranteed by
Article 6 para. 1 (art. 6-1) on account of the security for costs
order by the Court of Appeal;
6. Holds unanimously that the United Kingdom is to pay to the
applicant, within three months, in compensation for fees and
expenses 40,000 (forty thousand) Swiss francs and 70,000
(seventy thousand);
7. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 13 July 1995.
Signed: Rolv RYSSDAL
President
For the Registrar
Signed: Vincent BERGER
Head of Division
in the registry of the Court
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the partly
dissenting opinion of Mr Jambrek is annexed to this judgment.
Initialled: R. R.
Initialled: V. B.
PARTLY DISSENTING OPINION OF JUDGE JAMBREK
1. According to the Court's case-law, the manner of application of
Article 6 para. 1 (art. 6-1) of the Convention to proceedings before
appellate courts depends on the special features of the proceedings
involved; account must be taken of the entirety of the proceedings in
the domestic legal order and of the role of the appellate court
therein.
I agree with the majority that the order by the Court of Appeal
requiring the applicant to pay 124,900 as security for
Lord Aldington's costs in the appeal as a condition for the applicant's
appeal to be heard by that court, pursued a legitimate aim for the
purposes of Article 6 para. 1 (art. 6-1) of the Convention, namely to
protect Lord Aldington from being faced with an irrecoverable bill for
legal costs if the applicant were unsuccessful in the appeal (see
paragraph 61 of the judgment).
However, I am not convinced that the legitimacy of the above aim
in itself justified the restrictions imposed on the applicant's access
to the Court of Appeal. In my view the security for costs order
impaired the very essence of the applicant's right of access to court
as guaranteed by Article 6 para. 1 (art. 6-1) and was disproportionate
to the aim pursued (see paragraphs 61 to 67 of the judgment).
Therefore, unlike the majority, I find that there has been a violation
of this provision (art. 6-1).
2. As to the aims pursued, I agree with the applicant that, where
a security for costs order results in a party being denied access to
an appellate court because of poverty, it should only be made where the
appeal can be shown to be frivolous, vexatious or otherwise
unreasonable, or to be an abuse of the process of the court. The
applicant's appeal could not be said to fall within that category.
3. In the first place it is to be noted that, whilst the Court of
Appeal found that the appeal had no merit, the Registrar of that court
had previously concluded that five of the seven grounds of the appeal
had "just enough strength ... that security for costs should not be
awarded" (see paragraphs 16 and 17 of the judgment). This difference
of opinion clearly provides reason for doubting that the security for
costs order, the effect of which was to bar the applicant's access to
the Court of Appeal, was proportionate.
4. Moreover, I find it difficult to follow the Court of Appeal's
reasoning that, in view of the applicant's rejection of
Lord Aldington's offer to settle for 300,000, his appeal on quantum
was "academic" (see paragraphs 15 and 17 of the judgment). The
subject-matter of the applicant's appeal on damages was evidently the
award of 1.5 million and not the sum of 300,000. Indeed, as also
noted by the Court of Appeal, the offer "was not a concession by the
plaintiff's solicitors that the award was too high ..." So, the fact
that the applicant declined to accept the offer cannot be taken to mean
that he was disinterested in the issue of damages. On the contrary,
it suggests that he was aware of the fact that under English libel law
the questions of liability and damages are interlinked. As stated by
Lord Hailsham in Broome v. Cassell & Co. Ltd, the purpose of damages
in the law of libel is that someone "must be able to point to a sum ...
sufficient to convince a bystander of the baselessness of the charge"
(see paragraph 23 of the judgment).
5. Furthermore, in examining this issue, regard must be had to the
grounds on which we found a violation of Article 10 (art. 10), namely
the size of the award taken in conjunction with the lack of adequate
and effective safeguards at the relevant time against a
disproportionately large award (see paragraphs 49 to 51 of the
judgment). In this connection, I attach importance not only to the
limited scope of judicial control of jury awards but also to the
absence of reasoning for such awards and the resultant difficulty in
challenging their reasonableness. These factors, in my view, militate
strongly in favour of the conclusion that the restrictions placed on
the applicant's access to the Court of Appeal were disproportionate for
the purposes of Article 6 (art. 6).
6. In addition, the Court of Appeal failed to take into account that
in appealing from the High Court's judgment the applicant was seeking
to defend his fundamental right to freedom of expression, a right which
is protected by Article 10 (art. 10) of the Convention and which
constitutes one of the essential foundations of a democratic society
(see, for instance, the Sunday Times v. the United Kingdom judgment
(no. 2) of 26 November 1991, Series A no. 217, pp. 28-29, para. 50).
It is essential that Article 6 para. 1 (art. 6-1) be construed in such
a way as to guarantee a real and effective access to court for a person
who wishes to challenge an interference with the exercise of his or her
right to freedom of expression.
7. In any event, I do not consider that the Court of Appeal's
refusal to grant the applicant an extension of the fourteen days'
time-limit for providing the amount of security was justified (see
paragraph 18 of the judgment). The applicant's interests in pursuing
his appeal clearly outweighed those referred to by the Court of Appeal
in support of the refusal, namely to avoid considerable
time-constraints in relation to the timescale for the hearing of the
appeal. Also, I respectfully disagree with the majority that "there
is nothing to suggest ... that the applicant would have been able to
raise the money had he been given more time" (see paragraph 64 of the
judgment). It was implicit in his request for an extension that he was
willing to furnish the security or at least make efforts to do so, but
the Court of Appeal gave the applicant no realistic opportunity to show
that he would be able to raise the required sum if given more time.
8. For these reasons, I reach a different conclusion from that of
the majority. Notwithstanding the fact that the case had been
extensively heard in the High Court, the conditions set for the
applicant to pursue his appeal to the Court of Appeal exceeded the
respondent's State's margin of appreciation; they impaired the very
essence of the applicant's right of access to court and were
disproportionate for the purposes of Article 6 para. 1 (art. 6-1).
Consequently, I find that there has been a violation of Article 6
para. 1 (art. 6-1).