Eady’s errors and why this judge must not hear so many libel actions

Roy Greenslade
29 Jul 2009

There has been a long history of journalists lampooning judges. Gone are the days when the criticism was largely aimed at their unworldliness, as exemplified by the High Court judge who is reputed in the 1960s to have asked: “Who are the Beatles?”

Indeed, one of the most memorable characters in the old Daily Express Beachcomber column was Mr Justice Cocklecarrot, since revived by Private Eye magazine, who epitomised a class of men — always men — who were hopelessly disengaged from the reality of working class life.

With occasional exceptions, judges are no longer open to such criticism. Instead, newspapers tend to attack them nowadays for their rulings, whether they deem them to be too soft or too hard, a tendency that usually reflects the newspaper's own particular political or social bias.

Arguably, the knee-jerk responses to judgements that prompt journalists and their editors to rage against the judiciary merely signal the fact that they sometimes like to cast themselves — on behalf of the readers they affect to represent — as more perfect judges than those appointed by Her Majesty.

I have been mulling over this problem ever since I appeared before Mr Justice Eady as a witness on behalf of the author Tom Bower in his ultimately successful defence of a libel suit launched by the Daily Express owner Richard Desmond.

Few judges have upset journalists more than Sir David Eady. Last year, the Daily Mail's editor, Paul Dacre, launched a full-frontal attack on him for exercising “awesome powers” that threatened the freedom of the press. He accused Eady of “arrogant and amoral judgements” and of playing the leading part in imposing a privacy law that hampered newspapers from going about their important work on behalf of the public.

Warming to his theme, Dacre called it a scandal that “while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media, enabling him to bring in a privacy law by the back door.”

He added: “The freedom of the press is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression.”

Eady, in time-honoured fashion, did not deign to respond, at least in public. I defended Eady at the time. I had watched him operate in several trials in court 13 at the Royal Courts of Justice and, while not always agreeing with him, I did my best to put aside my own prejudice.

When he ruled against the Daily Telegraph after defending a libel action launched by George Galloway MP, I nodded in agreement. When he ruled against the author Niema Ash, who was sued by the Canadian folk singer Loreena McKennitt, I shook my head in profound disagreement.

Unlike Dacre, I was not put out by Eady's decision in favour of Max Mosley last summer when he sued the News of the World for intruding into his privacy by filming and broadcasting a sex session with several prostitutes. I did not believe that Eady had made a landmark ruling and thereby tipped the scales in favour of privacy over press freedom. It was, I thought, a straightforward matter of a paper being punished for making a series of reporting errors and a colossal misjudgement about what we mean by “the public interest.”

But I frankly admit I was shaken by Eady's conduct of the Bower-Desmond trial. It was clear from the way in which he prevented a whole range of evidence emerging about Desmond's conduct over the years — all of which is in the public domain — that he was not serving the interests of justice.

These rulings, two of which were reversed by the Appeal Court, were catalogued in various post-trial reports last week and there is no need to repeat every example here. What is of note, however, is the way in which those eminent lords of appeal rebuked Eady, stating plainly that he was wrong and, if his rulings, stood, they might well cause a miscarriage of justice.

These rejections of Eady placed him in an entirely new light. While accepting that no judge is infallible, my faith in Eady's abilities was knocked for six. It took an even greater knock — out of the ground in cricket parlance — when I was giving evidence.

I was allowed only to say that Desmond was a newspaper proprietor with a bad reputation but when I sought to explain to the jury the grounds for my contention, Eady specifically forbade me from explaining why. If I read the faces of the jurors correctly, they were also anxious to hear what I had to say.

On returning to my seat at the back of the court an observation by Beachcomber's author, JB Morton, came to mind: “Justice must not only be done, it must be seen to be believed.” I had never seen Eady as Cocklecarrot before.

In a break, I then came across a lawyer acting for The Times in a libel hearing at an adjacent court. “Lucky us,” he said, “you've got Eady and we have Mr Justice Tugendhat. Much better.”

I have tried since then to avoid making too much of a single case, and my own personal animus at my treatment, to damn Eady in similar terms to those employed by Dacre.

But I do now agree with his overall point that it cannot be right for a single judge to hear so many libel actions, especially when his “superiors” have seen fit to admonish him on matters of law. If he remains in place, I fear press freedom could well be unacceptably constrained.