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July 20, 2015

After Freddie Starr and Andrew Mitchell's libel disasters, should you always sue to protect your reputation?

By Spear's

Jennifer Agate on how libel can go spectacularly wrong

‘She has proved that… he groped her (an under-age school girl) and humiliated her.’ This was the damning conclusion of the judge in the Freddie Starr libel action, proceedings Starr himself had brought to try and protect This reputation, but actually a spectacular example of how libel proceedings can go wrong.

In September 2013, Mr Starr issued the action against Karin Ward, who claimed that in 1974 Mr Starr had groped and humiliated her, aged fifteen, on the Clunk Click TV show. Her allegations were particularly newsworthy because of the presence of Jimmy Savile on the same TV show. The allegations were first made on a blog, before being repeated to BBC and ITV interviewers. However the publicity escalated when Mr Starr applied for an injunction preventing ITV from broadcasting an interview with Ms Ward.

On hearing of the allegations, Mr Starr went straight to court, initially obtaining an interim injunction. The injunction was overturned the following day, with the unsuccessful attempt to suppress the allegations being widely reported and recorded in a public judgment.

To compound the publicity, Mr Starr then proceeded to give media interviews in which he denied meeting Karin Ward or ever being with Jimmy Savile on BBC premises, an embarrassing mistake that was proven to be false when video evidence surfaced of the original TV show.

The climax came when in November 2012 Mr Starr was arrested on suspicion of sex abuse, eventually being released from bail in May 2014. He had issued the libel claim in September 2013.

After a two-week trial in June this year the judge rejected Mr Starr’s libel claim, finding that on the balance of probabilities, Ms Ward was telling the truth.

The purpose of a defamation action is to vindicate the claimant’s reputation, a reputation that has often been sullied by false allegations. However, it can often do just the opposite. Mr Starr now finds himself with a court finding (albeit in civil not criminal proceedings) that on the balance of probabilities he ‘groped’ and humiliated one fifteen-year-old girl and passionately kissed another.

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In a similarly humiliating court experience in November 2014, Andrew Mitchell was labelled ‘childish’ and a ‘Jekyll and Hyde’ character, with the judge finding that he had used the ‘politically toxic word “pleb”‘ to a Downing Street policeman, a fact he had spent over two years denying.

Starr and Mitchell represent examples of where libel proceedings have dramatically backfired. However in any litigation, successful or not, proceedings will keep the facts (in a libel action often of a sensational nature), firmly in the spotlight. The trial will generally be held in public, with the press reporting on every detail.

Legal proceedings can also let all kinds of cats out of the bag, as Nigella Lawson found out (in the slightly different context of a criminal trial) when appearing as a witness in the trial of the Grillo sisters for fraud. The Grillo sisters were acquitted, while Nigella found herself under criminal investigation following admissions on the witness stand that she had taken cocaine

Setting aside the reputational risks, appearing in court is itself a gruelling and stressful experience, whether as defendant, claimant or mere witness. As Starr and Mitchell have both found, the costs can also be crippling, with Starr reportedly ’1 million out of pocket and Mitchell over ’3 million. Even in the event of success, the ability to recover costs will depend on the financial position of the losing party.

Libel proceedings are therefore to be approached with extreme caution.

So with even a libel lawyer advising against jumping to issue proceedings, what are the alternatives?

> Believe it or not, the best option can often be to do nothing. This will depend on the seriousness and exposure of the allegations, but on many occasions the news will move on to another focus without the need to respond and add fuel to the fire by drawing further attention to the allegations.

> Where it is necessary to respond publicly, liaise with both legal and public relations advisors to make an appropriate statement.

> Where there is clear evidence of wrongdoing or misjudgement a well worded apology can be the first step to rehabilitation.

> Lawyers are not just for litigation. Where a strong case exists, a swift and pragmatic legal approach can result in an effective resolution, including the obtaining of an apology and damages, without the need to issue proceedings. Consider what is really important and don’t hold out for damages where what you really need is a swift counter to the allegations, an apology or an undertaking that they will not be repeated.

> Where litigation is appropriate, be aware of the potential costs, both financial and reputational.
Whatever the approach, it is crucial to be absolutely certain of the facts and respond entirely honestly. A later unravelling, as per the Starr video evidence, will be damning to any credibility.

Jennifer Agate is an associate at Farrer & Co

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