The lawyers’ watchdog the Solicitors’ Regulation Authority (SRA) takes a very dim view of certain practices when it comes to suing for libel. The Slog believes that anyone surveying the precedents and agreed practices involved would fairly swiftly reach the conclusion that Lord McAlpine and his legal creature RMPI are already in breach of some of them.
With the help of legal-eagle Sloggers, over the last week I have been poring over some cases of multiple-defendant libel actions, and observing major case precedents that are relevant to the list of ‘culprits’ being drawn up by Alistair McAlpine and Andrew Reid of RMPI.
One seminal case involves that of Smith v ADVFN, a City website which, as it happens, I use myself. The comment threads are usually, shall we say pretty lively, and a Mr Smith decided to sue on the basis that various threaders had defamed him. The methods used were challenged….and these extracts from judgement might give everyone interested in the McAlpine suits some serious pause for thought: (my emphases)
‘The strategy adopted by Mr Smith , aided by his solicitors, has been to try to pick off the “offenders” one by one by threatening proceedings for libel and by suggesting payments by way of damages and/or costs….and there is clearly the hope that they will collapse and comply with these demands at an early stage….At the very least it is possible to conclude, even at this stage, that the strategy of “divide and rule” is inappropriate…..This is especially so in libel proceedings….In particular, any distress and hurt feelings suffered would have to be compensated by reference to the totality of the publications and not on the artificial basis of the sum total of the impact upon his feelings by one individual publication; otherwise there would obviously be a significant risk of overcompensation.’
In turn, these extracts from a later Queen’s Bench judgement on the case are instructive:
‘…Meanwhile, the Defendants who appeared in person and those who made submissions to me in writing seek to maintain in some cases, there has been a suggestion that the individual claim should be struck out as having no realistic prospect of success…..It is obviously a relevant question to ask whether someone would have thought it proportionate to any legitimate gain to issue 37 sets of proceedings (with apparently more to come). If there is a genuine desire for vindication over any significant defamatory allegation, it is reasonable to suppose that this objective could generally be achieved by a more targeted strategy….’
‘….a significant number of actions were started, with more flesh to be put on the bones later, but that does not explain why nothing was done before that date…. I am asked to scrutinise these cases with particular care and to ask whether they actually represent, in each case, a genuine attempt to vindicate reputation.’
Much of this opinion is in effect referring back to SRA rules which state that:
‘Taking ‘unfair advantage’ refers to behaviour that any reasonable solicitor would regard as wrong and improper. That might include:
- bullying and unjustifiable threats;
- misleading or deceitful behaviour;
- claiming what cannot be properly claimed;
- demanding what cannot properly be demanded.
There can be no doubt that Andrew Reid’s initial remarks to the press contained thinly veiled threats along the lines of ‘it’ll be cheaper for you to settle now’. The Slog would argue that Lord McAlpine may have been deceitful about his family name, and how he was mistakenly accused, during a Radio 4 interview in November. There is further the matter of McAlpine’s book on the basis of how to manipulate the media, which does (to say the least) raise doubts about the sincerity of his statements at the time. The demands made against both the BBC and ITV were vague in the extreme – ’caused people to look at the internet’ and so forth. The remarks made by Philip Schofield in that regard also represent the truth, and action to both silence and or discipline him on that basis arguably represent a serious attempt to curtail freedom of speech.
The following actions are also deemed ‘offside’ by the SRA:
taking unfair advantage of an opposing party’s lack of legal knowledge where they have not instructed a lawyer;
using your professional status or qualification to take unfair advantage of another person in order to advance your personal interests;
taking unfair advantage of a public office held by you, or a member of your family, or a member of your firm or their family.
Point 1 would apply to almost every Tweeter targeted by McAlpine and Reid. Points 2 & 3 apply in relation to McAlpine’s unprecedented access to the media as a public figure and former holder of high office, and also Reid’s use of the RMPI website.
On this matter, I am in receipt of one opinion as follows:
‘In my view RMPI have taken unfair advantage of unrepresented parties in the conduct of their initial media campaign. It has made demands of money which would never be recoverable in a court of law and therefore are demanding sums unfairly and without quantifying them or even setting out what has been said to cause the complaint. The website demanding money is unfair pressure and taking advantage of the lack of legal knowledge of Twitter users. For example the RMPI website does not even advise people to seek legal representation which I think is the very least they should do.’
It is worth adding in addition, by the way, that the SRA strongly disapproves of solicitors collecting money for clients before Court action in libel cases – especially when the method involves what it calls ‘speculative invoicing’. This is, in the view of many observers, what Reid is already doing on his website. The legal site Solicitors from Hell for example notes:
‘Everyone will have heard about Mr Reid – the solicitor who is representing Lord McAlpine. He spends half his time on TV and radio discussing the litigation. Now he has taken the Twitter ‘libel’ tweets to a whole new level and is accepting apologies and money on his website: http://www.rmpi.co.uk . This is against the principle of treating those who have been alleged to libel his client fairly – and arguably is a breach of the SRA code of practice. The likelihood is that Mr Reid has set up this facility because he is trying to steam roller people into making settlements when he knows any cases are likely to be dismissed in court as an abuse of process. His client has already received £310,000 from broadcasters and in this context it is difficult to see how the costs in pursuing individuals will further vindicate him and achieve meaningful damages.’
It would be hard to get a more definitively negative judgement than that….and reflects in its entirety the advice I was given several weeks ago – viz: the case will fall apart as soon as McScalpine & Greid are forced into a Court wherein sits a judge in possession of the majority of his marbles.
The SRA has in fact already received a number of complaints. No wonder Andrew Reid is “still hopeful” that a Court appearance can be avoided. In the case of the Sally Bercow action, the lady should be encouraged to go forward with the case, or force the dynamic duo to accept a simple apology without damages. This is a game of poker, but the Speaker’s wife technically looks on better ground than her accusers. I mustn’t encourage her, of course: it’s none of my business, and I’m not the one facing £50,000 worth of potential damages.
But I continue to believe that the two litigators would rather do anything than face a judge. And although Alistair McAlpine currently has the media eating from his hand, the way he is conducting this matter could result in them biting that extremity before too long.
There are times, are there not, when you can see why bankers, globalists and ambulance chasers are so in favour of deregulation. Meanwhile, as this distraction from the main point continues, several MSM titles are now uncovering all kinds of dirt on the Estbalishment fiddlers still at large. Jimmies McAlpine and Savile may be dead, but this scandal is still very much alive.