Libel has always been one of the more colourful areas of the law. Perhaps this is because of what’s at stake: the essence of a person, as Shakespeare has it in Othello:
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing;
’twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.”
If the jewel of our souls is before the court it’s no wonder that a libel trial is often likened to theatre. This, and the fact that libel hinges on the meaning of words – on language itself – means that the ancient tort of defamation has spawned a number of memorable quotes and exchanges in the law. Here are some whose resonance lingers.
1. Head in the sand
David Mellor, MP and barrister, was cast in highly unflattering terms by the late George Carman QC, one of the greatest libel barristers of all. Carman’s characterisation came in a trial brought by Mona Bauwens against The People. “Marbella has sand, sea, and sunshine and if a politician goes there and – in the honest view of some – behaves like an ostrich and puts his head in the sand and thereby exposes his thinking parts, it may be a newspaper is entitled to say so.”
So terrifying was Carman that another plaintiff once said: “Whatever award is given for libel, being cross-examined by you would not make it enough money.”
2. Stung and unnerved
Oscar Wilde’s prosecution for criminal libel against the Marquess of Queensbury proved to be a mistake. Wilde sued because the Marquess left his calling card at Wilde’s club, the Albemarle, inscribed: “For Oscar Wilde, posing as somdomite” (sic). Wilde was cross-examined by Edward Carson QC, an advocate every bit as deadly as Carman. Unable to cope, Wilde said: “You sting me and insult me and try to unnerve me; and at times one says things flippantly when one ought to speak more seriously.” Queensbury’s acquittal left Wilde liable for his and the Marquess’s legal costs; he went bankrupt as a consequence.
3. A madman
The socialite Lady Docker sued The Sunday Express in the early 1970s over the allegation that she had been thrown out of a hotel owned by Bert Taylor for using colourful language. She insisted she hadn’t been incensed to have picked up a parking ticket, saying simply “What do think, Bert? We have got a parking ticket at last.” She contended that this anodyne comment provoked Taylor to throw her out. The following exchange, en route to Lady Docker’s triumph, then occurred:
Judge: And that was all you had said?
Lady Docker: Yes.
Judge: You really invite the jury to believe that?
Lady Docker: Yes I do.
Judge: If you had said no more than you have told the jury, what conceivable reason could Mr Taylor have for ordering you out? He is not a madman, is he?
Lady Docker: I’m sorry, I think he is.
4. Twaddle, daub and discord
Sometime it seems the judges of yesteryear have the best lines. Here’s one that’s difficult to beat, from Sir Frederick Richard Jordan, reputedly a cold and severe man and undoubtedly one of Australia’s great judges. In Gardiner v John Fairfax & Sons (1942) 42 SR (NSW), Jordan’s guidance on the parameters of the fair comment defence were quite wonderful: “A critic is entitled to dip his pen in gall for the purpose of legitimate criticism: and no one need be mealy-mouthed in denouncing what he regards as twaddle, daub or discord.”
5. Is she not fragrant?
Perhaps the most enduring thing to emerge from Jeffrey Archer’s 1987 libel action against The News of the World over the allegation that he paid money to a prostitute was Mr Justice Caulfield’s description of Archer’s wife, Mary. “Has she elegance? Has she fragrance? Would she have, without the strain of this trial, radiance? How would she appeal? Has she had a happy married life? Has she been able to enjoy, rather than endure, her husband Jeffrey?” The rest is history.
6. The simple sword of truth
Former Conservative MP Jonathan Aitken has gone on to reinvent himself since his disastrous foray into the libel courts in 1995. Once again George Carman had a starring role in a libel trial, proving that Aitken was lying on oath. Aitken’s words – before it all went so badly wrong – must surely be included in any list of libel’s great lines:
“If it falls to me to start a fight to cut out the cancer of bent and twisted journalism in our country with the simple sword of truth and the trusty shield of British fair play, so be it. I am ready for the fight. The fight against falsehood and those who peddle it. My fight begins today. Thank you and good afternoon.”
7. Smoke and fire
Another judge, and some more memorable imagery. Good advice, too, from Lord Devlin in Lewis v Daily Telegraph (1964) AC:
“A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire: but it can be done.”
Journalists and social media users alike may wish to take note, or risk having to defend themselves in their own courtroom drama.
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