Law Report

Penguin may be £2 million down but there was an important principle involved, says Mark Bateman

David Irving: tried to legitimise his right to make

statements, no matter how offensive

Why it was worth taking on Irving? As is often the case, the first question asked of Anthony Forbes-Watson, CEO of Penguin Books, at the press conference after David Irving's failed libel action was: "How much has this case cost you and was it worth it?" The answer is that, sometimes, principles are more important than financial consideration. However, there is a general view that libel cases and, indeed, all litigation are too expensive. This was one of the main reasons for the Woolf reforms a year ago.

An important principle of the new Civil Procedure Rules is that of "proportionality", particularly that costs should be proportionate to the legal issues.

On the other hand, nobody would dispute that the competing fundamental principles of freedom of expression and protection of reputation are vitally important in a democratic society, and that the maintenance of those principles may well involve much time and money.

A claimant who has been vilified in the press will not be impressed to be told that it would be too expensive to seek vindication of his or her reputation through the courts; the introduction of "no win, no fee" was designed to enable the less wealthy to go to law to protect their reputations. It is likely that conditional-fee arrangements will increase the cost of litigation because insurance premiums and success fees will now be part of the overall expense of the litigation.

In the case of publishers, to be told that they should apologise and pay damages for an allegation that is true because of the high cost of defending a libel claim is not conducive to free speech. Most publishers would prefer to spend whatever it takes to try to prove the truth.

The pitfalls for a large organisation taking on litigants in person in libel actions have been amply demonstrated by the McDonald's litigation. The public has little compassion for a large organisation that drags critics into court as a means of gagging them, no matter what the merits. Importantly for a commercial organisation, they have little chance of recovering their costs should they win.

The public perception of the Irving case was different. First, it was Irving doing the dragging. Irving lost the "historical" argument some time ago but, like many who can no longer sustain their position through logic and fact, he tries to legitimise his right to make statements, no matter how offensive or wrong they are, by claiming a right to free speech. By taking this action and trying to suppress my client's right to publish, he has lost that argument, too.

Secondly, most people find his views abhorrent. Generally, the public was overwhelmingly on the side of Penguin and its author, Deborah Lipstadt.

Commercially, Penguin knows that it is unlikely to recover its outlay. Few publishers can have faced a litigant as awkward as Irving. Here was a man thoroughly at home with the central issue in the litigation: his own treatment of the historical record.

It was necessary to assemble an expert team that could not only meet Irving in his area of specialisation but also highlight how he had misrepresented the historical record. Despite Irving's assertions to the contrary, it was Penguin that paid the fees of the experts, leading counsel, junior counsel and my firm.

In fact Penguin could have saved itself almost £2 million had it accepted Irving's offer to settle for £500 (payable to charity) and a letter of apology. Many publishers would have taken this opportunity gleefully, but the lawyers and management at Penguin believed that there was more than money at stake.

First, to settle with somebody who openly states that ". . . more people died in the back seat of Senator Edward Kennedy's car at Chappaquidick than in the gas chambers of Auschwitz" and who then claims that it is libellous to describe him, inter alia, as a "Holocaust-denier" was considered to be morally repugnant.

Secondly, Penguin has a principle of upholding freedom of speech for itself and its authors and was not prepared to compromise this.

Inevitably, this case will raise the difficult question of free speech. Most commentators agree that there should be a balance between the right of an individual to protect his reputation and freedom of speech. Many would say that if you are going to publish statements damaging to a person's reputation, you should be sure that they are accurate. But there is a difference between knowing something to be true and being able to prove it to a judge or jury. At present, a number of presumptions in the law of defamation favour the claimant. There is the presumption that a claimant has a good reputation and that the words published are false. This tips the balance in the claimant's favour, away from free speech. It may be that the introduction of the Human Rights Act will tip the balance back towards the publishers.

The author is an associate at Davenport Lyons, solicitors for Penguin Books.

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