http://www.sunday-times.co.uk/news/pages/sti/2000/07/30/sticoncon01001.html

Tolstoy opens new front in old libel war

by Maurice Chittenden

BRITAIN'S longest-running legal feud has taken its strangest twist yet. Count Nikolai Tolstoy, the historian, who 11 years ago was ordered to pay £1.5m defamation damages to Lord Aldington, the former Conservative deputy chairman, has turned the tables on his adversary and issued a writ against him for libel.

Their legal wrangle, which has involved three appeals and a hearing in the European Court of Human Rights, has tied up lawyers and come close to exhausting the patience of High Court judges for more than a decade.

It stems from an allegation in a pamphlet written by Tolstoy, the great-nephew of the author of War and Peace, that Aldington, as a brigadier in the British Army, helped return 75,000 Cossack and Yugoslav prisoners to Stalin and Tito after they surrendered in Austria at the end of the second world war. Thousands were later massacred or imprisoned in the gulag.

Tolstoy declared himself bankrupt after the original case, which made it difficult for Aldington, one of Sir Edward Heath's closest friends and an acquaintance of the Queen, to collect more than a fraction of his award and his £350,000 legal costs.

Benefactors, including Alexander Solzhenitsyn and the late Graham Greene, have given donations of £600,000 to pay Tolstoy's own court costs. Relatives and a generous peer paid his children's school fees. The writer Taki took care of the instalments on his Volvo car.

Tolstoy's fortunes have improved dramatically in the past few years. His Jacobean farmhouse in Berkshire is now worth £1m, and he has inherited up to £1.5m from his stepfather, the nautical novelist Patrick O'Brian.

Cause célèbre: the original case centred on the fate of Cossaks at the end of the war

Loser has become winner in some people's eyes, as Aldington has had to swap his Bentley for a Ford Focus and faces selling his collection of books.

He is now 86, and his family fear the libel writ could worsen his failing health: he is blind and suffering from cancer.

Now defendant is to become plaintiff. Tolstoy, 65, has issued a writ in the High Court alleging Aldington libelled him in an interview.

He was quoted as saying in the interview, published in London's Evening Standard in March: "It's a quirk of fortune that one should win the largest-ever libel action and be so much out of pocket -- that's what really grates with me."

Aldington, who borrowed £500,000 from the Sun Alliance insurance company, of which he was once chairman, to pay his legal fees, claimed the count was refusing to pay him the damages and that he was having to "scrimp" a living.

The writ says the Tory grandee went on to imply that the count had virtually ruined him. Tolstoy said: "It is the first time I have sued him. It is a real turnabout in that sense."

The length of the dispute has drawn comparisons with Jarndyce and Jarndyce, the fictitious case about a disputed will that is pivotal to the plot in Charles Dickens's Bleak House, which is only finally brought to a close when the whole estate is swallowed up in costs.

One previous round of Aldington vs Tolstoy was fought in secret in a basement at the High Court and was "struck out" by the judge, who deemed Tolstoy was being frivolous in bringing it to court.

Tolstoy's bankruptcy order lapsed in 1993, but two years later the European Court of Human Rights ruled that the £1.5m libel award was excessive and violated the count's freedom of expression.

Tolstoy claims Aldington has since renewed his efforts to get his hands on the original libel award, at one stage seizing the writer's pension and trying to secure his wife Georgina's share of the family home. The couple, who first met at a re-enactment of a civil war battle at Warwick Castle, have four children: Alexandra, 27, Anastasia, 25, Dimitri, 21, and Xenia, 20.

He said: "Aldington has had very little money from me. That is not in dispute. But he is very actively pursuing me and it is happening 10 years after the event.

"I don't think there has ever been such a case, except in Dickens's day, when things were allowed to drag on so long. It is all very bizarre.

"Many eminent lawyers say to me nothing in your case seems to have any precedent in British legal history but then nor did the issues in his case against me."

A legal injunction prevents him writing anything more about Aldington while the peer is still alive. But he claims to have unearthed "new evidence" in Russian archives following the collapse of the Soviet Union and is poised to publish a new book when Aldington dies.

Aldington, who lives in a neo-Georgian farmhouse near the Kent village from which he takes his title, said he had been told by his lawyers not to speak about the case.

Lady Aldington, his wife of 53 years, said: "My husband is now 86, he has just been registered as blind and he has got cancer. That is what we have been told to say by our lawyers."

Tolstoy said: "He has got plenty of energy to pursue me. He had no problem in saying what he had to say in this interview. I didn't ask him to go and say things about me."

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