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City Desk
24 September, 2007  
Justinian in London

John Mortimer QC – gourmand, rake and womaniser … The rise of privacy – the decline of libel … £200,000 cases have turned into £1 million cases as conditional fee agreements ravage civil litigation

imageThe crowning moment at the just concluded two-day media law conference in London was the appearance of an aged and wheelchair bound Sir John Mortimer QC (pic) who was trundled into the centre of the magnificent Stationers Hall to indulge in some banter with Mark Stephens, the wild-haired media lawyer from Finer Stephens Innocent.

He was introduced by Stephens as a, “huge fan of Deep Purple, a gourmand, a rake and a womaniser”.

With that sort of welcome it was fitting that the discussion was accompanied by a bottle of French champagne.

Mortimer is still something of a hero in (defendant) media law circles. Apart from the Rumpole books and TV series he is probably most remembered by Australians as defence counsel in the Oz obscenity trial, which saw a successful appeal and the release from prison of those now crumbling enfants terrible Richard Neville, Martin Sharp and Felix Dennis.

In fact, filming is underway in London of an Oz trial feature movie starring a bunch of English and Irish actors who, no doubt, are torturing our lyrical Australian accent.

imageWhen Mortimer became a QC he said an old judge advised him that the best way to keep his black, dress silk stockings up was to find suspender belts designed for the outsized hospital matron.

This was the best advice he ever got from a judge, he said.

In his hey-day Mortimer would breakfast with a solicitor, lunch with a judge and dine with an actress. Divorce and murder were at the front and centre of his practice for a large part of his time at the bar.

He told the story of the husband who couldn’t find anyone prepared to commit adultery with his wife and so, dressed in a false beard and nose, crept into his wife’s bed to become his own co-respondent.

He much preferred murder cases, because with divorce the clients were forever ringing you up at absurd hours, with the latest harrowing tale of domestic bliss: “Mr Mortimer, you’ll never guess what he’s done now.”

At least with accused murderers they didn’t have ready access to the telephone.

A few years ago there appeared a nasty book, which sought to expose Mortimer’s quite active private (horizontal) life, revealing among other things that he had a “love child” with someone to whom he wasn’t married.

He said he would never dream of suing the author or publisher of the book. For one thing, it brought him into contact with his son, which might never have happened otherwise, and for that he is eternally grateful.

* * *

The big running issues at this year’s Media Law Resource Centre conference were the rise and rise of a developing law of privacy and the obscene costs of defending cases.

By all accounts defamation actions are waning in the “libel capital of the world”, although there is plenty of anecdotal evidence that the processing of settlements behind the scenes has scarcely drawn breath.

In 1997 there were 452 writs for libel issued in the Royal Courts of Justice. According to research from Sweet & Maxwell the total number of libel claims last year was down to 64.

But media lawyer Caroline Kean of Wiggins LLP was quoted in The Guardian as saying that this is no cause for the media to celebrate:

“The consequences of being sued for libel are as punitive as ever, but the drama tends to be played out behind the scenes. A huge amount of libel work is conducted in pre-litigation skirmishing.”

imageAlasdair Pepper, a partner of the dread firm of Carter-Ruck, nesting place of an awful lot of unattractive claimants against the media, says:

“If anything, I’d say we’ve got more work, and of a better quality.”

The latest privacy celebrity case was that brought by J.K. Rowling (pic), the hugely rich author of the Harry Potter books. She was snapped, with her husband and baby walking down the street, by a paparazzo with hidden camera.

Her claim was made under the Data Protection Act and she argued that the photo of her in a public street was an unlawful and unfair use of her “personal data”.

This date was disclosed and procured without the consent of the “data controller”. All very Orwellian.

Rowling’s complaint was dismissed in the High Court. Justice Patten said the case was one involving, “innocuous conduct in a public place which does not raise a reasonable expectation of privacy”.

Nonetheless, the thrust for development of a fully-fledged privacy law is well and truly on.

To date the litigation playing field has been dominated by “data controllers” who want to manage the commercialisation of their images, e.g. Naomi Campbell (snapped after coming out of a Narcotics Anonymous meeting after declaring she was not a drug user) and Michael Douglas and Catherine Zeta-Jones (seeking damages from a magazine that published photos of their wedding that they had pre-sold to another magazine).

If the Australian and NSW Law Reform Commissions have their way we’re likely to see a queue outside the courts of publicity conscious minor celebs seeking compo when some of the gloss rubs off their carefully polished images.

* * *

At least the civil costs landscape in Australia is not as voracious as that experienced by the Brits.

All the English media defence lawyers at the MLRC conference complained that the outrageous costs that flowed from conditional fee agreements were forcing settlements of cases that were winnable but were simply uneconomic to fight in court.

A £200,000 trial four years ago was now a £1 million today.

Under conditional fee agreements the winning defence team can double their fees if successful – which can make for enormous bills when fees are already £400 an hour.

Frequently cases that are settled for around £5,000 with costs of £90,000.

imageNaomi Campbell (pic) fought her privacy case under a CFA. Her eventual damages were £3,500 but The Mirror’s costs were £1 million plus.

As Lord Justice Brooks observed: “Something seems to have gone seriously wrong.”

In fact, it’s gone so pear shaped that the Department of Justice is conducting an inquiry into CFAs and their impact in pricing London out of the litigation market.

* * *

There was anxious discussion about whether future MLRC conferences should admit plaintiff lawyers.

Why let them in on our strategy? – was the general view. Maybe in some limited closed sessions, it might be possible, at a future time.

The Australian contingent in London included in-house counsels Lesley Power (SBS), Lynette Houssarini (ABC), Gail Hambly, Richard Coleman and Mark Polden (Fairfax).

And whom does Justinian run into on the streets of Paris a few days later, but Mark O’Brien, from Johnson Winter Slattery, PBL Media’s man in the courts and James Packer’s lawyer in those tireless actions against The Sydney Morning Herald.

He didn’t qualify for conferenceville.

The details of the uplifting media law discussions in London will be carried in our sister organ, The Gazette of Law & Journalism..