Mr Justice Eady
Tuesday, April 14, 2009 at 17:17 Below is the full article from the Sunday Times
OneMAn asks if there is any truth in the 'referee' having too much power? Isn't the referee meant to be in charge? Or should we be asking "Who guards the guards",
March 22, 2009
Publish and be slammed
The rich and famous are employing expensive new muscle to protect them: strong-arm lawyers who take no prisoners
It might come as a shock to fans of Jonathan Ross that once the studio lights are dimmed, one of the BBC’s highest-paid performers is an extremely sensitive and private person. Three years ago, Mr Ross’s solicitors wrote to Fleet Street editors, passing on their client’s dismay at having been snapped by photographers while playing tennis with David Baddiel at a private members’ club. The legal letters said that publication of these pictures would constitute a breach of Mr Ross’s “right of privacy” under the Human Rights Act 1998 and the European Convention on Human Rights.
Why should Ross find such an “invasion of privacy” offensive? Certainly the chat-show host, who recently asked David Cameron if he had ever masturbated about Margaret Thatcher, failed to see the funny side. Ross’s legal threats are deadly serious, if sometimes inadvertently hilarious, particularly in light of his recent violation of Andrew Sachs’s home and family life. The man who left messages on Sachs’s answering machine taunting the actor about how Russell Brand had “f***ed” his granddaughter — and thought it hugely entertaining to broadcast the fact on radio — zealously protects his own zone of privacy. He seems to think that when it comes to offensive and invasive public behaviour, there’s one rule for him and another for his targets. Luckily, he has his sympathisers: a growing A-list of celebrities, and an army of aggressive lawyers they will employ to ensure we only read what they approve.
David Walliams and Matt Lucas, the scabrous satirists who test the limits of taste with sketches about geriatric sexual fantasies, projectile vomiting, incontinence, disability, and stereotypical portrayals of pansy homosexuals, also turn out to be surprisingly thin-skinned. They exploit the traditional licence in this country that allows comedians to mock almost anyone in the name of entertainment, but then resort to threats under Britain’s historically draconian law of libel to defend themselves against similar parody.
Five months ago, Fleet Street editors were warned of the risks of repeating the completely untrue allegation that Little Britain USA had been branded by the West Hollywood Gay and Lesbian Alliance as the “most politically incorrect, offensive and obnoxious material seen” in America. One might expect Walliams and Lucas to rejoice at the charge and use it in their publicity. The complaint gained added piquancy when it turned out that the WHGLA did not exist, but the letter still raised the question: what is the point of Little Britain if it doesn’t cause offence?
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The legal warnings cited above have one thing in common: they were all generated by Keith Schilling’s London offices. Every year, dozens and dozens of such legal letters are sent out from Schillings — policing newspapers, magazines, TV, radio stations and websites — and by a handful of other firms that have cornered the market in celebrity “reputation management” on behalf of actors, pop singers and people simply famous for being famous. He acts for such household names as Nicole Kidman, Ozzy and Sharon Osbourne, Naomi Campbell, Hugh Grant, Keira Knightley, Cameron Diaz, Lance Armstrong, JK Rowling and others. Some of the warnings make perfectly valid demands for the correction of an inaccuracy, or to prevent a client being harassed by photographers. Others can appear simply bizarre, especially when the lawyers resort to language that suggests they spend too much of their day reading the tabloids. For instance, it is disappointing to learn that Teri Hatcher, the siren star of Desperate Housewives, is a single mother who lives an off-screen life of blameless rectitude. The Daily Sport ludicrously and unbelievably alleged that “she engages in sex romps on a regular basis with a series of men in a VW van parked outside her LA home for this purpose”. Schillings immediately complained about this, but also sent out a letter to other newspapers pointing out that this was categorically untrue.
The striking aspect of this letter about an obviously implausible story, headlined “Teri’s Passion Wagon”, is that the communication from Schillings marked “Urgent. For Immediate Release” probably did more to fascinate Fleet Street than dampen down interest in their client. Given the nature of the Daily Sport, it is unlikely that anyone in the mainstream media even saw the story until Schillings alerted them. So why should lawyers flag up obviously defamatory stories about their clients by demanding that they are not repeated. The answer to this question points to the symbiotic relationship between celebrities, their lawyers and the celebrities’ PR firms. These well-remunerated figures are engaged in what is increasingly a relatively new, booming industry that might be termed “reputation management” with legal dimensions.
Until recently, Britain did not have a privacy law, but over the last 5 to 10 years it has been acquiring one incrementally — not so much from Westminster, but from the European Court of Human Rights in Strasbourg, and from a small number of High Court judges trying to implement the Human Rights Act of 1998. This incorporated the European Convention on Human Rights (ECHR) into our own statute book, and it has proved a godsend to celebrity lawyers — or, more accurately, lawyers who do work for celebrities. The air had been going out of the libel balloon for several years since the law was changed to reduce the capricious level of damages set by juries.
The two sentences that comprise Article 8 of the ECHR have created a multi-million-pound bonanza for a small group of London solicitors and the barristers they instruct. And, as the House of Commons select committee for culture, media and sport was warned last month, regional and local newspapers are now effectively unable to contest any actions, no matter how spurious or false, brought by the opportunistic litigant who has the financial muscle to bully them into submission, because of prohibitive legal costs.
The odd thing about Article 8 of the ECHR is that it was not originally intended to regulate journalistic practice in this country. It declares that everyone has the “right to respect for his private and family life, his home and his correspondence”, but then goes on to frame those rights in the context of “public authorities” — ie, statutory bodies — and what they should and should not do.
It is clear the framers intended to establish a protection of individual rights against the exercise of arbitrary state power, and not specifically to help protect overpaid and oversensitive celebrities from the disapproval of the audiences they seek. This view has indeed already been confirmed by a judgment of the Strasbourg court, Kroon et al vs the Netherlands, in 1994.
But whatever the intentions of the framers of the convention, and of new-Labour ministers when it was enshrined in British law, it presented libel lawyers with a lucrative new line of work. By far the quickest and most effective figure to move into the field was a thrusting lawyer, Keith Schilling, who stood defiantly outside the cosy “Oxbridge-Temple” ethos of the London legal world.
Schilling left school at 15 and became an outdoor clerk in the legal firm overseen by a legendary lawyer, Oscar Beuselinck, an inspirational, self-educated man who came to be regarded as the father of modern libel law, and who favoured other young lawyers with untraditional legal backgrounds. When Beuselinck died in 1997, The Lawyer magazine reflected: “In a profession notorious for being mealy-mouthed, he publicly described one libel judge as a wanker, an opinion history has subsequently supported.” The youthful Keith Schilling quickly bonded with the man he now regards as his role model, and, in his early career at least, he came to copy Beuselinck’s irreverent approach.
Schilling’s mother worked at Sainsbury’s, his father was frequently unemployed, and Keith was prepared to work hard to plug the holes in his education. Beuselinck allowed him time to get his A-level equivalents, then a year off for full-time study, and he ended up with a master’s degree. Keith Schilling’s big break came when he successfully represented Sean Connery in a huge case against a financial adviser, thereby establishing himself as a well-placed and reliable pair of hands for celebrity clients. Beuselinck trained up a whole new breed of young lawyers who had not gone to public school or Oxbridge, but lived on their wits and determination. “Oscar wanted raw-meat aggression,” recalls one lawyer who had dealings with “Oscar’s young men”, as they were called. Schilling was known as “the Rottweiler”, a nickname he secretly rather liked, and which his celebrity clients found reassuring as they went into battle with him.
In those days, Schilling was seen by journalists as being on their side, and he did important work for Private Eye, which faced closure in the 1980s because of a ruinous battle with the wife of the Yorkshire Ripper.
The magazine had alleged that Sonia Sutcliffe exploited her husband’s notoriety to take money from newspapers. Ian Hislop, the editor, who had promised to reduce Private Eye’s legal costs, compounded the problem by running a piece deemed to be in contempt of the libel proceedings. A few months later, Private Eye itself was in peril and Hislop was facing a potential spell in prison when the jury quixotically awarded Sonia Sutcliffe damages of £600,000. “I’m feeling under the moon,” said Peter Cook, the Eye’s co-proprietor, when told of the jury’s generosity.
Hislop recalls that Schilling was exactly the sort of lawyer you need in the libel trenches with you in dangerous times. “He was tough, brash, and always optimistic, entirely unbothered by the pomposity of the law, the absolute opposite of the cosy Oxbridge-Temple conspiracy.” Hislop recalled going with Schilling to see their QC at the barrister’s chambers at a key moment in the Sutcliffe case. They waited outside like a pair of naughty schoolboys until summoned by the great man. The silk expressed regret that the judge had found against them, but blamed Schilling for taking too tough a line in the case. At this point, Schilling rose from his seat, exploding, “You f***ing apologise now for being rude about me in front of a client,” reminding the barrister who engaged whom.
The barrister, shorn of his pomposity, promptly offered a sincere apology, and Hislop has had a grudging respect for Schilling ever since. Keith Schilling confirms the broad veracity of the story but insists he does not recall swearing.
The true significance of the case was in the matter of the damages awarded by the jury to Sonia Sutcliffe, which Schilling managed to have reduced by 90%, from £600,000 down to £60,000 — the first time the Appeal Court had overturned a jury’s damages award in 25 years. The public’s astonishment at the size of the initial payment to the wife of the Ripper was a factor in a change of law in 1990, when jury awards became subject to Court of Appeal review, triggering a dramatic decline in libel damages.
Thus — ironically, in light of his later career —Keith Schilling had done his bit to kill the golden goose of six-figure awards in libel actions, and defamation practice ceased to be a one-way street in the plaintiffs’ favour. For a while the niche world of libel firms, and their barristers, was on relatively short rations until new Labour embraced the Human Rights Act as one of its first high-profile actions in office. With that, another lawyers’ treasure chest was opened up, and Keith Schilling was at the head of the queue, this time at the side of the supermodel Naomi Campbell. The Daily Mirror had become aware of Campbell’s use of drugs, despite her public pronouncements against them. When in 2001 she was photographed outside a Narcotics Anonymous meeting in Chelsea, the Mirror pounced, carrying a long report about her addiction, though it was superficially sympathetic to her efforts to clean up. Campbell and Schilling sued, not for libel but for breach of confidence. The Mirror, then edited by Piers Morgan, went onto the offensive. A follow-up article was headlined “Pathetic”. “After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy,” read the story. Another comment piece declared: “If Naomi Campbell wants to live like a nun, let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it.”
Campbell won £3,500 in damages, and the Mirror, sensing that its whole style of reporting was potentially in jeopardy, appealed — and won. Campbell now faced a dilemma in taking the case further: she faced paying not just her own costs but the Mirror’s, then standing at £350,000. Keith Schilling came up with a proposal: he would take her case to the House of Lords, using a controversial new provision, the conditional-fee agreement (CFA), which means that a plaintiff can sue using a lawyer on a no-win, no-fee basis.
The CFA initiative was designed, in new-Labour parlance, to widen access to justice, but in the libel and privacy fields it has in fact proved a further bonanza for lawyers, because it allows famous people who are already rich to sue and to avoid paying their own lawyers if they lose.
Schilling and Campbell held their nerve and won by the narrowest possible margin of 3-2 in the Lords. The Mirror was left with costs of over £1m, a lot of it destined for Schilling’s firm. In legal terms, the upshot was a mess. The law lords had created a de facto privacy law, but it was hopelessly ill-defined, and parliament, nervous of confronting the press, made clear it would not be setting the parameters. This left an opportunity for redress on the part of celebrities, and a fee bonanza for any lawyer taking on such a case. Schilling had caused fury among media lawyers and incandescence at the Mirror by seeking to recover his firm’s and barristers’ fees, with a huge success fee — effectively a bonus — for doing it on a no-win, no-fee basis, in the sum of £597,440 for the two days in the House of Lords alone.
The Campbell victory elevated Keith Schilling into the stratosphere of the London legal world. He is a man who, it can be fairly said, divides opinion. “He’s chippy”, says one fellow libel lawyer, “aggressive, not what you’d call a nice bloke. He’s quite a good strategist, but a lot of what his firm does looks to me like smoke and mirrors.” Another lawyer, who works in the legal department of a national newspaper and has received hundreds of his legal warnings over the years, says: “Schillings has become just a sort of celebrity letter box, issuing threats on behalf of celebrity clients.” “They are not known for settling actions quickly and painlessly,” said another newspaper lawyer. “When they have a wealthy, high-profile client, Schillings will milk the action for all it is worth, insisting on jury trial, as is their client’s right.”
Schillings is indeed known as an extremely aggressive biller, often racking up substantial billable hours early in a case. When The Sunday Times challenged the costs in a libel action brought by Kojo Annan, the son of the former UN secretary-general, the bill was eventually reduced by £130,000, from over £280,000 to £150,000, just days before a costs judge would have looked at the firm’s files to make sure it was not “trying it on”.
Although he is seen out and about in London, Schilling is fiercely private about his own life. Other lawyers describe him as a rough diamond, flashy, a bit of a wide boy. It is invariably said of him that he wears gold jewellery, drives a Ferrari, dyes his hair and artificially tans his face; that he is more Groucho Club than Garrick.
When he finally agrees to give me half an hour of his time in his stylishly understated offices in Bedford Square, central London, I confess to him that I am slightly disappointed. Far from being aggressive or “chippy”, he is personable, though reserved. He resists attempts to cast his legal career only in terms of his poor upbringing, though he concedes that he would very much like to have gone to university, and wonders if he might yet one day.
There is no “bling” on his fingers or around his neck, but he is wearing what looks like a thumpingly expensive watch. He puts me right when I ask if it is true that he drives a Ferrari: it turns out his car is a Maserati. He says he has never worn gold jewellery, and the ponytail he once had was snipped off a good 15 years ago. “I don’t know where this comes from,” he says with the exasperation of a man whose reputation precedes him.
Schilling is cagey about talking about himself, and will confirm only that he is divorced, with two sons, has a girlfriend to whom he is almost married, a home in Norfolk, and that he stays in a guest room at the Groucho Club during the week, which for a celebrity lawyer is the closest you can get to living over the shop.
He seems slightly out of place in a restrained legal office. He appears somehow too healthy, his suit too fashionably cut, his face too tanned (he skis a lot) and, though I lack the courage to ask him if he dyes his hair, his neatly trimmed locks are indeed a slightly unusual shade. If he doesn’t look like an English solicitor, he could be taken for an actor playing a Los Angeles lawyer in an American daytime soap. Schilling is very happy to be regarded as the man who single-handedly created a privacy law in this country, though he maintains that Piers Morgan, in taking on Naomi Campbell and annoying the judges by taunting her in print after she initially sued, must take some credit too. (Other libel lawyers in London bristle when Schilling is credited with changing the law, saying it would have happened anyway.) I ask Schilling if he thinks it will soon be illegal to take a photo of someone in the street, and he suggests it might already be. “Attractive ladies being photographed sell newspapers, and there’s no other reason for publishing those photographs than to sell the newspaper. If the press are doing it for commercial reasons, I think it is objectionable.”
Indeed, to the horror of popular newspapers, that seems to be the way the law in Britain is moving. Princess Caroline won a key victory in Europe against photographers following her around and photographing her in situations where there was no conceivable public interest. JK Rowling is currently trying to prevent a photographic agency selling pictures of her and her husband and their child in the street. The child is the critical element in this further push by Keith Schilling to close down on gratuitous pictures of children of celebrities by the tabloid press.
“Maybe there are too many newspapers,” says Schilling. “I don’t think we can keep alive all those newspapers simply by allowing them to take photos of people in their private space.” Many people will agree with that view, for tabloid newspapers have millions of readers but few public defenders. Paul Dacre, editor-in-chief of Associated Newspapers, sounded the alarm at a speech to the Society of Editors when he warned about the chilling effect of CFAs, even on rich newspapers such as the Daily Mail. These allow plaintiffs’ lawyers to double up their fees if they win, meaning that a privacy case that might yield damages of a few thousand pounds actually costs hundreds of thousands of pounds to defend. Dacre singled out one High Court judge for specific attack: Mr Justice Eady, who presides over a high proportion of the important privacy and libel cases, though he was not involved in the landmark Naomi Campbell case. Cross that Eady put morality entirely on one side in finding for Max Mosley in the privacy suit that Mosley brought against the News of the World last year (for filming him at an orgy involving prostitutes), Dacre branded the judge an “amoral” force in the destruction of the British media, single-handedly introducing a back-door European-style privacy law.
The reaction to the speech was akin to dropping a neutron bomb on the Temple. Those with perhaps the biggest interest in developing a draconian new law of privacy jumped to his defence — not without some justification in the way Dacre attacked Eady at a very personal level. But Dacre had hit on an important point in highlighting the lack of democratic accountability in how English common law is being swept away and replaced by a European-style system with no place for any meaningful exposure of public figures or teasing of politicians. Eady, along with a good number of the people directly or indirectly involved in this radical shift in the legal landscape, would be held to account in most countries, but not in Britain.
Mr Justice Eady declined to speak to The Sunday Times, on the grounds that he does not give interviews, but a lawyer happened to mention to me in passing that the judge, an academic with a deep-seated distrust of the media, had given a speech, under “Chatham House rules”, at the House of Lords last month. After quietly pondering the matter for 48 hours, the judge sent me a copy of the speech. Dacre had, it seemed, punctured Eady’s judicial armour.
The media, Mr Justice Eady suggested, had found so few grounds for appeal after his decision that they had no way to vent their frustrations other than by “abusing the referee”. Certain judges, Eady noted, making it clear he had himself in mind, “have come under increasingly hysterical attack in the media simply because it is easier than going by way of appeal. One in particular has been accused of ‘moral and social nihilism’, ‘arrogance’, ‘immorality’, ‘amor-ality’ and of favouring privacy because he is ‘painfully shy’; and of combining all that with being ‘a frozen haddock’. This is natural if there is no other way of letting off steam. I think it simply has to be recognised as an inevitable consequence of adopting the balancing approach and the ‘intense focus’ on the particular facts of the case”.
What is striking about Eady’s speech, which was to the Intellectual Property Lawyers’ Asso-ciation, is the absence of any alarm about the financial cost of testing the limits of the Human Rights Act, and the chilling effect the new law of privacy and no-win, no-fee agreements is likely to have on investigative journalism. Nor does Eady deal with any concerns about the privacy of the individual in relation to the state.
Even Keith Schilling, who has rich and famous clients because, as he puts it, his “brand is quite focused”, concedes that the real threat to privacy in Britain comes from the state, not the press. “The state has pretty much got unlimited power,” he says, “and I certainly do worry about Big Brother and that we have more CCTV cameras than the whole of the rest of Europe.” The prob-lem, he says, is that there are no suitable test cases, though if one were brought to him, he would be happy to take it on.
This is surely the irony of the way the Human Rights Act is being applied. Soon it will not be possible to photograph someone in the street unless you are the government or a local authority, or a supermarket, in which case you can film and store CCTV images at will. The courts, which protect the children of celebrities from the press, no doubt rightly, have nothing to say to the government, which is creating a database containing details of all British children and, incrementally, an even larger database storing the DNA records of everybody in the country.
The US Congress is so exercised by how the High Court in London is infringing American First Amendment rights that it is framing a Free Speech Protection Act, expressly designed to defend Americans from judgments in British courts. Schillings has acted in several such cases. In one, a Ukrainian sued a website, published in the Ukraine in Ukrainian, and won judgment in the High Court in London, even though the defendant apparently knew little or nothing about the action. Keith Schilling is adamant that plaintiffs who cannot find relief in their home jurisdictions should have the right to do so in London.
Denis MacShane, a former Labour minister, is demanding that parliament step in to stop firms hawking for this sort of business, often on a no-win, no-fee basis, which is risk-free for the plaintiff but ruinous for the defendant, especially if he is unaware of the proceedings in a far-off court. It also clogs up English courts and costs the taxpayer. Schilling says he has used no more than six CFAs in the past 10 years, and only when important legal principles are at stake, but Carter-Ruck, another leading firm in this area, uses them often and advertises them on its website as “an extremely attractive way of financing litigation”. Having promised me 30 minutes, Keith Schilling ultimately gave me an hour of his time, which he confirmed would have cost me, had I been a celebrity client, £650.
As I left his office, I sensed he was straight-forwardly proud of the fact that he had, as he put it, changed the law in important areas in his career. The most famous of these was with the Campbell judgment, but he also won a landmark alimony case for Shan Lambert, giving her half her husband’s assets, and established the right, in the Roman Polanski case against Vanity Fair, of a plaintiff being allowed to give evidence by video link from outside this jurisdiction.
Yet there is something dispiriting about the world in which his firm functions. The Schillings website, which tantalisingly offers celebrities a 24-hour emergency number for instant advice, sets the tone for “a range of reputation management legal services”. On the site, there is a little puff about the great victory in the Little Britain USA matter, reassuring the firm’s clients that “David and Matt are very pleased” with the apology they won from the Sunday Sport because the “article caused them considerable distress”. One wonders if in having to deal with all this celebrity dross, Schilling hankers for the day he was dashing around Soho with the Private Eye crowd, fighting to keep the magazine alive. Ian Hislop still likes him, but regrets the fork in the road his old comrade has taken into the PR-dominated world of reputation management. “This privacy notion is supposed to defend the ordinary person,” says Hislop, “but it is just being used by the rich and powerful as a means of censorship.”
The libel/privacy legal world is curiously circ-ular, and though Schilling cost the Mirror well over £1m with the Campbell case, when Piers Morgan was sacked over an unrelated gaffe shortly afterwards, he turned to Schilling to negotiate his enormous payoff. Keith Schilling laughs and concedes that was indeed a bit rich, but cannot resist a plug for his firm. “The word in Fleet Street is, ‘Who takes the most money off newspapers?’ — and they say it’s us — ‘So let’s go and use them.’ It was fantastic that Piers came to us.”
Many of us are hypocritical about the legal profession. We tend to dislike lawyers, but when we need one we generally want the most aggressive one we can find. As I left Schilling’s office, I had this heretical thought that if Jonathan Ross left obscene messages on my answering machine, causing me “considerable distress” and violating my human rights under Article 8 of the ECHR, I might well find myself ringing that 24-hour emergency number.