publish and be slammed ...

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.