Why has Mr Justice Eady been allowed to conduct a one-man campaign against free speech?
By George Monbiot. Published in the Guardian 20th October 2009
Trafigura’s super-injunction is weird for lots of reasons. But the strangest fact is this: it has nothing to do with the Honourable Mr Justice Eady. The company’s lawyers injuncted the Guardian, injuncted their injunction and tried to injunct reports of Parliament’s proceedings(1). And they did all this without enlisting the help of the hanging judge of the Queen’s Bench Division, the legal censor who appears to be fighting a one-man battle against freedom of speech. That’s quite an achievement.
But even as the Trafigura case was being discussed in parliament, the court of appeal was handing down yet another damning ruling on Sir David Eady’s judgements. In May this year, Eady presided over the case brought by the British Chiropractic Association against the science writer Simon Singh. Writing in the Guardian, Singh maintained that the BCA, which claimed that its members “can help treat children with colic, sleeping and feeding problems … happily promotes bogus treatments”(2). The association sued him for libel. Despite the prospect of massive costs, Singh bravely chose to defend himself.
To the astonishment of lawyers, journalists and scientists, Eady, who is England’s senior libel judge, decided that Singh was accusing the BCA of being consciously dishonest(3). This meant that he didn’t have a legal leg to stand on, as the libel laws, uniquely, place the burden of proof on the defendant. To win the case, Singh would have to prove that the BCA knew the treatments were bogus and was acting fraudulently. He didn’t believe this and it hadn’t been his intention to suggest it. But now he had to prove to the jury that he could see inside the BCA’s collective mind and discern that it was knowingly promoting false information.
Though this meant that his costs – which had already reached £100,000 – would climb even higher, Singh appealed. Last week the appeal court struck Eady’s ruling down, deciding that his interpretation was “legally erroneous.”(4) (Sadly this doesn’t conclude the case). Its judgement hasn’t yet been transcribed, but people who were in court claim that it damns Eady as fiercely as any previous ruling. That’s saying quite a lot.
During the libel case brought by Richard Desmond, pornographer and proprietor of Express newspapers, against the investigative author Tom Bower, who had claimed that Desmond acted on grudges, Eady refused to allow the court to hear evidence that he had done just this in another instance. In July, the appeal court found that Eady’s decision was “plainly wrong” and risked “a miscarriage of justice”(5). In 2004, during a case brought by a Saudi businessman, Mohammed Abdul Latif Jameel, against the Wall Street Journal, Eady decided that the newspaper’s story that the Saudi central bank was monitoring the accounts of certain businesses in case they were being used (unwittingly or otherwise) to channel funds to terrorists was not responsible journalism(6). Among his justifications was the fact that the US government hadn’t published this information: Eady appeared to see the interests of the state and the interest of the public as the same thing(7).
The law lords decided that Eady was “hostile to the spirit” of the public interest defence and that he had “rigidly applied the old law” in a way that was “quite unrealistic … unnecessary and positively misleading”. In one amazing passage, Lord Hoffmann compared Eady’s approach to that of the Communist Party censors in the Soviet Union(8).
But perhaps the gravest judgements against the Honourable Mr Justice Eady are those made by legislators in the United States. Such is the reach and severity of his illiberal rulings that four states have so far passed what are, in effect, Eady laws(9), and Congress is currently considering a federal bill whose purpose is to defend US citizens from his judgements, and the English law he interprets. The Eady laws arise from his encouragement of libel tourism: allowing cases with only the most tenuous connection with this country to be heard in London, and using them to stamp on free speech all over the world.
In 2004, the Saudi billionaire Khalid bin Mahfouz applied to the High Court to sue the US author Rachel Ehrenfeld over her claim that he had funded al-Qaida and other terrorist groups. Ehrenfeld’s book was not published in this country and not obtainable from UK bookshops, but 23 copies had been bought here over the internet(10). This was sufficient for Eady to decide that Mahfouz’s case could be heard. Ehrenfeld refused to recognise the English court’s jurisdiction. In her absence, Eady ruled in Mahfouz’s favour and ordered that Ehrenfeld retract her claims, apologise and pay Mahfouz $225,000 in costs and damages(11). This is despite the fact that Mahfouz could scarcely be said to have a reputation to defend, after he was fined $225m (exactly 1,000 times Ehrenfeld’s punishment) for his role in the BCCI fraud(12). (I can say this without being dragged before Eady’s star chamber only because Mahfouz is now dead, and dead men can’t sue).
Eady’s clerk tells me that the judge doesn’t want to comment(13), but I expect he would answer that he was merely applying the law. And, though his interpretation is draconian, the sad truth is that he would be right. Long before Eady’s reign of terror began, gangsters like Robert Maxwell were using the defamation laws to sue the backside off anyone who tried to investigate their crooked affairs. Such are the perversities of this law that the English courts can be used by criminals to prevent exposure of their crimes. With average costs 140 times higher than those of other European countries(14), libel proceedings here can be defended only by people – like the admirable Mr Singh – who have a lot of money and a lot of guts. Until the law is changed, men like Mr Justice Eady will continue to hold free speech to ransom.
So read Jack Straw’s testimony before the Commons Culture, Media and Sport Committee and weep(15). Every time an MP put forward a firm proposal for reforming the law, the justice secretary responded in a manner so vague and nebulous that as you read the text his words become invisible, camouflaging themselves among the letters of which they are made. He fended off reform not with arguments but with ambiguities, until the fizz and ambition had faded from the MPs’ questions and they became almost as absent and grey as he is. Straw’s abstractions mean what we knew already: nothing will change if he can help it.
Perhaps the real target of this column should have been Straw, whose determination to preserve this bookburners’ law means that all of us are forced to share his terror of upsetting the rich and powerful. Through 12 years in power, this government of frightened little men has done nothing to reform the democratic world’s most illiberal laws, which permit an old-fashioned judge to punish us for holding power to account.
5. Court of Appeal, 20th July 2009 on Desmond v Bower,  EWCA Civ 857, Case No: A2/2009/1556.
6. The High Court of Justice, Queen’s Bench Division, 20th January 2004. Abdul Latif Jameel Company Limited v The Wall Street Journal Europe SPRL,  EWHC 37 (QB), Case No: HQ 02 X00582.
7. Para 61.
8. House of Lords, 11th October 2006. On Jameel and others v.Wall Street Journal Europe SPRL.  UKHL 44 on appeal from  EWCA Civ 74.
9. New York, Illinois, Florida, California.
11. Private Eye, 28th September 2007. Eady Does It.
12. Private Eye, 18th September 2009. Pulp Fiction.
13. Richard Croke, 11.39, 19th October 2009. By phone.