Judegment Day At The High Court London

Judegment Day At The High Court London
Mengi v Hermitage: Libel Claim Successfully Defended

Sunday, 16 December 2012

Hardeep Singh - The pain of UK Libel Law

 

 

The Legalweek-Home

 

The libel survivor - what it's like to be faced with a gruelling libel claim

Author: Hardeep Singh

15 Sep 2011

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Hardeep Singh reflects on his four-year ‘libel tourism’ battle with a Punjabi ‘holy man’

Between 2007 and 2011 I was embroiled in what has become one of the most controversial libel cases in recent history.

The claimant in my case wasn’t a Russian oligarch, an A-list celebrity or an Arab billionaire (groups who seem to issue writs like they are going out of fashion) but a seemingly innocuous super-wealthy self-styled ‘holy man’ from the Punjab (a state in Northern India) who is reported never to have stepped foot in Britain nor apparently reads, writes or speaks any English. He went by the grandiose title His Holiness Sant Baba Jeet Singh ji Maharaj.

My case was dubbed ‘His Holiness v Singh’ and the ‘Singh 2’ case by Parliamentarians during an adjournment debate in the Commons, following Simon Singh’s now famous battle with the British Chiropractic Association (BCA).

Although His Holiness’ claim was effectively thrown out by Mr Justice Eady in May 2010, permission to appeal was granted and the case only ended in February this year when the claimant failed to meet an order of Lord Justice Sedley to pay £250,000 into court as security for the appeal.

It is only now, looking back on almost four years of defending an aggressive libel writ, that I start to appreciate the toll that the proceedings have taken. Six months on, unfettered, I reflect on my precarious rollercoaster ride to the door of the court and ask myself the questions: what was the journey like and how did the right to free speech finally prevail?

It was the former editor (Ben Bradlee) of the Washington Post, who in his bestselling memoir, A Good Life: Newspapering and Other Adventures, explicitly described his view on libel: “Other things being equal, I’d rather be publicly whipped than sued for libel, and lose.”

In cases like mine, standing up for one’s freedom of speech comes at a heavy price, namely ruinous costs and losing many years of one’s life. The lugubrious path is amplified by bouts of insomnia, loss of appetite and a fear of the unknown because of the uncertainties involved in litigation.

There were a number of changes in my personal life, too, due to the hugely time-consuming nature of putting up a defence. I essentially become a social hermit, stopped returning calls (unless it was my lawyer) and was compelled to remove myself from the arranged marriage circuit: most prospective partners were looking for a good sense of humour (GSOH), and mine understandably had hit 
rock bottom.

The ‘libel tourist’

His Holiness issued proceedings against me and the paper I wrote for, having taken umbrage at my description of him as a “cult leader.” The newspaper soon printed an apology, leaving me to face the music.

To make matters worse, His Holiness managed to get his lawyers, Leeds firm Ford & Warren, to agree to act on a conditional fee agreement (CFA); the claimant had multiple CFAs, ratcheting up costs of nearly £1m. While this decision ultimately backfired in a big way, the prospect of being liable for such vast costs led to many a sleepless night: my home and livelihood were on the line.

Given the non-domicile status of the claimant, the reality is that it may take up to another six years to recover my costs in India, if at all. While I take some solace from the fact that His Holiness’ solicitors are similarly out of pocket, it would be nice to finally draw this chapter of my life to an end.

Court of public opinion

When I look back at the last few years, it’s glaringly obvious that my legal victory wasn’t solely down to my own tenacity, although determination and the chutzpah to face complete ruin clearly helped.

There are groups of people who played a significant role in my eventual victory for freedom of speech: these include the press (popular and trade); the Libel Reform Campaign; politicians (in particular Fiona Mactaggart); and my legal team which in the end included London’s most notorious libel law firm, Carter-Ruck.

Jonathan Heawood, director of English PEN – a charity promoting the rights of writers – told me that he was delighted to hear that the case was over, but remains “horrified” that it even got off the ground. “The combination of appalling case and costs management with the fundamentally unbalanced law created a perfect storm of injustice,” he says.

It seems to me, though, that the lesson any aspiring libel claimant should learn is that, in the current climate, libel proceedings run the risk of drawing such unwanted press coverage to a story so as to render the libel proceedings pointless. In my case, an article which was originally read by around 300 people, soon became a broadsheet story, His Holiness quickly came to be seen as an enemy of free speech.

Headlines in the broadsheets, trade press, blogosphere (by bloggers such as Jack of Kent – 
@jackofkent) and discussions on flagship radio programmes generated a groundswell of popular support. In one article the eminent cardiologist Dr Peter Wilmshurst and I were jointly described as the UK’s latest ‘libel martyrs’.

In the court of public opinion, His Holiness and his entourage were coming out second best.

The use of social networking, in particular Twitter, as a campaigning tool also provided an essential platform for galvanizing a global network of sympathetic supporters. Most significant of all, the results of hearings were reported on Twitter in real time.

Don’t bring God to court

In paragraph 30 of the judgment in my case, Mr Justice Eady quotes the decision in Blake v Associated Newspapers: “It is well established... that the court will not venture into doctrinal disputes or differences. But there is authority that the courts will not regulate issues as to the procedures adopted by religious bodies or the customs and practices of a particular religious community or questions as to the moral and religious fitness of a person to carry out the spiritual and pastoral duties of his office.”

Mr Justice Eady struck out His Holiness’ claim after accepting submissions that the courts could not deal with matters of doctrinal differences. In legal speak the matter was ‘non-justiciable’. The strategist behind the technical knockout was my lawyer at the time, Barjinder Sahota, from Sahota Solicitors. The case later became a legal authority in another related libel case, Shergill v Purewal.

The road to libel reform

My journey presents some important considerations for policy makers in the context of ‘libel tourism’, doctrinal disputes and ‘access to justice’.

The Draft Defamation Bill deals with the hotly-debated phenomenon of ‘libel tourism’. This by definition involves cases which are brought against people who are not domiciled in the UK or Europe.

The courts will not have jurisdiction to hear such cases unless they are satisfied that “England and Wales is clearly the most appropriate place in which to bring an action”. Less well publicised is that this does not include cases such as mine where a non-domicile sues a domicile.

Access to justice issues and ‘inequality of arms’ are undoubtedly central to the debate in libel reform. The law can be tweaked and even updated to reflect aspects of the digital age, but in the absence of a low-cost procedure, the moola is simply the rate-limiting factor.

There is hope on the horizon: the Early Resolution group offers alternative mediation in libel disputes with the promise: “Your dispute could be resolved in 28 days.” There is no doubt that quick resolution on the meaning of words via such arbitration is a much more affordable alternative.

I surmise it’s better than spending nearly a six-figure sum over almost four years to be told that the description “cult leader” is non-justiciable.

The day of my final victory will be forever etched in my mind. It’s undoubtedly the greatest challenge I have ever faced and the pressure at times felt insuperable. I often felt as if I was hanging on the edge of chaos, almost descending into it. I eventually faced a cross roads – I call it my ‘Bruce Almighty moment’ – where I made a stark choice: capitulate or embrace my path and stand by my writing.

I did the latter and there was courage in it; six months on I look back at my victory for free expression with a sense of pride.

Hardeep Singh is a freelance journalist and broadcaster and the press secretary for the Network of Sikh Organisations. He is one of 52,000 signatories at www.libelreform.org.

2 comments:

steve allene said...

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steve allene said...

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