This blog has been quiet recently. I’ve been busy with a lot of things in the last few months, one of which was providing some assistance to David Price QC and Jonathan Price with an application to the European Court of Human Rights at Strasbourg.
The application relates to the Serafin v Malkiewicz case, which went through a full cycle of litigation between 2015 and 2021. The Supreme Court gave a ruling on the proper interpretation of section 4 of the Defamation Act 2013 (public interest defence).
But there was also an issue of whether the original libel trial was fair to the Claimant, who had acted as a Litigant in Person. The Supreme Court said that it was not, and sent the whole case back to the High Court for a full retrial. Regular readers of this blog will recall the crowd-funding appeal I set up in April, to assist the Defendants with funding the case. It would have been darkly ironic if they had been forced to act as Litigants in Person themselves during the re-trial.
Eventually the case was settled on a “walk away” basis. The Defendants admitted nothing, but had to forgo any right to recover costs from the Claimant.
The Defendants have therefore spent more than half a million pounds dealing with a libel action, without ever being found legally liable for anything!
Back in 2011 when the Defamation Bill (as it then was) was being scrutinised by Parliament, the high cost of defending a defamation claim was cited by pretty much everyone as a huge chill on free speech. Ministers repeatedly said they would deal with the issue, but their various proposals withered on the vine and nothing was implemented.
The application to Strasbourg submits that the unreformed costs regime relating to defamation actions, which has so profoundly affected Nowy Czas, is a breach of Article 10.
“Are you going to blog about it?” I was asked, last week, about the fall of Kabul.
“I don’t think so,” I replied.
It’s not that I don’t think the return of the Taliban to power Afghanistan is not noteworthy. On the contrary, I’m sure it will be one of the 21st Century’s historical milestones. It is just that it is clearly the product of a hundred different factors, ranging from the geopolitical to the local, that I probably don’t understand. It seems to me that any piece of writing that seeks to say “we should have done things differently” must start a couple of centuries ago. And even with the understanding of how we got here, I’ve not seen or read anything that presents a plausible plan to make things better.
Best to turn past the images of geurillla fighting, and read instead about the pandemic, the wildfires, the ‘point of no returns’ climate warnings, and the incel massacre in Plymouth.
But one very particular aspect does, I think, warrant a very particular comment, and that is our failure to support those Afghans who have supported British military and diplomatic efforts in the country.
In an interview with Roman Mars, the journalist Marc Fennell talks about his podcast Stuff The British Stole and the complexities of our interwoven historical legacies.
A big part of why I like this medium, it allows you to take the audience down the pathway that respects their intelligence, that you can hold more than one idea at once. When we look at the past, there is a tendency to either focus on the good things or only on the bad things, and my attitude particularly to colonialism is you will encounter these arguments and people will say “well, you know, if it weren’t for colonialism you wouldn’t have laws and you wouldn’t have railroads” but then at the other end of the spectrum … because of colonialism there was genocide, and there were children taken away from families, horrendous stuff.” And my attuitude to history and the thing this series taught me is that those two things don’t ever balance each other out. And they definitely don’t cancel each other out. All they do is they co-exist. And I think we as a species are smart enough to hold both those ideas at the same time. And not try to force them to balance each other out in some sort of historical weighing match. Its doesn’t work that way. And I think what’s good about stories like this is you can actually guide the audience through those things. And we emerge out the other end with a more complex understanding. Like I say to people, “I want you to stand in the mess.”
Marc Fennell, ‘Stuff thhe British Stole’ episode of the 99% Invisible podcast, 13 July 2021.
This idea of complexity and the holding of contradictory, competing ideas, is one that we encounter a lot in discussions of politics, history and culture. Fennell’s insight is not new, but it is a timely repetition of something that does, unfortunately, need repeating.
Just published on the International Forum for Responsible Media (Inforrm) Blog – an article by yrstrly on what we can learn from the High Court defamation claims issued in 2020.
I scraped data from the HM Courts & Tribunal Service e-filing system and was able to extract some insights on how the Defamation Act 2013 and recent Court judgments have affected the kinds of claims made.
Yesterday lunchtime I was invited back onto TalkRADIO to discuss free speech. [previously] This time my host was Patrick Cristys and the topic of discussion was the government’s bizarre plan to enforce free speech at universities.