The leading libel judge Sir David Eady has said that personal attacks on him by the Daily Mail editor Paul Dacre are unconstructive and do nothing to further the debate on privacy.
In a speech to the Society of Editors a year ago, Dacre said the British press was having a privacy law imposed on by the “arrogant and immoral judgments” of Mr Justice Eady.
Giving evidence to a Commons Select Committee in April, Dacre recalled his remarks about the High Court judge:
I described his judgments as “arrogant” and “amoral”. I am aware those are strong words — they are not personal, I am talking about his judgments — but I used those words because I felt passionately that he was adjudicating in matters that Parliament should be deciding, and the fact he was not taking on board Parliament, which represents the public, has huge implications for British society.
Speaking today at a conference on privacy organised by the campaign group Justice, Eady said:
In his evidence to the Parliamentary Select Committee, the Daily Mail representative told them, for reasons that remain completely obscure, that I had set myself above the legislature. He also reaffirmed the charges of “arrogance and amorality” against me. (He was good enough to add, however, that this was not intended to be anything personal.)
This is natural, if there is no other way of letting off steam. I think it simply has to be recognized as an inevitable consequence of adopting the balancing approach and the “intense focus” on the particular facts of the case.
Actually, this ad hominem approach does absolutely nothing to further the debate. What would be more constructive would be for those who do not like the way things have gone to challenge the balancing role given to judges by Parliament … and to say what they would put in its place.
Eady continued his attack on Dacre, whose name he never mentioned.
When he was before the Select Committee in April, the man from the Daily Mail was asked by one of its members, “If you don’t like how the judges are interpreting the Human Rights Act, would you favour a statutory law of privacy?” His response was that he did not want a law of privacy at all.
The logical conclusion of that argument is surely that neither judges nor legislators should give effect to Article 8. Yet that is, as I have suggested, hardly a realistic option.
If what he calls “the wretched Human Rights Act” were repealed, we should just be back in the position where individuals would have to go to Strasbourg to vindicate their rights rather than obtain relief in their own courts.
Eady rattled through his speech in an understated way, though it was none the less devastating for that.
He concluded with some remarks on “libel tourism”, noting dryly that the libel judges knew about this only because they read about it in the newspapers: “it is not a phenomenon that we actually come across in our daily lives”.
He pointed out that it was already the law that a claim which does not relate to a “real and substantial tort” could be struck out as an abuse of process. The authority he cited was Jameel v Dow Jones, decided by the Court of Appeal in 2005.
Although Eady did not mention it, this principle was applied by Mr Justice Tugendhat last month in a case called Lonzim v Sprague.
Describing the defamation claim as “totally without merit”, Eady’s colleague struck it out.
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