Max Mosley, Bondage and Civil Procedure

I realise this is kind of missing the main news story in the recent court victory of Max Mosley – son of Oswald who was the leader of the British Union of Fascists.  (That’s not to say that Max should automatically be tarred with the same brush, but he does seem to dip into that tar in his own private time).

Max was outed by the News of the World for holding a ‘Nazi style’ bondage event with five hookers.  I haven’t looked into it in great detail, but it turns out (ie the court held) that it wasn’t Nazi style, just bondage – and that he had a right to privacy – which he probably did.  So bully for him.

Anyway, his (don’t make me laugh) honour or perhaps it was their (don’t make me laugh) honours found that Mosley was entitled to around US$120,000 damages.  Now one might have thought that one could come to a conclusion about a case like this with the expenditure of – say – US$20,000 in costs, or maybe US$50,000.  Make it US$100,000.

But no, the British legal system – not very different from our own in this respect – chewed through US$1,700,000 in arriving at its conclusion.  Very clever. Reminds me of the old Balmain ferry case although in that case it was more illlustrative of the plaintiff’s folly (he famously ended up bankrupting himself – going all the way to the Privy Council in London – arguing over a penny.)

Anyway, if you toss in the state sponsored costs of the court itself, which are not typically met by litigants, perhaps we’re getting upwards of $2 mill in costs, to settle a dispute ultimately judged worthy of $120,000. And for those who want to get on with what really matters and watch the video, it’s below the fold.

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Iain Hall
13 years ago

Personally I have never cared how anyone gets their Jollies and that such things between consenting adults are a private matter so the judgement is correct.Frankly the cost of this exercise is small when compared to the amount of money made by the tabloids from exploiting the desire for salacious gossip that we all have. Rather than restrict the right of the press to report “news” I see this case providing a new impetus to avoiding shallow gossip pieces about the sex lives of celebrities and concentrating on REAL news.

Andrew
Andrew
13 years ago

You’re perhaps assuming that Mosley was in this for the money. Another possibility is that he already has plenty of money, and mainly wanted to a) reverse the damage to his reputation, b) punish those who damaged it. From that perspective, going to court using the most expensive lawyers he can find is perfectly rational. He’s gotten extensive publicity for his victory, and I’m sure News of the World aren’t happy about paying US$120,000 in damages (not to mention their own legal costs). For all I know it was still profitable for them overall, but surely much less so.

No doubt everyone would be happier if the legal process cost less. But I don’t think that ridicule of the case is justified purely on the basis that the costs outweighed the damages.

Andrew Reynolds
13 years ago

Andrew,
I think costs were also awarded against the News, meaning they bore the entire bill of the action.

Andrew
Andrew
13 years ago

Andrew Reynolds,

My fault for not following the link! (although in my defence I try to avoid gossip “news”, especially about people I’d never heard of…)

In that case, I’m not sure what the point of the original post was. Maybe I should follow the link and watch the video :)

James Farrell
James Farrell
13 years ago

I think the point is that British judges look after British QCs pretty generously. I doubt that anyone other the shareholders will object to seeing News fork out; nor will anyone other than Mosely’s family mambers object that the damages aren’t higher. But it’s a lot of money that could have gone to war widows or medical research.

Niall
13 years ago

Frankly, I fail to see what all the hub-bub was about in the first place. The media outlet got what it deserved, or rather, a small proportion of what it deserved, while the taxpayers were yet again ripped off thanks to media sensationalism and greed.

Andrew Reynolds
13 years ago

Nicholas,
Ultimately, the people making the decision to spend the money are deciding to spend their own (or their shareholders’) money in taking the case to court. I expect that Mosley would have been satisfied if, up front, the paper had apologised and retracted, with perhaps a donation to the Racing Drivers’ Benevolent Fund.
I would also not agree on the court costs issue. While I am not a Kantian, the establisment of a principle of law here is important. The precedent means that there is a good chance that future actions will not be brought as the articles may not be printed in the first place or, if they are printed, apologies rather than court action may result. Examining this as an individual decision I would agree that it makes little or no economic sense, but the benefit of the establishment of a rule of law, as well as the Rule of Law, is worth much more (IMHO) than even USD2m.

Bingo Bango Boingo
Bingo Bango Boingo
13 years ago

AR is exactly right here, Nicholas. It only cost $2 million because the wrongdoer denied wrongdoing and subjected the plaintiff to a drawn out process. The unseen legal system, run by practising lawyers away from the courts, routinely settles cases involving much much larger sums for much much less money. The Mosley case (or any trial for that matter) is an extreme outlier which doesn’t tell us much about the efficiency of dispute resolution in the UK or elsewhere.

This must be ‘BBB defends lawyers and the legal system week’ or something.

BBB

Bingo Bango Boingo
Bingo Bango Boingo
13 years ago

You don’t need to spell it out. But there’s no evidence to suggest that Mosley couldn’t have got the same result with much less expensive lawyers. In my experience, legal skills and competence are not strongly correlated with fee levels. Having said that, lawyers fees and security for costs rules do pose serious ‘access to justice’ issues. Have done since the year dot.

BBB

Andrew Reynolds
13 years ago

Nicholas,
The fact that this precedent has been set does mean that another plaintiff should find it less expensive to argue another such case – but I will leave further legal commentary on this point to SL if she is reading.

skepticlawyer
13 years ago

Ken will no doubt have some input as well, Andrew, but to my mind there are three separate issues here.

1. The cost of bringing defamation claims. While in economic terms future plaintiffs, defendants and others will be saved money thanks to this expensive ruling (a point Andrew & BBB have both made), defamation is undoubtedly overpriced.

2. The patchiness of defamation ‘coverage’ means that poor (and even quite substantial) people are left with no remedy when traduced in the press as they cannot provide security for costs.

3. Media organisations will often not give ground in these cases – even when precedent is against them (as it was in this case – invasion of privacy is an emerging tort in English law – recall the Naomi Campbell case). It was entirely just that the newspaper have costs awarded against it.

The solution, then, is threefold. First, it involves a recognition that the media no longer serves a genuine free speech role, and thus should not enjoy protections that are unavailable to other corporations, particularly from the workings of consumer protection or competition law. Next, it involves – as part of this recognition – legal reform that resolves the access to justice issues BBB mentioned above. Finally, (and coupled with it), it involves a loosening of defamation law, and a strengthening of rights to privacy.

My suggestions (for Australian conditions) are over at Online Opinion.

Bill Posters
Bill Posters
13 years ago

The cost of bringing defamation claims.

According to the Guardian, this was an invasion of privacy action (which doesn’t exist in the same way in Australia).

The solution, then, is threefold. First, it involves a recognition that the media no longer serves a genuine free speech role, and thus should not enjoy protections that are unavailable to other corporations, particularly from the workings of consumer protection or competition law.

So Alan Bond should have been allowed to proceed with his recent TPA action against freelance journalist Paul Barry after Barry exposed Bond’s oil and diamond businesses?

And what about the Privacy Act? Would you end the media exemption to that?

Andrew Reynolds
13 years ago

Bill,
I think that is one of the things she means – yes. Just because the plaintiff is a fraudster and the biggest convicted thief in the country and one of the biggest ever convicted does not mean that they are not able to sue. Of course, a judge may decide there is no reputation worth protecting in any ultimate action…

Bill Posters
Bill Posters
13 years ago

But Bond’s action wasn’t a defo action; it was a TPA action. Different rules entirely.

And everyone does realise that canning all this stuff directly affects what blogs can publish, do they not?