Another voice
Parkinson's Law
Auberon Waugh
Last week the editor of the Spectator asked me whether I proposed to write about Cecil Parkinson's successful inter- locutory injunction against Private Eye which had the effect that an entire issue of the magazine was withdrawn and reprinted with the alleged libel removed, at enor- mous expense to the magazine and con- siderable nuisance to its readers. I de- clined, on the grounds that any article on a legal subject required considerable home- work, and the time was not available. Lawyers, of course, have to be prepared to defend their clients against the threat of an injunction at the drop of a hat — at any rate within a few hours of hearing that an injunction is being sought. They cannot hope to prepare a defence of the main libel allegation in that time, and in many cases they will have very little idea of what the defence will be, or even if there will be a defence. For this reason, interlocutory or interim injunctions banning the further distribution of a newspaper, magazine or book containing an alleged libel are rarely granted, and only in the most exceptional circumstances where 'immediate and irre- parable injury' to the plaintiff is likely to result from further circulation of the alleged libel.
In the case of Private Eye versus Parkin- son and Another, as it appeared before the Appeal Court on 7 March (Lord Justice Ackner presiding) there was no possibility of any further injury resulting because, as the Eye's counsel (Lord Campbell QC) pointed out, every single newspaper in the land had revealed the substance of the alleged libel that morning. Their Lordships decided to introduce an entirely new ele- ment into the law by suggesting that the possibility of publishers making a profit from the sale of anything containing an alleged libel was sufficient reason for ban- ning further circulation.
I pointed out at the time that this ruling sets a dangerous precedent. No newspaper or magazine can stay in business if it is going to have to withdraw an entire issue, after printing and in the middle of distribu- tion, whenever anybody claims to have been libelled in it, nor will there be any money to pay damages and legal expenses. Justification is only one of several defences in libel, and rather a • dangerous one, especially where unprovable imputations are alleged. Another is that the words complained of do not bear the meaning claimed for them. Yet another is that they are fair comment on a matter of public interest. The Eye story described press investigations into rumours about Mr Par- kinson's private life. That Mr Parkinson's
private life is of public interest can scarcely be denied, since it led him to resign from the Cabinet in October 1983. That press investigations into further rumours about it might be of public interest can at least be argued in the light of his threatened return to the Cabinet. The case could reasonably hang on the extent to which a report of press investigations into these rumours implies that the rumours are true. I do not know. I am not involved in the case, and have not even seen the plaintiffs' State- ment of Claim. But where Mrs Angela Mathew, the other plaintiff, is concerned, her case would appear to be no different from that of any oth woman who alleges that her chastity has been impugned — an extremely common complaint in libel.
The journalist's safest rule in the matter is that where no sexual activity outside marriage can be proved — and how often can it be proved? — no sexual activity has occurred. This means that he must either ignore a vast field of human activity, or report the existence of rumours or specula- tion and face the consequences. That is the basis of the lawyers' livelihood and a Briton's claim to free speech.
But if any woman who claiMs her chasti- ty has been impugned is able to stop the distribution of any newspaper (unless it announces its intention to prove her un- chastity), vast areas of the press will have to close down overnight. Militant feminists and certain Christians might welcome this development. But they will be deceiving themselves, I believe, if they imagine the present injunction is to be explained pri- marily, or to any important extent, by concern for Mrs Mathew's feelings.
It has always been a parrot cry of the Left that there is one law for the rich and powerful, another for the poor and under- privileged. The extraordinary truth of this claim was made apparent to me only last week, when comparing the standard of proof required for a conviction in Regina v. Brown and Others (the Down's Syndrome baby case) and the standard of proof demanded in Regina v. Thorpe and Others (1979 — the case of the murdered Great Dane and frightened male model). To convict Brown, a roof-mender, it was not necessary to produce a body, or to prove that the baby had been killed or even to produce any evidence of violence. A few cries in the night from his common-law wife, some fishy behaviour on the part of the defendants and some obvious lies in explaining their movements went much of the way to establish beyond reasonable doubt in the minds of the jury that the baby had been unlawfully killed and that Paul
Brown was guilty of the crime. Anybody who has read the summing-up in the Thorpe case will be aware that an altogether higher standard of proof is required to convict a Privy Councillor.
The idea that Privy Councillor's Law was operating in the Parkinson case was finally brought home to me when Lord Justice Ackner accepted Parkinson's request (through his counsel, Robert Alexander QC) that his case should be dealt with speedily. Other lawyers present rubbed their eyes. They had never before heard any such request made — let alone granted. — in their careers. What, they asked, was' so special about the plaint of Mr Parkinson and Mrs Mathew that they should be allowed to jump the queues of plaintiffs waiting, in trembling hope, for their tax- free hand-outs from Private Eye and other newspapers? Among them is Mrs Clare Tomalin, who claims (though I resolutely deny the claim) that I accused her of lesbianism and cast doubt on her suitability for employment as literary editor of the Sunday Times. She has been waiting since October 1983 for a court to listen to her complaints. What right have Parkinson and Mathew to take precedence over her? All in all, I decided that the subject justified some homework. What greater authority could one seek than Mr Peter Carter-Ruck, Britain's leading solicitor in the field of libel and slander? This is what he writes on the subject of interim injunc- tions in his authoritative textbook Libel and Slander (Faber 1972): The jurisdiction of the court to grant interim injunctions in actions for defamation is exercised with the greatest caution and only in the clearest possible cases (see Bonnard v. Perryman 1891). The reason for this is that no injunction can be granted unless the words or matter complained of are libellous and the question of libel or no libel has, since Fox's Libel Act 1792, been a question for jury . . . . An interim injunction will not be granted unless the court is satisfied that if the publication were to be continued it would result in immediate and irreparable injury, nor will it be granted if the plaintiff can be fully compensated in damages (see Monson v. Tussauds 1894) . . . Other essential conditions follow. 0f these first two there was no suggestion that immediate or irreparable injury would result to the plaintiffs from further circula- tion of Private Eye, and on the question of damages it was argued that these would be small having regard to Mr Parkinson's previous reputation in sexual , matters. Even if they were large, Private Eye would pay them, as Mr Carter-Ruck well knows, having written a generous and gracious letter to the Times at the time of Golden- balls testifying that the magazine always paid its legal costs promptly and in full. Indeed a considerable part of his own income must, in its time, have derived from Private Eye. But on this occasion, of course, Mr Carter-Ruck is representing a Privy Councillor.
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