Last month, the marathon legal battle between Helen Steel and David Morris and McDonalds concluded in the European Court of Human Rights (ECtHR). The ECtHR found that there had been violations of the European Convention on Human Rights and awarded Steel and Morris damages against the Government.
The debacle has left a bitter after-taste; after 313 days in court in the original trial, McDonalds were ultimately awarded £40,000 on appeal but have never sought to enforce that award, neither did they ask for their costs of the proceedings. It is fair to say that the PR generated has been far from positive. Steel and Morris (known as "the McLibel Two") were put in the invidious position of having to defend a leaflet they did not even write. They were compelled to conduct the proceedings themselves, with minimal legal assistance (they were both on low incomes but had been denied legal aid as it is not generally available for defamation cases). Furthermore, Helen Steel suffered stress-related illness during the trial. Following the Court of Appeal judgment, the McLibel Two took their case to the ECtHR, seeking damages from the Government.
Background
Back in 1986 a group called "London Greenpeace" (unconnected with Greenpeace International) produced a leaflet entitled "What's wrong with McDonalds". It made numerous serious allegations including those relating to the nutritional value of McDonald's food, the company's environmental record and their apparent exploitation of children in their marketing campaigns. Steel and Morris were two members of London Greenpeace who distributed these leaflets. McDonalds brought libel proceedings against them and three others claiming damages of £100,000. Having lost the libel trial, Steel and Morris applied to the European Court of Human Rights on the basis of breaches of Article 6 (right to a fair trial) and of Article 10 (freedom of expression) of the European Convention on Human Rights by the UK Government.
The judgment of the European Court of Human Rights
The Court found that there had been a violation of Article 6 and Article 10. Article 6 had been breached by reason of Steel and Morris being deprived of the opportunity to present their case effectively. Litigants should enjoy equality of arms with their opponents. The applicants had not been put in this position and this had arisen by the denial of legal aid.
In relation to Article 10, the parties agreed that the defamation proceedings and their outcome amounted to an interference with Steel and Morris' right to freedom of expression. There is a public interest in allowing groups such as London Greenpeace to participate in public debate by disseminating ideas on matter of public interest; it was argued that compelling campaigners to prove every allegation, without the benefit of suitable legal assistance, places an intolerable burden on them where the complainants have suffered no financial loss. Steel and Morris' only other choice was to apologise and withdraw the leaflet. The Court therefore found that the procedural unfairness and inequality that resulted, together with the disproportionate award of damages, amounted to an interference with the McLibel Two's freedom of expression.
What does this mean for the future of defamation claims?
The ECtHR have effectively stated that Steel and Morris should have been granted legal aid. The Government must accept the ECtHR's interpretation of the European Convention on Human Rights. Does this mean that companies will be inundated with claims from individuals, newly armed with legal aid certificates?
Unlikely. First, the McLibel Two were defendants. It was in the gift of McDonalds to decide to pursue them, not the other way round. Claims by multinationals against individuals are rare. Steel and Morris had no choice but to defend the proceedings or apologise. They chose to defend but could not afford legal representation. Had they been claimants, they may have been able to retain lawyers under a Conditional Fee Agreement and the question of legal aid would never have arisen.
Second, the case was unusually lengthy and complex. The resultant inequality of arms was extreme and that fact alone would distinguish it from the large majority of other cases. The legislation on legal aid (the Access to Justice Act 1999) gives the Lord Chancellor the power to grant legal aid for defamation claims in exceptional cases; it may be that this provision is enough to comply with the ECtHR's interpretation of the ECHR. It is of note that this is the only case to have been pursued to Strasbourg on the question of the failure to provide legal aid to litigants engaged in defamation claims.
Now that claimants have the ability to obtain legal representation to bring defamation claims (through Conditional Fee Agreements), the Access to Justice Act would be compliant with the European Convention on Human Rights. It remains the case that only in very unusual circumstances will a large corporation pursue impecunious defendants. Should this occur again, the Government would have to take another look at the general unavailability of legal aid but might deal with it by an exceptional grant of legal aid as it is permitted to do under the existing Access to Justice Act 1999.
