Tugendhat J’s decision in Thornton v Telegraph Media Group  EWHC 1884 (QB) is an interesting read for a number of reasons. Involving renowned (now infamous?) interviewer Lynn Barber and a sociologist, Sarah Thornton, who’s book Barber reviewed, it takes one by the hand through some of the machinations of libel litigation, indicates how a judge acting alone should determine issues of honesty and serves also, to my mind at least, as an interesting indicator of the perils of adversarialism in litigation and advocacy. In particular, it ends with what appears to be, in the terms described by the judge, an allegation of professional misconduct.
According to the judgment, Lynn Barber’s review contained two allegations that Sarah Thornton particularly objected to. One is that “Dr Thornton had dishonestly claimed to have carried out an hour-long interview with Ms Barber as part of her research for the Book, when the true position was she had not interviewed Ms Barber at all, and had in fact been refused an interview” (the interview allegation). The second allegation of malicious falsehood, was that “Dr Thornton gave copy approval to the individuals mentioned in the book whom she had interviewed, that is to say the right to see the proposed text in advance of publication, and to alter it, or to veto its publication” (the copy approval allegation).
It is the defensive tactics employed by the paper which interest me, taking place as they do against a debate about just how it is that libel law is so expensive (CFAs are the whipping boys, then claimant lawyers, defence lawyers tend to get something of an easier ride in the press, quel surprise). It may be worth quoting the offending passage of the review, as it seems to me that the somewhat antagonistic manner of the review may also be apparent in the defence tactics. The judgment quotes this section:
“”Seven Days in the Art World by Sarah Thornton: …
Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense. She describes her book as a piece of “ethnographic research”, which she defines as “a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds”. She also claims that she practices [sic] “reflexive ethnography”, which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this “copy approval” and disapprove.
Thornton claims her book is based on hour-long interviews with more than 250 people. I would have taken this on trust, except that my eye flicked down the list of her 250 interviewees and practically fell out of its socket when it hit the name Lynn Barber. I gave her an interview? Surely I would have noticed? I remember that she asked to talk to me, but I said I had already published an account of my experiences as a Turner Prize juror which she was welcome to quote, but I didn’t want to add to…”
Thornton attempted to sort the matter out herself by dealing directly with Barber and then the Telegraph before it made its way to the Telegraph’s legal team. David Philp, whom the judgment refers to as a freelance lawyer, qualified as a barrister, dealt with the matter. The first substantive response to the allegations made by Thornton contains the following passages:
While acknowledging that a handful of interviews were conducted by phone you say that most were face to face sessions lasting about an hour and some contributed beyond that among this group. Readers of the book will not know which category applies to Ms Barber. However she was a central character in your account of the Turner prize jury (2006). It might appear that she was one of those who gave you such full co-operation that she merited inclusion in the list.
Ms Barber makes it clear in the review that you contacted her in 2006. She disputes that this contact amounted to an interview in any meaningful sense. As a well known and experienced journalist she has conducted many interviews over the years, published in a wide variety of leading newspapers and magazines, and as such she is well qualified to express a view as to what does or does not constitute an interview.
In the review she says that she told you she did not want to add to the account she had already published but said you were free to quote from it. In your account you refer to an e-mail in which she said the same thing. Then you cite a series of e-mails referring to a “talk” rather than a formal interview. You say that the “interview” was “not very rewarding because Ms Barber mostly repeated what she had said in her two articles in The Observer”. This is in contrast to your suggestion, by way of her inclusion in the list, that she had been being “generous” with her “thoughts”.
You say your editor at The New Yorker was keen for you to interview all the Turner Prize judges and indeed they are included in the book acknowledgements list without any differentiation. Yet it does not appear that Ms Barber made any significant contribution other than that derived from what she had already written. She had not wanted to give you an interview but to refer you to what she said previously and to say that she had nothing to add. You persisted for the reason given but to no productive effect. Indeed since people quoted in a particular chapter had the opportunity to read what had been written, Ms Barber must not have provided any new material or quotes worth including since she was not afforded that opportunity.
It would have been more accurate to have included Ms Barber among those mentioned in the first paragraph of page 57 – contacts that fell short of a proper interview.
As to “reflexive ethnography”, you relate how the feedback from people shown what you had written often led to a “richer and more accurate” account. It seems as if the individual concerned was afforded the opportunity to correct factual inaccuracies and to add “richer” material to the end result – in other words to alter what had originally been written. This lends itself to a comparison with “copy approval”.
It seemed to Ms Barber that your account of the Turner prize judging relied heavily on one judge’s account, and omitted some important information regarding remarks made to that judge by Mr Serota. She considered this underlined her criticism of “reflexive ethnography” by way of comparison to a more rigorous and sceptical journalistic approach to the subject.
Although we appreciate that it must have been disappointing not to have received a more positive review of your book, we do consider that it fell well within the limits of fair comment.
The Judge indicates this letter:
“was written at a time when Ms Barber knew that her statement in the Review that Dr Thornton had never interviewed her was false. However, the letter does not address that point at all. Instead it embarks on a new and different attack on Dr Thornton, based on the argument (subsequently abandoned) that whether or not a conversation counted as an interview depended on the quality of the responses to the questions posed by the interviewer to the interviewee, and that Ms Barber “is well qualified to express a view as to what does or does not constitute an interview”.
“The letter is argumentative in other respects. It takes the false point that Dr Thornton’s e-mails set out in her letter of 11 December refer only to a “talk” rather than a formal “interview”. The point is false because the subject line of the e-mails did indeed refer to the “interview request”. Dr Thornton did not set out the subject line in her letter of complaint dated 11 December 2008, and no one for the Telegraph or Ms Barber made any enquiries to establish the full extent of the e-mail exchange. There are other criticisms to be made of the letter.
A more colloquial way of describing the letter is to see it as nit-picking obfuscation and not a cards on the table defence of their position at all. We all know that when we are losing an argument one strategy we employ is to start arguing about something else. Lawyers, however, should be wary of using such tactics. After the letter, Dr Thornton sought legal advice and the slow march towards trial began. On the way, “the Telegraph published an apology (in a form not previously offered) as follows:
“Sarah Thornton – an apology
In her review of Seven Days in the Art World by Sarah Thornton (Nov 1, 2008) Lynn Barber took issue with Dr Thornton’s assertion that she (Ms Barber) was among the 250 people who had been interviewed for the book, either face to face or by telephone. In fact, Ms Barber did have a pre-arranged telephone interview with Dr Thornton two years earlier which lasted over thirty minutes. We and Ms Barber therefore now accept that it would be wrong to suggest that Dr Thornton made a false or dishonest claim to have interviewed Ms Barber and apologise to Dr Thornton for any distress caused by any contrary impression the review may have given.
In addition, the review commented on Dr Thornton’s use of a practice known as “reflexive ethnography” which Ms Barber equated to “copy approval”. Dr Thornton points out that she did not give interviewees the right to alter any material she had written about them and that she always maintained complete editorial control of the final product and used the feedback provided by her subjects entirely as she saw fit”.
As a result of an offer of amends, a large part of the judgment is taken exploring whether Barber made the false allegations knowingly (i.e was deliberately dishonest) or recklessly. The judge concludes against her on both points:
“It is with some hesitation that I reached the conclusion that Ms Barber knew the interview allegation was false at the time she wrote the Review. I have had no hesitation in reaching the alternative conclusion that (if she did not know it was false) she was reckless, that is indifferent as to whether it was true or false.”
Reading the judgment, though, one can get the sense of how much effort (and therefore cost) has gone into seeking to ascertain the state of mind the famous journalist as the relevant events unfolded. Missing e-mails have been explored; her book trawled through; diaries considered; and so on. The judge meticulously dissects the ways in which what Barber says cannot have been true or is inconsistent with her being true. Indeed, I am curious if this is a normal level of detail for such a judgment (media lawyers who can advise are encouraged to comment!) These costs appear, it seems to me, to flow from an overly hostile and disingenuous defence to an initial complaint at the outset (those interested in solicitors complaints might be hearing a loud bell clanging at this point). It would be interesting to know, though I suspect we never will, who was driving this strategy: the lawyers or the client. I’d guess the client was. It is, however, reflective of the type of tactics which claimant media lawyers claim is rife amongst their opponents. If costs are to be reduced regulators and/or courts need to be robust in tackling the problem. Whilst Tugendhat J’s criticisms are there I doubt whether the Telegraph will much mind its (or its lawyers) tactics being criticised in this way. They will know how much such tactics put off other claimants who fold when the papers dig their heels in. Tactics criticised here may, nevertheless, work elsewhere.
It should be noted that the judge is careful in discussing Mr Philp’s actions (as judges often are in such circumstances):
Whether or not Mr Philp was careless in what he did and did not do is not relevant to this action. Nothing in this judgment should be taken as a finding of a breach of a professional duty of care by Mr Philp or Mr Arthur, since no issue as to that has been put before me to decide.
The judges appears to form the view that the lawyer has here been led by their clients. “Ms. Barber] persuaded the lawyers that the interview allegation could be defended on the basis that the admitted conversation did not amount to an interview in her opinion… ….Ms Barber did make a deliberate decision to mislead Mr Philp.” A strong client has made the lawyer look weak.
The legal tactics employed have one further, and particularly interesting consequence. In setting damages, the Judge held that the conduct of the Telegraph’s advocate was an aggravating factor:
“The cross-examination was also an aggravating factor. Mr Price persisted at length in putting to Dr Thornton that she did in fact grant copy approval. And he asked some intrusive questions about the financial affairs of her husband and father, which had no relevance to the case, but which served to humiliate.”
It is worth noting that there is no couching of words here to suggest that there is no implication of professional malpractice. Rule 11.05 of the Solicitors Code of Conduct requires:
If you are appearing as an advocate:
you must not say anything which is merely scandalous or intended only to insult a witness or any other person;
(b) you must avoid naming in open court any third party whose character would thereby be called into question, unless it is necessary for the proper conduct of the case;
(c) you must not call into question the character of a witness you have cross-examined unless the witness has had the opportunity to answer the allegations during cross-examination; and
(d) you must not suggest that any person is guilty of a crime, fraud or misconduct unless such allegations:
(i) go to a matter in issue which is material to your client’s case; and
(ii) appear to you to be supported by reasonable grounds.
The irrelevant humiliation of Dr Thornton’s father and husband fall squarely, it appears, under a) and b). We do not know Mr Price’s explanation for this cross-examination, and we should hear it before forming a judgment, but the judge appears to be beginning to stand up an allegation that there has been a breach of his professional code. One interesting question is what happens next? Has the judge made a complaint? Is it to be left to the parties? Can Mr Price’s client be expected to seek recompense for the increase in damages or to exert greater control over advocate tactics in the future: or is a reputation for pushing the boundaries for a client one which the client would rather reward than inhibit? If judges, and the parties, are concerned about the cost and conduct of libel litigation, a firm grip needs to be taken if adversarialism leads to extra cost or inappropriate behaviour. Who is taking that grip?