Sex, lies and damages

Last week, Jeffrey Archer was forced to repay damages to a newspaper. Now, revelations about John Major's adultery could lead to other libel decisions being overturned. Robert Verkaik asks: will libel law ever be the same again?

Libel lawyers could be forgiven for cursing the day Jeffrey Archer first set foot in a defamation court. Like many things touched by the disgraced Tory peer, the law of defamation, notorious for being something of a lottery, now looks like a muddle. Archer's forced decision last week to repay £2.7m in damages, costs and interest to the Daily Star has set a far-reaching precedent, which means no libel award can ever be permanent. Lawyers will feel professionally obliged to warn their clients that they could lose everything if, after the verdict, skeletons start leaping out of the closet.

The seeds of Archer's downfall were sown in 1987, when he claimed that he had spent an evening with an old male acquaintance, Ted Francis, when, in fact, his diary showed that he was with a girlfriend. At Archer's perjury trial at the Old Bailey last year, Mr Justice Potts said the original libel case against the Daily Star would have almost certainly failed if the court had been made aware of this lie. From that moment on, the damages were destined to return to the newspaper.

On Thursday, Mr Justice Buckley in the High Court stayed the proceedings brought by the newspaper, after hearing that all the claims for recovery of damages had been settled without any admission of liability by the former Tory party deputy chairman.

In a strange coincidence, the case may have immediate application. Last week, the owners of the now-defunct satirical magazine Scallywag pledged their intent to pursue John Major for compensation after it emerged that he had an adulterous affair with Edwina Currie in the 1980s. Sport Newspapers Ltd, the major shareholder in Scallywag, announced last week that if the former prime minister refuses to donate a set sum to a charity of the media group's choice, its lawyers will begin court action.

Mr Major sued the magazine and New Statesman and Society nearly a decade ago, after they ran stories falsely alleging that he was having an affair with Clare Latimer, a Downing Street caterer. In a rare move for a serving prime minister, Mr Major pursued legal action against the magazines, winning a small amount of damages. He won only £1,001 from the New Statesman and Society, a figure the magazine's editor labelled as "almost derisory".

But Sport Newspapers said it is still owed £50,000 following the collapse of Scallywag. David Sullivan, the owner of Sport Newspapers, said: "While the alleged affair with a caterer did not take place, John Major had been having sex outside his marriage with Edwina Currie. If these details had been known at the time, we would have taken a more robust legal stance and we would not have a loss of £50,000 outstanding."

Last week, the New Statesman's editor, Peter Wilby, told the Press Gazette that the magazine's lawyers believed that they, too, had a "very strong case" to recover damages and the greater legal and printing costs from Major.

While it has been a long-established principle that if a fraud is committed in the course of giving evidence during a trial the verdict can be re-opened, lawyers argue that it had never happened in a libel case before. Whether Major's case will follow Archer's back to court depends on what the former prime minister said in his pleadings or letters before action.

Edward Garnier QC, a defamation barrister and a former Conservative shadow Attorney General, contends that if Major simply pleaded that his reputation had been damaged because he had been accused of being an adulterer, then David Sullivan has a better chance of winning his case.

But if the pleadings were specifically restricted to his alleged involvement with Clare Latimer, then Garnier does not believe there is much of a case. "That claim was untrue then and it is untrue now," the barrister says.

William McCormick, a media barrister, says that there are strict tests for recovering damages in defamation claims. "You must show fraud, not just a mistake. And you have to show that the lie told made a real difference. There are plenty of cases in which the losing party thinks the other party lied in court, but proving this to the necessary standard of proof is extremely difficult. Courts will be reluctant to re-open the case."

Nevertheless, there have been a number of personal injury cases in which the claimant has been found to have lied about the extent of their injuries. The courts, said Mr McCormick, have had no difficulty in reopening these cases.

While there is no known example of libel damages being repaid, there are one or two long-settled cases that might have ended differently today. In 1956, Liberace sued the Daily Mirror over the Cassandra column, which, the pianist claimed, suggested that he was homosexual. The jury awarded him £8,000 after reading this description of him: "This deadly, winking, sniggering, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of Mother Love."

When Liberace, by then openly gay, died of an Aids-related infection in 1987, the Mirror didn't bother to sue his estate. How different things would be today.