The case of the 'McLibel Two' was a damning indictment of the British legal system and of the lack of legal aid in libel cases, lawyers tell John Robins


While Auberon Waugh might once have described the ‘McLibel’ trial as ‘the best free entertainment available in London’, last month a European court took a different, less cosy, view of the longest trial in British history, when it found that it had breached the human rights of the two defendants, Helen Steel and Dave Morris.

‘Everybody knows that the UK libel laws are oppressive and unfair and it has taken us 15 years to convince the courts of that,’ says Mr Morris of the ruling of the European Court of Human Rights. ‘It emphasises just how significant the judgments against McDonald’s were at the original trial that, despite all that unfairness and oppression, we were able to win such devastating rulings.’


In January 1985, the two activists, together with others from a tiny group called London Greenpeace (not related to the environment group), first stood outside the McDonald’s restaurant in the Strand near Trafalgar Square and handed out poorly photocopied flyers called What’s Wrong With McDonald’s? Some 20 years later, the Strasbourg judges held unanimously there had been a violation of their article six right to a fair hearing, because of the lack of legal aid in defending the subsequent libel action the company brought against them, as well as their article ten right to freedom of expression. The court awarded damages of £13,750 to Ms Steel and £10,300 to Mr Morris.


Mr Morris reckons the judgment of the European court means their victory is now ‘total’ – not that the two self-styled anarchists are putting too much stock into the ruling of a court. ‘There is an implication in the judgment that people should rely on the judges for the protection of their freedom of speech,’ says the 50-year old former postman and full-time activist. ‘But I think people power is a much more reliable insurance policy than the courts. The best way to exercise freedom of speech is to use it.’


Although the two defendants claim a resounding victory, they did fail to prove all the points made in their leaflet and the High Court ruled that they had libelled McDonald’s and ordered them to pay £60,000 in damages. However, Mr Justice Bell at the original trial ruled that the fast-food giant did ‘exploit children’ with its advertising, produced ‘misleading’ advertising, was ‘culpably responsible’ for cruelty to animals, and paid its workers low wages.


Two years later, the Court of Appeal made further rulings against McDonald’s in relation to heart disease and employment, and reduced the damages to £40,000. The McLibel Two have refused to pay a penny as a matter of principle. ‘And we haven’t got the money anyway,’ Ms Steel adds. Two days after the original verdict, they were back outside their local McDonald’s distributing leaflets – 450,000 were handed out in the aftermath of the original trial – and they take delight in the fact that seven pages of the 37-page judgment were a republication of the original leaflet.


While the two defendants claim a victory in the courts, those lawyers who helped them fight their case argue that the trial reflected badly on our legal system. ‘One is left with a really nasty taste – British justice failed dismally here,’ reckons Mark Stephens, head of media at London firm Finers Stephens Innocent, who advised the two during their trial and in Strasbourg on a pro bono basis. ‘In legal terms and, in practical terms, the case is a stain on our jurisprudence.’


The solicitor points out that Mr Morris, a single parent, would have to come home after his day in court to ‘feed his son, read him a story and put him to bed’. The years spent defending the case were ‘gruelling and unacceptable’, he adds.


But does the latest instalment of McLibel change defamation law? One potential legacy of EuroMcLibel is a suggestion that defendants’ means should be taken into account when assessing libel damages. It a view that the UK courts will find at odds with their customary take on damages. ‘Damages in the UK are meant to repair harm to someone’s reputation and they aren’t meant to take into account the means of the person who is paying,’ comments Martin Soames, a media law partner at City firm DLA Piper Rudnick Gray Cary.


There was much speculation after the Strasbourg ruling that McLibel would effectively ‘open the floodgates’ for legal aid in defamation cases. That is unlikely to be the case, reckons Ian De Freitas, a partner at City firm Berwin Leighton Paisner, who specialises in defamation and privacy laws. ‘The European Court of Human Rights went out of its way to emphasise the complex nature of this case. Nowadays, in exceptional cases, legal aid can be granted for defamation proceedings,’ he says.


McLibel is the case that teaches big business claimants to think twice about taking on penniless campaigners, and Mr De Freitas argues that ‘Euro McLibel’ rams the message home. ‘If the McLibel trial itself has not caused large corporations to hesitate before starting proceedings, this decision will give greater pause for thought before taking action,’ he says.


While defamation is generally excluded from the scope of legal aid, public funding can be made available in exceptional cases following a change in the law five years ago under the Access to Justice Act 1999. But public funding has still to be granted in a libel action since the Act came into force. ‘It looks as though McLibel was decided very much on its facts,’ comments Mr Soames.


He highlights the case of John McVicar, the writer and former armed robber, who failed to persuade the European court in 2002 that the libel laws breached his human rights. He had complained about the lack of legal aid in his libel tussle over doping allegations with the sprinter Linford Christie. ‘Even if legal aid was readily available, how many libel lawyers and counsel would do work on those rates?’ Mr Soames asks.


The solicitor suggests that ‘clever strategic use’ could be made of the recent ruling by campaigners, such as animal rights groups. ‘They will be able to turn to this case and argue that the other side has instructed City law firms and leading counsel and, yet they are raising issues of public importance and they aren’t having a fair trial,’ he predicts.


Maddie Mogford, a media partner at City firm Reynolds Porter Chamberlain, does not think the Strasbourg ruling will make much difference to the availability of legal aid in libel.


‘The case was before conditional fee agreements (CFAs) were introduced and so the government could say that someone in the position of Steel and Morris could now have no win, no fee deals available to them,’ she says. ‘Legal aid was never available for defamation actions up until recently and, generally, legal aid is less available now than before. I’d be very surprised if the government reversed that position.’


Speaking in Parliament last month, the Lord Chancellor, Lord Falconer, said he would review the position in the wake of the judgment, but added: ‘The barrier should be high before defamation proceedings are given money.’


Mr Stephens maintains that CFAs in libel remain almost exclusively the preserve of claimants, although London media firm David Price Solicitors & Advocates runs a ground-breaking defendant CFA scheme. ‘We have this principle that parties roughly have equality of arms when they bring a case before the courts and that broke down here,’ he says. ‘The safety net is legal aid and if you don’t get legal aid you can’t bring your case properly.’


Looking back, Mr Morris reckons they did ‘an excellent job’ defending themselves. ‘But what we needed was the real support of administrative back-up for photocopying and looking after the tens of thousands of documents, or paying for the witnesses’ air fares for them to come to court,’ he says. However, he maintains that one of the reasons their case was so effective was because they represented ‘two worlds colliding’ – the two penniless campaigners versus the multinational corporation.


But Mr Stephens insists that without lawyers, the two defendants were handicapped in the courtroom and, in particular, they were simply unable to ‘trace, proof and prepare written witness statements from the witnesses they called, and those they would have liked to have called’. As a result their case was ‘under-prepared, unready for trial’ and was advanced by ‘two inexperienced, untrained and exhausted individuals’ who were ‘pushed to their physical and mental limits’.


He recalls the section of the original McLibel trial that dealt with allegations about beef production in South America and how it impacted upon the ecosystem. ‘The case mounted by McDonald’s went unanswered and it was hardly surprising if you put a skewed case before the court, you get a skewed trial,’ he says. ‘That’s no reflection on the judge but a reflection on a system which doesn’t allow legal aid.’


Jon Robins is a freelance journalist