Steel & Morris v United Kingdom

Reference: [2005] EMLR 314

Court: European Court of Human Rights

Judge: Pellonpää (President); Bratza, Strážnická, Casadevall, Maruste, Pavlovschi, and Garlicki

Date of judgment: 15 Feb 2005

Summary: Libel - Unavailability of Legal Aid - Fair Trial - Corporations - Right to Sue - Burden of Proof - Damages - Article 6 - Article 10

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The applicants were sued by McDonalds after handing out a six-page leaflet containing allegations damaging allegations about the company, entitled “What’s Wrong with McDonalds”. At trial (the longest in English legal history, at 313 days), Mr Justice Bell found for McDonalds and awarded them £60,000 in damages (reduced to £40,000 on appeal), although he did find some of the allegations made by the Defendants to be true. The applicants appealed to the ECHR.


(1) Whether the unavailability of legal aid for defamation meant that the applicants had been denied their rights to a fair trial under Art 6;
(2) Whether the proceedings and their outcome infringed Art 10.


Finding violations of Art 6 and Art 10: (1) Denial of legal aid deprived the applicants of the opportunity to present their case effectively before the court – central to the concept of a fair trial. States are free to decide how litigants are guaranteed this right. Legal aid is one means. Whether it is necessary depends on the facts of the individual case. The applicants were defending their right to freedom of expression, the financial consequences to them were great and the case was highly complex, both factually and legally. The disparity of legal assistance gave rise to unfairness. (2) The allegations constituted ‘political expression’, requiring a high level of protection. It was not incompatible with Art 10 to allow companies to sue for defamation. Nor was the incidence of the burden of proof itself an infringement. However, balancing the procedural unfairness, inequality of arms and the means of the applicants, the damages award was a disproportionate infringement of Art 10.


As the Court noted in its recitation of the facts, “the inequality of arms could not have been greater.” The Art 6 infringement caused by the unavailability of Legal Aid is understandable. However, as recited in the judgment, the Access to Justice Act 1999 (which came into force after the Applicants’ case) does now provide for “exceptional funding” in “exceptional cases”. Whether sufficient protection is afforded by these provisions or whether they need to be made more generous in light of the judgment will be a matter for Parliament. The very brief reasoning for the Art 10 infringement provides more questions than answers. The Court took into account the means of the Defendants, which, in civil proceedings would ordinarily not be a relevant consideration given that damages are meant to compensate not to punish. The Court did, however, find that neither the burden of proof in defamation nor allowing corporations to sue were themselves an infringement of Art 10.