Full case report
Tolstoy Miloslavsky v United Kingdom
Reference (1995) 20 EHRR 442
Court European Court of Human Rights
Date of Judgment 13 Jul 1995
Defamation – Libel – Freedom of expression – article 10- access to court – artcile 6- quantum of libel damages – injunction restraining further publication – security for costs order
The applicant had written a pamphlet containing defamatory statements about Lord Aldington, including the allegation that he was a war criminal. After a 10 week libel trial at which the applicant sought to justify his allegations, the jury found for the Claimant and awarded him £1.5 million in damages. An injunction was imposed restraining further publication. The applicant sought to appeal but was ordered to pay £124,900 by way of security for costs as a condition. The applicant alleged violations of Article 6 and 10 of the Convention and claimed just satisfaction under Article 50.
(1) Whether the award of damages and permanent injunction, which constituted an interference with the applicant’s right to freedom of expression guaranteed by Article 10 of the Convention, were prescribed by law and necessary in a democratic society for the protection of Lord Aldington’s reputation;
(2) Whether the order for security for costs deprived the applicant of his right of effective access to court guaranteed by Article 6 of the Convention.
(1) Although there was a wide discretion accorded to juries in the award of damages of libel, it was not unfettered, and such safeguards as there were satisfied the requirement that the interference be prescribed by law. Article 10 did not entitle the applicant to be able to anticipate with any degree of certainty the quantum of damges that would be awarded.
(2) However, the size of the award, in conjunction with the degree of latitude accorded to the jury, was a disproportionate interference with the applicant’s right to freedom of expression and consequently a breach of Article 10. The injunction was a logical consequence of the jury’s finding and did not go wider than necessary to protect Lord Aldington’s reputation.
By the time this case got to Strasbourg, the United Kingdom authorities had taken action to prevent such high awards being made in future, by virtue of section 8 Courts and Legal Services Act 1990 and Court of Appeal judgments in Rantzen v Mirror Group Newspapers and subsequent cases. The libel in this case was one of the most serious imaginable and aggravated by unsuccessful plea of justifcation. Nevertheless, it was over three times the previous next highest award. The question which the Court’s judgment does not answer, however, is:what size of award would have been proportionate to protect the Claimant’s reputation?
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