Information Note on the Court’s case-law 42

May 2002

McVicar v. the United Kingdom - 46311/99

Judgment 7.5.2002 [Section I]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Unavailability of legal aid for defendant in defamation action: no violation

Article 10

Article 10-1

Freedom of expression

Unavailability of legal aid for defendant in defamation action, exclusion of evidence and burden of proof: no violat ion

Facts : The applicant, a journalist and broadcaster, published a magazine article in which he suggested that a well-known athlete used banned performance-enhancing drugs. The athlete brought an action for defamation in the High Court against the applicant, the m agazine’s editor and the publishing company. While the editor and the publishing company were represented by a lawyer specialising in defamation and media litigation, the applicant represented himself during the greater part of the proceedings because he c ould not afford to pay legal fees and legal aid was not available for defamation actions. An order was made that the parties should exchange statements of witnesses of fact within a specified time-limit and could each call a number of expert witnesses, pro vided the substance of the experts’ evidence was disclosed by a specified date. The applicant served one document purporting to be a statement of the nature of evidence to be adduced by another athlete and another document which he mistakenly believed to b e acceptable in place of an expert’s report. By the time of the trial, the applicant was the sole defendant, the editor having died and the publishing company being insolvent. The applicant instructed the lawyer who had acted for the other defendants. The lawyer then endeavoured to obtain full statements from the two witnesses. A statement obtained from the expert witness was served one hour before the commencement of the trial. However, the judge refused to admit either that evidence or the evidence of the other athlete and the applicant’s appeal against those rulings was dismissed by the Court of Appeal. The applicant was not represented at the main trial in the High Court, due to lack of funds. The jury found that the article bore the meaning that the ath lete in question was “a cheat who ... used banned performace-enhancing drugs” and that the applicant had not proved that this was substantially true. Although the plaintiff had not sought damages, the applicant was ordered to pay the costs of the action an d an injunction was issued, prohibiting him from repeating his allegations.

Law : Article 6 § 1 – The question whether or not this provision requires the provision of legal representation will depend on the specific circumstances of the case and, in particu lar, on whether the individual would be able to present his case properly and satisfactorily without the assistance of a lawyer. In the present case, the fact that the proceedings were held in the High Court before a judge and jury was not conclusive. Simi larly, the fact that the burden was on the applicant to prove the truth of his allegations could not automatically require the provision of legal aid: the applicant was a well-educated and experienced journalist capable of formulating cogent argument. More over, the rules pursuant to which evidence was excluded were clear and unambiguous, as was the order setting out the timetable for the exchange of statements and expert reports. Thus, the applicant should have understood what was expected of him in that co nnection. As far as the law of defamation was concerned, it was not sufficiently complex to require a person in the applicant’s position to have legal assistance, the outcome of the action turning on whether he could show on the balance of probabilities th at the allegations were substantially true. Furthermore, the applicant was represented in the period prior to commencement of the trial by the lawyer who had acted for the co-defendants. As to the exclusion of evidence, it was apparent that the applicant’s failure to comply with the procedural requirements was not the only factor which weighed in the judges’ minds when deciding to exercise their discretion to exclude the evidence. Finally, while the trial must have taken a greater toll on the applicant than it would have on an experienced lawyer, his emotional involvement was not incompatible with the degree of objectivity required by advocacy in court, having regard to his background and experience. In all the circumstances, the applicant was not prevented, by reason of his ineligibility for legal aid, from presenting his defence effectively or denied a fair trial.

Conclusion : no violation (unanimously).

Article 10 – (a) In the light of the conclusion reached under Article 6, the ineligibility of the applica nt for legal aid did not interfere with his right to freedom of expression. As to the exclusion of evidence, this was not based on the simple ground that the rules and order had not been complied with but was ordered in the exercise of judicial discretion following detailed analysis of the competing public interests at stake and there were no grounds for criticising the way in which the judges balanced those interests. Therefore, to the extent that the exclusion of evidence interfered with the applicant’s r ight to freedom of expression, the interference was necessary for the protection of the plaintiff’s rights. (b) As to the costs order and injunction, these were not disproportionate, in the light of the applicant’s failure to prove that the allegations wer e substantially true. To the extent that the order and injuction were capable of discouraging the participation of the applicant and other journalists in debates over matters of public concern in the future, this was necessary for the protection of the rep utation and rights of the plaintiff. (c) As to the burden of proof, the potential consequences of the allegations for the plaintiff were very grave. There were a number of factors which indicated that the applicant was concerned with verifying the truth or reliability of the allegations to a high standard only after the event, once defamation proceedings had been commenced. In all the circumstances, the requirement that the applicant prove that the allegations were substantially true constituted a justified restriction on his freedom of expression.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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