In the Media

Judge in Max Mosley trial hits back at criticism over privacy cases

PUBLISHED December 2, 2009

The high court judge at the centre of a string of controversial privacy cases, including one involving the motor racing chief Max Mosley, spoke out against his critics today, claiming he had been subjected to "personal abuse" by parts of the media.

In a rare public speech, Mr Justice David Eady ? who was accused last year of "moral and social nihilism" and "arrogance" by the Daily Mail, said there was an increasing tendency for judges to become the target of anger from the media.

"The media have nowhere to vent their frustrations other than through personal abuse of the particular judge who happens to have made the decision," Eady said. "It has become fashionable to label judges not as independent but rather as 'unaccountable', and as hostile to freedom of speech."

Eady, who has presided over almost all of the most high-profile privacy cases in recent years as the high court's specialist judge, was singled out for criticism by the Daily Mail editor, Paul Dacre, after he awarded an unprecedented £60,000 in damages to the Formula One president, Mosley, for a breach of privacy by the News of the World.

Dacre, who blamed Eady for creating a judge-made law on privacy, described the judge's actions as a frightening example of what "one judge with a subjective and highly relativist moral sense can do ... with a stroke of his pen".

Experts have described the case as a landmark for the law on privacy, which has led to cases brought by celebrities including Sienna Miller, Madonna and Ashley Cole being settled by newspapers over the past year.

"In the face of Max Mosley, all the newspapers lost their bottle and settled everything because they recognised that there was a change in law," said Mark Stephens, a media lawyer.

Eady's comments today, at a conference by the human rights organisation Justice and legal publishers Sweet and Maxwell, are his first since last year's criticisms.He is described by friends as "profoundly hurt" by the attacks. His remarks come amid claims by media lawyers that the court system for dealing with cases of privacy and libel needs reform.

"The problem is that the common law is meant to be a commonality of judicial voices," said Stephens. "There is a system flaw in that we have historically concentrated libel and now privacy law into the hands of only a handful of judges ? because of the dearth of cases that has meant we have effectively had Eady doing them full-time.

"I don't necessarily think Eady has been wrong, but having one person responsible for a whole area of judicial output is unhealthy ? it is likely to cause difficulties in any area of law."

But Eady, who said it would have been more "natural" for parliament to have specifically enacted a law on privacy, insisted judges could not escape developing the law.

"Even if parliament had legislated more specifically ? it would be hopeless to try to get down to the level of micromanagement and try to anticipate every situation that is likely to come before the courts. One never ceases to be amazed by the extraordinary range of scenarios that present themselves," Eady said.

Eady's comments today are likely to stir further controversy, after the judge also weighed into the debate about "libel tourism". Experts have claimed London's high court is dealing with an increasing number of cases that have virtually nothing to do with England and Wales.

"I believe the suggestion is that there is a large queue of people, loosely classified as 'foreigners', waiting to clog up our courts with libel actions that are without merit and which have nothing to do with our jurisdiction," Eady said. "[This] is not a phenomenon we actually come across in our daily lives."

"Eady's remarks appear to fly in the face of all the evidence," said John Kampner, chief executive of Index on Censorship, the freedom of speech organisation whose report on the phenomenon recently prompted the justice secretary, Jack Straw, to review the law.

"He is in a tiny minority of senior people in the legal profession who do not see libel tourism as a major problem for the UK. But it is perceived as a problem to such an extent that the Americans are introducing legislation to protect their citizens from courts over some of which he presides."