The jury award of £60,000 libel damages to PhD student Luke Cooper was a vindication not only of Luke Cooper’s reputation, it was a vindication of the jury itself and a reminder of what effective justice a jury can deliver. Events in Court 13 last Friday remind us that, when newspapers demonise individuals and refuse to admit they are wrong, there is no more appropriate and telling vindication than the unanimous verdict and award of damages by a jury.
Mr Cooper’s case against the Evening Standard (ES) and Daily Mail newspapers was, as the Judge noted, a “classic jury case”. It may be the last actually tried by the jury. The proposal in the Defamation Bill that libel cases “shall be tried without a jury unless the court in its discretion orders it to be tried with a jury” seems likely to ensure that a jury will never try these cases, however valuable the scrutiny and verdict of a jury may be.
But this trial showed why jury trials can and do work: 1) The jury brought a greater discipline and focus to the case than any case management achieved; 2) The newspapers were made to stand up and answer for what they actually wrote, not what, after eighteen months’ deliberation and legal advice, they wished they had written; 3) The jury could decide what weight to give the witnesses’ evidence in-chief and under cross-examination, having crucially heard both parts of the evidence given live; 4) Vindication was delivered promptly and effectively.
Mr Cooper had marched peacefully with the 50,000 other protesters against the government’s proposed increases in tuition fees on 10 November 2010. He arrived at 30 Millbank more than two hours after a small group of protesters had entered the building and wreaked havoc inside. He mingled with other protesters in the courtyard outside, he handed out leaflets, he talked to people, including an ES journalist: he never entered the building, he never engaged in any violence, property damage or confrontation with the police and he was not involved in inciting or organising such behaviour.
However, on 11 November, Mr Cooper’s grinning face was splashed across the front page of the ES with the caption “Protest leader: Sussex University lecturer told the Standard of his role in plotting the attack on Millbank”. He was described as a “ringleader in hijacking the student march” and as among “a network of anarchists and campaigners who plotted action”. The Daily Mail, which lifted its story from the ES, called him one of the “hardcore leaders of the student mob” and captioned his picture “Organised protest”.
Juxtaposed with the newspapers’ stories of ‘riot’, the photograph was clearly intended to portray Mr Cooper as revelling in the violent events at Millbank. However, (to the evident surprise of some members of the jury), the photograph of Mr Cooper smiling, with a batman logo stamped on his forehead, had not been taken at Millbank. In fact, it had been found by an ES journalist on a photo-sharing website and had been taken two years earlier in a pub.
As in every case, the Defendants had the option of making an early offer of amends to address their inaccurate reporting. Instead, until the week before trial, the Defendants ran a justification defence which expressly disavowed the need for them to show that Mr Cooper had any involvement in the planning of the direct action on 10 November, despite what they had published. On the eve of trial, the Defendants introduced a speculative defence of “consent” and advanced a number of alternative Lucas Box meanings ranging from, to summarise, plotter to cheerleader to general advocate of direct action likely to “rouse” others. But these late legal manoeuvrings could not obscure the real issues from the jury: a) What did the articles mean? (Did they mean what they said?) and b) Whose account of the interview Mr Cooper gave to the ES journalist at Millbank was right? Was it the journalist’s, with his contemporaneous shorthand notes, or Mr Cooper’s, who wrote complaining to the newspaper’s Editor on the same day of publication.
It was these issues which rightly took centre stage. And, therefore, it was key that the evidence of Mr Cooper and the journalist was given orally both in chief and in cross-examination and could be evaluated by the jury based on what they said in court, not what they said in witness statements written with unknown amounts of input from the lawyers. The documents placed in the jury bundle were reduced to those of genuine importance: sundry other documents claimed to be relevant were never introduced at trial. The defence of consent, which simply served no useful purpose, was abandoned on day three. Weak arguments, a hearsay notice of peripheral relevance and hours of “context” DVD footage were all put to one side. This was case management at its most rigorous.
That is not to say that the case had to be dumbed-down for the jury. Indeed, it was the newspapers’ over-simplification of the story which apparently failed to convince. They sought in print and at trial to ignore the fact that there was, in Mr Cooper’s words, “a mixed picture” at Millbank; that there were amongst the crowd people who were protesting peacefully and who might reasonably, in the words of one young man interviewed at the scene on Sky, have “mixed feelings” about the events at Millbank. It was put to Mr Cooper that his stance was “quite subtle” in terms which implied criticism rather than compliment.
However, the “subtleties” of Mr Cooper’s case seem not to have been beyond the jury, twelve Londoners who the ES would doubtless wish to count among its readers. Ultimately, a defence summed up by the Defendants’ Leading Counsel in closing as, “Does it really matter which it is? Does it matter whether he planned it? He gets there …and he jolly well ringleads when he is there”, did not persuade the jury that the newspapers got their story right.
None of what is said above ignores the enormous stress placed on the claimant and witnesses at any trial, let alone a jury trial. This was a case which should never have got so far: Mr Cooper had made a Part 36 offer to settle the case in return for a correction and apology and £5,000 damages from each newspaper in August 2011, ten months before the trial took place, when the legal costs were a fraction of the final figure. But, having reached trial, at least the jury’s verdict swiftly followed the close of the parties; cases. In another claim brought by a client of this firm, tried in May, the parties are still waiting for the judge’s decision – vindication for either side on hold until the judgment is ready.
And the vindication provided by the jury’s verdict cannot be doubted. Luke Cooper can rightly point to his award as damages now – as he should be able to do – and say, “These nail the lie.”
As a footnote, the funding arrangements which enabled Luke Cooper to pursue his claim to a just conclusion also face the cut. Luke benefited from a CFA arrangement, backed by ATE insurance. Proposed changes to the current CFA and ATE regimes mean that claimants like Luke Cooper have no prospect in the future of engaging experienced lawyers and Counsel to represent them and pursue vindication in the face of publishers which will not answer for what they wrote.
Lucy Moorman is a partner in Simons Muirhead and Burton, which acted for Luke Cooper.