Judge's view of Max Clifford's defence

Neil Hamilton and his wife have a habit of attracting attention. However, the allegations laid against them in the summer of 2001 brought attention of the most unwanted and unwarranted kind.

Nadine Milroy-Sloan made a now notorious complaint to the police alleging that the Hamiltons had been present on 5 May 2001 when she was raped. They were arrested in August 2001 amongst intense media interest. No charges were ever brought and it was subsequently established that the allegations were untrue. Untrue to the extent that Miss Milroy-Sloan was eventually convicted and sentenced to three years imprisonment.

In breaking the story, Miss Milroy-Sloan contacted the country’s most recognised PR guru, Max Clifford.

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He made a number of comments to journalists and GMTV regarding the allegations and the police investigation, including the phrase, “I totally believe what the young lady told me.”

The Hamiltons sued Max Clifford for libel and slander, claiming that the meaning of his comments, in the eyes of a reasonable reader, was that the allegations were true.

Before the libel case itself was heard, Clifford applied to court to strike out this meaning. The judge, Mr Justice Eady, refused to strike out the Hamiltons’ inference, leaving the issue for a jury to decide.

He also dealt with a number of the possible defences open to Max Clifford.

Justification was the first to go. The test is objective.

It did not matter what Max Clifford believed or whether he thought that he had reasonable grounds to say what he did. The fact that someone had asserted “x is guilty of y” did not, in itself, provide reasonable grounds for suspicion. Something more was required.

The fact that the allegations had been taken to the police did not satisfy this additional element, nor did the fact that the police arrested the Hamiltons. This would only be the case if the police had found some element of corroboration and Clifford knew of it.

References to Mr Hamilton’s parliamentary career ending in a “cloud of sleaze” were dismissed by Mr Justice Eady: “although it might serve in a tabloid headline it has no place in a plea of justification.” The justification defence was, therefore, struck out.

Fair comment was the next defence under Mr Justice Eady’s axe. “One is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact…and that rule cannot be bypassed by putting in front the formula, ‘in the defendant’s opinion’.”Qualified privilege, however, suffered a mere flesh wound. It was “quite untenable”, said Mr Justice Eady, for Max Clifford to claim that he was defending Miss Milroy-Sloan’s reputation. However, he did have the right to reply to attacks on his character. Neil Hamilton, on hearing that Max Clifford was involved, had allegedly retorted to journalists, “…this is the man that brought us ‘Freddy Starr ate my Hamster’. There is absolutely no truth in it [the allegations].”

Whether Max Clifford went too far in his response, or was not defending himself at all, but merely endorsing the allegations, was an argument which Mr Justice Eady felt should be left to the jury, along with the meaning issue. Therefore, the trial jury faces just two issues: meaning and whether Max Clifford was commenting fairly or acting maliciously. A trial date has yet to be set.

Andy Sloan is from the Technology, Media and Telecommunications department at Lovells.

Andy Sloan



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