London used to be described by the media as the defamation capital of the world. In the 1980s and 1990s, when high profile international litigants brought libel actions against media groups, and sometimes against each other, it made for guaranteed headlines.
Offered only rudimentary advice from judges under the guidelines then in place, libel juries tended to give sizeable awards, often stretching into the six-figure bracket and occasionally topping the £1m mark. The largest ever libel damages award, £1.5m, was won by Lord Aldington in a 1989 case against Nikolai Tolstoy and Nigel Watts.
A series of subsequent reforms to the system led to fewer cases and even fewer large awards, which are now invariably determined by judges rather than juries. But the latest published figures show that the number of defamation claims has begun to rise once again.
Despite the legislators’ best intentions, these suggest that the Defamation Act 2013, which heralded the most significant changes to the law, has not succeeded in reducing the volume of claims being brought. In 2018, 265 defamation claims were issued in London, as opposed to 156 in 2017 and 112 in 2016, according to data published by the Royal Courts of Justice.
And big awards might be back on the agenda too. Should it reach a full hearing, one case will not only make big headlines, but if successful, it might even beat the all-time damages record. The case is being brought by Black Cube, one of the world’s leading intelligence agencies, formed by a group of veterans from the Israeli elite intelligence units. It specialises in assisting in complex business and litigation cases.
Black Cube’s claim is being brought against Keshet Broadcasting, an Israeli media company, after its investigative programme, Uvda, broadcast a 90-minute documentary on the company and its methodologies in June 2019.
After the broadcast, a spokesperson for Black Cube commented: “Black Cube operatives always obey the laws of the jurisdictions in which they operate and all aspects of each operation are reviewed by leading law firms in order to ensure our compliance with local laws and regulations.”
The amount being claimed by Black Cube is £15m. Should that sum, or something approaching it, be awarded by the trial judge in damages, it would be the largest ever award for defamation in the UK by a very considerable margin.
For more than a decade, libel damages awarded by an English court have been subject to a ceiling figure of £275,000 – the highest sum that a libel court can award for the worst possible libel with the most serious aggravating features. This ceiling was confirmed by the Court of Appeal (Cairns v Modi  EWCA Civ 1382 ) and no sum exceeding it has been awarded since the Defamation Act came into force.
Nevertheless, Black Cube has passed the first hurdle. At a recent High Court hearing in London, which was conducted remotely, the company had to prove that it has a valid case, that England & Wales is an appropriate jurisdiction for the trial (forum conveniens) and that the court should exercise its discretion to permit service of the proceedings out of the jurisdiction., i.e. in Israel, where Keshet is based.
To fight its corner, Black Cube assembled an impressive legal team: Carter-Ruck partner, Matthew Wescott, and Desmond Browne QC, who recently celebrated the 50th anniversary of his call to the Bar. A QC since 1990 and a veteran of many prominent libel trials, he is widely regarded as a doyen in his field.
In court, Browne successfully argued that London is an appropriate forum to hear the dispute for the following reasons: most of Black Cube’s clients and income derive from the UK, one of its founders is based in London and is a British citizen, and many UK media outlets published excerpts from the documentary after it was broadcast.
The High Court ruled in favour of Black Cube, when Master Cook found that it satisfied all the tests and granted permission for the claim to be served on Keshet Broadcasting in Israel before the end of October.
It is unlikely that the Black Cube v Keshet Broadcasting case will ultimately be heard in court before next year, but it promises to be one of the highlights should the parties not reach settlement before then.
Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com