Media Injunctions

They knew because Mr Jaspan told them - in advance. Quietly, the Scottish paper was prepared to fight any attempt to interdict it - and telling the London protagonists was part of a carefully orchestrated defensive strategy, as Jaspan explained: “We were working on the story, reviewing everything that had happened - the injunction against the Mail on Sunday and the Guardian’s challenge saying it was outrageous that the litigant was not named. It was a jigsaw, but it wasn’t difficult for journalists to put all the pieces together. A royal servant with post-traumatic stress from the Falklands? It had to be Smith.”

But still the British public was being kept in the dark. “I got a call that the Irish Independent was telling their readers what it was all about. In Sydney, the Australians could read all about it. You could go online and be told exactly what it was. Someone in the UK had to say, ‘This is what it is all about’. Our lawyers advised us there was something called the Reynolds defence.”

This defence was introduced by the Law lords in 1999 after a replayed libel action against the Sunday Times by former Irish premier Albert Reynolds. It gives media organisations "qualified privilege" in reporting something in the public interest provided the journalism used is "responsible" - even if the story turns out later to be untrue.

Jaspan said: “You have to demonstrate by a paper trail that you have let the other side know what you are doing. In our case that involved telling Buckingham Palace and Fawcett's solicitors. We rang the palace and they were comfortable about it. We then told Fawcett’s solicitors what we were going to do and they noted it. We had to note every single discussion, at what time, and who it was with.

“We gave them plenty of time to act and they chose not to. We decided to take a qualified risk and publish the allegation.”

So, why didn’t the until-then hyperactive London legal eagles act in Scotland? Could it be that the Scottish system has too many perils for the would-be silencer of the media? In England, the system allows the media organisation to be sandbagged without being represented. Once the newspaper or TV station knows about the order they can go back and ask the court to reverse it. But by then time will almost certainly have run out for publication.

In Scotland media organisations enter caveats to ensure that if anyone moves to interdict them they get to argue the case before a decision is taken. And arguing the case, of course, means that follow-up publicity is a distinct possibility.

Ever since William Caxton started the torrent of billions of words of printed material in English five centuries ago, irritated and angry people have been trying to put a stop to the flood - or at least the tiny drop of it that refers to them.

Jaspan, with the benefit of background conversations with insiders close to Prince Charles, knew the allegations were “pure tosh” and the paper made that clear. He says: “I was told that although he had a penchant for pretty horsey girls, he was never ever interested in any other scene,” said Jaspan.

Despite finessing the Royal story, no-one in the UK has yet repeated it and the fact that the Reynolds defence could be very helpful for journalists is seen by Jaspan as a disturbing trend in Scotland in other litigation, that is the tendency of rich and powerful interests to use the courts to close down investigative stories by issuing large writs. He adds: “Newspapers are prevented from following a story through, even if something of vital public interest is involved.”

Stories appearing in Scotland, but not in England are of course nothing new. Four years ago an injunction stopped English newspapers publishing leaked details of the Lawrence inquiry report. But the Sunday Telegraph - with extracts - was on its way to Scotland before the ban.

No media organisation is a more vulnerable piggy-in-the-middle than the BBC, with its feet planted firmly in major cities north and south of the Border, subject to both sets of laws.

BBC Scotland legal adviser Alistair Bonnington said: ”You can't stop airwaves. Something being broadcast across the whole of Scotland could leak into England and be caught by an English injunction.

"Generally that means we wouldn't publish anything in Scotland that had been injuncted in England. In the case of a trial it might depend where the trial was. If it was definitely the Old Bailey, then we might think then it's not going to cause a problem. But if you had a trial in a Newcastle court, you can imagine that would be too close. Then you have the additional problem of the internet."

Bonnington, however, believes that even Scotland's extra protections will ultimately be rendered redundant by the new Human Rights Act. "Under Section 12, an interdict against Freedom of Speech cannot be granted without the necessity of a hearing."

Niall Scott, a partner at McGrigor Donald and long involved in newspaper litigation, recalls two cases where would-be gaggers came unstuck as his clients robustly defended their right to publish: “When Kwik-Fit learned that the Sunday Mail planned to run in the Judge column an article critical of how often ‘free inspection’ customers were told their shock absorbers were defective, the company sought an interdict - and meantime hordes of blue-overalled Kwik-Fit fitters were bussed to demonstrate in front of the Sunday Mail offices, with TV cameras rolling. The judge, Lord Mackay, felt that the Kwik-Fit people couldn’t have it both ways. An interdict would have prevented the Sunday Mail even reporting the demo. The interdict was refused.”

And then there was the hapless Daily Express, which took the Sunday Mail to court to stop them running an extract from a Howard Hughes book which the Express had brought at great expense to relaunch itself as a tabloid.

Scott goes on: “Only when they got into court did the Express learn that the Sunday Mail had bought the extract from their own syndication department for £50.” Interdict refused.

“That goes to show the real value of the Scottish system,” says Scott. “Without the newspaper being able to make its case for publication, both of these interdicts might have been granted by default.”