CEDH · CASELAW;REPORTS;ENG — 6 décembre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 18139/91                         Nikolai Tolstoy Miloslavsky                                   against                             the United Kingdom                          REPORT OF THE COMMISSION                        (adopted on 6 December 1993)   TABLE OF CONTENTS                                                                    Page   I.          INTRODUCTION            (paras. 1 - 14). . . . . . . . . . . . . . . . . . . . . 1              A.     The application                  (paras. 2 - 4 ). . . . . . . . . . . . . . . . . . 1              B.     The proceedings                  (paras. 5 - 9) . . . . . . . . . . . . . . . . . . 1              C.     The present Report                  (paras. 10 - 14) . . . . . . . . . . . . . . . . . 2   II.         ESTABLISHMENT OF THE FACTS            (paras. 15 - 30) . . . . . . . . . . . . . . . . . . . . 3              A.     The particular circumstances of the case                  (paras. 15 - 26) . . . . . . . . . . . . . . . . . 3              B.     Relevant domestic law                  (paras. 27 - 30) . . . . . . . . . . . . . . . . .11   III.        OPINION OF THE COMMISSION            (paras. 31 - 57) . . . . . . . . . . . . . . . . . . . .15              A.     Complaints declared admissible                  (para. 31) . . . . . . . . . . . . . . . . . . . .15              B.     Points at issue                  (para. 32) . . . . . . . . . . . . . . . . . . . .15              C.     As to Article 6 para. 1 of the Convention                  (paras. 33 - 44) . . . . . . . . . . . . . . . . .15              D.     As to Article 10 of the Convention                  (paras. 45 - 55) . . . . . . . . . . . . . . . . .17              E.     Recapitulation                  (paras. 56 - 57) . . . . . . . . . . . . . . . . .21   DISSENTING OPINION   of Messrs. Weitzel, Busuttil, Gözübüyük,                     Reffi and Cabral Barreto. . . . . . . . . . . .22   APPENDIX I        HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .23   APPENDIX II       PARTIAL DECISION AS TO THE ADMISSIBILITY . . . . .24   APPENDIX III      FINAL DECISION AS TO THE ADMISSIBILITY . . . . . .33   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a United Kingdom citizen born in 1935.   He lives in Southall, Berkshire, and is represented before the Commission by Messrs. Theodore Goddard, solicitors, London.   3.     The application is directed against the United Kingdom whose Government are represented by their Agent, Mrs. A. Glover, Foreign and Commonwealth Office, London.   4.     The application concerns libel proceedings brought against the applicant following the distribution of a pamphlet accusing Lord Aldington, Warden of Winchester College, of war crimes in May and June 1945.   It raises issues under Article 6 para. 1 and Article 10 of the Convention.   B.     The proceedings   5.     The application was introduced on 18 December 1990 and registered on 26 April 1991.   6.     On 20 February 1992 the Commission declared the application partly inadmissible and adjourned its examination of the remainder of the application.   7.     At the invitation of the Commission written observations were submitted by the respondent Government on 2 June 1992 and observations in reply were submitted by the applicant on 6 October 1992.   8.     An oral hearing was held on 12 May 1993 after which the application was declared admissible.   At the hearing the parties were represented as follows: for the Government: Mrs. A. Glover, Agent, Mr. David Pannick QC, Mr. J. Witherston and Mrs. Emma Matthews, Lord Chancellor's Dept., Mr. Iain Christie, Foreign & Commonwealth Office; for the applicant: Mr. Anthony Lester QC, Ms. Dinah Rose.   9.     After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present report   10.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  A. WEITZEL                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO   11.    The text of this Report was adopted on 6 December 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   12.    The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   13.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   14.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   15.    In March 1987 a pamphlet written by the applicant was circulated by a Mr. Watts to parents, boys and staff at Winchester College.   The pamphlet was also circulated to Members of Parliament, Members of the House of Lords, the press and to former members of the school. Mr. Watts had a grievance against Lord Aldington, Warden of Winchester College, in his capacity as Chairman of an insurance company.   The pamphlet is entitled "War Crimes and the Wardenship of Winchester College" and it refers to events in Austria in May and early June of 1945.   The pamphlet stated, inter alia, the following:         "Between Mid-May and early June 1945 some 70,000 Cossack and       Yugoslav prisoners-of-war and refugees were handed over to Soviet       and Titoist communist forces as a result of an agreement made       with the British 5 Corps administering occupied Austria.   They       included a large proportion of women, children, and even babies.       The majority of Cossack officers and their families handed over       held League of Nations passports or those of the Western European       countries in which they had found refuge after being evacuated       from Russia by their British and French Allies in 1918-20, and       were hence not liable to return under the terms of the Yalta       Agreement, which related only to Soviet citizens.       ...         As was anticipated by virtually everyone concerned, the       overwhelming majority of these defenceless people, who reposed       implicit trust in British honour, were either massacred in       circumstances of unbelievable horror immediately following their       handover, or condemned to a lingering death in Communist gaols       and forced labour camps.   These operations were achieved by a       combination of duplicity and brutality without parallel in       British history since the Massacre of Glencoe.   Outside Lienz may       be seen today a small Cossack cemetery, whose tombstones       commemorate men, women and children shot, clubbed, or bayonetted       to death by British troops.       ...         The man who issued every order and arranged every detail of the       lying and brutality which resulted in these massacres was       Brigadier Toby Low, Chief of Staff to General Keightley's       5 Corps, subsequently ennobled by Harold Macmillan as the       1st Baron Aldington.   Since 1979 he has been Warden of Winchester       College, one of the oldest and most respected of English public       schools.   Whether Lord Aldington is an appropriate figure for       such a post is primarily a matter for the College to decide.   But       it is also surely a legitimate matter of broader public concern       that a man responsible for such enormities should continue to       occupy a post of such honour and prominence within the community,       in particular one which serves as exemplar for young people       themselves likely one day to achieve high office and       responsibility.         ... The truth is, however, that Lord Aldington knows every one       of his pleas to be wholly or in large part false.   The evidence       is overwhelming that he arranged the perpetration of a major war       crime in the full knowledge that the most barbarous and       dishonourable aspects of his operations were throughout       disapproved and unauthorised by the higher command, and in the       full knowledge that a savage fate awaited those he was       repatriating.         ... Those who still feel that a man with the blood of 70,000 men,       women and children on his hands, helpless charges whom the       Supreme Allied Commander was making every attempt to protect, a       suitable Warden for Winchester might care to ask themselves (or       Lord Aldington, if they can catch him) the following questions:       ...         Lord Aldington has been repeatedly charged in books and articles,       by press and public, with being a major war criminal, whose       activities merit comparison with those of the worst butchers of       Nazi Germany or Soviet Russia.   ..."   16.    Lord Aldington sued for libel.   The proceedings were originally brought against Mr. Watts and the applicant was joined later at his own request.         In his statement of claim Lord Aldington claimed that         "In their natural and ordinary meaning the words contained in the       said document meant and were understood to mean:         1.   That the plaintiff in the full knowledge of the savage fate       of his victims and in the full knowledge that his actions were       throughout disapproved and unauthorised by higher command,       arranged every detail of the massacre of 70,000 men, women and       children, and by a combination of duplicity and brutality without       parallel in British history since the massacre of Glen Coe,       compelled his subordinates to commit horrifying and nightmarish       atrocities and was guilty of gross violation of the laws of war       and humanity and flagrant contravention of the Geneva Convention       on Prisoners of War, and         2.   That the plaintiff was a major war criminal whose activities       merit comparison with those of the worst butchers of Nazi Germany       or Soviet Russia."   17.    The defence pleaded "justification" and "fair comment", the particulars of justification including the following:         "The plaintiff was therefore responsible for the torture, brutal       treatment and/or death of about 35,000 Yugoslavs following the       Second World War."   18.    Lord Aldington initially wanted the trial to be before a single judge, but the applicant exercised his right to a jury trial.         The trial began on 2 October 1989.   The judge devoted some 10 pages of his summing-up to the question of the assessment of damages if defamation was established.   He advised the jury, inter alia, as follows:         "... Let us now, members of the jury, ... deal with the aspect       of damages... I have to give you this direction in law because       damages may arise ... If the plaintiff wins, you have got to       consider damages ... the means of the parties - the plaintiff or       the defendant - is immaterial ...         Neither, as I think I said earlier but I say it now, is the       question whether Lord Aldington or Count Tolstoy, or for that       matter Mr. Watts, have been or will be financially supported by       any well wishers as to damages relevant at all.   Nor is it       relevant the undoubted fact that legal aid is not available in       libel cases to a plaintiff or a defendant.   All irrelevant, and       if it is to be changed it is up to Parliament to do something       about it...         ... what you are seeking to do, what a jury has to do, is to fix       a sum which will compensate the plaintiff - to make amends in       financial terms for the wrong done to him, because wrong has been       done if you have got to the stage of awarding damages.   It is not       your duty or your right to punish a defendant ...         What [Lord Aldington] does claim, of course, is for 'general       damages', as lawyers call it, a sum of money to compensate him.       First of all, you have to take into account the effect in this       case, as in every case where there is libel, on the position,       standing and reputation of the successful plaintiff ...         Members of the jury, of course, you must not, as a result of what       I have just said, just bump and bump the damages up.   You must,       at all times, as they say, keep your feet on the ground.         ... You have to take into account the extent and nature of the       publication.         ... whilst you must leave aside any thought of punishing the       defendants if you find for the plaintiff, juries are always       entitled, as I have hinted already, to take into account any       conduct of the defendant which has aggravated the damages - that       is to say, made the damage more serious and the award higher -       or mitigated them - made the damage done less serious and the       award smaller.         ...         Now, two general remarks which I make in every case:   nobody asks       you how you arrive at your verdict, and you do not have to give       reasons like a Judge does, so it is exceedingly important that       you look at the matter judicially, and that means that you should       not be outrageously or unreasonably high, or outrageously or       unreasonably low.         The second matter I say to every jury is:   please, I beg you, if       you come to damages, do not pay the slightest attention to any       other case or the result of any other case you may have read       about or heard about.   The facts and the legal considerations are       like to have been completely different.   There is no league of       damages in defamation cases.   There   is no first division, there       is   no fourth division, there is no Vauxhall conference, if any       of you are interested in football.         So, members of the jury, please forget other cases.   Use your own       common sense about it.   How do you translate what I have said       into money terms?   By our rules and procedure, members of the       jury, counsel can use, and a judge can use, words like 'very       substantial' or 'very small', but we do not either of us, counsel       or judges, mention figures.   Some people again, who have not       really considered the matter very carefully, wonder about that,       and they say juries should be given guidance, and I say to you       what I say to every jury in these cases, it would not be a great       deal of help for you, because inevitably, it is human nature and       it would be their duty - counsel for the plaintiff would be at       the top end of the scale and perhaps in some cases, I do not       suggest this one, off the clock, and counsel for the defendant       would be at the bottom end of the scale in the basement.   Now,       that would not be much good to anybody.   As for the Judge, well       the jury might think - you may have an exactly opposite view -       a jury might think;   'Well, on the whole, whatever other people       say about this particular Judge in this case, we think he tried       to be fair, why doesn't he suggest a figure to us?'         Supposing a Judge, myself in this case, were to suggest a figure       to you, or a bracket between so and so and so and so, there would       be two possibilities:   one is that you would ignore what I said       and either go higher than my figure or bracket, or much lower,       in which case of course the losing party that did not like it       would be off to the Court of Appeal saying: 'Look, the Judge       suggested a figure and the jury went above it or below it'.         Supposing you accepted my suggestion, and gave a figure that I       recommended, or close to it.   Well, all I can say is that you       would have been wasting your valuable time in considering the       matter of damages because you would just have been acting as a       rubber stamp for me, or the Judge,   whoever it was.   So we do not       have that over-bidding or under-bidding, as the Court of Appeal       has called it, by counsel, and we do not have Judges trying to       lay down to juries what they should award, and I do not hesitate       to say, whatever other people say, I hope and pray, for the sake       of our law and our court, we never get the day when Judges       dictate to juries so that they become rubber stamps.         I am, however, allowed - indeed encouraged - by the Court of       Appeal just to say a little bit more.   I say it not perhaps in       the words of the Court of Appeal, but in my own way, which may       be too homely for some, but I say to you that you must remember       what money is.   You do not deal in Mickey Mouse money just       reeling off noughts because they sound good, I know you will not.       You have got to consider money in real terms.   Sometimes it is       said 'Well, how much would a house cost of a certain kind', and       if you are giving a plaintiff as compensation so much money how       many houses is he going to buy?   I do not mean to suggest that       Lord Aldington or any other plaintiff would take his damages and       go and buy a house or a row of houses, but that relates it to the       sort of thing, if you will allow me to say, you and I do know       something about, because most of us have a pretty good idea how       much houses are worth.   So remember that."   19.    On 30 November 1989 the jury returned its verdict that the statements of fact made in the pamphlet were not substantially true, that the pamphlet contained expressions of opinion, that those expressions of opinion were not fair, in the sense that they could not honestly be made by a fair-minded man, that they found for Lord Aldington and not for the defendants, and awarded damages amounting to £1,500,000.   An order that the applicant should pay Lord Aldington's costs was also made.   20.    The applicant gave notice of appeal, setting out eight grounds of appeal:   1.     The learned judge displayed throughout the course of the hearing       overt animosity towards the defendant.   2.     The learned judge sought unfairly to discredit this defendant's       case by continual interruption, sarcasm and abuse of counsel       acting on his behalf.   3.     The learned judge insulted and disparaged witnesses called on the       defendant's behalf.   4.     At no time did the learned judge display any such animus or       prejudice towards the plaintiff, his counsel or his witnesses.   5.     The learned judge invited the jury to accept statements made by       Dr. Robert Knight on behalf of the plaintiff about matters of       expertise regarding which Dr. Knight was manifestly unqualified       to speak.   6.     Above all, the learned judge, throughout his summing-up wholly       or in large part suppressed or ignored many of the most important       aspects of the case for the defence, presented others in so       confused, abbreviated or disparaging a manner as to nullify their       effect;   and distorted others in a fashion calculated seriously       to mislead the jury on issues central to this defendant's case.   7.     When directing the jury on the question of damages, the tenor of       the learned judge's remarks was in large part to urge the jury       to award high damages to the plaintiff and to discount the       alternatives which were reasonably available on the evidence.   8.     The damages awarded were in any event unreasonable and excessive.   21.    Lord Aldington applied for security for costs under Order 59, Rule 10, para. 5 of the Rules of the Supreme Court 1965, that is, that the applicant should be required to give security in an amount which would cover the costs of Lord Aldington's representation if the appeal were to be unsuccessful.   It was not disputed that the applicant would not be able to pay Lord Aldington's appeal costs if the appeal were unsuccessful.   22.    The application for costs was heard by the Registrar of the Court of Appeal.   In the course of the hearing he reduced Lord Aldington's solicitors' estimate of their costs on appeal from £188,000 to £124,900.   The Registrar gave a reserved, 22-page judgment on 18 May 1990.   He recalled that impecuniosity was not a ground for awarding security for costs at first instance, although it was in respect of the costs of an appeal to the Court of Appeal.   In deciding whether, in the exercise of its discretion, it would award security for costs, the Court would take into account the merits or otherwise of the appeal concerned. The Registrar referred to an open offer by Lord Aldington on 2 February 1990 of an undertaking not to enforce £1,200,000 of the damages awarded.   The Registrar considered that, subject to the question of whether an appeal on quantum only would be academic because of the offer to accept reduced damages, security for costs should not be awarded in respect of the appeal on quantum.   As to liability, the Registrar considered the facts raised by the applicant, together with purported new evidence, and concluded that, in respect of five points, his case had "just enough strength to lead [him] to conclude that security for costs should not be awarded in this case."   He stated that         "...It may be that, if (and I emphasise if) Count Tolstoy       succeeds in convincing the Court of Appeal that he has not had       a fair trial, and his case has not been fairly and clearly put       to the jury, the Court of Appeal might well conclude that a new       trial had to be ordered (following the approach adopted recently       by this Court in X v. Cain), notwithstanding the fact that the       chances of the appellant succeeding on the new trial were slim.         Having reached the conclusion that security should not be awarded       even on the liability appeal, it is not necessary for me to deal       with the question whether security on a quantum only appeal would       be called for on the grounds that it was academic."         He decided that security for costs should not be awarded.   23.    Lord Aldington appealed against the Registrar's decision to the full Court of Appeal, which heard the matter for six days from 9 to 17 July 1990 and gave judgment on 19 July 1990. Sir Stephen Brown, presiding, recalled the law, and recalled that the Court now had to consider the application afresh and to decide whether to order security would amount to a denial of justice to the applicant, having regard to the merits of his appeal.   He then went through the proceedings, noting that no criticism was made in the applicant's grounds of appeal of the judge's directions on the law.   Criticism was directed particularly at the way in which the judge behaved to the applicant and the way in which the judge dealt with three particular issues of fact.   He went on:         "Each member of this court has perused the transcripts with great       care.   I have read the transcript of the summing-up and the       transcripts of the addresses of counsel, both before and after       hearing the criticisms which have been made by Count Tolstoy.       I do not consider that Count Tolstoy's criticisms are justified.       The judge clearly left to the jury the decision on the facts of       the case.   All the major matters were in my judgment dealt with       fully and fairly.         The judge's repetition of Mr. Rampton's questions at the end of       his summing-up quite clearly brought to the jury's minds the       matters which the defence contended were of primary significance.       Counsel were given full opportunities to raise matters of alleged       error, and when they deemed it necessary they did so.       Furthermore the principal witnesses were in the witness box for       some 13 days in all.   Lord Aldington, who was the central witness       in the case in the sense that it was his conduct which was the       subject of examination, was in the witness box for no less than       six and a half days.   It is inconceivable that the jury did not       take fully into account and act on the evidence of the principal       witnesses who were so comprehensively examined and cross-examined       upon all the material issues in the case.         This was essentially a case for a jury.   It is to be observed       that at a preliminary stage when Lord Aldington had asked for the       case to be tried by a judge alone, Count Tolstoy resisted his       application. The case was duly tried by a jury.   In my judgment       it was correct that this case should have been tried by a jury.       It was a classic case for a jury to decide.   It is further clear       from the judge's enquiry made in the course of the trial as to       the status of the jurors, though not their identities, that this       was an intelligent jury.         In the result I do not believe that Count Tolstoy has any       reasonable chance of making good his grounds of appeal or any of       them.   There is no merit in them.       ...         ... on the issue of liability I am unable to discern any merit       in the appeal.         The quantum of damage is a very large sum.   However, there is no       doubt that the learned judge gave an impeccable direction on       damages.   Count Tolstoy has argued that the judge invited the       jury to give excessive damages.   A correct reading of the       transcript shows that he did just the opposite.   There is no       merit in that submission. The award was entirely within the       jury's discretion and they received a very full direction about       it.   I have no doubt that it was meant to mark their view of the       enormity of the gross libel which had been published and       persisted in.         ...         In my judgment this is a clear case for an order for security for       costs.   The Registrar at the hearing before him considered the       amount of the estimated costs of the plaintiff on the proposed       appeal and he reduced his solicitors' estimate of £188,000 to       £124,900, using his knowledge and expertise in this particular       field. I would adopt the learned Registrar's approach on that       particular matter.   Accordingly I would allow the plaintiff's       appeal from the Registrar, and order that security for costs be       provided by the defendant in the amount of £124,900 within       14 days."   24.    Lord Justice Russell, agreeing, added:         "The court will be very slow to interfere with the jury's verdict       unless there has been some material irregularity in the       proceedings which renders the verdict unsafe or unsatisfactory,       or it can properly be said that the verdict is perverse.   Much       the same considerations must apply in the instant case.         As to any irregularity in the proceedings, I detect none. ...         This case, and the jury's verdict, depended essentially upon the       veracity of Lord Aldington.   No document or documents were       produced which on their face could destroy Lord Aldington's       credibility.   If the jury had disbelieved Lord Aldington, there       would have been an end of his case.   The fact that the jury found       in his favour and awarded him the damages that they did       demonstrates that upon the vital issues of the case they must       have accepted the plaintiff's evidence.   Was that a course which       was open to the jury? In my judgment, it plainly was.         The reality of this case is that Count Tolstoy at all stages       wanted the verdict of a jury.   Lord Aldington, because of the       costs involved, wanted trial by judge alone.   Count Tolstoy's       preference prevailed.   He has fought this case and he has lost.       He has lost because it was the jury that found against him.   They       saw and heard the witnesses.   They were not misled by the judge.       The verdict was the jury's verdict and Count Tolstoy should now       accept it.   If he cannot accept it he should at least acknowledge       that it was a verdict the jury was entitled to return.         There is not in my judgment the remotest chance of the Court of       Appeal interfering with the jury's finding in the plaintiff's       favour and directing a retrial of that issue, either on the basis       that the verdict cannot stand or on the basis of fresh evidence       which Count Tolstoy seeks to introduce. ...         Finally, upon the issue of damages, Count Tolstoy had been       offered in an open letter the substitution of £300,000 for the       one and a half million pounds awarded by the jury.   The libel       remains as serious a libel as it is possible to imagine.   Any       appeal upon quantum alone would be no more than an academic       exercise.   Count Tolstoy wishes to re-open the whole case.   In       my judgment, the defendant being impecunious, justice demands       that he should provide security for the plaintiff's costs of any       appeal."   25.    Lord Justice Beldam, also agreeing, considered that:         "It would be difficult to conjecture an allegation more       calculated to bring the respondent into the hatred and contempt       of his fellow men and the evidence showed that it was       deliberately circulated with the aim of encouraging the       respondent to sue him, thus giving the appellant the opportunity       to challenge in public the respondent's conduct 45 years ago. ...         That this archaeology of the archives failed to convince the jury       of the truth of the very grave charges levelled against the       respondent was amply demonstrated by their award to the       respondent of the unprecedented and enormous sum of damages of       £1.5 million.   It was as resounding a demonstration of public       reproof of the appellant's conduct as could possibly be       imagined."         He also stated:         "It is not for this court to grant a retrial after the verdict       of a jury, even if it thought that a reasonable jury ought to       have found differently.   The test which, on the hearing of the       appeal, this court would have to apply is whether the finding of       the jury is absolutely unreasonable that it can be said that they       have not performed the judicial duty cast upon them.   Again I       have listened to the skilful development of the facts and       evidence by the appellant. He has failed to satisfy me that he       has any reasonable chance of success in this appeal.   Even if he       persuaded the court to grant a retrial on the issue of the amount       of the damages, I would regard as negligible the prospect of any       jury, doing their judicial duty, awarding the respondent [Lord       Aldington] less then the sum which he has in reality already       offered to accept in compromise of this appeal."   26.    The Court ordered the applicant to provide security for Lord Aldington's costs in respect of the appeal in the sum of £124,900.   The Court further ordered that in the absence of such payment the applicant's appeal stand dismissed.   A request by the applicant for more than 14 days to attempt to raise the money was refused.   The applicant was ordered to pay Lord Aldington's costs in the security for costs proceedings.   The Court's judgment runs to 23 pages.         The applicant did not furnish the required security and his appeal was dismissed on 3 August 1990.   B.     Relevant domestic law and practice   27.    Halsbury's Laws of England describes the domestic law on libel and slander as follows:         "In English law ... every man is entitled to his good name and       to the esteem in which he is held by others, and has a right to       claim that his reputation shall not be disparaged by defamatory       statements made about him to a third person or persons without       lawful justification or excuse.         If a defamatory statement is made in writing or printing or some       other permanent form the tort of libel is committed and the law       presumes damage.       ...         The actions of libel and slander are ... private legal remedies,       the object of which is to vindicate the plaintiff's reputation       and to make reparation for the private injury done by the       wrongful publication to a third person or persons of defamatory       statements concerning the plaintiff.   The defendant in these       actions may prove the truth of the defamatory matter and thus       show that the plaintiff has received no injury.   For although       there may be damage accruing from the publication, yet, if the       facts published are true, the law gives no remedy by action.       ...         A defamatory statement is a statement which tends to lower a       person in the estimation of right thinking members of society       generally or to cause him to be shunned or avoided or to expose       him to hatred, contempt or ridicule, or to convey an imputation       on him disparaging or injurious to him in his office, profession,       calling, trade or business.       ...         Actionable libel.   A libel for which an action will lie is a       defamatory statement made or conveyed by written or printed words       or in some other permanent form, published of and concerning the       plaintiff to a person other than the plaintiff."         [from: Halsbury's Laws of England, Fourth Edition, Vol. 28, paras. 1 and 10].   28.    Order 59 Rule 11 of the Rules of the Supreme Court provided at the relevant time         "(1) On the hearing of any appeal the Court of Appeal may, if it       thinks fit, make any such order as could be made in pursuance of   &#