MAX ATTAQUE

In his fight over lurid press stories about his sex life, FIA President Max Mosley has issued proceedings in France against the News of the World (for defamation and invasion of privacy) as well as his privacy action in England.  It is not the first time prominent individuals have taken this step in media litigation, and opened up a second front in France.

Shrewd use of the differences between French and English law can give a decisive advantage.  Sometimes, it involves less obvious strategy.  I was acting for defendants recently who were sued for libel in London by a US resident.  The English court can order foreign claimants to pay security for costs, a substantial payment to be held by the court in London to guarantee that a winning defendant will be able to recover costs without too much difficulty.  In this case, the claimant gave a cherished second home in France as his official address in the litigation - security for costs is normally not ordered where a claimant has assets in Europe (the theory being that European legal harmonisation makes costs enforcement unproblematic within Europe).

I thought that this French property, close to the claimant's heart, could be a key factor - I remembered from my days as a trainee in Paris that French law allows much more draconian powers to freeze property where there is a pending dispute.  It was unprecedented to use the power in this way, but my legal confederate, Rennes advocate Dominique de Fremond, successfully applied to the French court to place a judicial mortgage over the claimant's house.  This was on the basis that our clients had a potential debt claim against him for their costs in the event that he lost his London libel action, and that they might have trouble recovering that debt in the USA.   The claimant launched an appeal which was never heard, because this and other tactical pressure forced him to abandon his action.  Backed by the guarantee of the French judicial mortgage, my clients were able unproblematically to recover straight away almost all the substantial costs they had been forced to expend to defend the claim.

Closer to the tactics currently being deployed by Max Mosley, a couple of years ago the Barclay brothers (owners of the Telegraph group) sued for libel in France over an article in The Times.  The case was settled but in preliminary hearings in Paris, a judge ruled that the French courts did have the jurisdiction to deal with the action.  The reason given by the Barclays' lawyers for suing in France was that the legal system was "quicker" and more "efficient" than in England.  In fact, the offending article was published in November 2004 and the case was resolved in February 2007.  That is longer than most libel actions in England nowadays - no doubt the preliminary hearings delayed things (and the precedents set by the Barclays may well make subsequent similar actions more efficient), but even complicated actions in England can normally be taken all the way to full trial in a much shorter time than that.

So is Mr Mosley wise to sue for libel in France? Superficially, French libel law looks more draconian: libel is a criminal matter there.  But the maximum fine is just €12,000 (£8,200) and any associated damages claim will be moderate by British standards.  There is no prison sanction, and a successful party has far more limited rights to recoup his costs from the loser than in England.  It is true that the costs are likely to be a lot lower, and above all (unlike here) the court can order a paper to publish a correction. 

It is open to doubt whether those two advantages make the decision to sue for libel in France a particularly good idea for a rich man like Mr Mosley.  There is no room here to go into whether suing for libel AT ALL is a smart idea, given the apparent evidence available to the newspaper.

The privacy side of his French action is a different matter.  The punishment for breach of privacy is tougher in France - again, the matter is criminal: publishers and journalists are looking at a maximum year in prison and a €45,000 fine.  Plus, the French law of privacy is more developed, more certain and more efficient than in England.  Above all French law on privacy is stricter that here.  I have advised a leading cinema performer who is frequently in the press in France and England.  Having often made successful and swift privacy complaints in France, this individual has been deterred from action in England by the costs and uncertainty of the current law here. 

It will be interesting to see what the attitude of the French criminal law system will be to the unique facts of the case, in particular, the video of Mr Mosley.  Leaving little room for imagination or doubt as to what he was up to, the video is widely available on the web, not least on the News of the World's website.  Mr Mosley failed in an emergency application to the English court seeking an injunction over the video.  He also made an emergency application to a civil judge in France at the end of April - the French court also refused to make an order about the newspaper's website including the video, but did grant him an injunction over print copies of the paper carrying the story.  This was specifically because there was self-evident "violation of the intimacy of his private life", and was conditional on him going on to start full criminal proceedings.

Mr Mosley will almost certainly get a swifter trial of his privacy complaint in Paris than in London.  He stands a greater chance of it being in his favour than in London.  I would therefore be surprised if the London privacy action ever gets to trial.  Whether his strategy will pay off in this remarkable case, only time and possibly a judge or two in Paris will tell.

Nick Armstrong is a partner in the media law group at Charles Russell LLP, London

Dominique de Fremond is a partner in Pagès Briand de Fremond, Rennes, France