LONDON, England — The big Privy Council libel award in the Tony Abrahams case is apparently raising concerns about its potential for “a chilling effect” on the British press and restoring to London its 1980s reputation as the “libel capital of the world”.

“The worry for journalists is that what was famously described by Lord Keith, in a 1993 Court of Appeal judgment as the ‘chilling effect’ engendered by a fear of libel might be back,” wrote Alex Wade in the August 12 law section of Review magazine of the Independent newspaper.

“The Privy Council appears to have gone where no court has sought to tread, and baldly stated that the chilling effect is no bad thing,” added Wade in a review of the June Privy Council ruling in favour of Abrahams against the Gleaner Company, publishers of the Gleaner and Star newspapers. “Into the bargain, the claimants are walking away with a libel award of £533,000. Could this herald a fresh blast of the chilling effect?”

In fact, the J$35-million in damages that the Privy Council upheld for Abrahams — the former tourism minister who now hosts the HOT 102 FM talk show, The Breakfast Club — is now worth substantially less than the half-million pounds it valued when the Jamaican Appeal Court made that award in 1997. That is the result of devaluation of the Jamaican dollar and the strengthening of the sterling.

But the point for Wade and others who have expressed concern is that at the time, it was more than twice what was the prevailing ceiling set on English libel awards. Moreover, while Privy Council rulings are not binding on English courts, they are, in the jargon of the judiciary, “strong persuasive authority”.

Indeed, four of the five judges who sat on the Abrahams case are from the House of Lords, a fact that was not lost to libel lawyers such as Nigel Tait.

Tait, of the firm Peter Carter-Ruck and Partners, told the Independent: “The fact that the majority of judges were from the highest court in the land will have given our High Court and Court of Appeal food for thought on the question of whether libel damages in England should remain capped at £200,000.”

Unlike the United States with its Sullivan vs New York Times ruling, the British, like the Jamaican press, do not enjoy substantial cushion against libel, particularly in cases involving public officials.

So in the 1980s, British juries dished out a series of healthy libel awards against famous personalities.

For instance, the singer Elton John was famously awarded £1.25 million pounds for libel by the tabloid, The Sun.

Lord Jeffrey Archer, the novelist and former Tory Party chairman, won £500,000 from the Star, but over which he latterly went to jail for having perjured himself and perverted the course of justice. Archer is only recently out of prison.

In the heart of the British establishment, Lord Aldington won £1.5 million against Count Tolstoy for libellous claims about Aldington’s war record.

England’s place at the top of the league table of libel was established.

But the high awards were regularly cut at appeal and juries themselves scaled back their offerings.

Said Wade in his Independent article: “It was a brave new world for publishers and journalists.”

But the Abrahams ruling, he is concerned, may mean “that the almost risk-free days may be over”.

Indeed, it is a concern shared by Tait. He was quoted as saying; “When damages were cut by various Courts of Appeal, this became one factor that meant libel was no longer so enticing.

“With the Abrahams case, a large jury award is not going to be so amenable to appeal. And the idea of compensation creep — where a jury will want to award more than its predecessor — will come into play.”

Tony Abrahams was in the courts for 16 years, surrounded by allegations of misconduct when he served as Jamaica’s tourism minister between 1980 and 1984.

It started with a news story out of the United States by the American wire service, the Associated Press (AP), alleging that Abrahams was under investigation in the US for taking kickbacks from an advertising agency.

The claim grew out of remarks by the American novelist, Robin Moore, who was under grand jury investigation for alleged tax evasion.

AP withdrew the original story, which had no input from Abrahams, but it found its way through the system into the Star, the Gleaner Company’s afternoon tabloid. The same story was subsequently run by the Gleaner, without the updates and input from Abrahams that were added by AP.

The issue was further complicated by a clarification by the Gleaner to point out that the former tourism minister referred to in the story was not Hugh Hart, who was then in-charge of the portfolio. There was also a delay in publishing a response from Abrahams.

For the next decade, the case meandered through the court, with the Gleaner claiming qualified privilege as its defence, but, for various reasons, being unable to present the supporting documentation for its defence.

By 1996, the Jamaican Supreme Court had struck out the Gleaner’s defence and the arguments at the hearing were essentially to determine the quantum of damages to Abrahams.

A Jamaican jury granted him J$80.7 million in damages, which was then £1.2 million, far in excess of what was then being granted in British courts. The Gleaner appealed and the award was lowered to J$35 million.

The Gleaner further appealed to the Privy Council, Jamaica’s court of last resort, on the grounds that such an award would weaken the newspaper’s constitutional right to free expression as guaranteed by Section 22 of the Jamaican constitution.

Moreover, the Gleaner, led by its managing director and chairman, Oliver Clarke, has argued that few newspapers in the Caribbean could pay damages at that level, plus costs, and survive.

The Privy Council, in their decision delivered by Lord Hoffman, insisted that the Abrahams case was not about free speech and the right to publish on which the high award would have a negative impact. Rather, the law lords suggested it was primarily about the serious damage to a person’s character and the ill-tempered behaviour of a newspaper over the long period.

“This is not a case in which freedom to publish is in issue,” said Lord Hoffman in the judgment. “It is accepted by the defendants, even though with bad grace, that publication was wrongful and fell outside the permissible limits of Section 22(1). So the only question is whether the damages were no more than was necessary adequately to compensate the plaintiff. For the reasons already stated at length, their Lordships would not interfere with the Court of Appeal’s assessment of the necessary amount. They were entitled to take the view that if it had a chilling effect upon this kind of conduct, that would be no bad thing. Their Lordships see no reason to think that the award of so large an amount in the special circumstances of this case will inhibit responsible journalism.

For some, this is the mitigating circumstance of the Abrahams judgment — that it was a response to a peculiar set of circumstances in a specific environment.

Indeed, Gill Phillips, an in-house lawyer for the Times and Sunday Times who was quoted by Wade, offers this argument: that the Privy Council ruling should be viewed in its Jamaican context rather than in broad application to libel settlements in England.

She said: “One of the judges, Lord Hoffman, was at pains to emphasise that there was no question of press freedom in the case, and went on to say that responsible journalists have nothing to fear from the judgment.”

Rather, she said, it was “clearly targeted at discouraging irresponsible journalism and poor subsequent conduct”.

Many, however, are not so sanguine.

Indeed, Tait, whose firm is known for its work in prosecuting libel claims, assumes that there will be an erosion of the £200,000 damage ceiling with “awards of £300,000 to £400,000 upheld in the near future”.

Everything else apart, the underlying impact of the Abrahams judgement in England, according to the Times’ Phillips, is as a reminder of the dangers of libel claims.