There’s new legal paperwork up at Brian Deer’s personal site. It reveals some very interesting facts about two things: First that Andrew Wakefield is instructing his legal team to use his Libel action against Brain Deer as a ‘gagging order’ and secondly that Andrew Wakefield is obviously getting extremely nervous about the effect his GMC hearing will have on his Libel case.
There are three separate actions involving Andrew Wakefield and Brian Deer. One is between Wakefield and the Sunday Times, the other between Wakefield and Brain Deer personally (in respect of his website) and a third one (the one under discussion here) between Wakefield and Channel 4/Twenty twenty Productions.
The ruling judge in this case first said that it was certain that the outcome of just one of these actions would determine the outcome of the others as all three rest on the exact same subject matter. [edit – not sure I got that exactly right – if anyone reads it and comes to a different conclusion, please let me know]
Andrew Wakefield has applied for a ‘stay’ in this case (the C4/2020 one). This means he essentially wants to put this action ‘on hold’. He wants to do this because he claims that the GMC case has seniority over this one. Justice Eady remained distinctly unimpressed with this argument:
In the light of this timescale, it is impossible to envisage the trial of these libel proceedings taking place before the Michaelmas term of 2007. Much of the evidence relating to the issue of justification relates to the mid-90s and a delay of that kind would be plainly undesirable. It would, moreover, involve a gap of three years between the broadcast in question and the trial. That is beyond what is normally regarded as acceptable in the modern climate for the span of a libel action between publication and trial – even in a complicated case…
In British law it is part of the case to consider that a Libel action should be acted on as hastily as possible as the defendant may have good need to clear their name – people like Brian Deer for example who, as an investigative journalist, needs to be trusted to be employable.
So why would Wakefield wish to grant a stay to after the GMC hearing? Because he wants to ‘test the water’ with the GMC action which at most can strip him of his license – a minor inconvenience for one who’s already making a living in Texas – whereas a libel action can strip him of a hell of a lot more. I’m guessing that when things go bad for him and the GMC strip him of his license that all other actions will be quietly dropped.
However, even though he has asking for a stay of this particular action Andrew Wakefield is not above using it as a weapon to browbeat people:
These factors loom even larger in the present case in the light of certain conduct on the Claimant’s part which Miss Page has prayed in aid. It is her case that *the Claimant is seeking to take full advantage of the fact that he has issued libel proceedings while avoiding any detailed public scrutiny of the underlying merits*. In other words, she argues, he is seeking to adopt a strategy comparable to that generally characterised by the phrase “a gagging writâ€. It is necessary to consider these allegations in a little further detail.
A few of you may remember that Wakefield took part in their original Power of Parents rally in the US during which he read an extract of a statement in which a small British paper (the Cambridge Evening News) backed down from a report it had made about Wakefield. Obviously the American parents lapped it up to riotous applause. However, what had _actually_ happened is that Wakefield had instructed his legal team to threaten the Cambridge Evening News with an action like that he had over the Sunday Times:
“You should be aware that proceedings in defamation have already been commenced against The Sunday Times in respect of the article published by Mr Brian Deer on 22nd February 2004. Your article has gone even further than the allegation in The Sunday Times which are currently being litigated and allege impropriety on the part of Mr Wakefield to receive money from lawyers to achieve a predetermined outcome.â€
Justice Eady took exception to this:
In my view that paragraph was misleading. Mr Browne (Wakefield’s QC) argues that, even if the circumstances had been set out more fully and accurately, it would have made no difference to the outcome. The editor would still have acknowledged that he had got his facts wrong. That may be, but the important point at the moment is that the editor was given a misleading impression. Because of the stay, to which I have referred, the allegations in The Sunday Times were certainly not “currently being litigatedâ€. They were stayed pending the outcome of serious allegations of professional misconduct against the Claimant, to which no reference was made. It thus appears that the Claimant wishes to use the existence of the libel proceedings for public relations purposes, and to deter other critics, while at the same time isolating himself from the “downside†of such litigation, in having to answer a substantial defence of justification.
And there’s more: Dr Evan Harris MP had criticised Wakefield on a radio programme. He also got a letter:
“[Mr Andrew Wakefield] has asked us to inform you that defamation proceedings have been instituted against Mr Brian Deer and The Sunday Times newspaper in relation to articles that have been appeared [sic] and statements that have been made by them which are defamatory of [him]………..Mr Wakefield has drawn our attention to a number of statements made by you in connection with Mr Wakefield and the question of MMR both in newspapers and in BBC broadcast programme……Given … the fact of litigation having been instituted in defamation and the existence of the General Medical Council inquiry we hope you will agree that further comment on Mr Wakefield’s conduct by you or anyone else should be limited until the outcome of those proceedings has been determined. This will avoid Mr Wakefield having to consider further legal proceedings at the present timeâ€.
Justice Eady took a grave view of this too:
I regard that as a threat that libel proceedings will be issued against Dr Harris unless he “limits†any further comment – not in itself objectionable. On the other hand, the threat is backed up by reference to litigation against The Sunday Times and Mr Deer which, by the date of the letter, had already been stayed. The implication is that for rather vague “sub judice†reasons it would not be appropriate to comment until the proceedings have been determined. At that stage none of the libel actions was “active†within the meaning of the schedule to the Contempt of Court Act 1981 and there was accordingly no reason why Dr Harris should not comment further, if he wished to do so, subject always to the constraints of defamation. Again, one sees the same pattern. The Claimant wishes to use the proceedings for tactical or public relations advantage without revealing that they have been put on the back burner.
And, incredibly, Wakefield also instructed his team to go after the Dept. of Health:
“…In the circumstances Mr Wakefield is concerned and surprised to note that your official website on behalf of the Department of Health offers links not only to Mr Deer’s own website, but also the Channel 4 website on the programme. It seems extraordinary to us and wholly wrong that the Government’s official organ should direct website visitors to another site which not only records partisan and hotly disputed opinions on the subject but is also the subject of defamation proceedings. You will appreciate our grave concern that this fact appears to suggest that Government offers this subject matter official weight and authority.”
This letter is intended to provide formal written warning that the links provided to these two websites are allowing the dissemination of defamatory material. Since this is so you are now invited to withdraw the Department of Health link to these two websites forthwith given that this is an inappropriate use of Governmental weight and authority in such a controversial areaâ€.
Just as a side note I find it incredible that anyone should try and go after a website which links to Brian Deer’s. For their further legal presumption I’d like to present a list of sites that link to Brian Deer’s. I await your issue of a writ against Wikipedia and Google with interest.
Anyway, back to Justice Eady:
I am quite satisfied, therefore, that the Claimant wished to extract whatever advantage he could from the existence of the proceedings while not wishing to progress them or to give the Defendants an opportunity of meeting the claims. It seems to me that these are inconsistent positions to adopt. This conduct is a powerful factor to be weighed in the exercise of the court’s discretion in circumstances which are clearly unique.
And indeed so powerful that Justice Eady ruled that:
I have come to the conclusion, bearing all these considerations in mind, that the interests of the administration of justice require that the Channel 4 proceedings should not be stayed pending the outcome of the GMC proceedings. I appreciate that there will be an increased workload for the Claimant’s advisers, but I do not have any reason to suppose that the firm is incapable of absorbing that extra burden. It is, after all, their client who chose to issue these proceedings and to use them, as I have described above, as a weapon in his attempts to close down discussion and debate over an important public issue. (I note that separate teams of counsel are instructed for the GMC proceedings and the defamation claims.)
So far as the website proceedings are concerned, I see no advantage in those continuing in parallel. There is a significant overlap. I am persuaded that this overlap is so significant, in relation to the defamation proceedings (unlike the GMC disciplinary process), that the outcome of the Channel 4 proceedings is likely to be in practical terms determinative of the others. Mr Deer acts in person in the website proceedings, and a very considerable burden would be placed upon his shoulders if he had to progress that litigation in parallel to the other action, in which he has the advantage of legal representation. Indeed, it may well be that there is a whiff of tactics in the Claimant’s change of stance, whereby he wished to have the website proceedings continue – but only provided there was no stay of the Channel 4 litigation. This is borne out by the suggestion that, before the Claimant should serve his reply, Mr Deer should be obliged to serve a defence in the website proceedings. That proposal has all the hallmarks of a tactical ploy to put Mr Deer at a disadvantage. It would have the effect of isolating him. I am not prepared to go along with that.
Its not looking good for Andrew Wakefield. He’s now been exposed as a bully who likes to threaten with what he has no intention of pursuing. He’s also looking like he’s beginning to realise that he has no chance of escaping the GMC hearings unscathed. Hopefully all those who like to bandy around legal action as a threat will see that a hot head often gets regretted when the facts are examined.
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