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JULY 25, 2008


Max Mosley has today issued proceedings against the News of the World for libel.

Following his privacy claim, Mosley is now pursuing a claim for damages and aggravated damages in relation to defamatory allegations in the April 6 edition of the News of the World. This relates to the newspaper calling Mosley a liar, rather than to the allegations of a Nazi theme. The News of the World will obviously continue to try to prove that Mosley was lying, and that will no doubt involve further investigation into evidence that may relate to that claim. The suggestion from NotW in the first case was that e-mails that were deleted by Mosley might hold the key to the case, but no-one was able to prove what these e-mails had said.

The judge said that the woman's deletion of e-mails occurred "after the publication of the News of the World story" and that Mosley's "so far as one can tell" happened before the event. He said that the deletions "seem to have been prompted, albeit with no great urgency, by the warnings he had received that he might be under surveillance by unidentified persons with the motive of trying to undermine his character or reputation in the motoring world". Mosley said in the witness box that the e-mails would "confirm that there had been no Nazi or concentration camp element in the planning".

The News of the World said they would have done the opposite.

"It has to be accepted that, in the light of the evidence, it is not possible to come to a definitive conclusion as to precisely when, or why, the claimant's email traffic was deleted;" he judge concluded. "Nor is it possible to conclude how much of it was irretrievably lost, how much of it could be recovered with expert assistance, or what it contained."

The judge added that "there might be something in" the claims made by the News of World "if it could be shown that the claimant deleted his emails after the allegations were made in the News of the World. It might in those circumstances be possible to draw an inference that he had something to hide, bearing upon the very allegations made against him. Since the only evidence points, however, to the deletions having taken place prior to the party, it does not seem to me to have any potentially sinister significance of that kind".

The News of the World, therefore, is going to struggle to defend the case, unless it can find traces of what the e-mails said and when they were deleted.

When all is said and done, however, the News of the World has come out of the affair looking less than impressive. Mosley has also announced legal actions against various other publications as well.

The News of the World action will concentrate on the allegation that Mosley was lying when he denied the Nazi theme for the sex party in March. In such an action it is up to the newspaper to prove its claim that Mosley is a liar, specifically about the Nazi theme. As part of the case it may wish to use other examples of where it believes Mosley has lied in the past, but the case will stand or fall on the Nazi claim itself.

Mosley got some support today from Woman E, the woman who was quoted in the News of the World as having talked of the Nazi content of the orgy. It is perhaps worth noting that Woman E was not in a great legal position as she was quoted as saying things about the Nazi content of the orgy and so it is logical for her to support Mosley's case rather than face the implications of losing with the News of the World. She told Sky News there had been no Nazi overtones, though Mr Mosley was a prisoner in a German prison scenario where other women wore German uniforms.

"I know for a fact, that it was spoken about, that Max actually found it quite a turn-on to speak to them in German," she said. "He liked the German language. It was prison uniforms because we were doing a German prison scene. But it wasn't Nazi."

"I'm quite happy with the outcome of it - I think he was hard-done by as was everyone else that was involved," she said. "I didn't decide to go to the News of the World because of what he (Mosley) was asking me to do - I'm used to stuff like that. It was just an opportunity. I spoke to my husband. It was going to be more of a joke situation than anything. I didn't know how big it was going to be. And I certainly didn't know how big the response would be. I feel really sorry for Mrs Mosley and her family. It's devastating for her. She didn't ask for this and I'm very sorry that it came out as it did. I don't think enough sorries could make up for this. I do feel responsible."

She added that: "I would never have said it was Nazi - I would never have said he was a liar. There was lots in that second article that didn't come from me. I signed the article but I was put under massive pressure as I was told I would be put on the front cover and basically they would do a story on me anyway. No money is worth this sort of trouble and anguish which it's caused for everybody. I can't take back what's happened. I can only apologise for what's happened. But it won't take back all the damage."

This will no doubt help Mosley's libel case against the News of the World and, presumably, ensure that Woman E is not sued for libel.

The overall significance of the case is also a point of interest.

The judge argued that "there is nothing 'landmark' about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged". The British media, however, seems to disagree and there has been much noise about the ruling being a use of European rules to overrule principles of English law.

The answer of whether this is true will come only in the future if there are other cases where the Mosley precedent is used to defend public figures.

While all of this helps to knock down Mosley's attackers - at least those who are known about publicly - it does not really change the position in which Mosley finds himself.

Inevitably Sir Jackie Stewart has said that Mosley should stand down as FIA President.

"His stewardship of the FIA simply cannot be undertaken in its fullest form because of what has occurred," Stewart said. "The biggest downside is the FIA themselves have come out of this very badly. The fact he does not resign puts a shadow over the FIA."

it is certainly an unconventional story and there is little doubt that the FIA as a whole is viewed as having condoned what Mosley was doing. The counter argument to this is that when the FIA vote took place, the damage had already been done, and there was little to be gained by throwing him out, particularly as the FIA was seen to be under attack. One can argue that Mosley should have resigned and fought his battles as a private citizen - to protect the federation - but he did not do that and the organisation nonetheless voted in his favour. That may be odd, but that is democracy in action.

It will be interesting to see what happens in October 2009 when Mosley has pledged to step down.