Application No. 18139/91 by Nikolai TOLSTOY MILOSLAVSKY against the United Kingdom
The European Commission of Human Rights sitting in private on 12 May 1993, the following members being present:
MM. C.A. NØRGAARD, President
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 December 1990 by Nikolai Tolstoy Miloslavsky against the United Kingdom and registered on 26 April 1991 under file No. 18139/91 ;
Having regard to:
Having deliberated;
Decides as follows:
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.
The facts of the case may be summarised as follows: 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 National 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. ..." Lord Aldington sued for libel. The proceedings were originally brought against Mr. Watts and the applicant was joined later. The allegation was that:
"In their natural and ordinary meaning the words contained in the said document meant and were understood to mean:
1That 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
2That the plaintiff was a major war criminal whose activities merit comparison with those of the worst butchers of Nazi Germany or Soviet Russia."
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."
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. 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.
In the course of argument, the applicant had accepted that, if the truth of the allegations was not made out, then he would be liable for "enormous damages in legal and moral terms". An injunction was granted which, inter alia, restrained the applicant from publishing or permitting to be published the words contained in the applicant's leaflet, and also from publishing or permitting to be published:
"any other words or allegations (however expressed) to the following or any similar effect namely that the Plaintiff in connection with the handover in 1945 to Soviet or Yugoslav forces of military or civilian personnel was guilty of disobedience or deception or criminal or dishonourable or inhumane or other improper or unauthorised conduct or was responsible for the subsequent treatment of any such personnel by the Soviets or the Yugoslavs [the applicant] being at liberty to apply to vary or discharge this injunction".
The applicant gave notice of appeal, setting out eight grounds of appeal:
1The learned judge displayed throughout the course of the
hearing overt animosity towards the defendant.
2The learned judge sought unfairly to discredit this
defendant's case by continual interruption, sarcasm and abuse of counsel acting on his behalf.
3The learned judge insulted and disparaged witnesses
called on the defendant's behalf.
4At no time did the learned judge display any such
animus or prejudice towards the plaintiff, his counsel or his witnesses.
5The 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.
6Above 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.
7When 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.
8The damages awarded were in any event unreasonable
and excessive.
Lord Aldington applied for security for costs, that is, that the applicant should be required to give security 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. The application for costs was heard by the Registrar of the Court of Appeal on 18 May 1990. The Registrar 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. 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."
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."
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."
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 applicant did not furnish the required security and his appeal was dismissed on 3 August 1990.
The applicant complains that his rights under Article 10 of the Convention have been violated in that the judgment entered against him on 30 November 1989 constituted an unjustified interference with his right to freedom of expression.
The applicant also complains, initially under Article 13 and latterly under Article 6 of the Convention, that the Court of Appeal ordered that his appeal stand dismissed in the event that he fail to pay £124,900 into Court as security for Lord Aldington's estimated costs in respect of the appeal.
The application was introduced on 18 December 1990 and registered on 26 April 1991.
On 20 February 1992 the Commission declared the application partly inadmissible and decided to request the parties to submit their written observations on the admissibility and merits of other aspects.
The respondent Government submitted their observations on 2 June 1992 and the applicant submitted his observations on 6 October 1992.
On 8 February 1993 the Commission decided to hold an oral hearing on the admissibility and merits of the application. The respondent Government submitted further observations on 23 April 1993. At the hearing, which was held on 12 May 1993, the parties were represented as follows:
For the Government
Mrs. A. GLOVER - Agent
Mr. David PANNICK QC - Counsel
Mr. J. WATHERSTON, Lord Chancellor's Dept. )
Mrs. Emma MATTHEWS, Lord Chancellor's Dept. )Advisers Mr. Iain CHRISTIE, Foreign & Commonwealth Office) For the applicant
Mr. Anthony LESTER QC - Leading Counsel
Ms. Dinah ROSE - Junior Counsel
The applicant was also present.
The applicant makes complaints under Articles 6 and 13 (Art. 6, 13) of the Convention. As the requirements of Article 13 are less strict than those of Article 6 (Art. 6) (see, for example, Eur. Court H.R., Kamasinski judgment of 19 December 1989, Series A no. 168, p.45, para. 110), the Commission finds that these complaints fall to be considered under Article 6 (Art. 6) of the Convention alone.
Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..."
The applicant considers that the requirement that he find security for costs before being allowed to continue with his appeal denied him access to court, contrary to Article 6 (Art. 6) of the Convention. The Government consider, given that the proceedings were civil and that the applicant's appeal was found by the Court of Appeal in the security proceedings not to have any real prospects of success, that the circumstances of the case do not amount to a denial of access to court.
The applicant also alleges a violation of Article 10 (Art. 10) of the Convention.
Article 10 (Art. 10) of the Convention provides, so far as relevant, as follows:
1Everyone has the right to freedom of expression...
2The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...
The applicant considers that the circumstances of the award of £1,500,000 and the injunction ordered against him were such that that the interference with his Article 10 (Art. 10) rights was neither prescribed by law nor necessary in a democratic society.
The Government submit that the order of damages and costs and the injunction in the present case were formalities, restrictions or penalties which were prescribed by law and necessary in a democratic society for the protection of the rights of Lord Aldington. They also point to the wide margin of appreciation enjoyed by States in establishing necessity in a democratic society.
The Commission finds that the complaints raised by the present application involve complex issues of law under the Convention, the determination of which must be reserved to an examination of the merits.
The application cannot therefore be declared manifestly illfounded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons the Commission by a majority DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits of the case.
Secretary to the Commission President of the Commission
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