Like so many people, I watched Lance Armstrong’s “reveal all(ish)” interview with Oprah Winfrey with great interest.
The Sunday Times is also quoted as having done exactly that.
In 2006, News International agreed an out-of-court settlement of a libel claim by Armstrong, which is widely reported to have cost the company £600,000.
The claim related to an article in The Sunday Times in 2004 about allegations made in the book L.A. Confidential, written by the paper’s chief sports writer David Walsh, that Armstrong had engaged in doping.
Following the publication of the US Anti-Doping Agency (USADA’s) reasoned decision last year, the Sunday Times had already announced that it was considering action to recover the monies paid under that settlement.
It is typical for court proceedings to be brought to a close by agreeing an Order that the parties then ask the court to approve. Sitting behind that Order (or as a confidential schedule to it) will be an agreement setting out the terms of settlement that the parties have agreed.
When a libel claim is settled, usually a claimant agrees to fully and finally settle the claim, and the defendant agrees to publish an apology, not to repeat the allegations, and to pay damages and costs. Those obligations are recorded in an agreement.
Because a settlement is an agreement, it can be set aside on the same grounds that any agreement may be invalidated. Those grounds include, for instance, that the agreement was brought about by fraud, one of the parties was legally incapable of entering into the agreement, or that it was based on a mistake.
After successfully setting the claim against The Sunday Times, a press release was put out by Armstrong via his lawyers. That statement included the words: “I always said that the article falsely alleged that I was guilty of doping. The article was based on untrue allegations, which are without substance.”
So, it seems clear that, fundamentally, the libel claim settled in 2006 will have been focused on whether or not the paper could defend statements which alleged or implied that Armstrong was involved in doping.
At the start of the interview with Oprah Winfrey, Oprah asked Armstrong a number of “yes or no” questions. She asked him if he used performance enhancing drugs to help him win his Tour de France titles. “Yes” was the answer. Did those drugs include steroids, and EPO, asked Winfrey. Again, “Yes” came the answer.
The Sunday Times is sure to view that statement as evidence from the man himself that Armstrong knew, when entering into the settlement agreement, that the basis for that agreement – a claim that allegations he had doped were “based on untrue allegations, which are without substance” (in the words of the press release) – was not true.
I understand that The Sunday Times is now pursuing a claim that the settlement of the claim was obtained by fraud. That claim will include both a claim for the return of the sums originally paid to Armstrong, and a claim for interest (likely to be at the court rate of 8pc) from the time of payment of those monies up to the date they are refunded, and legal costs.
Most of the time, when a newspaper settles a libel claim, it does so to avoid further costs in defending a claim at trial, and to draw a line under a matter “once and for all”.
Examples of over-turning a libel settlement at a later date are rare, for that reason. However, the ability exists to over-turn a deal, if after a settlement it later becomes clear that the fundamental basis for the settlement – for instance that a certain set of facts existed – was untrue, and particularly where it can be demonstrated that the claimant knew that those facts were untrue.
There seems to be an anatomy of a scandal that we see repeated in the public eye in modern times. Claims are initially denied vehemently, and a counter-attack is launched, and it is only when the body of evidence in support of those claims becomes overwhelming that any admission is made.
There are many reasons why newspapers will settle claims against them, even where they think they may have a good defence.
However, that pattern of denial followed by admission should be borne in mind both during proceedings, and after they have settled. It may well pay to have a long memory, and to remember past settlements, if the wheel later turns.