Have-a-go Hamilton, Part II

The Hamiltons want to come out fighting

Neil Hamilton wants to sue for libel the woman who accused him of sexual offences. What are his chances?

Last week, the former Tory MP Neil Hamilton said he would sue the police for continuing the investigation into the claims made against him and his wife Christine. (Click here for a consideration of his chances of doing so.)

But now Scotland Yard has announced it has dropped the investigation into the claims, he is pressing ahead with an action for libel against his accuser, Nadine Milroy-Sloan. What sort of chance does he stand?

Can making a complaint to police be counted as defamation?

Defamation cases are usually a matter of something that has been printed in a newspaper or broadcast somewhere. It is very unusual for a case to come on the basis of a complaint made to the police.

It's even more unusual for it to be a case where all the lurid details of the allegation were read out to the press by the accused parties.

But the claim against Ms Milroy-Sloan has two counts - firstly for what she told the police and secondly for repeating her story to the News of the World.

Libel lawyer Cathryn Smith does not know of any case which has come to trial based solely on a complaint made to the police.

"My suspicion is the case may not be allowed to proceed because it would be against the public interest for someone to be dissuaded from making a complaint to the police on the basis they would be accountable for libel," she says.

"As far as the News of the World is concerned, though, that's a different kettle of fish. There's no reason why she needed to repeat those allegations to the News of the World."

The paper reportedly paid £75,000 for her interview.

Did the Hamiltons not consent to the publication?

The lurid details of the allegations were read out by the Hamiltons' solicitor on the afternoon on which they were charged. They went much further than a bald statement of the reason for their arrest, i.e. on suspicion of serious sexual assault.

Usually explicit details such as those read out would only come to the public's attention if they were heard in a court case.

But the Hamiltons' rationale for going to the press was perhaps on the basis that, being famous, the details might become public by some means and it would be better to have a chance to repudiate them.

Mohammed Al Fayed, libel victor against Neil Hamilton

Usually people cannot claim they were defamed by something which they have consented to being published.

In this case, it is not quite as clear cut as saying they consented to the publication, for their action is in part against Ms Milroy-Sloan's original accusation - which came first.

However, Ms Smith said she would be surprised if the couple's role in bringing the allegation to wider public attention did not have some bearing on the conduct of the libel proceedings.

Some parts of the investigation are still going on. Will this affect the case?

While the police have dropped their investigation into the accusations against Neil and Christine Hamilton, the inquiry into other accusations made by Ms Milroy-Sloan continues. Barry Lehaney, whom she accused of rape, is still on police bail.

Any findings of fact that might be uncovered in a future criminal case, or indeed if the investigation against Mr Lehaney is also dropped, could have a strong impact on the libel proceedings. But if a criminal case was taking place, it would not be a bar to a libel case going on.

Hamilton is bankrupt after not being able to pay off a previous libel action he brought. Could he still sue?

In May, Neil Hamilton was declared bankrupt after losing a libel action against Mohammed Al Fayed, who said he had taken cash for asking questions in Parliament.

It is thought Mr Hamilton was left with a £3m legal bill.

Being bankrupt is no reason why he should not sue for libel, but the question for him will be how would he fund the case.

It could either be done with backers (as happened with his case against Mr Al Fayed), or if his lawyers were prepared to work on a "no win no fee" basis.

If he did win any money, would that automatically go to pay off his previous libel debts?

If he did bring a libel action, and was to win damages, his trustee in bankruptcy would want to get hold of the damages to pay off his debts.

Ms Smith said that should he win a case, she suspected it might become a "hollow victory".

Does Mr Hamilton have a reputation to lose?

To be able to claim damages for defamation, one must have a reputation which has been damaged. Following the cash for questions affair, Neil Hamilton's stock was very low in the public mind. The Guardian famously called him "A liar and a cheat".

But that does not mean he does not have any reputation.

The nature of these sexual allegations against him was so "markedly different" from anything said about him before, says Cathryn Smith, that it would give him a cause of action.