Max Mosley and an orgy of misunderstandings

Even if the News of the World does not lose the invasion of privacy action brought against the newspaper by Max Mosley, events in the High Court this week will have given its executives a serious jolt in the squishy organs.

Before launching their investigative attack on Mosley, senior editors on the paper, and their legal supremo Tom Crone, would have discussed the chances of their target pursuing a libel suit. Past form shows that however much the paper embellishes a sexual shenanigans story like this, the victims are nearly always too mortified to prolong the devastation and humiliation caused to them and their families.

But in presenting the events as a 'sick Nazi orgy', they overlooked several aspects of their target. First, that Max Mosley has been trying to shed himself of any connections with his father's political persona for the last 40 years or more (Sir Oswald was the 1930s British fascist leader).

Second, that he is a man who, whatever his private tastes may be, has scrupulously promoted fair play and safety in motor racing since becoming president of the governing body, the FIA, in 1993.

Third, that he is also an ex-barrister of considerable intellect, and knows his way round a courtroom.

Renowned though he is for his toughness and determination, the paper had not guessed once the story was out, he would be prepared to confront them over their disclosure of private details of his personal life, and what he contends are malicious embellishments of those details for the sake of producing a lively front page splash.

Not just confront them but demand exemplary damages, far more substantial than normal compensatory awards, under Article 8 of the Human Rights Act of 1998.

"Max Mosley with five whipping hookers" would have made a big splash, but the News of the World wanted more; Max Mosley in "Sick Nazi Orgy" would sell even larger numbers of papers.

In deciding to go ahead, they made what might turn out to have been one of the biggest editorial blunders in British popular journalism in recent years.

The case hangs now on a combination of legal niceties and semantics. It was the paper's contention that Mosley had ordered a Nazi orgy, and many - sometimes contradictory - references have been made to this in court evidence given by the paper's reporter, Neville Thurlbeck.

The downturn in the paper's case was reached when it emerged that in a follow-up "interview" with 'Woman E', written by Thurlbeck and published the week after the first expose, he attributed to her a misleading quote.

His witness statement (not substantiated by Woman E, who didn’t show up to give evidence yesterday) claimed that Woman E had told him there may have been Nazi elements in previous sessions with Mosley, organised by Woman A, at which Woman E had not been present.

His 'interview' was based on a draft signed off by Woman E in return for £8,000. To this signed draft, but without her visible agreement, he subsequently added: "Last week's orgy was definitely not a one-off," said our source, who charges £125 an hour for her services. "He uses us girls three or four times a year. It's mainly in London, at smart flats which are rented as torture chambers."

Will Mosley be awarded the 'exemplary' – ie punitive – damages he seeks? As far as this layman can grasp, that depends on whether or not it is deemed that the paper deliberately misled their readers, or were merely guilty of a careless error.

Mark Warby, QC for the News of the World, will deliver his final submission on Monday, and James Price, QC for Mosley, on Tuesday. For students of the finer points of libel law, it will be an instructive two days - for aspiring editors of popular newspapers, too.

Peter Burden is the author of ‘News of the world? Fake Sheikhs & Royal Trappings’, Eye Books, £12.99. His regular blogs from the Mosley hearing are here ·