THE outcome of the Albert Reynolds case raises many questions. Does the present system provide a just remedy for the private citizen?

Are newspapers at times unjustly treated with having to meet very high awards of damages for an unwitting error?

Has the expense of litigation become the dominant factor?

During my career, I have seen awards of damages vary between a halfpenny and £1.4 million. In the case of Commander Packard, whom I represented against the Greek newspaper Eleftherotypia, it was a very serious libel, but only 40 copies of the newspaper had been sold in England. Yet the award was £450,000, the highest ever at that date.

It has, somewhat harshly, been said that the only certainty in litigation, like war, is the expense, and there is, regrettably, some truth in this. I have only once been able to advise a client that they had an "open and shut case" and I have never advised a client to sue unless I considered their chances of success were 85 per cent. The best policy always, whether acting for an individual or a newspaper, is to negotiate a settlement.

The one occasion on which I advised a client that she did have an open and shut case was when representing Princess Elizabeth of Toro, following publication in a number of newspapers of an allegation by General Amin of misconduct in Paris with a French diplomat, for which there was not the slightest foundation and for which she was paid substantial damages. But, unfortunately, there are always attendant risks in litigation.

One of the most interesting cases in which halfpenny damages were awarded was that brought by a solicitor, a senior partner of a London firm, who complained of an article in the People which alleged that he was a "sex trap for young girls". It was proved in that case that, while the plaintiff, Col Brooks, did not indulge in any sexual activity, he did invite young girls to his yacht on the Thames, prevailed upon them to undress and to let him spread whiskey over their bottoms, and then spanked them. He unwisely fought the case, drawing attention to a report which might otherwise have been forgotten, and was awarded a halfpenny damages.

From the lawyer's point of view, there are two major uncertainties in advising clients.

First, if what has been written tends to reflect upon the plaintiff's good reputation and is clearly defamatory, what defences are open to the defendants?

It may be that they will plead justification, namely that what they have published is true; or that it is fair comment on a matter of public interest, a not infrequently successful defence; or that what has been published has been published on a privileged occasion and, in the case of fair comment or privilege, the publisher had acted in good faith and without malice.

The second, and much more worrying, hurdle for the lawyer is on the issue of damages.

One of the safeguards open to defendants when they feel a plaintiff is pursuing a case purely for monetary gain, at their expense, is to make a payment into court of what they consider to be a reasonable amount. If the plaintiff recovers more on trial, the payment into court has no effect; but, if he is awarded the same amount, or less, he will be ordered to pay the costs of both sides.

Unless what is written is really damaging to one's good reputation, my advice would be not to sue. Some, however, are determined, in the heat of aggravation, to issue a writ, but do not realise the time and the strains that litigation imposes upon one, and the tension - after perhaps two years before trial and maybe a week or 10 days in court - when the jury retires to reach its verdict.

You pace up and down the corridors, waiting for the jury to return and trying to reassure your client, but at the same time prepared for the worst. That is something you have to experience to comprehend - suddenly the bell rings, you are called back into court, the jury returns and the judge turns to the foreman and says: "Have you reached your verdict? Do you find for the plaintiff or the defendant?" Even having reached that point in the Reynolds case - the jury having found for him - he had to take the blow of a contemptuous award.