Bankrupts don't live badly these days. Count Nikolai Tolstoy, the biggest libel loser in British history, enjoys a 17th-century farmhouse in Oxfordshire, his son at Eton and a Volvo estate in the drive.
by Tim Rayment
The Sunday Times, 7 April 1996, Section 3
True, the house is cold because the heating is low, and he doesn't know where the money will come from to keep Xenia, his 15-year-old daughter, at her £12,420-a-year private school. But it is as if his £2m debt never happened.
It is more than six years since the writer and historian turned pale in the High Court, his wife fighting tears beside him, as he was ordered to pay £1.5m damages to Lord Aldington, a former deputy chairman of the Conservative party. He had accused the peer of complicity in war crimes committed just after the defeat of Germany in 1945.
To friends of Aldington, a former brigadier and barrister on first-name terms with ministers in every Tory government since the war, a crank had got his comeuppance. Yet if you visit Tolstoy in his study, a converted wagon shed heated by one panel of a portable gas fire, he will tell you a compelling story.
It is an account he wants to make public in the courts, but cannot: of how the machinery of government seemed to tilt the scales of justice, and the state supposedly interfered in a private court case.
A few years ago, before the Scott report and the furore over three businessmen who faced prison because the government would not come clean on its arms-to-Iraq policy, nobody would have believed such a tale. Now perhaps they might.
Today, 2,320 days after his defeat, Tolstoy has not paid a penny of the £1.5m damages and more than £500,000 costs he owes his elderly foe. Instead, he has been busy with legal challenges.
At the European Court of Human Rights he won a ruling that the size of the award violated his freedom of expression. In Britain, in actions that have sometimes been heard in secret, he has fared less well.
He was not allowed to appeal against the libel verdict because he could not lodge £124,900 to pay Aldington's likely costs if the case failed. Later he issued a writ for fraud, claiming that new evidence showed the baron obtained his award through perjury. This action, deemed "frivolous" and "vexatious", was struck out by a judge.
At first Tolstoy's legal activities look like delaying tactics, to keep a lovely house a little longer. However, his supporters include some surprising names.
Writers such as Chapman Pincher and Alexander Solzhenitsyn, academics such as Roger Scruton and Gavin Stamp, and politicians of the calibre of Viscount Cranborne, the Conservative cabinet minister and leader of the House of Lords, are patrons of the fund that maintains the Tolstoys and their four children.
Taki, the socialite and Sunday Times columnist, paid for the Volvo. Xenia's school fees for this year are underwritten by a Conservative peer whom Tolstoy wants to remain anonymous. Eminent lawyers such as Richard Rampton QC, Lord Lester QC and Alun Jones QC have acted for Tolstoy free.
Why do these people believe in him? Could he be the victim of rough justice?
"THERE were babies, there were pregnant women. It's really quite indescribable. These were British soldiers with bayonets ... I had a lot of pain and punishment in Auschwitz, but at least I didn't have bayonets at my back. To see people being shot at and bayoneted, it was just sheer bestiality."
Zoe Polanska-Palmer, a retired businesswoman who lives near Dundee, witnessed one of the incidents at the heart of this affair. In 1945 she was 14. She had been one of Dr Mengele's victims in Auschwitz, but it is British behaviour that haunts her. Polanska-Palmer is from Ukraine. Taken by the Germans for child labour, she eventually escaped to the Austrian mountains, joining 70,000 Cossacks, emigré Russians and Yugoslavs who had surrendered to the British.
They were not a very military slice of humanity: men exercised their horses, wives hung washing and children played in the grass. Some were Soviet citizens who hated communism and had fought on the German side. Some had fled Russia before the Soviet Union existed. A number had been part of a savage struggle against Tito's partisans in Yugoslavia. Others, like Polanska-Palmer, had fought nobody.
Many had families with them; according to a telegram from Field Marshal Alexander, who was in charge of operations in Austria, 11,000 of the Cossacks were women, children and old men. "To return them to their country of origin immediately might be fatal to their health," he said.
Yet all were handed back — to the Soviet Union or Tito's partisans.
It was official allied policy to hand over Soviet nationals, under the Yalta agreement of February 1945, to ensure the return of British prisoners of war "liberated" by the Red Army. Witnesses insist, however, that the British command in Austria made almost no attempt to distinguish Soviet from non-Soviet citizens, and even handed over emigré Russians waving French passports and one wearing a British medal awarded for his conduct in the first world war.
Soldiers, some in tears, used deception and force to get their hysterical charges into the lorries and cattle trucks. "Many of them kept coming to me to ask me to shoot them, and to fetch their wives and children and shoot them as well," said a lieutenant in the Royal Artillery, years later.
Some women cut their babies' throats. Polanksa-Palmer watched others save themselves from Stalin's camps by jumping from a bridge to their deaths.
Across the line, Cossack officers were murdered as soon as they were received by the Russians. They tried to die with dignity, singing as they were shot. "That night and the following day, we started to count the small-arms fire coming from the Russian sector, to the accompaniment of the finest male voice choir I have ever heard," said Edward Stewart, of the Royal Corps of Signals. "The voices echoed round and round the countryside. Then the gunfire would be followed by a huge cheer."
The anti-communist Yugoslavs handed over to the communist partisans suffered a similar end. Thousands were slaughtered.
TOLSTOY, a distant relative of Leo Tolstoy, the giant of Russian literature, has investigated the handovers since the first war papers were released to the Public Record Office in 1973. Two of his nine books are on this subject: Victims of Yalta, published in 1977 to general praise, and The Minister and the Massacres, released in 1986.
He believes the emigré Russians were forcibly repatriated because Harold Macmillan, "minister resident" in the Mediterranean and later prime minister, wanted to please Stalin. The Minister and the Massacres claims Macmillan persuaded a British general to ignore a Foreign Office telegram ordering that "any person who is not (repeat not) a Soviet citizen under British law must not (repeat not) be sent back to the Soviet Union unless he expressly desires".
Aldington — then a politically well-connected, 30-year-old brigadier called Toby Low — was chief of staff to the general commanding British forces in the area. On May 21, 1945, he issued the orders as to how to define Soviet citizenship. "Individual cases will NOT be considered unless particularly pressed ... In all cases of doubt, the individual will be treated as a SOVIET NATIONAL." In Tolstoy's view, the fate of the emigré Russians was sealed.
Within weeks of the war's end, Aldington returned to England to secure a seat as a Tory MP. After a ministerial career, he was ennobled by Macmillan and became chairman of the Sun Alliance insurance company. Bizarrely, it was this role that led to his conflict with Tolstoy.
A property developer called Nigel Watts, who had read The Minister and the Massacres and was fighting Sun Alliance over a disputed life insurance claim, drew up a leaflet about Aldington's role in Austria and sent it to Tolstoy. It was wrong in places, so Tolstoy rewrote it and Watts circulated 10,000 copies to politicians, the press and Aldington's acquaintances. Unlike the book, the language of the leaflet was wildly uncompromising and Aldington sued.
At first he acted against Watts alone, and did not want Tolstoy involved. He issued a second writ only after lawyers drew up an affidavit in which Tolstoy, who was confident of his claims, demanded to be sued.
Who did what in Austria was now for a jury to decide. In Whitehall, however, others were also getting involved.
After The Minister and the Massacres was published, a private "committee of inquiry" had been set up under Anthony Cowgill, a retired brigadier in regular contact with Bernard Ingham, spokesman for No 10. Cowgill was to investigate the charges against Macmillan, and he enlisted Aldington's help.
In a letter to the Ministry of Defence, seen by The Sunday Times, Cowgill describes a study "in conjunction with . . . Lord Aldington ... This study is being done in the national interest".
Two of Cowgill's three co-authors had an interest in the outcome. Brigadier Teddy Tryon-Wilson had played a part in the repatriations, and Lord Brimelow, a Soviet specialist and Labour peer, had been a junior official at the Foreign Office. Tolstoy had accused Brimelow of the "remarkable falsehood" of claiming that the repatriations had been without violence. The final inquiry member was Christopher Booker, a journalist.
In spring 1986, Cowgill introduced himself to Tolstoy, who took him for an independent investigator. Cowgill said he ran a business organisation and was forming a committee to look into events in Austria in 1945. He explained that he was planning a business conference in Cambridge, which Aldington was to chair, and wondered, in the light of Tolstoy's book, if the peer were a fit person to do so. Tolstoy invited him round and they went for a pub lunch.
It was the first of more than half a dozen visits in which Cowgill would settle himself in the worn armchair in Tolstoy's study, pat the children's heads and go through the evidence against Macmillan and Aldington. Tolstoy handed it all over, including records he had obtained from America under the Freedom of Information Act.
His wife, Georgina, grew concemed. When Tolstoy gave away copies of his microfilms she was furious. "I remember saying to him, 'What are you doing?'" she said. "I suppose he was pleased that somebody was trying to follow it up."
While Tolstoy was out of the country, Cowgill held a press conference to announce the results of his investigation. "An independent inquiry," The Times reported, "has found Mr Harold Macmillan (later Lord Stockton) innocent of 'the gravest charges ever levelled at anyone who has become a British prime minister' ... An interim report to be published next week rebuts the allegations made by Count Nikolai Tolstoy in his books The Victims of Yalta and The Minister and The Massacres." Tolstoy "was not available for comment", making it seem he was hiding. Only The Sunday Times took the trouble to find him.
There was to be another twist. "The inquiry which last week cleared Harold Macmillan of wrong~doing in the Balkans in 1945 has produced evidence that will be used in a libel case which the defence has branded as Britain's first war crimes trial," The Sunday Telegraph reported.
Who commissioned the inquiry, and who paid for it? Cowgill — who would later deny links with British intelligence — says it was a private venture, funded by the team members. He started work after Ingham told him there would be no public inquiry into events in Austria in 1945.
"I said, 'Look, there must be an Establishment picture on this,' and he came back in a couple of days and said, 'No there isn't, we just don't know. If by any chance you are doing any work obviously we would like to know,'" Cowgill said last week. He reported his findings in an hour-long meeting with Robert Armstrong, the Cabinet secretary.
SOON Tolstoy had another surprise. Officials at the Foreign Office and the Ministry of Defence removed from the Public Record Office several files of war papers that he needed for his defence in the libel case. When his researcher asked for these documents, including reports and signals relating to Aldington, she was told they were not available.
Only after the nine-week trial had started in October 1989 was Tolstoy given a photocopy of the most important of the files. Four-fifths of the contents were missing.
Aldington, however, was not finding access to war records a problem. "Dear George," he wrote to George Younger, the then defence secretary, on March 8, 1987. "... you are a friend who will understand my distress ... if the files can be brought to the Westminster area in a series of bundles, that would be very helpful."
"If I had received a letter of that sort from Tolstoy, 1 would have done the same for him," Younger said this weekend.
It was 1991, 19 months after the trial had ended in disaster for Tolstoy, before he began to make new inquiries about the missing papers. The question was taken up by Sir Bernard Braine, the Conservative MP who was then father of the House of Commons (he is now Lord Braine of Wheatley).
"I have had a complaint that your department has not so far returned a file to the Public Record Office concerning certain events in Austria in the spring and summer of 1945," Braine wrote to Douglas Hurd, then foreign secretary, in August 1991. "The file no is FO1020/42. I hope you can assure me that the file will be returned to the Public Record Office and made available to researchers. If there is some special reason for retaining it, then perhaps I could be told. As a privy counsellor, I myself would like to see the file."
Lynda Chalker, a minister of state, replied. The file was "one of many" that had been recalled for use in the Cowgill investigation, and the papers had been held at the Foreign Office for more than a year for the team to research. Now, after four years, the Foreign Office was "on the point of confirming to the Public Record Office that the file went missing ... The loss of this or any file, apparently while in the custody of the FCO, is deeply regretted".
Braine, "astonished at ... the sheer carelessness", wrote again. Why, he asked, had the Foreign Office lent Cowgill "exceptional assistance" for a campaign of attacks on Tolstoy's honesty and integrity? "I think any reasonable person would agree ... this massive and prolonged propaganda campaign could have influenced the jury."
This time Hurd replied. "The help given to the private Cowgill inquiry," he said, "amounted to no more than making available some Foreign Office papers already in the public domain for consultation in the FCO." The loss of the file was "very regrettable".
Five days later, Hurd had an announcement. "The missing file has been found," he wrote to Braine. "It had been misfiled. It has been returned to the Public Record Office, where it is again available to researchers."
Braine, however, thought Hurd was being evasive. He wrote the foreign secretary a personal letter in the strongest terms, which has never [before] been published. "This disgraceful activity ... was designed to pervert the course of justice in a case concerned with one of the most shameful episodes in British history," the father of the House declared. "I have been in parliament for 42 years, and have held office under two prime ministers. I cannot recollect a previous instance of officials conniving at the suppression of records in order to prevent justice being done in the courts."
After further correspondence with Hurd, Braine wrote to Tolstoy, again in terms that have not been revealed before. "Douglas Hurd's last letter to me (March 5) saddens me," said the MP, who had held Hurd in high regard. "He is now engaged in a cover-up. If he did not think his officials had behaved improperly, all he had to do was to provide an answer to my questions."
Hurd was unavailable for comment yesterday. Lord Howe, who was foreign secretary when the papers were removed — and who, incidentally, had been appointed by Aldington to the board of Sun Alliance in 1974 — was also unavailable, on holiday.
Nor have Aldington's dealings with the Ministry of Defence been fully explained. On January 11, 1988, he wrote to Lord Trefgarne, the minister of defence procurement. "Dear David," he began. "You have kindly offered to help me with the documents relating to the Cossack/Yugoslav repatriations in Austria in May 1945 ..." Aldington reported that he had been through "all the files I wanted", but there was "one small matter in which you may be able to help in corroboration". What was the date of his departure from Austria, which "may prove to be vital in a simple rebuttal of most of the outrageous charges made against me"?
Trefgarne, despite "a thorough search", was unable to find the required corroboration. Aldington asked Trefgarne to look in his wartime personal file.
It is Ministry of Defence policy not to allow direct access to personal files, but Trefgarne complied. "As the two papers in question are, in themselves, fairly innocuous, 1 am happy to provide the attached copies," he wrote. "I must ask that they be treated in strict confidence, for use by yourself and your counsel only and that the source of the documents (ie, your personal file) should not be revealed." The papers showed that Aldington had arrived in Britain on May 24; but his day of departure from Austria was still a puzzle.
The date mattered. If Aldington could show that he had left after breakfast on May 22, as he told the libel trial, it would prove he was absent from a conference that day at which it was decided to shoot at Cossacks resisting forced repatriation.
WHEN Tolstoy finally gained access to the key Foreign Office and defence ministry files, he found apparent discrepancies with Aldington's statements in court. One discovery was that the American forces in Austria had sent 800 vehicles, apparently to take the Cossacks to safety in Germany on the orders of General Dwight Eisenhower, the allied supreme commander. When the vehicles arrived at the border of Aldington's territory, however, the British said they were not required. This rebuff came in a signal from the Brigadier General Staff (BGS) for 5 Corps, Aldington's title. But he says he was no longer Brigadier General Staff at 5.14 pm on May 22, when the signal was sent, having handed over to a successor that morning.
On May 23, the BGS of 5 Corps — Aldington again denies being the BGS concerned — sent another signal. "As a result of verbal directive from Macmillan to corps commander at recent meeting," it said, "we have undertaken to return all Soviet nationals in corps area to Soviet forces." Despite earlier instructions from Field Marshal Alexander that there was to be no force, the signal sought permission to use it, explaining that otherwise the Cossacks could not be returned.
Aldington told the libel trial that he had left Austria on May 22 for Naples, where he spent two days before returning to Britain. He was unable to produce witnesses to confirm his time in Italy, and the curious thing is that he used to say he had left on May 25 or 26, or even May 29. In 1981, for example, Aldington wrote to Serena Booker, a researcher helping Alistair Horne with the authorised biography of Macmillan: "You really must believe me when I tell you again that I did not know that 'White Russians' (that is, as 1 understand it, Russians resident in Paris or elsewhere in western Europe during the 20s and 30s) were returned." He insisted: "I left on May 25."
Further confusion arose when an historian studying Eden's papers in the library of Birmingham University came across a handwritten letter from Aldington. It was dated May 21 and postmarked in Austria on May 22. "My dear Anthony," it began. "I hope to fly home on May 24 — at last after so long — a fortnight in England."
This does not conflict with Aldington's account, but when Tolstoy's lawyers drew attention to the letter it was withdrawn from access. The library told him: "The trustees [of the Eden papers] have ... informed us that they do not wish you to have access to the archive."
IN PARALLEL to the research, Tolstoy continued his legal battle, after declining an offer from Aldington to settle for £300,000 and losing his application to appeal. To his frustration, most of the legal infighting has been heard in secret. The details are revealed here for the first time.
His writ alleging fraud, claiming that Aldington had obtained his £1.5m libel award through perjury, was struck out in chambers by Mr Justice Collins in October, 1994.
Alun Jones, Tolstoy's QC, was so outraged by the running of the closed three-day hearing, in court 23 of the High Court, that he contemplated walking out. He continued after being assured that a tape recording of the proceedings was being made. When the case was over he was told that no recording would be available.
According to Tolstoy's handwritten notes, Collins dismissed new evidence — a signal apparently recording that Aldington left Austria on May 23 — "because it disagrees with Lord Aldington's testimony". The judge also refused an application to bring to court under subpoena a tape-recorded interview given by Aldington to the Imperial War Museum.
"Ah, you are going to listen to it and analyse it," Collins said. He brushed aside a letter from Aldington to the museum, dated August 26, 1993, and seen by The Sunday Times, in which the peer says: "I do not want to complicate affairs by having on record for the public any statements different from those I made on oath in the courts."
Collins then ordered Tolstoy's lawyers to pay 60% of Aldington's costs, reasoning that as they had acted for nothing, they had made themselves a party to the case. In effect, this was a new legal principle with wide implications, putting at risk any lawyer who decided to act for a client pro bono (for the public good). Last December, the Court of Appeal ruled that although Collins's reasoning was wrong, the decision itself was right.
"No barrister or solicitor will be allowed to represent him because of the extraordinary financial penalty," one QC said last week. "The whole thing has just been silenced."
Tolstoy's legal friends feel it is fair to point out that, before becoming a judge, Collins had been prosecuting counsel for the Customs & Excise in the 1992 Ordtech case, and incorrectly assured the court that the crown possessed no evidence helpful to the defence. He was reproached over this in the Scott report.
TOLSTOY is now preparing for a final court case to defend himself from ruin. He is acting for himself, as no lawyer will risk being seen to help. In February, he delivered bundles of evidence for an appeal against Collins's judgment, and now awaits a date for the hearing.
After exchanges with the official overseeing his bankruptcy, he fears for the books in his chilly study, running to 4,000 volumes collected since the age of 12. If they are taken away to be sold, it will stop him writing further about the events of 1945.
His wife says the strain of the past six years has marked all her family. Xenia, the youngest, was glad to go to boarding school and escape the atmosphere at home. Alexandra, the eldest, had to resit her A-levels. Tolstoy himself has changed.
"His confidence in his writing has been very knocked," she said. "He feels, 'Who's going to be interested? Who's going to believe in what I write?' The feeling that his books are going to be taken away is a living nightmare to him. He sleeps very badly. He listens to Classic FM all through the night."
"I've had regrets but no serious ones," says Tolstoy of his £2m debt. "It was a terrible event by any standards. It just offends one's whole sense of justice that this could happen and the official view, enshrined in the Cowgill report, is that nobody is responsible for it. The only person who is a criminal in British eyes is me."
His supporters are standing by him. "You are talking about one of my heroes," said Braine. "I have admired him all the years I have known him. He is a seeker of truth."
THAT is not how he is seen by the Establishment figures in this affair. "All this story about new evidence is nonsense," Aldington said. "They have always been trying to reverse the verdict. The fact is that 1 have now had something like 15 or 16 judges deciding for me, which is quite a lot."
"It's complete nonsense," agreed Collins. "It has been known for litigants to get somewhat obsessed with the cases they are involved in, and not to be able to know what is truth and what is fantasy."
Cowgill concurred. "We certainly went in heavily impressed by Tolstoy's very vivid writing," he said. "But the more we went into it, the more we found what had been written was almost 180 degrees different from reality. It was quite astonishing."
As for the ministers, the Foreign Office said Hurd would stand by his replies to Braine's letters.
"I can't truly remember what happened at all," said Trefgarne, who is no longer at the Ministry of Defence. "I am quite certain that I would not have been allowed by officials to do anything that was not perfectly proper. Any allegation of impropriety by Count Tolstoy is, of course, without foundation."
Additional research: Michael Kettle
For further details about the events of May 1945 in Austria see
The Bleiburg Massacres
Count Nikolai Tolstoy's web site (with information about his books)
is at http://www.uvsc.edu/commorgs/russia/tolstoy/
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