Thursday, 14 January 2010

Libel: counting the costs

"Many articles have recently appeared in the press concerning libel tourism and the effects of current libel law and the costs regime," writes Lord Justice Jackson. "I am not aware of any comparable papers in defence of the status quo by those who act for claimants." But don't worry, he's here to redress the balance. In the section of his new, and very weighty report (pdf - warning, large file) into legal costs concerned with libel he makes a number of recommendations. The most striking is that, instead of the lawyers for people who win libel actions being able to claim cost bonuses from the defeated party, all defendants should have to pay their own costs. In effect, Jackson wants to shift the costs burden from the libeller to the wrongly sued. His reforms would benefit unsuccessful defendants - those found to have actually libelled someone, in other words - at the expense of those who have been able to show that they have done nothing wrong.

This is supposedly in the interests of justice.

I've been studying the chapter in question. While there is a glancing reference to the defendant's ability to pay (as one of several factors a judge should consider when awarding costs) Jackson's scheme would appear to be bad news for anyone who finds themselves slapped by a writ for libel - but worst of all for those able and willing to put up a strong defence. They will still have the opportunity to set the record straight and defend both their reputation and (as may be) the public interest - but it will come at a heavy price, a price few may be willing to bear.

Such a system would have profound implications for cases such as that of Simon Singh. Even at present, a defendant who succeeds in disproving an allegation of libel is able to recover only a proportion of his costs. Under the Jackson proposal, even this much will be denied him. Someone who finds themselves sued, in a case without merit or where a matter of genuine public interest is involved, would face being taken to the cleaners financially for merely wishing to assert their right to speak and write freely. Obviously, anyone bringing an oppressive and groundless suit runs a risk of losing the case and being clobbered for costs. They may, however - especially if they are wealthy and the defendant is a lone journalist, an independent blogger or a small, privately-owned magazine - calculate that the defendant will be unable to cover their costs and thus be forced to settle out of court.

Jackson's proposal is, bluntly, a bully's charter.

How did this senior judge arrive at what will seem to many people an utterly perverse outcome? Part of the answer lies in the nature of the report itself. For a start, it's very long - almost 600 pages - and most of it has nothing whatever to do with libel law. The particular issues raised by defamation, in particular the need to protect legitimate free expression and allow information in the public interest to reach the public, are alluded to only in passing. In wishing to restrain costs by doing away with "success fees", he echoes the recommendations of the English PEN/Index on Censorship report “Free Speech is not for Sale”. But this seems to be largely coincidental, part of his larger scheme to bring greater consistency to the whole area of civil court costs. And by seeking to impose greater costs on innocent and vindicated defendants he negates the entire case for libel reform.

His excuse is that the wider principle did not fall within his terms of reference. "I am solely concerned with the costs of litigating defamation and related cases," he insists. This is worse than a cop-out, however. It is impossible to separate the issue of costs from the other issues raised by the Libel Reform campaign, since the prohibitive cost of defending a defamation suit is the main reason why the bullying tactics of the rich and powerful so often go unchallenged. By treating libel as essentially similar to claims of negligence he spectacularly misses the point.

Jackson, it is clear, has a particular sort of claim in mind: that of an ordinary citizen who is libelled or has had their privacy invaded by a national newspaper, backed by an in-house legal staff and with the resources to hire the most fashionable QCs. He writes that "in the paradigm libel case the claimant is an individual of modest means and the defendant is a well resourced media organisation." For this reason, he argues that in most cases there are "strong policy reasons why the claimant should be protected against liability for adverse costs."

It's unclear (to me at least) why he takes this to be the paradigm. Certainly, individuals of modest means are defamed (or have their privacy invaded) on a fairly regular basis by newspapers. But such cases rarely result in libel proceedings. They are referred, instead, to the Press Complaints Commission, an imperfect body but not an entirely useless one, or (where broadcasters are involved) to the rather toothier Ofcom.

Unless Jackson wants to encourage greater use of the libel courts - a solution which would certainly result in more work for defamation lawyers, but has few other obvious benefits - it's hard to see why he should be raising such cases at all in his report. If there is indeed a "paradigm" of libel, it generally involves a wealthy individual or a large corporation suing a news organisation - which may be News International but is just as likely to be Private Eye. In such cases it is far from clear that a large "disparity of arms" exists between the parties - or, where it does, that the disparity favours the defendant, as Jackson seems bizarrely convinced.

Jackson also ignores the increasing number of cases where individual journalists - or even scientific researcher or private campaigners, like the McLibel Two - are targeted for defamation suits by large corporations.

Perhaps he has been swayed by some of the submissions he received in the course of his inquiry. For example, he quotes evidence he received from "one firm of claimant solicitors" - the firm is unnamed, but I note that Schillings appears in the Appendix list of those making submissions, and Carter-Ruck doesn't. The anonymous firm (who may, for all I know, not be Schillings at all) pointed to "a huge inequality of arms between media defendants and individual claimants". The firm opposed any extension of costs capping. They also proposed that "there should be a change in the substantive law in order to determine the legality of articles or statements before they are published." Prior restraint, in other words - and not just in cases where privacy is at issue (as Max Mosley is going to Strasbourg about) but, apparently, in libel cases too, where injunctions are not currently available "where the defendant avers that the allegation is true."

Gulp.

Reading the report, it's hard to escape the conclusion that Jackson has paid the arguments of those supporting claimaints far closer and more sympathetic attention than those on behalf of defendants. He quotes approvingly from a Law Society submission that "it is important not to attach unnecessary emphasis to the arguments of the media defendants, given their “disproportionate voice”." In one especially glaring paragraph, he sees the need to answer criticism that his suggested changes would leave claimants in a less advantageous position vis-a-vis defendants that they currently enjoy. On the contrary, he writes,


In overseas jurisdictions the fact that success fees cannot be recovered from defendants is not perceived as constituting a barrier to access to justice. Indeed, under the overall package that I propose for defamation and privacy cases, claimants will be much more generously treated in England and Wales than in they are in any other jurisdiction which I have researched.


He seems to think that this is a good thing. And it is, of course, if you assume that defendants are all big, bad media conglomerates and claimants are all unfairly defamed shopkeepers.

In another passage, he suggests that libel damages should be made higher to compensate clients (or more precisely their lawyers) for the loss of victory bonus fees:

In chapter 9 above I have recommended that general damages for personal injuries should be increased by 10%. Defamation and breach of privacy damages are less precisely calibrated than personal injury damages. I recommend that the ceiling for damages in this area be increased and that courts should have regard to this higher ceiling in the case of serious libel or slander. The general level of damages for defamation and breach of privacy should be increased by 10% as from the date when CFA success fees cease to be recoverable.


One looks in vain for such tender concern for defendants. Clearly Jackson is unable to see beyond the "paradigm case" that he identified, and that he appears to believe is the only situation worthy of his consideration.

Jackson also celebrates the fact that "the parties to these cases generally have the benefit of specialist judges" - in other words, libel judges are invariably former libel lawyers, who specialise in the technicalities of this area of the law and have in the past demonstrated precious little regard for freedom of expression. Such complacency, no doubt, leads him to hope that in future libel cases will become judge-only: a development that would further distance the defence of reputation from any notion of public accountability.

Of course, this is a report about costs, not about the burden of proof in libel cases, protecting free speech under article 1o of the European Convention or the possible creation of a public interest defence (for example in cases involving science or health). If significant changes were made in these areas then Jackson's scheme might be less dangerous. For Lord Justice J, though, libel does not constitute a special case. He doesn't even consider the wider social implications of making it even more difficult and expensive for the likes of Simon Singh or Peter Wilmshurst to defend themselves against attempts to muzzle them. As they stand, his recommendations risk making a bad situation worse.