Over the past year, there has been an intensive press campaign pushing for radical reform of English libel Law. Barely a day goes by without another article by a concerned journalist pointing out the ‘chilling effect’ of our libel laws and how this is stifling freedom of speech. One academic described it well: ‘It is Goliath dreaming he is David’.
If you believe this barrage of articles, libel lawyers are winning every case they bring, whatever the merits, and are able to double their fees by acting under a conditional fee agreement (CFA).
In the run-up to the election, the lord chancellor and justice secretary Jack Straw took up the case for reform. He considered it a matter of urgency that the success fee chargeable in a libel claim should be reduced from a potential 100% to just 10%. If this had been made law, the result would have been simple – only the rich could sue for libel or defend a libel claim.
Although the government dropped the 10% proposal this week, the zeal with which it was pursued by Straw was staggering. The urgency was so great that it apparently justified ignoring the government’s own code of practice on consultation with interested parties by reducing the consultation period from three months to just four weeks.
Although this time period was woefully inadequate, the weight of evidence from practitioners in response to the consultation paper was that they would be unwilling to conduct defamation cases on CFAs if the success fee was no more than 10%. Remember, no alternative to 10% was part of the consultation.
The Ministry of Justice was undeterred by these responses and the proposal was hurriedly put before parliament by way of a draft order. Further criticisms emerged from the Law Society, Bar Council and senior judges. The Merits Committee produced a highly critical report of the draft order and a House of Lords debate was dominated by concerned eminent law lords. The proposal was even defeated in a vote in the House of Commons thanks to a revolt from with the government’s own numbers. But even this did not prevent the MoJ from tabling a motion on the day the election was called which would have seen the proposal become law, notwithstanding that the only vote on the subject had been lost.
There can be no doubt that the media, undeterred by this setback, will continue its campaign for further reforms. What is of deep concern is that the extensive and completely one-sided reporting of this issue by the press means that any proposed reforms are being considered within an environment where the reality of this area of law plays no part.
In December 2009, a group of concerned libel lawyers met and formed an association called Lawyers for Media Standards (LMS), its main objective being to try to inject some balance into the debate. LMS commissioned a report by independent academics to examine the case for and against libel reforms. The press chose not to report the findings as it did not suit its purposes, and LMS has found it almost impossible to get across its side of the argument in the media, despite press releases on the issues under debate. What does this say for freedom of speech?
The reality is that most libel claims are brought not by celebrities or the rich, but by individuals with modest means seeking to defend or restore their reputations against powerful newspaper groups. I have conducted many such libel actions under CFAs over recent years. In all of the successful cases, the client has received his or her damages in full, and in none of these cases has my firm recovered anything like a 100% uplift on fees.
It is my profound hope that the next government take a more measured approach to libel reforms and consult with practising lawyers through groups such as LMS. It may be surprised to find that this group is not made up of monsters but decent lawyers with sensible suggestions for how this area can be improved.
Steven Heffer is head of media at Collyer Bristow and solicitor to Lawyers for Media Standards
This post was originally published in the Law Society Gazette and we are grateful for their permission to reproduce it.
From Gillian Phillips, Director of Editorial Legal Services at Guardian News & Media Ltd
[This was originally published in the Comment section of the Law Society Gazette on thursday 15th April 2010 – http://www.lawgazette.co.uk/opinion/comment/libel-lawyers-should-disclose-outcomes-their-cfa-funded-cases%5D
Steven Heffer can’t resist the temptation to over state his case. It is simply not the case that the press has “chosen not to report the findings of the report” by Professor Alastair Mullis from the University of East Anglia and Dr Andrew Scott from the LSE. In its article “Libel law: who’s shooting for reform?”, published on p1 of the MediaGuardian on Monday 15 February 2010 and on line, (where it is still available), the Guardian reported the findings of a discussion I chaired between three claimant media lawyers, Dominic Crossley (from Steven Heffer’s firm Collyer Bristow), Sarah Webb from Russell Jones & Walker, Jonathan Coad from Swan Turton; along with Gavin Millar QC from Doughty Street Chambers, John Kampfner, chief executive of Index on Censorship and MediaGuardian’s editor, Jane Martinson. That article specifically referred to the Mullis / Scott report, as did a subsequent article published on guardian.co.uk on 30 March by Jonathan Heywood from English Pen, which (generously you might think) contained a direct link to the report. What I personally have always found interesting is that nowhere in the Scott / Mullis report does it acknowledge that it was commissioned by the LMS. No-one disputes that our current system of libel needs urgent reform – last month, the Ministry of Justice published the report of its libel working group, which brought together perspectives from both sides of the legal profession, the media, non-governmental organisations, academia and the scientific community. All three of the major political parties have made recent commitments to reform libel law.
As for the specific debate on the inequities of a funding system that has allowed some claimant lawyers to charge base rates in excess of £450 plus a 100% uplift, well that will no doubt continue. That the current system has been serially abused has been acknowledged not only by Sir Rupert Jackson in his recent report but also by senior members of the judiciary as well as by Culture, Media and Sport Committee on Press Standards Privacy and Libel.
What the claimant lawyer’s lobby has failed to do since this debate first began, (and lets also put that into context – its not about squeezing a three month consultation into four weeks – this debate goes back to at least 2003, with the publication of the consultation paper “Simplifying CFAs”- when the use of CFAs in publication proceedings first really emerged as a controversial issue) is to release their statistics on the number of claimant CFA funded cases with success fees” that they have won and lost, so that a properly informed debate can take place. Their own evidence suggests that they win many more CFA cases than they lose.
Take, for example, the statement made by Nigel Tait, a partner at Carter-Ruck, who told BBC Radio 4’s Law In Action programme on 23 February this year, that Carter-Ruck has lost about 15 “big” CFA cases and had won between 2-3 hundred. Given that, as long ago as February/March 2003, Carter-Ruck said it had “successfully acted for about 200 people”, and extrapolating from that, if we take a figure that’s probably still on the low side, of 300 wins, on my calculation that’s a success rate of 95%. Take some other examples, Jeremy Clarke-Williams (a partner at Russell Jones & Walker and one of the LMS founder members) told the Culture, Media and Sport Committee on 24 February 2009, “In my firm we have a very rigorous risk assessment procedure at the outset to decide whether or not we are prepared to take on a case on a CFA. So it is not surprising that the cases we do take on on CFAs are ones we expect to win”; Atkinsthomson, another claimant firm, say on their web site, that “it is a testament to our ability to judge these cases that, to date, we have never lost a claim undertaken on this basis”. If Mr Heffer wants to have a proper debate on this issue, then he should start by disclosing how many successful CFA cases his firm has conducted for individual claimants and how many he has lost.
Some good points I think – though it may have been only the Guardian which picked up Scott/Mullis. I don’t remember it being discussed in the Mail (or even the Times).
Not sure about the statement that “no-one disputes that our current system of libel needs urgent reform” – I thought that was exactly what Scott/Mullis did dispute. The reforms proposed by the Libel Working Group (which was a bit unbalanced) were actually quite modest.
But, yes why don’t claimant law firms provide the figures for CFA success rates? And what about up to date figures from the media? At least we would then know what we were arguing about.
Scott and Mullis open by acknowledging that there is need for a review: “We recognise the potential for misuse of libel law so as to preclude investigative journalism, to stifle scientific debate, to undermine the work of NGOs, or to invite the strategic legal tourist from abroad. We agree that it is timely for a general review of the operation and impact of the law to be undertaken with the object of identifying necessary reform” and they “welcome the Government announcement that some form of review will be undertaken in this new year.”
The media have always been happy to provide figures – indeed that is what they did for Jackson – and they remain happy to do so – but the discussion can’t take place if claimant lawyers don’t put their cards on the table.
A couple of points:
– to my knowledge the report authored by Alastair Mullis and myself has by now been cited in the Guardian as noted, in the Independent (in passing), in the Financial Times (in slightly more detail), and related commentary has appeared a couple of times on BBC Online. I may have missed one or two others.
– the paper nowhere acknowledges that it was ‘commissioned’ by the LMS group because it wasn’t. We did speak to one member of the group, and ultimately decided to write the paper after having between us spoken to a good number of other lawyers and journalists. We got feedback on a draft from two or three claimant lawyers and a journalist. We did coordinate the publication of the paper with the LMS group as for us this allowed the widest exposure as quickly as possible. A more ‘academic’ version of the paper has since been published in a peer-reviewed journal. Our motivation was entirely as stated in the introduction to the paper.
As is the nature of the reform debate, the advance feedback we received (and that received since publication) was invariably critical on some point or other, but my sense is that it has been broadly welcomed for its balance (attested by the fact that most readers of it have grumbled – more or less justifiably – about something in it!).
To the ordinary citizen with no legal qualifications like myself there are two simple issues:
1. We cannot afford to litigate.
2. Damages frequently awarded that have no real impact or deterrent effect on newspaper publishers for whom out of court settlements are a routine game.
If these issues are not adressed we will end up like America. Something that has not been a good precedent in the last decade.
Kind regards, David Kirke.