According to Lord Justice Leveson, one of the key requirements of a new independent press regulator is an “arbitration service”. The recommendation is that the regulator should provide “an arbitral process in relation to civil legal claims against subscribers, drawing on independent legal experts of high reputation and ability on a cost-only basis to the subscribing member” (Recommendation 22).
The Report goes on to recommend that
“The process should be fair, quick and inexpensive, inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious). The arbitrator must have the power to hold hearings where necessary but, equally, to dispense with them where it is not necessary.The process must have a system to allow frivolous or vexatious claims to be struck out at an early stage“.
The purpose is to provide a quick and cheap alternative to court proceedings for both claimants and the press. But how would such a system work in practice?
The System in Practice
It appears that what is envisaged is a system which takes in something like the following stages:
- Stage 1: A newspaper which subscribes to the regulator publishes an article which a claimant believes breaches his or her legal rights (as opposed to his or her rights under the Standards Code). The claimant writes to the newspaper which considers his or her complaint in its internal system. If it offers acceptable redress then that is the end of the process. If not, then, Stage 2:
- Stage 2: The claimant writes to the “arbitral service” and says that s/he wants to make a legal complaint. There is a “first sift”: a member of staff decides whether the complaint appears to be within the rules of the service (which it would not be if, for example, it was an “accuracy” complaint which was plainly not defamatory) or whether the claim is manifestly misconceived. If, on first sift, the claim appears to be valid, the claimant is sent a copy of an arbitration agreement to sign and a claim form to fill in (with explanatory notes).
- Stage 3: The claimant returns the signed arbitration agreement and completed claim form. The claim form is then put before an arbitrator who decides how to proceed. This is, in effect, a “second sift”. The arbitrator may decide that the claim appears to be “frivolous and vexatious” and invite the claimant to make written representations as to why it should not be struck out with costs. The arbitrator may decide (taking on his or her”inquisitorial function”) that the claim needs reformulating or supporting by further evidence. On the other hand, the arbitrator may decide that the claim calls for a defence and will then send it to the newspaper so that it can produce a defence.
- Stage 4: The arbitrator will, in the light of the claim and the defence decide how to proceed. S/he may require witness statements or disclosure of documents. S/he may decide to make an interim award (for example, on meaning) – on paper or at a hearing.
- Stage 5; Final determination. When all appropriate steps have been taken, the arbitrator will make a final determination – either on paper after inviting representations or at a hearing with witnesses. S/he may to decide to have the hearing in public if that is appropriate.
In many cases – though not the most complex – this is a process which could be concluded in a matter of weeks. Complex cases may take a little longer but, with efficient arbitrators the process should quick and effective.
Issues about the Operation of the Arbitration System
A number of issues have been raised about the way in which this system would operate. On proper analysis none of them represent an insuperable barrier to the proper operation of the arbitration system.
The first issue, which has been raised by the regional press, concerns the cost of dealing with frivolous complaints on the basis that if this was done by an arbitrator this could be very expensive in comparison to the current complaints system. It is true that in order to be binding on a claimant (and to be compatible with Article 6 of the European Convention on Human Rights) a determination that a complaint is frivolous and vexatious would have to be made by the arbitrator in accordance with system rules. If this was not done there would not have been an “arbitration” at all and the claimant could simply renew the claim in the courts.
But nevertheless, there is nothing to prevent the arbitration service carrying out the “first sift” by an employed lawyer. As mentioned above, this is a sensible stage in the procedure (Second Stage above). This sift would get rid of the frivolous claims at the outset. Although it would not be a binding determination it would send a clear message to a complainant. If a strict standard was applied then it is highly unlikely that a claimant would be able to bring a successful court claim after a “first sift refusal”.
The second concern is that arbitration is not an appropriate way to deal with defamation and privacy claims at all. This is an important point which was raised by the legal commentator David Allen Green in a New Statesman blog piece
“Uniquely in the law of England and Wales, the law of defamation is (or should be) about vindication: the goal of the wronged claimant is a public declaration that the defamation was unfounded. Damages are awarded to demonstrate this vindication, and statements can be made in open court. Whilst arbitrations can be suited to contractual disputes – or even privacy disputes – they are not well geared for defamation. [Leveson ] … does not show how the successful complainants will get their public vindication in the closed setting of an arbitration. What is needed in respect of defamation is not to make it harder for complainants to get their rightful vindication in open court, but to make it easier and cheaper to rely on their substantive legal rights“.
This point not directly addressed by Leveson himself. However, the answer lies, in the basic duties of arbitral tribunals (set out in section 33 of the Arbitration Act 1996). As well as a duty to act fairly and impartially, an arbitral tribunal must
“adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined” (s.33(1)(a)).
Although the general rule is that arbitrations are dealt with in private, there is nothing to prevent a public hearing being held. There is a strong argument that in some libel cases, the “procedures suitable to the circumstances of the particular case” would include a public hearing. The rules of the arbitration system should make it clear that there can be public hearings in libel cases.
In addition, there is a strong argument that the final decision of the arbitrator (known as “the award”) should be made public. This will provide vindication for claimants – or justify the stance taken by the newspaper. The publication of awards would also provide useful precedents. Once again, this is something which can be clearly dealt with in the scheme rules.
The third point concerns the impact of the requirement that the procedure be “inquisitorial” in nature. Some commentators have even suggested that this would mean that the arbitrator would not be bound by the rules of defamation law. This is not correct. In an arbitration that parties agree on the law which applies to their disputes and it would obviously have to a term of the arbitration agreement that English law would apply. Even an “inquisitorial” arbitrator would be bound by that agreement and – after inquiring into the parties’ cases and their evidence – would have to apply the ordinary rules of law.
Suggestions by the Press
Two further matters have been floated by the press in relation to the arbitral process – as ways of restricting access to the system in order to reduce the number of complaints.
The first is that complainants should be required to have a code breach dealt with by the complaints arm of the regulator before making an arbitration claim. It is difficult to see how there could be any justification for this approach. It is already clear that one of the features of the complaints system must be that complaints should not be received directly until the newpaper’s internal complaints procedure has been engaged (Recommendation 10). Similarly, a person using the arbitration should first have to use the internal complaints system (Stage 1 above).
But there is no legitimate basis for requiring a person who has a legal claim to use the complaints system before the arbitration system. It is true that, in many cases, a publication which gives rise to a legal claim will also give rise to a breach of the Code. However, if the claimant does not wish to pursue a code complaint there is no proper reason for forcing him to do so as pre-condition for using the arbitration system. The aim of such a requirement would be to reduce the number of arbitration claims. This is not a legitimate basis for restricting access to legal process.
Second, the press have sought to argue that excessive numbers of arbitration claims could be discouraged by charging a fee. A fee of £200 to £250 has been mentioned. The charging of such a fee would plainly be contrary to the terms of the Leveson recommendations. He states, at recommendation 22 that the arbitral process should be free for complainants to use. His references to the system being “inexpensive” concern the overall costs of the system (which is to be met by the press).
The imposition of a fee for making an arbitration claim would be contrary to the clear terms of the Leveson Report. It would also be a serious fetter on the ability of claimants to use the arbitration system. There are some members of the public for whom a fee of £250 would be a real barrier to the use of the arbitration system.
In summary, Lord Justice Leveson’s recommendation for an arbitration system for claims against the press is a workable and practical solution to the problem of access to justice. Administered properly such a scheme would save costs for newspapers and would provide quicker and more effective remedies for claimants. It is an essential element of a new self-regulatory regime.
Hugh Tomlinson QC is the Chair of Hacked Off and an Editor of Inforrm