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