We have previously posted the judicial responses to the Government’s Consultation on “Controlling Costs in Defamation Proceedings“.   The two judges who responded – Lord Neuberger and Chief Costs Judge Hurst – were both opposed to the proposal.  We had a post last week by Justin Rushbrooke questioning the whole consultation process on this issue.

It has been suggested to us, in the interests of balance, that we should draw attention to some of the responses which were in favour of the Government’s proposal.   There are some very short submissions from the Publishers Association.  These simply state its “wholehearted support for the proposal” and, as a result, does not deal with the other questions posed.

The PPA (the Periodical Publishers Association) is equally brief but relies on the more substantial submissions from the Media Lawyers Association.   In these submissions it is argued that

“There is no genuine or actual risk of lots of cases being lost such as to justify a need to ‘compensate’ for this risk by the large percentage success fees … Charing large percentage success fees enables CFA lawyers to make excess profits.  There is no statistical evidence to justify this practice, it is not economically efficient no does it assist access to justice” (p.4).

They also call into question the whole theoretical and practical basis of CFAs – quoting Sir Anthony May (speaking in a personal capacity) asking the basic question as to why the losing party should have to pay “an additional amount, in excess of the proper and reasonable costs of the litigation to cover the winning party’s lawyer’s costs of losing other cases on behalf of other clients?”

This is a clear challenge to CFA lawyers who seek to defend something like the current regime to provide a statistical justification for the payment of success fees and a clear explanation of principled basis on which such success fees should be recoverable.

Finally, we take this opportunity to draw attention to public availability of the Bar Council Response to the Consultation which opposed the proposed change on the basis that the matter should be dealt with “holistically” as the Jackson Report had proposed.

It seems likely that this issue will return when the new government comes to consider issues of libel reform.  We will look at it further in our series of posts on the “Libel Reform Debate”.