This is a weekly Media Law Update prepared by the Legal Information Team at Matrix Chambers, which they have kindly agreed to make available to readers of Inforrm.

Latest Cases

Fiddes v Channel Four Television Corporation & Ors [2010] EWCA Civ 730 :  CA (Civ Div) – 29 Jun 2010.   The claimant appealed against a decision that the trial of his libel action should be heard by a judge alone. The claimant submitted that the judge exaggerated the extent to which the documents he identified would involve prolonged or difficult examination and the extent to which the absence of a jury would enable time to be saved. Held: the extra time and cost involved in jury trial should not be given too much weight since that would risk undermining the important right to jury trial given by the Senior Courts Act 1981, s 69(2). The number of documents was not the issue. The inconvenience to be considered in the second s 69 question was that arising from the prolonged examination of documents, not any other inconvenience which might arise as a result of a jury trial. The fact that one party was a public figure might be a reason for favouring a jury trial, but that did not mean that the fact that neither party was a public figure was a reason against a jury trial. The constitutional importance of the right to trial by jury was clearly in the judge’s mind. The fact that juries in criminal trials sometimes had to consider complex documentation did not really bear on the three s 69 questions.

Horlick v Associated Newspapers Ltd [2010] EWHC 1544 (QB) QBD – 24 Jun 2010.   The principles to be applied when a judge was invited to determine meaning in a defamation case were well settled. The judge should give the relevant article the natural and ordinary meaning which it would have conveyed to ordinary reasonable readers reading the article once. Such a hypothetical reasonable reader should not be treated as either naive or unduly suspicious, but recognised as capable of reading between the lines. Some of the claimant’s pleaded meanings were overstated. Inter alia, it was not accepted that the article conveyed a Chase Level 1 meaning. The article merely stated that “questions were raised” about her due diligence. That would equate to a Chase Level 3 meaning, yet those particular references were not suggesting that the claimant was motivated in “railing” against US regulators, by a desire to deflect attention from her own errors of judgement. The article did not accuse the claimant of being a “charlatan” and there was no reason to suppose that she had been making claims to prospective investors which she knew to be false. Furthermore, although the article referred to support from a particular City banker and businessman, that did not itself sustain the proposition that she had been “exploiting powerful connections”; that was a strained meaning.

Latest Regulatory Decisions

Latest decisions of the First-tier Tribunal, General Regulatory Chamber [Information Rights]

News Stories

Barber legal case to continue despite defamation ruling PA Media Lawyer, Press Gazette – 29 Jun 2010,  Notes that the academic who launched a legal claim over an unfavourable review of her book by Lynn Barber will continue her action on two other grounds without appealing against a ruling that the article was not defamatory.

“Send us your comments” says new Transparency Board Cabinet Office,  Press Release – 25 Jun 2010, The Chair of the Transparency Board has invited comments on new principles for transparency and open data as well as new suggestions for data sets to be released.

Lord Lester: urgent action needed on CFA success fees, Oliver Luft, Press Gazette – 23 Jun 2010, Reports that Lord Lester told the Government that it must take urgent action to deal with the “scandal” of high success fees charged by lawyers working on “no win, no fee” defamation actions. The peer asked if the Government intended to use powers under the Courts and Legal Services Act to reduce the maximum success fee chargeable in conditional fee agreement cases. Lord Lester spoke after Justice Minister Lord McNally said the Government would determine the next steps on defamation success fees after considering recommendations made by Sir Rupert Jackson in his report on costs in civil litigation.

Articles and Discussion

The Irish Defamation Act 2009 – too little, too late?, Marie McGonagle & Annabel Brody (National University of Ireland), Communications Law Comms. L. (2010) Vol.15 No.2 pgs.43-50, Evaluates the Irish Defamation Act 2009, and its updating of the law on defamation. Explores key provisions of the Act, covering affidavits as to facts, companies’ right to sue, multiple publication, the defence of fair and reasonable publication, juries and damages, alternative remedies, blasphemy, and the roles of the Press Ombudsman and the Press Council.

CFAs in defamation and related claims: is the gravy train coming to an end? Robin Shaw & Paul Chamberlain (Davenport Lyons), Communications Law Comms. L. (2010) Vol.15 No.2 pgs.51-55:  Assesses the impact of recent reports and inquiries on defamation and related privacy claims, focusing on the issue of costs. Discusses: the present costs regime, looking at CFAs, hourly rates and success fees, and costs shifting and after the event insurance; and Lord Justice Jackson’s Final Report in January 2010 following the Civil Litigation Costs Review, considering the recommendations to abolish success fees and ATE premiums, and introduce one way costs shifting.

Presumed malice and the protection of confidential sources, Richard Caddell (Swansea University), Communications Law Comms. L. (2010) Vol.15 No.2 pgs.56-58:  Reviews the decision in Financial Times Ltd v UK (App No. 821/03) that a Norwich Pharmacal order requiring media organisations to disclose the source of leaked documents regarding a possible corporate takeover breached the  ECHR, art 10, noting the  importance placed on the impossibility of identifying the motivation for the leak with sufficient certainty.