“Reframing Libel – A Practitioner’s Perspective” Part 2 – Hugh Tomlinson QC

This is Part 2 of a paper given to the City University Forum on “Re-Framing Libel” on 4 November 2010. Part 1 was published on 5 November 2010.

The next area which I would like to consider is that of remedies in libel cases.  The level of libel damages has been of concern to campaigners for many years.   The high (or rather low) point of the development of the law in this area was the £1.5 million awarded to Lord Aldington against Count Tolstoy.  But the law has moved on. 

At present libel damages are, effectively, capped at £215,000.  The report “Free Speech is not for Sale” suggests a reduction in the level of the cap to £10,000.  This is difficult to defend for two reasons.   First, there is the need to preserve what has been called the “deterrent” effect of damages.  As the Privy Council said in Gleaner v Abrahams ([2004] 1 AC 628):

“[Defamation] damages often serve not only as compensation but also as an effective and necessary deterrent. The deterrent is effective because the damages are paid either by the defendant himself or under a policy of insurance which is likely to be sensitive to the incidence of such claims… Awards in an adequate amount may also be necessary to deter the media from riding roughshod over the rights of other citizens”[53]

Second, there is the need to preserve flexibility.  Whilst some libel claims involve minor complaints which could properly be compensated by small sums, there are some extremely serious libels which seem to require substantial compensation.  The case of the McCanns is one recent example, but there are other recent cases involving false accusations of serious criminality or child abuse.  An award of £10,000 appears obviously inappropriate in cases of this kind.

Damages are not capped in the United States or in Canada, New Zealand or South Africa.  A cap has recently been introduced in Australia by the Uniform Defamation Act 2005.   By section 35 there is a limit on general damages of Aus$250,000 (£146,000) but the court can “otherwise order” and make a higher award if satisfied the case is such as to warrant an award of aggravated damages.  It is noteworthy that according the freedom of expression NGO Article 19 the only one of the 53 European countries surveyed had a statutory damages cap for defamation cases.  This was Greece where the cap was set at US$438,000.

The arguments in favour of a statutory cap on damages of £10,000 are not convincing and, taking account of developments in the law of defamation over the past two decades, it must be doubtful whether any statutory cap is needed at all.  This is not a proposal taken forward by Lord Lester’s Defamation Bill.

Apology, Correction and Declaration of Falsity

There is, however, another point on “remedies” where in my view there is a strong argument in favour of reform.  In the “Free Speech is not for Sale” report it is suggested that an apology should be the primary remedy in libel. There is considerable force in this point.  There is a strong argument in favour of giving the courts a power to order the publication of a correction or apology.  This is available in many European countries.  If the courts were able to order the publication of corrections or apology – perhaps in the form of the publication of a summary of the Court’s judgment, with appropriate prominence – this would be a powerful factor in reducing the level of damages.

Another possible remedy – presently available only on summary determinations – is the “declaration of falsity”.   This is often the only thing that a claimant wants – for it to be publicly declared that he or she did not lie or cheat in the way alleged.  In such a case the claimant could be required to prove the falsity of the allegations – as the price of a court declaration.  The fact that there is a “privilege” or “responsible journalism” defence in such a case should be relevant only to costs.  The question as to whether there is such a defence is irrelevant to the truth or falsity of the underlying allegation (and to the public utility of that falsity being established).

In practice, this remedy would prove attractive to many claimants for whom, as the Libel Reform campaign correctly suggests, vindication is often the primary aim.   A declaration of falsity may, in many cases, be a sufficient remedy for a claimant whose main concern is to set the record straight.   There has, unfortunately, been little debate about these alternative remedies.  One reason for this may be their unpopularity amongst the media supporters of libel reform.

Procedures

The supporters of libel reform have focussed on a number of aspects of the law which could properly be described as “procedural”.  I want to deal with four: abusive actions, burden of proof, multiple publication and “libel tourism”.   I then want to make a “practitioner’s” proposal for reform: a mechanism for the early determination of meaning.

Abuse

One of the most powerful arguments against the current law of libel – and one which has helped the reform campaign gain considerable popular support – concerns the way in which the law is abused by claimants.  There are two aspects to this.

The first, is that the law of libel is a vehicle for “wealthy bullies” to suppress criticism.  There is obvious force in this argument.  The law of libel has been used in an oppressive way by bullies from Robert Maxwell to the large corporations seeking to silence critics.  But the fact that the present law of libel has been misused is not, of itself, an argument in favour of reform.  For every Robert Maxwell there is a Robert Murat – he was, you may remember the innocent ex pat who came to be falsely accused by the British press of being involved in the disappearance of Madeleine McCann. It must also be remembered that rich bullies are not just claimants.  Rich media corporations have, traditionally, sought to grind down meritorious claimants by so-called “long pocket” defences.

The fact that rich bullies can abuse the law of libel is a powerful argument in favour of “levelling the playing field”.  One way of doing this is, of course, making funding available for impecunious defendants (and claimants) so that they are on more or less equal terms with their rich opponents.  The “conditional fee system” was an attempt to do this.  It is a system that is deeply flawed and open to abuse although, in the absence of public funding or charitable support, it may be the least bad system for providing access to justice in libel cases.

Furthermore, it is impossible to conceive of a reform which would, in practice, eliminate abuse.  Whatever the provisions of the substantive law, the possibility of abuse is always present.  A quick perusal of the reports of US libel litigation – where the substantive law is, as is well known, very heavily tilted towards the protection of defendants – will confirm this.

The second, and perhaps more pernicious form of abuse, are libel claims of a trivial nature – where a claimant sues over a small number of publications which, in practice, are highly unlikely to have caused him or her any damage at all.  The defendant is put in the invidious position of either having to defend an action at great cost or of “admitting” the falsity of something which he or she knows or believes to be in fact true.

There is general agreement that “trivial libels” should not be allowed to clog up the courts, although less clarity about how they should be identified and dealt with.  There is already jurisdiction, deriving from the case of Jameel v Dow Jones ([2005] QB 946) to strike out a case as an abuse of the process if the publication does not amount to a “real and substantial tort”.  Furthermore, the result of the decision in Thornton v. Telegraph Media Group ([2010] EWHC 1414 (QB)) is that for words to be defamatory at all they must cross a threshold of seriousness.   Lord Lester’s bill contains a provision, in clause 12 to the effect that a claim must be struck out unless a claimant shows that the publication has caused substantial harm to his reputation or it is likely that such harm will be caused – unless it is found to be in the interests of justice not to strike out.

It is not clear what this provision adds to the current law of abuse.  Presumably it is intended to apply a more rigorous test than that applied in Jameel – if not, there would be no point in having it.  But how much more rigorous?  How high is the new bar set by this provision?  Neither the clause itself nor the Explanatory Notes to the Bill give any guidance.  This is something which would have to be resolved by decisions of the court and would inevitably mean a period of considerable uncertainty whilst a body of case law interpreting the provision was developed.

The practitioners’ perspective on this clause is that it would be good for business but bad for the public.  It would, inevitably, mean that in a large number of libel actions, there would be an “additional stage” at which the issue of “substantiality” would be considered.  This would, in turn, involve consideration of a large number of issues which would involve the preparation of evidence.  It seems inevitable that, in some cases, defendants would seek to argue that despite the apparent seriousness of the libel and the wide publication, the claimant’s reputation was such that no substantial damage had resulted.   The practical consequence of this provision would be to increase the cost and length of libel proceedings.  It would, in addition, require “front loading” of costs: that is, spending more money at the outset.  Any well advised claimant would, before issue gather evidence to support the claim that the damage was substantial.  As most cases settle well before trial, this approach would make cases more costly.

If the aim is indeed to “build on” Jameel, then any statutory reform needs to be much clearer about where the “bar” is to be placed and care should be taken to limit the time and costs taken up on this issue.  Perhaps the best way forward is to bring in new rules of court (as suggested by the Libel Working Group).

Burden of Proof

In “Free Speech is not for Sale”, Index on Censorship and English PEN recommended that the burden of proof should be reversed in libel cases.  The complaint is that, in a libel action, the burden is on the defendant to prove his defence:  in the words of the Report “In libel, the defendant is guilty until proven innocent.”

I will make three points about this.  First, the language of “guilt” and “innocence” is not really appropriate.  The law requires someone who alleges that a person is guilty of wrongdoing to prove his charge.  This seems entirely fair and is consistent with the position in other areas of the civil law: if I damage someone’s property or punch them on the nose I am liable in trespass to goods or trespass to the person unless I can establish a lawful justification.   Second, a reversal of the burden of proof will often require a person to “prove a negative” – to take an example from one of my recent cases, that he was not the mentor of person who committed a terrorist attack. The difficulties are obvious: my client he would have had to prove the negative that he had never encouraged the man in question to engage in terrorism.  Third, there is a strong policy in favour of requiring those who make defamatory allegations to think about whether or not they can show them to be true before they are made. Another point is sometimes made: that it would not make much practical difference because each side would still have to marshall evidence for and against the factual point in issue in any event much as they do at present.  This may well be right although, if the burden of proof were to be reversed, it would undoubtedly require a lot of litigation to find out exactly how it worked.

Multiple Publication Rule

Another complaint in “Free Speech is not for Sale” is that the “definition of ‘publication’ defies common sense” and a “single publication rule” should be introduced.  This is not straightforward.  The perceived problem of the “multiple publication” rule is that it means that a person can sue years after the – to use a neutral term – first “dissemination” of the words complained about.  This, it is said, gives rise to potential difficulties for the keepers of online archives.

There is an obvious good point here – although there is in fact little evidence that this gives rise to problems in practice.  The point could be dealt with by the introduction of an “archive privilege”.  A “single publication rule” is something altogether different.  It involves a “deeming” provision – treating all publications as if they took place on the date of the first one.   Such a rule has been introduced in most US jurisdictions – but, as far as I am aware, nowhere else.  It, inevitably, requires qualifications and exceptions – for example, the paperback edition of a book and its newspaper serialisation are “new publications”.  Once again, a reform would generate new issues which would have to be resolved by fresh litigation.

Libel Tourism

A third complaint concerns “libel tourism”.  It is said that the “claimant friendly” (and unacceptable) state of English libel is demonstrated by the fact that “London has become an international libel tribunal” – the “libel capital of the world”.   This is, as a matter of fact, untrue.  The level of libel litigation in London is very low by world standards and very few of the cases are brought by foreigners against foreigners. The previous Government’s “Libel Working Group” looked at the 219 libel actions issued in England in 2009 and found that 34 or 8% were identified as having a “foreign connection” (based on the addresses of the parties given on the claim form). There appear to have been no “pure libel tourism” cases – that is claims brought by foreign claimants against foreign defendants relying on the fortuitous publication of a few copies in England or on the internet.  More recently, a survey by Sweet & Maxwell suggested that only 3 of 83 defamation lawsuits examined from the previous year were examples of “libel tourism” – and two of those were cases brought by UK residents.

Corporate Claimants

A fourth point is that “not everything deserves a reputation”.  The value of human dignity is plainly not directly engaged when a company’s reputation is attacked.   The “Free Speech is not for Sale” report suggests that the law should “exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood”.  Practitioners are aware that successful malicious falsehood cases are vanishingly rare – partly because English law provides strong protection for journalist’s sources, making proof of malice almost impossible.  This would mean that the proposal would leave “large and medium-sized companies” without remedy in the case of false and damaging publications. Lord Lester’s Defamation Bill is not quite as radical.  Clause 11 provides that:

“A body corporate which seeks to pursue an action for defamation must show that the publication of the words or matters complained of has caused or is likely to cause, substantial financial loss to the body corporate”

This goes both too far and not far enough.  It goes too far because it excludes “non-trading” corporations – running charities or NGOs – from making claims.  It does not go far enough because it does not restrict the ability of large multi nationals to bring claims in relation to most kinds of defamatory allegations.  Any reform proposal must recognize the special position of non-trading corporations and the need for corporations of all kinds to be able to vindicate their reputations in the face of false allegations which damage their ability to carry out their activities.  If the right of large corporations to claim damages for defamation is to be restricted, it could be replaced by the right, in appropriate cases, to seek declarations of falsity – to provide vindication in the face of false allegations.

There is another procedural reform which could, however, produce substantial benefits in libel litigation: a procedure for the early determination of meaning.  This would involve a judge deciding, at an early stage, what allegation the words complained of were making (that is, their “meaning”).   Disputes about meaning are often central to libel actions and such determinations could, potentially, save considerable time and costs.

There is, however, one consequence of a rule which allowed for “early determination of meaning” which some regard as being of profound constitutional importance.   If such a determination was to be made by a judge it would require the abrogation of the right to trial by jury in defamation cases.  Many regard this as a historical anomaly – and in practice such trials are now rare (there has not been one in London since July 2009).   The issue is, nevertheless, a difficult one which requires full consideration and debate.

Costs

The issue of costs is central to the concerns of many of those who want to see the law of libel “reframed”.  This issue is, unfortunately, not just confined to libel cases. The costs of all forms of civil litigation in England are scandalously high.  The result is that there are only three classes of people who can realistically obtain access to the courts: the rich, those who have public funding and those who have the benefit of CFAs and ATE insurance.

The reasons for these high levels of costs are complex and lie deep in our legal culture. Two factors seem to me of particular importance.

First, there is the traditional common law approach to trials – requiring extensive disclosure of documents and then full cross-examination of witnesses.  This means that cases which, in civil law systems, can be dealt with in a matter of weeks, with hearings measured in hours, take one or two years to come to trial, with hearings measured in days or weeks.  This is something which could be reformed – although its consequences are far reaching and would require very careful analysis and development.  It is interesting that, as far as I am aware, no one has proposed such a reform whether in the libel context or more generally.

Second, there is the “commercialisation” of English legal practice.  Thirty years ago, most solicitors’ firms were small “professional” offices with a handful of fee earners.  Solicitors are now often very large commercial organisations, in large offices with hundreds or thousands of staff and turnovers measured in the millions.  Large organisations generate large overheads.  Practitioners’ earnings have increased to levels which are, by historical standards, extremely high.  As a result of all these factors, legal fees have hugely increased. Once again, this could be the subject of radical reform.  The courts could cap practitioners’ hourly rates at substantially reduced levels.  This would mean recasting lawyers’ business models.  It is noteworthy that, in his wide ranging and widely praised review of civil costs, Lord Justice Jackson did not engage with the issue of hourly rates at all.

In other words, the reform of the unacceptably high level of civil legal costs is difficult and will take time.  This is not an argument for not doing it but rather a caution against “quick fixes”.   A series of measures have been attempted – including “costs budgeting” and “costs capping”.  None have been entirely successful.  This does not mean that we should stop trying but it does mean that careful research and analysis is needed.

On a slightly different point, there are strong arguments for reducing the level of libel CFA success fees – although not to the 10% suggested by the last government.  The success fee should reflect the actual rates of success of libel claims.  CFAs provide access to justice for claimants and defendants who would otherwise not be able to afford to go to court.  As I have already said, they may well be the “least bad” way of providing access to justice.   There should be proper control over the costs which are incurred and success fees should properly correspond to the risk.  All practitioners hate CFAs but, without them, access to justice will suffer.

From this practitioner’s perspective, the only practical solutions under this head are piecemeal ones.  In relation to costs, there should be stricter rules about recovery, particularly in relation to CFA success fees.

If the costs issue cannot be resolved quickly and directly, is there an “indirect” way of approaching the problem?   In “Free Speech is not for Sale” it is proposed that a Libel Tribunal should be established “as a low-cost forum for hearings”. There are obvious attractions in this proposal.  Of course, a Libel Tribunal would be determining civil rights and obligations under Article 6 of the European Convention on Human Rights.  It would, therefore, have to be “Article 6 compliant” in terms of its composition and procedures.  However, employment and discrimination cases – where the law is sometimes complex and difficult – are litigated in Employment Tribunals in front of a professional judge and two lay members.  Why shouldn’t the same apply in libel cases?  Such tribunals could take all libel cases or perhaps those below a certain value or those not involving corporate defendants.

There are two issues which arise.  The first is that the procedures of “tribunals” are often just as complex as those in courts – this is not surprising as they are part of the ordinary court system.   Like Employment Tribunals, Libel Tribunals would have pleadings, disclosure and cross-examination.  It is doubtful whether there will be much advantage in terms of speed or cost.

The second issue is more important.  In the English tribunal system the usual rule is that orders for costs are only made in exceptional circumstances.  This means that litigation can be conducted by claimants without real financial risk and it also gives decisive advantages to the wealthy who can litigate without needing to recover their costs.   The risk of having to pay costs helps to focus the minds of litigants – to stop them bringing or defending unmeritorious claims.  A tribunal system removes this risk and makes it likely that more cases will fight.

Instead of a Libel Tribunal, there are attractions to the recent idea put forward by Tracey Brown of having libel cases heard in the County Court.  Actions against the police – which are often tried by civil juries – are regularly heard in the County Court and defamation cases are no more complex.   Costs are lower in the County Court and in some County Courts (although, unfortunately note all) the procedure is slightly quicker.  There is no reason why libel cases should not be heard in the County Court – particularly if they were dealt with by designated judges with experience of the area.  It is noteworthy that, in New South Wales ) the smaller “non-media” cases are now generally dealt with in the local equivalent of the County Court – the District Court.  This kind of reform should achieve some – modest – costs savings.

Conclusion

This is one practitioners’ perspective.  It is very different from many supporters of libel reform.  For the reasons I have tried to explain, I am sceptical about many of the libel reform arguments.  The English law of libel, in general, has the balance between free speech and reputation in more or less the right place.  Subject to some adjustments to limit the ability to sue of large corporations and provide defences to scientists and bloggers I am not persuaded by the case for reform to the substantive rules of libel law.

The position in relation to costs and procedure is very different.  These aspects of the English law of libel are not in a happy condition.  The law is costly and inaccessible to most people, it does not provide proper remedies to claimants.  There is no “magic bullet” which will solve all these problems with one shot. What is needed is specific and focused procedural reforms, along with continuing efforts to control costs and provide cheaper methods of resolving claims.  What is required is not a fundamental “reframing” of the law but continuing vigilance and revision to ensure that it properly serves the public interest.