This is an edited version of a paper given to the City University Forum on “Re-Framing Libel” on 4 November 2010.
Libel law has endured quite an assault over the last 18 months. Enormous academic, media and political resources have been occupied in illustrating its perceived weakness and dangers. So far, nothing much has changed, which is a relief to those who by their day-to-day experience of practising libel law could see the folly and self interest in much of the criticism and knee-jerk counter-measures.
But the debate presents opportunities as well as challenges and there is no doubt in my mind that aspects of libel litigation would benefit by some reform.
Most of the energy in the libel reform debate has naturally centred on the substantive law, most significantly in Lord Lester’s draft defamation bill. The procedural rules by which libel actions are resolved would struggle to attract the interest of a Sunday Times editorial or a witty sound-bite from comedian Dara O’Briain, but it is perhaps the area in which sensible reform could have the most positive impact and, dare I say, the least resistance.
The Civil Procedure Rules (“CPR”) exist to govern the progress of libel, and all other type of civil litigation from the day the claim is issued to trial. The CPR opens with its laudable “overriding objectives” one of which is (CPR 1.1 (2) d) “ensuring that it [the case] is dealt with expeditiously and fairly”. Other objectives include proportionality and saving expense. Are these objectives met in the case of libel actions or is for example the objective of fairness given such weight that expeditiousness is of little consideration? In my view it is a serious consideration. The CPR is subject to Article 6 of the European Convention on Human Rights which states
“In the determination of his civil rights and objections or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time”.
For all the good intentions of the CPR (and Article 6) the perception is that litigation remains blighted by excessive and disproportionate expense and delay. It is a process, whether your complaint is libel or any other, that most would do well to avoid. Of the “twin evils” of litigation procedure in libel actions it is the cost aspect (being considered in another paper) that attracts the greatest attention. Certainly, fighting a libel action to trial is an oppressively expensive process and the existence of conditional fees and insurance policies have added spice to that particular debate. But the time it takes for a libel action to come to trial also warrants careful consideration and is more amenable to reform. My instinct is that libel litigation moves unnecessarily slowly and would lend itself to a shorter process to the benefit of both sides of the case.
In this paper I will attempt to address the issue of reframing the time it takes to get to a libel trial by reference to the following questions:
i) How long do libel actions currently take?
ii) Is this too long? What are the risks and benefits of speeding the process up?
iii) In what ways could the time be cut?
In answer to the first question (and with thanks to Annsley Ward of Collyer Bristow LLP who gathered the data) the average time for cases to get to a final determination, where the judgment was within the years 2008 – 2010 (inclusive) is just over 17 months – almost a year and a half.
As would be expected, the summary judgment/strike out applications provide for cases that are resolved sooner than those cases that are resolved by full trial. But the time it takes for a case to reach this stage varies substantially from 3 months (Ali v Associated Newspapers 2010 EWHC 100 (QB)) to 28 months (Kaschke v Gray 2010 EWHC 1907 (QB)) and it may well be that in many of the judgments in favour of the claimant, quantum remains in issue. Although this may not bear out from the analysis of these two cases, the correct time for a strike-out or summary judgment application can vary substantially from case to case. In some cases it may be that a party will wait for the exchange of witness statements and evidential documents before he or she is confident of making this application, in others it may be clear from the opposition’s first pleadings. In any event it is difficult to understand how the case of Kaschke (which concerned political blogs and was one of two libel actions brought by this claimant) could have run for 28 months before this application was made.
There are of course very few full libel trials. The three most recent full trials are Hughes v Risbridger (2010 EWHC 491 (QB)) Berezovsky v Russian Television (10 March 2010 EWHC 476 (QB)) and Gary Flood v Times Newspapers (16 October 2009 EWHC 2375 (QB)). The time these cases took to be completed (at first instance) is 16, 34 months and 29 months respectively. Of course Flood was appealed and the Court of Appeal decided in the Claimant’s favour in July of this year, over 4 years after the date of publication. I understand that the parties will hear shortly whether the Times’ application for permission to appeal to the Supreme Court will be granted. Detective Flood must wonder what he got himself into. In any event, dealing with the trials alone (therefore removing those determined by earlier applications) the average time from issue to judgment is 19 months.
Another time period of interest is the time it took for the claim to be issued from the date of publication. The limitation period for defamation is 12 months (s5 Defamation Act 1998 amending s4A of the Limitation Act 1980) from the date of publication. Many cases, cases against newspapers for example, involve publications where there will be simultaneous publication on the internet so (as it stands) the limitation period will continue to be extended by 12 months for as long as the material remains published. Notwithstanding that the limitation period no longer always exerts time pressure it is notable how few recent cases were issued within 6 months of publication (9 out of 24). This may be due to the application of the Pre Action Protocols and the procedure applicable to cases with “after the event” insurance policies but whatever the reason, assuming that the claimant was aware of the piece at the time of publication or shortly afterwards, he or she should be well prepared by the time the claim is issued.
Pre-Action Protocols provide a framework for the conduct of the parties before the claim is issued. A specific pre-action protocol applies to defamation claims. The protocol’s aim includes “setting a timetable for the exchange of information relevant to the dispute” but the language relating to the time periods give it very little bite and this seems to be borne out in the nine months the recent cases have taken to be issued. A better analysis of the time it takes claimants to issue proceedings would require an assessment of all libel claim forms issued, not just those which proceed to a final hearing.
Also of associated interest is the length of time of the hearings themselves. It is a libel trial that holds the record for the longest trial in UK legal history at 313 days (McDonalds Corp v Steel  1 WLR 618). No trials in recent years appear to have taken longer than 10 days to complete and many of them not nearly as long with three two-day trials in 2008. Even though the case of Flood took 29 months of litigation it took only 4 days to be tried by Mr Justice Tugendhat. Once the parties and the cases are physically in court, the time taken to decide them appears to be relatively short. This may be because more trials are being heard without juries, allowing the advocate to spend less time explaining his or her client’s case and the substantive law than they would with an expert judge. The Court of Appeal decision in Fiddes has made the existence of a Jury in a libel case even less likely, thus quicker trials and quicker and easier listing arrangements should be the norm.
Moving on to address the second of the questions I posed at the outset, why are these timescales important and what do they tell us? Clearly the most recent cases have taken an extremely long time to get to trial and even the average, taking into account the cases determined at an earlier hearing, suggests cases are moving ponderously through the litigation process. One of the key introductions of the CPR was for the Court to actively case manage so as to establish and police the steps up to trial. In reality the Court rarely intervenes without the prompt of an aggrieved party and the timetables become increasingly fluid. But the timetable is not necessarily a complex one. It is worth reminding ourselves that after the pre-action process there are only 5 primary phases in the litigation to enable the parties to prepare for trial:
- Claim form and Particulars of Claim (sets out the claim and gets the case started)
- Defence (should follow within 28 days, but more often takes twice that time)
- Reply (not a compulsory step but usual in libel)
- Exchange of documents (often a battleground between solicitors)
- Exchange of witness statements (not all of which may necessarily be used at trial)
As is borne out by the length of the libel trials, libel cases are not usually particularly document heavy (compared to most High Court commercial litigation for example) nor are there usually a very large number of witnesses so stages 4 and 5 above should not be unusually onerous for the parties and their solicitors. How can this process take 34 months? Are such time frames compliant with Article 6 and Article 8 of the Convention?
The primary reason for the longer cases may lie in the number and length of interim hearings that can take place in libel actions. An analysis of the number and type of interim applications that take place in libel actions would require a further study. It may however be instructive to have a brief look at a recent case that may be demonstrative of how extensive and hard-fought the process can become. The case of Fiddes v Channel 4 was due to be tried on 14 June this year. The case was settled very shortly before trial and shortly after the Court of Appeal’s refusal to overturn Mr Justice Tugendhat’s decision that the case could be heard by a Judge without a Jury. Although I am unaware of the terms of the settlement it is notable that it was reported in the legal press (The Lawyer 11 October 2010) that Mr Fiddes’ solicitors were suing him for the £1.3 million in fees that he had incurred in this case. The Court of Appeal in commenting on the Judge’s familiarity with the case referred to the 4 previous judgments (therefore in addition to the judgment that was the subject of the appeal) he had given on contested interlocutory issues before his judgment on the mode of trial. These contested applications, which were presumably in addition to the usual case management hearings, must have been a significant part of the staggering costs of this case, with Channel 4’s costs being reportedly even higher than its opposition at £1.7 million. So even with five basic steps to trial, each step can become the subject of bitterly fought, expensive and onerous applications to the Court.
It is perhaps the relationship between the length of time a case is in progress and its cost that make the examination of the procedure (and its potential reform) most relevant. Whilst it is too simplistic to state that shorter cases are always cheaper, there is an inevitable logic that the less time parties are instructing their lawyers, the lesser the bill at the end. All lawyers will recognise that delays between one procedural step and another become absorbed with correspondence of doubtful relevance to the substantive case but are deemed justified in an effort to gain a strategic advantage.
Whether by exchange of inflammatory correspondence or interim applications, there is some inevitability that libel actions are going to be more hard fought and emotive than other types of litigation more concerned with the financial outcome. Whilst this may be inevitable it is not necessarily beneficial for the court to provide for this conduct. I will touch on suggestions for improvements to the procedure later in this paper but in doing so it must be recognised that for libel actions to remain fair and effective an early analysis by way of interim hearings for rulings on issues such as the meaning of the words complained of (CPR PD 53 paragraph 4 (1)) can be of huge benefit. The vast number of libel claims issued settle and it is often only after these early battles that one or other of the parties recognises the benefits of a negotiated resolution.
Putting aside the cost and associated inconvenience of libel litigation, what makes it particularly appropriate for quicker resolution? In the introduction to the pre-action protocol for defamation it states the following:
“There are important features which distinguish defamation claims from other areas of civil litigation… In particular, time is always ‘of the essence’ in defamation claims; the limitation period is (uniquely) only 1 year, and almost invariably, a Claimant will be seeking an immediate correction and/or apology as part of the process of restoring his/her reputation.”
It is described in David Price, Korieh Duodu and Nicola Cain’s “Defamation, Law, Procedure and Practice as follows: “Delay can be particularly damaging in defamation because a satisfactory outcome for a claimant can undo at least part of the harm caused by a defamatory publication. It is therefore all the more important that a defamation claim is determined swiftly.” I would go further than this; that delay can render many cases pointless. An apology or correction that follows shortly after the publication of the libel is usually a far better outcome for a claimant than a judgment years later even if that judgment includes a substantial sum in damages. Likewise a claimant may want his/her day in court whilst the sting of the allegation is fresh, but often his/her original motivation can wane as the case trundles on and the focus turns to the need to recover the costs of the case he or she started. Given that a claimant should want a swift outcome, surely a defendant can have no objection if it means a swifter and less expensive case. A confident Defendant should also want to demonstrate the truth or lawfulness of the challenged publication at the earliest opportunity.
The much criticised PCC (established by newspapers as a preferred alternative to defending libel actions) state that they aim to deal with complaints in an average of 35 working days, promising to “explain any delays” in the process. The court too has recognised the benefit of speed in libel actions. One of the reasons a claimant’s damages are discounted when they choose to make an offer of amends rather than defend a case is because of the benefit to a claimant of a quick resolution. Eady J in Jimmy Nail v News Group Newspapers et at (2004 EWHC 647 (QB)):
“Media defendants who act promptly when confronted with a claim are entitled to be rewarded for making the offer and, correspondingly, the claimant’s ordeal will be significantly reduced”.
But if libel actions are to be made quicker would justice and fairness be sacrificed in cases which can often relate to hugely significant allegations? Aside from the seriousness of the allegations and the importance of the issues of the parties there are also some very complex and uncertain legal issues to grapple with; the defences of fair comment and Reynolds qualified privilege are constantly evolving and involve ethereal issues such as public interest. For cases to be dealt with fairly the parties must be able to apply to the court to ensure proper disclosure of documents (an issue that often causes additional acrimony). But would these arguments suffer if made within a shorter timeframe? Recent cases such as Flood and BCA v Singh (2010 EWCA Civ 350) show that even when given detailed argument by expert silks and specialist judges given unlimited time the outcome at trial on these issues can be found wanting when examined again by the Lord Justices of Appeal.
Slower cases may not guarantee more secure outcomes but are there other benefits? Playing the devil’s advocate against my argument for speedier trials; perhaps the sheer enormity of libel litigation is actually of its own warped merit. There were 9 trials (and 14 final hearings) in 2009 of the 298 libel claims issued (figures courtesy of Reynolds Porter Chamberlain) that year. So far there have been only 2 trials this year. Such is the motive to settle. Is it conceivable that an expedited trial would actually make the parties less likely to settle? I would hope not. An early trial date should concentrate the minds towards earlier settlements.
Assuming that we do want cases to proceed more quickly to trial (and it is my view that the benefits of lower costs and an earlier opportunity for vindication are persuasive) how would we go about it? It seems a reasonable objective to me to expect all but the extreme cases to be listed for a trial to take place within 12 months of the date of the claim form, and I would have thought that many cases would benefit a trial being listed for within 9 months.
Although the five primary tasks to be completed before trial as set out above should all be capable of being completed in that time (given that the parties should be addressing most of the issues during the pre-action exchanges in any event) there are other factors that may stand in the way of reform. One issue is whether the Court could accommodate this increased speed. A trial date is first considered following receipt of the parties’ Allocation Questionnaires, sent out to the parties upon receipt of the Defence. As the Defence may only be completed 2 months after the claim form is issued (and sometimes later) this would not give the listing department at the High Court long to find the space for a trial and an available judge. The three full-time specialist Queen’s Bench Judges for media litigation (not just libel) are Victoria Sharpe, Michael Tugendhat and David Eady supported by Richard Parkes, and Charles Gray make availability for trials at shortened notice limited. Speaking to Tim Green (the guru of the Queen’s Bench list) I understand that a 5 day libel trial could currently be listed in about 6 months time.
The Allocation Questionnaire also requests the parties’ timetables for the directions applicable to the case (principally the last two of the five steps described above). If the parties cannot agree on the timetable they are set at a case management conference before a Queen’s Bench Master usually providing for a listing appointment to take place some time after that. Why can’t this process be more prescriptive? At the risk of trying to re-write the rule book in a hastily prepared paper; a simple suggestion may be for the Reply to follow within 21 days of the Defence and the exchange of documents to follow within 28 days of the Reply. The listing appointment to fix the trial date could take place in the days following the service of the Defence. At the same time as listing a trial the parties could list a hearing date (no more than a day and with strict time limits upon advocates’ submissions) before the trial judge to deal with all interim issues. My suggestion is that this hearing should take place shortly after the exchange of documents, allowing the judge to make any necessary ruling on issues meaning and deal with disclosure problems that may have arisen and other case management issues so as to ensure that the parties stay on track for trial. The only remaining step between this hearing and trial would be for the exchange of witness statements. All other interim applications (with the possible exception of summary judgment) could be dealt with on the first day of trial. Another benefit of the scarcity of jury trials is that the trial judge can deal with such matters without having to be sensitive to the awaiting jury.
With an expedited procedure as suggested and proper judicial case management, High Court libel litigation should be well capable of being resolved within 9 months. Lord Justice May observed 10 years ago in GKR Karate UK Ltd v Yorkshire Post Newspapers Ltd (No. 1) 2 All ER 951 :
“Libel cases generally have historically been notoriously long drawn out and expensive and are especially amenable to the culture of the new procedure code. They need novel and imaginative case management to achieve what has hitherto often not been achieved”.
Other types of litigation have bespoke rules and active case management to get the process moving quickly. I understand that the position in the Technology and Construction Court is that a case management hearing is listed for within 14 days of filing the acknowledgement of service (which is 14 days after the service of the claim form). One of the issues discussed at this hearing, which is likely to take place before even the defence is served, is the trial date. A similar provision could apply to libel cases.
Perhaps the reforms suggested above are insufficiently imaginative and we should be thinking about different outcomes as well as processes. Lord Alexander of Weedon, speaking in the House of Lords debate prior to the 1996 Act, and commenting on the introduction of Lord Hoffmann’s Section 8 made the following observation:
“In some ways I should have liked to see the Bill achieve a slightly less modest result than that so clearly described by the noble and learned Lord, Lord Hoffmann. I remember the end of one hot July at the conclusion of a libel case which I had found exacting and which, I think, even my normally ebullient client found exhausting, I wrote an article for the Independent expressing my view that there should be an opportunity for a plaintiff to go before a judge at an early stage and ask that an apology be ordered by the court. The judge could then call for immediate material from the newspaper and form an impression of whether a correction was required and, if so, in what terms. While the plaintiff would be entitled to ask for costs, the price for that fast-track procedure should be that he could be required to forgo his claim for damages as a term of obtaining an apology. I believe that I then envisaged that a judge would be able to form not only a view of whether a claim was unarguable or certain to succeed, but also a robust prima facie view on a case and seek a commonsense solution” (Hansard HL Deb 08 March 1996 vol 570 cc 576 – 610) .
All practitioners of all levels are likely to have a view on what they would like changed based upon bitter experiences, but my view is that claimants ought not to have to sacrifice a remedy for an early determination. It may well be a consequence of earlier trials that damages are lower because vindication is more effective in an earlier judgment, but damages should remain available where appropriate.
Others, including Lord Lester and Tracey Brown of Sense About Science, argue that libel actions should be heard in the County Courts rather than the High Court. I don’t know when either Lord Lester or Ms Brown last experienced County Court litigation but my experience of County Courts is that they are the ideal forum if delay is your objective. Whilst I have some sympathy with what Tracey Brown says about the concentration of expensive specialist libel lawyers in London, it is likely that you would find a competent litigator in any UK city to conduct a libel action from their office. They need only attend the High Court for a hearing. It is the expertise of the Judges that would be the biggest loss of moving a case to the County Court. Why not use the expertise we have in the High Court (which is not just in London) to create a better system?
Aside from the Court, there already exists a speedier alternative to court in the form of the PCC. But the PCC is not a viable alternative tribunal to the courts nor could it be the forum for a specialist libel tribunal that others have called for. This is not the place for a wish list of what would be required for such a tribunal but obvious requirements such as independence from the press and proper enforceable remedies would be starting point. Even in the event of such a tribunal, the PCC may still have a role in mediating and communicating with the press which it currently undertakes with some success.
My hope is that High Court litigation is capable of delivering the requirements of resolving cases faster and if so, would remain my preferred forum for a claim. A change in the rules would require further thought and consultation but given the need for simplicity it needn’t be a difficult exercise. I look forward to discussing it at the forthcoming symposium. It may be that changing the procedure is simple but the mind-set of protagonists may be more difficult to reframe.
Dominic Crossley, is a partner at Collyer Bristow LLP