On 4 November 2010 I presented a paper to the “Re-framing Libel” forum on the question of costs.   This was posted on this blog.  On 19 November 2010, Keith Mathieson responded to my paper with what he described as “another perspective”.  His response illustrates the problems that arise in debating the issues in this area and I would like to reply to some of the points he makes.

Keith Mathieson almost exclusively represents defendant publishers. Although I have become inured to the partisan nature of all contributors to this debate, I was surprised by Keith’s comments on my proposal of a structure to curb the costs of libel actions going forward because my proposal massively improves the terrain for his clients. No neutral observer would regard my proposal as “really just tinkering at the edges of a problem”.

One of Keith’s steadiest sources of income is Associated Newspapers, publishers of the Daily Mail, who are immensely wealthy and not afraid to publish material which suits their own agenda (whether politically motivated or otherwise) and prepared to devote very substantial legal costs to defending libel claims against them however well founded. Achieving a level playing field is impossible; but we should genuinely strive toward that goal.

The difficulty I have with Keith’s comments is that they are illustrated by examples of what happens under the present regime, which as I made abundantly clear in my paper, needs reforming.  I am afraid Keith’s reiteration of the current problems does nothing to further the debate.

The central issue remains how to provide reasonable access to justice for libel claimants whilst eradicating the chilling effect of the current costs regime.

I suggest that such access will not be secured if lawyers acting for claimants cannot recover any success fees. Despite Keith’s comments to the contrary a significant number of complaints do not succeed, sometimes at substantial cost. Data is presently being compiled on this which will balance the publisher-compiled evidence so far available. In any event, my proposal so limits success fees that it removes the chilling effect of the current regime.

No complainant should have to face the prospect of becoming homeless if (s)he were to lose his/her claim. ATE is a necessary protection where the newspapers are not prepared to waive the right to seek costs if their defence is successful. My proposal limits the ATE premium. I also believe that increased competition in the ATE market (restricted to date because it’s a relatively new market and because of uncertainty due to challenges as to recoverability of ATE premiums) will drive premiums down.

Limiting success fees to 25% of damages and making success fees and ATE premiums irrecoverable would mean that the vast majority of libel complainants, even when able to find a lawyer to act for them, would receive no compensation whatsoever for the damage done to their reputation.  Of course a public retraction and apology is vitally important to a libel complainant but surely it’s right that they should also be reasonably compensated too?

Some of us remain of the view that the law plays an important part in curbing the excesses of (particularly) the tabloid press. Keith likes everything in my proposal that benefits publishers but dislikes everything else.  But any fair system must achieve a fair balance. Certain parts of my proposal are vehemently opposed by many claimant lawyers – be it the cap on fees, slashing of the success fee, staged fees (that mean the 50% success fee is only recoverable in very rare circumstances) or no success fees for costs assessments.

I do not accept for one moment that if my proposals were implemented The Mail would not publish a piece that it was otherwise committed to running because of the fear of the legal costs it would have to meet if its allegations were false or should not have been published.

The present regime will undoubtedly change, but Lord Jackson’s proposals (let alone Keith’s even more draconian version) will swing the pendulum too far the other way.

Getting it right is vitally important as Judge Loucaides recognised in his concurring opinion in Lindon (and others) v France ((2008) 46 EHRR 35)

“One should not lose sight of the fact that the mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally, or occasionally even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. Such restraint should include the duty to investigate defamatory allegations before rushing into print and the obligation to give an opportunity to the persons affected by their defamatory stories to react and give their own version. Furthermore, they should remain legally accountable to the persons concerned for any false defamatory allegations.  Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.”

We will not get it right if there is an overreaction to the ills of the present system. The balance of interests that is necessary will not be achieved if Lord Jackson’s proposals, are implemented, let alone Keith’s more extreme suggestion.

Razi Mireskandari is a the managing partner of Simons Muirhead & Burton and heads their media and commercial litigation departments.