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Opinion: “Time to put flesh on the bones of ‘access to justice'” – Jeremy Clarke-Williams

Nearly nine years ago, on 1 February 2002, the Daily Mirror published its infamous picture of Naomi Campbell emerging from her Narcotics Anonymous meeting.  This, and the accompanying articles, led to a privacy claim that wound its way through the entire UK court system.  The European Court of Human Rights has now delivered its judgment.

The paper had advanced two complaints requiring the Court’s assessment.  On the first, the Court backed the House of Lords by finding its decision that the Mirror had breached Ms Campbell’s confidence did not violate the Mirror’s Article 10 rights.

However, it is the second ruling which has attracted all the coverage in the media and legal press.  The Court found that it was an interference with the paper’s right to freedom of expression that UK law permitted Ms Campbell’s lawyers to seek a success fee of 100% of their base costs when costs were awarded in her favour.

What will be the implications of this ruling for the Conditional Fee Agreement (“CFA”) system?  And if there is to be reform, what consideration will be paid to the all important reason for the introduction of the CFA system in the first place, namely access to justice.

‘Access to justice’ has become a glib, shorthand phrase so commonly used that there is a danger of people no longer fully acknowledging and appreciating what it involves and requires.  It should lie at the heart of a fair civil justice system.  Every government should strive to ensure that as far as possible any of its citizens, however humble or poor, who has suffered a wrong can have recourse to the Court system to obtain redress.

Even in the MGN/Naomi Campbell judgment, the European Court reminded itself: “that the right of effective access to a court is a right inherent in Article 6 of the Convention” [196].  It then went on to accept: “that the CFA with recoverable success fees sought to achieve the legitimate aim of the widest public access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others within the meaning of Article 10(2) of the Convention” [197].

Perhaps the problem is that there has been insufficient emphasis on, or publicity about, those cases where ordinary people of modest means have only been able to obtain justice and vindication against huge, wealthy media corporations because of the availability of CFAs.  For these purposes, with the best will in the world, Naomi Campbell is probably not the most representative flag-bearer (despite even her undoubted entitlement to a zone of privacy, as the House of Lords recognised).

What the public and MPs need to hear more about is, for example, the experience of Zoe Margolis, the journalist who, at the recent Media Standards Trust debate on 11 January, so eloquently explained the desperate situation she found herself in when the Independent on Sunday wrongly and inaccurately chose to headline an article she had written with: “I was a hooker, but became an agony aunt” (see here for a report of her talk).

Or Elaine Chase, a paediatric community nurse falsely accused by The Sun of hastening the deaths of 18 terminally ill children by over-administering morphine, in front page articles which were published over 2 days and which were luridly illustrated by a photograph of a graveyard and biographies of Harold Shipman and Beverley Allitt.

Or the family, one of whose sons tragically committed suicide while they were abroad on holiday, who returned home with his body to be greeted by tabloid headlines suggesting (without any foundation) that the surviving twin brother had gone missing having entered into a suicide pact with his twin.

None of these (or many other) ordinary citizens could have contemplated taking on the media organisations which had published the papers or broadcasts in which they had been defamed or had their privacy invaded without the availability of the CFA system.  It meant they could engage the services of a specialist firm and seek redress on a comparatively level playing field.

The MGN/Naomi Campbell European Court judgment is highly critical of a system whereby success fees of 100% may be recovered (although confirmed case examples of recovery achieved at such a level are as common as sightings of a Yeti in Croydon). Be that as it may, the momentum generated by this judgment coming on top of the Jackson proposals, and the messages emanating from senior judiciary, government and Select Committee over the last couple of years means reform of the civil costs system is surely inevitable.

However, it is critically important that the precious baby of access to justice is not thrown out with the bathwater of reform.

A new group of lawyers concerned to protect and promote access to justice in publication proceedings and promote a balanced and informed debate has been formed called Lawyers for Media Standards (“LMS”).  We would welcome lawyers who share these concerns and objectives to join us.

We also invite LMS members, and other lawyers in the field, to submit case examples where ordinary clients have only been able to achieve redress and/or vindication in publication proceedings because of the access to justice afforded by the CFA system.  We aim to post these on a LMS website which will be accessible via a link from INFORRM in the near future and so build up a database which highlights the fact that behind the tabloid headlines and celebrity culture, every day ordinary people are relying upon a funding system which allows access to justice for all.  Any reforms which are introduced must preserve this fundamental aspect of a fair society.  That is a prize worth fighting for and defending.

If you are interested in joining LMS, please email sandra@admin4u.org.uk.

Jeremy Clarke-Williams, Head of Media, Libel & Privacy at Russell Jones & Walker, and a founding member of Lawyers for Media Standards

3 Comments

  1. Joe Ury

    the correct url for the most recent judgment on BAILII is: [2011] ECHR 66 as in:

    MGN Ltd v United Kingdom – 39401/04 [2011] ECHR 66 (18 January 2011)
    URL: http://www.bailii.org/eu/cases/ECHR/2011/66.html

    Joe

  2. Simon Singh

    I have not met anybody who suggests abolishing CFAs. However, many libel reformers are interested in reducing the currently horrendous 100% success fee and possibly re-thinking the recovery mechanism. The goal is to maintain support for genuine ordinary claimants, without allowing the same CFAs to be used as a weapon of intimidation by rich bullies. Having met Zoe Margolis and heard her solicitor speak (the first example in the blog above), I have little doubt that she would have found a good legal team on the basis of a 25% success fee. I discussed the implications of a 25% success fee in a recent blog http://slsingh.posterous.com/conditional-fee-agreements-cfas-and-libel

  3. Richard Edwards

    A 25% success fee in most cases would be a sensible option. But Lord Justice Jackson’s proposals involve getting rid of success fees and replacing them with the US approach of paying a percentage of the damages to the winning claimant’s lawyers. In addition, he proposes to get rid of recoverable after the event insurance. This produces a number of problems including: (i) no CFAs for defendants; (ii) no CFAs in cases with low damages (for example, privacy).

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