“When I read Anthony Lester’s Bill back in May my first thought was that this is a Bill for Journalists. A Bill for the Media”. Those are not my words but those of Senior BBC Journalist, Kevin Marsh in a recent debate on libel reform.
It’s not that surprising. Lester’s Bill was conceived out of years of relentless campaigning by media organisations. The Government is now drafting its own Bill, using this as the starting point.
Any reforms should only protect responsible journalism and not let the media trash reputations or invade privacy, without redress.
CFA costs are a big media target. CFAs enable Lawyers to conduct a case without charging their client any fees, recovering their costs from the losing party only if the case is successful. According to the usual rule the loser pays, and must pay the success fee.
But for CFAs many cases of media abuse (phone hacking being a good example) would not have been exposed. Newspapers have a habit of dragging out cases for years to deter individuals from pursuing claims, taking advantage of the vast disparity in resources between the press and the Claimant. In the phone hacking scandal it took four years for the News of the World to admit the scandal was not limited to just one rogue reporter. It did so only when it was faced with overwhelming evidence gleaned from civil court action.
One of the myths the media peddle in their campaign to destroy the CFA system is that it enables Lawyers to charge double their fees. In my post “Myth and Reality” I explain the true position. Success fees actually recovered rarely exceed 25% – little compensation for undertaking work free of charge (often for years) before the Lawyer knows if he is going to be paid at all.
Lawyers are much better off acting for privately paying clients and take enormous financial risks in CFA cases to allow clients access to justice.
There are strict controls on costs through the Courts and there is no justification for abolition of, or huge reductions in, success fees. The only result will be a loss of access to justice for the claimant of modest means who bring the majority of libel and privacy claims. The Jackson proposals are unworkable in media cases.
The MGN v UK (Campbell) European decision will inevitably mean a reduction in the maximum recoverable success fee, perhaps to 50% instead of 100%, but Jack Straw’s proposal last year (a maximum 10% success fee) was disproportionate and would lead to a return to the bad old days when the libel courts were the sole preserve of the wealthy.
Steven Heffer is Head of Media at Collyer Bristow LLP and Chair of Lawyers for Media Standards which aims to preserve and promote access to justice and a fair legal balance in publication proceedings.
This article originally appeared in Parliament’s weekly magazine The House,which goes to MPs and Peers, in an edition of the magazine which focusses on current media issues and is reproduced with permission and thanks.