A voluntary but binding libel arbitration process has been launched by the retired High Court judge Sir Charles Gray and the former legal manager of the Times and Sunday Times, Alastair Brett.
The Early Resolution scheme, which will be officially launched to lawyers on Tuesday 21 June, offers parties an alternative to High Court proceedings.
Last year Brett organised the the Early Resolution Procedure Group chaired by Sir Charles Gray, which recommended procedural reforms and considered devising a system which would “enable the meaning or meanings of the words complained of to be established at the earliest possible time and in any event before service of a defence”.
The new Early Resolution scheme, run as a non-profit company, will “help litigants locked in libel disputes to resolve their differences quickly, cheaply and fairly”, its founders say.
An arbitrator, or a panel including two lay assessors, will decide the meaning of an article or resolve other issues, such as whether the content complained of is “honest comment” or in the “public interest”.
The decision will be binding and not appealable. It is expected that commercial defendants will fund the process which should cost up to £2,500 (plus VAT) and take up to 28 days.
Arbitrators signed up to the new process include: Desmond Browne QC; Gavin Millar QC; David Price QC; and the retired Court of Appeal judges Sir Brian Neill and Sir Henry Brooke.
“The Draft Defamation Bill fails to include procedural reforms to force parties to resolve key issues at the start of a libel action”, said Alastair Brett. “However, our voluntary scheme will at least go some way to speeding up dispute resolution and avoiding the crippling bills that High Court procedures currently entail.“
The company also recommends “associated member” solicitor firms available to advise on libel.
Alastair Brett, who left The Times in 2010, told Inforrm that he was confident parties would see the attraction in Early Resolution and that most cases would be able to settle outside the High Court.
Brett previously organised similar exercises, while legal manager at Times Newspapers: “On the basis I’ve done half a dozen to a dozen of these arbitrations over the last ten years or so, I never had a case that didn’t actually settle,” he said.
He disputed the suggestion that arbitration would make libel proceedings more secret: “I can’t see how it’s putting things behind a closed door, because we’re out in the open – we’re saying if you want to find a solicitor who will help you go down the Early Resolution route without having to issue a writ at the cost of £1,500 … go to this firm.”
Although parties can choose to keep negotiations confidential, Brett said that “the point about this ruling is that it may form the basis of a statement by the newspaper – the newspaper may say we’ve been to Early Resolution and we’ve found that our article … has been take to mean X, Y and Z, we didn’t mean it to mean that, and we’re now saying sorry under Section Two of the Defamation Act”.
Early Resolution also claims that it will give better access to justice and will “enable people of limited means to seek redress and for defendants to know exactly what the case is against them and decide whether they should make an offer of amends or stand firm”.
The process could also be extended to resolving privacy damages, Brett told Inforrm.
It has been launched during a period of some uncertainty. Unless Section 69 of the Senior Courts Act 1981 is amended to give judges the power to decide meaning – as recommended by Sir Charles Gray’s Early Resolution Group in 2010 – it remains the function of a jury. Subsequently, this prevents higher or lower level meaning in borderline cases being established by early resolution.
These proposed amendments could be rendered unnecessary, if there was wider reform of jury trials in defamation cases (the government’s draft defamation bill, while not making procedural reforms, suggested the removal of presumption in favour of jury trial in defamation cases).
Additionally, the Coalition government is likely to abolish the recoverability of success fees and after-the-event (ATE) insurance premiums from losing defendants in conditional fee agreement (CFA) cases.
In the meantime, the company argues
“the best way forward in the immediate future is for the two sides in any libel dispute to enter into a voluntary agreement to dispense with, where possible, extremely expensive and time consuming High Court procedure“.
Judith Townend is a MPhil/PhD research student at the Centre for Law, Justice and Journalism, City University London. She blogs at http://meejalaw.com and is @jtownend on Twitter.
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