The present proposals by the MOJ to abolish the recovery by successful claimants of the success fees on “no win no fee” libel and privacy cases and the recovery of “After The Event” (ATE) insurance premiums represents a damaging and dangerous attack on access to justice for ordinary citizens of modest means.
Inevitably these reforms will irrevocably shift the balance of power to an even greater extent in favour of large media corporations (often foreign owned) as against the individual. Fewer lawyers will be able to take the risk of acting on ‘no win, no fee’ agreements. The ATE insurance market in this area of the law will disappear.
These reforms are contained in the Legal Aid, Sentencing and Punishment of Offenders Bill 20011, which has already had a second reading in the House of Commons and is in danger of being passed without proper scrutiny or debate. MPs may not fully appreciate the implications of these changes for their constituents, conditioned as they are by the incessant media contention that the libel and privacy laws are the plaything of undeserving celebrities and footballers.
Instead of the loser paying as now, the successful claimant will have to fund a significant proportion of his or her own costs out of any damages – and contrary to common perception damages in libel and privacy cases are generally very modest. The absence of ATE insurance will prevent most claimants from taking action against the media, unless they are willing to risk their home and face bankruptcy, in the event the case is lost. That suits the tabloid press, because there will be no remedy for the ordinary individual – a great saving to media corporations but at great cost and a terrible injustice to the public. Libel and privacy claims will once again become the preserve of the very rich.
These changes are being pushed through at a time when the behaviour of the tabloid press is under unprecedented scrutiny focussing on allegations of phone hacking and the devastation caused to many individuals’ lives by privacy invasions and fabricated stories.. Many are concerned that what is presented as a battle for freedom of speech is really about preserving the profits of large media organisations.
The events of the last few days have changed the landscape and matters have been reported which parts of the press would prefer to have remained buried.
With all the furore generated, Parliament will be debating a number of issues in the near future, including
– The phone hacking scandal
– Libel law reform
– Privacy law reform
– The use of so called super injunctions
– Civil court funding and conditional fee agreements
Of all these issues, the last (which looks the most dull) is in fact the most urgent and serious and reforms will have the most dramatic effect if Parliament gets things wrong – by taking the media campaign line –and following the Jackson proposals.
For many years now, ordinary individuals have had access to the courts (free of charge, and at no cost to the state) in publication proceedings, through the use of Conditional Fee Agreements (CFAs).
There are many examples of individuals who have benefitted from using CFAs. These include:
- The parents of murdered schoolgirl Milly Dowler;
- Most of the claimants in the phone hacking litigation
- Kate and Gerry McCann.
- A Muslim bus driver, falsely accused by The Sun of forcing his passengers off his bus so that he could pray and which implied that he might be a terrorist. Included grossly intrusive photographs and (online) video footage of him at prayer.
- The senior social worker in the Baby P case falsely accused in the Sun newspaper in 80 articles of being “criminally negligent” with regard to her care for Baby P;
- A Danish radiologist sued by US conglomerate GE Healthcare over allegations concerning one of its products.
- A comprehensive school teacher, falsely accused in an internal Memorandum of inappropriate contact with female pupils.
- A taxi driver whose photograph appeared in The Sun newspaper, falsely depicting him as a convicted paedophile.
- A charity falsely accused by the Daily Express of improper use of charitable donations.
- An unemployed woman falsely accused by a regional newspaper of attempted murder.
- A local councillor (disabled and on incapacity benefits) who suffered serial libel and harassment over several years by a multi-millionaire businessman who accused her of theft and corruption.
- A management consultant whom a local newspaper falsely alleged had been accused of raping a child.
- A junior PR worker whose privacy was grossly infringed when the Evening Standard published a photograph of and named her, wrongly stating that she had been raped.
- An unemployed man who was the subject of false statements on ITV concerning a medical condition.
- An Army officer falsely accused by The Guardian of being responsible for the abuse of prisoners.
- Elaine Chase, a community nurse falsely accused by The Sun of hastening the deaths of 17 terminally ill children by over administering morphine
- A family whose son’s suicide was invasively reported in a national tabloid
- Families of soldiers killed on active service, whose phones may have been hacked at a time when they were grieving for their loss
None of these individuals would have had access to the courts before the reforms of the Access to Justice Act 1999 which encouraged the use of CFAs to relieve the state of the burden of providing legal aid funding.
Until the last week or so, the press has been getting away with claims that our privacy laws are simply made up by judges against the will of Parliament and our libel laws are a joke. Recent developments mean that few now hold those views or at any rate are prepared to print them.
Recently, three costs judges in the Senior Court Costs Office commented:
“…The CFA has undergone many changes and improvements since implementation. Having taken a decade for these to have been achieved, now is not the time to make radical changes which give no guarantee that access to justice at reduced cost will be delivered” and said many of Jackson’s proposals – most of which have been adopted by the MoJ were “inappropriate”.
Other opposition from the Law Society and Bar Council has been ignored by the MoJ.
CFA costs have, of course, been a big press target. A CFA enables a lawyer to conduct a case without charging their client any fees, recovering their costs from the losing party only if they are successful. According to the usual rule the loser pays, and must pay the success fee. The lawyer takes the risk (which can be substantial) that if his or her client does not win, then he or she will not be paid. This imposes a natural filter on the claims which are pursued. They tend to be cases with good merits and prospects of success.
But for CFAs many cases of media abuse (the recent phone-hacking scandal being the major and current example) would not have been exposed. Some 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 the News of the World four years to admit the scandal was not limited to just one rogue reporter. It did so only when it was faced with overwhelming evidence obtained through Civil Court action largely funded by lawyers acting for clients under CFAs.
There are already strict controls on costs through the Courts (as the Costs Judges have rightly said) and there is no justification for implementing the government’s interpretation of the Jackson costs proposals in publication cases, as these will have devastating impact on access to justice.
There is now common agreement that the Press Complaints Commission in its present form has failed, some regard it as a “toothless poodle”. It will be some time before the PCC is replaced with a body which can address any of these issues.
Lawyers acting under CFAs currently provide the only effective form of regulation against press abuses for the individual of modest means, i.e for holding to account serious abuses by the press of their considerable power.
Unless and until there is proper independent press regulation in place, CFAs and the availability of ATE insurance must be preserved and the Legal Aid Bill must be amended.
Steven Heffer, Chair
Lawyers for Media Standards (and Head of the Defamation and Reputation Management team at Collyer Bristow LLP)