Santa Claus will be bringing few presents for the Press this year.  After the recent vicious attack by Associated Newspapers on Hugh Grant, the horror of the McCann’s ordeal in Portugal and Paul McMullan and Richard Peppiatt rounding on their former bosses, Lord Justice Leveson will be a brave man indeed if he decides that the Press is NOT a feral bunch – borderline criminals rather than the informative, well meaning newspapers of record they would like to be.  

In the meantime, the Government must grapple with its draft Defamation Bill and how to give access to justice to all those people who are not super rich or erring football players trying to hush up their matrimonial indiscretions.  Libel has become a rich man’s sport and with the Press Complaints Commission seen as a busted flush, the Press needs to come up with some radical new ideas if it is ever to get close to occupying the high moral ground.

While the future of the Press Complaints Commission, and how journalists should be made to behave properly, may be matters best left to the Leveson inquiry, there is an urgent need to make our defamation laws, simpler, cheaper and more accessible to the average man in the street. The tragedy is that the current Defamation Bill is largely a codification of the old horribly complicated common law with no procedural change whatever.

The Parliamentary Joint Committee of peers and MPs which looked at the draft Defamation Bill over the summer produced a remarkably good report last November, which “urges the Government to go much further” in reforming our laws.  It embraces a whole series of sensible procedural reforms and internet ideas. Chief amongst these suggested reforms is the simple proposition that our Courts should be “the last rather than the first resort”.  It then proposes “a series of reforms aimed at ensuring that disputes are generally resolved rapidly by mediation or arbitration rather than via the courts”.

There are those who believe that the Government should introduce a new Media Regulation Tribunal, like our employment tribunals, where access to justice would be speedy and relatively cheap. Alternatively, the Government might set up a body like the Information Rights Tribunal specially designed for media disputes.  The trouble with all these ideas, including early neutral evaluation by judges, is that they cost the Government money and it does not have any.

This is where the media might learn something from the construction industry.  It has a remarkably good system of “statutory adjudication” – outside the court system – for all disputes involving construction contracts.  It means that disputes have to go to adjudication before either side can begin to think of squaring up for a hugely expensive fight in the High Court. A party referring a dispute to adjudication chooses an expert adjudicator who then makes a ruling within 28 days of the referral.  The adjudicator is nearly always an arbitrator who specialises in construction disputes.  Some might say it is “rough justice” but those in the industry say it works well and is miles cheaper and quicker than going to the High Court.

Media disputes involving someone’s reputation, need resolving rapidly. The actual meaning of the words complained of is usually the critical issue.  Has the newspaper actually accused the hapless victim of being involved in a murder?  Or has it suggested that there might be reasonable grounds for believing that that person might have been involved in the murder or just that they might sensibly be questioned by the police along with loads of others?

These issues, along with whether the words are comment or a statement of fact bedevil too many libel actions.  And yet they could all be answered quickly and easily through a process of statutory adjudication by an independent expert long before either side got anywhere near a court.  Indeed, any case which was started in the High Court without going through this preliminary adjudication system should be stayed and referred to an independent media adjudicator – a libel silk or retired judge, with or without two lay assessors helping in the process.  That way a newspaper would know if it had over-egged the pudding and accused someone of being a murderer or terrorist when it simply did not have the evidence to prove it and therefore needed to make a rapid “offer of amends” and say sorry.  Equally an oversensitive claimant would know not to press on with an action where the words were nothing like as damaging as first thought.

The Ministry of Justice must look at the Construction Industry statutory adjudication system and consider it in the overall reform of libel procedures. This type of fast track alternative dispute resolution process is on any basis a cheap way out of what might otherwise become a horrendously expensive piece of litigation lasting years.  The judiciary, like the bishops over government cuts hitting the poorest, need to join ranks and recommend this kind of user friendly, highly effective system before either side march off to the High Court.

But a key element of these changes is the industry accepting its moral responsibility.  It must help clean up ambiguities in defamatory articles or programmes which it has put into the public domain.  This means paying for an independent expert to adjudicate on day one in disputes where there is a real issue, which could otherwise go to court.  Fast track adjudication is miles cheaper than fighting an expensive action over three years and losing millions of pounds in legal costs.  If newspapers and broadcasters accepted that moral and financial responsibility, it would be a first step in the right direction.

Alastair Brett, Media Law Consultant & Managing Director Early Resolution CIC