LMS believes that such a scheme may well provide a useful route of redress in some cases, particularly those involving straightforward issues but it cannot be seen as a magic, one-size-fits-all solution.
LMS is deeply concerned that this proposed arbitration regime will create strong potential for infringement of a party’s right to a fair trial, a fundamental human right, as victims will be pressured into pursuing arbitration rather than court proceedings by potentially being penalised in costs if they refuse to arbitrate. Other serious concerns raised include:
- Complex cases involving multiple or disputed legal issues, substantial documentation, serious reputational issues, or where findings of malice are sought, are by their nature completely unsuitable for an arbitration scheme which is designed to provide swift and low-cost resolutions, and therefore should be left to the Courts. Forcing such cases into arbitration will be just as expensive as High Court litigation, potentially less rigorous, and could cause a real injustice if victims are unable to recover their costs when they succeed.
- In relation to the phone hacking litigation, it is hard to imagine that any arbitration scheme would have compelled News Group Newspapers Limited to disclose the documents which led to the full revelation of the unlawful activities and ultimately gave rise to the Leveson Inquiry itself.
It is in the interests of justice and the public that the Courts should continue to hear such cases in order that the common law in this area can be developed. This would benefit both Claimants and Defendants alike, with the judge-led development of the responsible journalism defence which protects the press being a good example.
A fundamental conclusion for victims in libel cases is for a Statement in Open Court to be read on their behalf, which not only vindicates their reputation, but also notifies other publishers that the allegations made by the perpetrators were both untrue and defamatory. The court process also allows for undertakings and the grant of injunctions to prevent any repetition of the allegations complained of therefore safeguarding the victim’s reputation. The inherently private nature of arbitration would severely limit the extent of any vindication that a victim would receive.
Furthermore, in privacy actions for misuse of private information and/or breach of confidence, an arbitrator would be unable to grant either an interim or final injunction, often the only remedy which is of any practical use to a victim bringing privacy proceedings.
LMS is urging all interested parties to ensure that the utmost care is taken in the drawing up of the scheme, and in particular to ensure that the system recognises the limitations of any arbitration system and is sufficiently tailored to allow for a broad spectrum of complaints to be dealt with in different ways.
In summary, nothing should be done to undermine the ability of Claimants to pursue court proceedings in respect of media cases.