Lord Justice Leveson’s “inquisitorial” arbitration scheme for media claims is moving closer to implementation. The word inquisitorial conjures up images of medieval magistrates acting as prosecutor and jury, and the scheme was recently criticised by David Allen Green in The New Statesman as leaving parties with “no safeguards”. Is this concern justified?
It is certainly a change from the usual basis of English legal proceedings. These are “adversarial” – each side presents its case, and the judge or arbitrator chooses which argument he prefers and rules accordingly. This is usually distinguished from the inquisitorial process followed in continental and other civil law jurisdictions, in which the judge or arbitrator takes an active role investigating the facts and applying the law.
Today, however, this is a fuzzy distinction. In small claims and other cases where one party is not legally represented, English judges necessarily act inquisitorially. This is especially true in arbitration, and the Arbitration Act 1996 (s. 34(2)(g)) specifically gives arbitrators the discretion to conduct proceedings on an inquisitorial basis. This discretion is balanced by statutory safeguards: for example, if the arbitrator exceeds his authority or does not follow due process, his award can be challenged in court. Parties to the Leveson scheme can therefore be confident that, even without any new legislation, there is a statutory framework for the arbitration process.
However, those responsible for the scheme will have to overcome some very real practical problems. An inquisitorial system places greater responsibility on the arbitrator. This will be particularly the case in the Leveson scheme, under which members of the public, often without the benefit of independent legal advice, will bring claims against the national newspapers.
The whole point of the scheme is to ensure access to justice by equalising the imbalance of power between the press and the public. But this may well result in the arbitrator assuming what would, in usual English legal proceedings, be the role of the claimant’s lawyer. For example, the arbitrator will need to consider what disclosure orders should be made against the newspaper, identify the legal arguments in favour of the claimant and question the newspaper’s witnesses.
That will leave the arbitrator open to allegations of bias – most obviously in favour of the claimant, but also potentially in favour of the newspaper if he fails to be sufficiently inquisitorial. The issue will be compounded if practicing media lawyers, who have a track record of acting either for or against newspapers, are appointed as arbitrators. The newspapers are likely to be particularly concerned that claimants will be able to bring arbitration claims on a “cost free” basis (i.e. with the newspaper paying), in which the arbitrator deciding their case also adopts a quasi-prosecutorial role.
This problem can be solved by the careful selection of arbitrators and by those arbitrators’ careful management of the arbitration procedure. Providing arbitrators take pains to ensure that, whilst being inquisitorial, they remain even-handed and allow the parties to present their case and comment on the arbitrator’s findings, due process should be upheld. Nevertheless, forcing media claims such as defamation, which until recently remained the only civil claim to benefit from a full jury trial, into this scheme is as radical a change as anything Lord Justice Leveson has proposed.
Ned Beale and Cara Gillingham, Trowers & Hamlins LLP
“But this may well result in the arbitrator assuming what would, in usual English legal proceedings, be the role of the claimant’s lawyer.
The issue will be compounded if practicing media lawyers, who have a track record of acting either for or against newspapers, are appointed as arbitrators.
This problem can be solved by the careful selection of arbitrators and by those arbitrators’ careful management of the arbitration procedure”.
Whilst I think many will have doubts about how such a scheme would work in practice, the main problem for me would be who is selected for this role. Without wishing to repeat myself once again, the system at present is not satisfactory because libel claimant lawyers have brought many cases to the courts which never should have been brought. This has led to unfair outcomes and worthless defamation cases which have dragged on for years.
That leads me to think that there is a serious deficit of understanding about defamation amongst libel lawyers or they simply cannot be trusted to act responsibly and fairly. The current safeguard are the judges who eventually reach a sensible decision. Not a brilliant system but at least one which is usually fair in the end.
If these arbitrators are selected from media lawyers, this will turn into a nightmare. It would be a bit like appointing Fred Goodwin and Mickey House to replace the FSA as a financial regulator. Actually I am in favour of some type of arbitration scheme. However, it is high time that libel claimant lawyers are recognised as having brought the courts into disrepute and are part of the problem and not the solution. If anyone is wondering what I am talking about, look at the tables of case outcomes on this site and see how many defendants won their cases. Then click on to a few of the cases and see how many of those claims were complete nonsense. A good proportion if you read and research a little.
Personally, I feel for any scheme to work, arbitrators should come from a mixture and wider variety of backgrounds. When you have media lawyers who lack knowledge of defamation and how it works in practice and judges scratching their heads over what is fact or opinion, we need to open this up to others. There are plenty of people in other professions who would have the necessary skills.
You seem to have missed a few points:
1. It is not lawyers who bring cases – it is their clients. Some may have been advised they have good cases, others will have been advised not to proceed but will have decided to do it anyway.
2. In fact, many lawyers act for both claimants and defendants – for example, the solicitors who acted for the unsuccessful blogger in Thompson v James are also the solicitors for News Group Newspapers. Most barristers act for both claimants and defendants.
3. Strange as it may seem, when lawyers are appointed as judges or arbitrators they are capable of acting impartially – for example, at the bar Mr Justice Tugendhat was best known for acting for claimants in privacy cases – but he is not accused of being pro-claimant, Mrs Justice Sharp was often instructed at the bar by Associated Newspapers but she is not accused of being pro defendant.
4. It is not only judges who scratch their heads over what is fact and opinion but also commentators on Inforrm (see the responses to your various comments).
The problem with arbitration will not be finding good arbitrators it will be keeping the costs down and keeping the speed up.
Asceptica
I do not believe I have missed any points but I understand where you are coming from, so I will explain.
1) I am aware that clients bring libel cases. However, when you actually read lots of libel judgements as I have and research how these cases have been conducted, this argument falls down a bit. For example many of the cases featured here and elsewhere have been described as ‘vexatious’ and ‘nonsense’ by the judge. More often than not, the claimant solicitor cannot even write a letter of claim which is compliant.(I actually am yet to read one which is)
Claimant solicitors regularly breach the protocol of defamation, often at the risk of breaching the code of conduct for solicitors. For example, many solicitors do not understand the concept of over-compensation and abuse of process and go around demanding huge sums off individuals in multiple defendant cases which have absolutely no merit. (Dee V The Telegraph one notable example) There are numerous examples of this and cases ongoing right now where this is happening. Are you suggesting that solicitors conduct cases in this fashion just because they have a pushy client? For me, this suggests there is an issue of competence, or a lack of integrity and a complete disregard for conducting libel cases correctly and fairly.
2) I am aware that barristers act for defendants and claimants and judges have acted as barristers before for both for claimants and defendants. I do not have an issue with impartiality with the people you mention. To be fair, these people have not reached the top of the pile by behaving in the way I have described above. My issue is with libel solicitors. If they cannot get the bare basics right, for me this raises questions over their competance, judgement and integrity.
3) I take the point about the difficulty in deciding what is fact and opinion. I think it was Waterson v Lloyd which was featured here and discussed by myself and others. However, the very point made in that article was that the two judges who thought the words were fact really over complicated the issue and adopted a very legalistic approach to the case. This type of thing happens to many people who are expert in their field when they lose sight of the wider perspective and context. That is why I think having arbitrators from non legal backgrounds is an idea worth considering.
4) I agree that there should not be a shortage of good arbitrators. It is more a question of using the correct criteria to choose and attract these people. I am simply suggesting that some solicitors would not be suitable for the reasons I have mentioned.
For some reason, the authors of this post chose not to quote the relevant passage in my NS piece in full:
“…an “inquisitorial” system means that the arbitrator has a wide margin of appreciation in what he or she can do. Any such scheme thereby needs to have safeguards as to what arbitrators can and cannot do. Here there are no safeguards. Arbitrations are all very well when they work effectively (as is the case with any legal process, or indeed with the PCC), but arbitrations mean it can be especially difficult for the unsuccessful party to rely on their legal rights when an arbitrator gets things wrong. There is no automatic right of appeal. The only challenges can be on a point of law or a “serious” irregularity, but not on the merits of the case. Therefore the “complanaint” will be in the hands of the arbitrator with no real check on what the arbitator will do with the complaint. (And, on a technical point, it is uncertain the extent to which various parts of the Arbitration Act can apply when there are no arbitartion agreements.)”
One can thereby see that the points in the above post about when “the arbitrator exceeds his authority or does not follow due process, his award can be challenged in court” were anticpated.
This is a pity, as the post above by selective quoting makes it look my NS piece did not deal with these issues. It did.
And also a pity to see a post on INFORRM using selective quotations…
It is helpful to set out the full quotation from the New Statesman article. However, the passage concludes: ” … Therefore the ‘complainant’ will be in the hands of the arbitrator with no real check on what the arbitrator will do with the complaint”.
The authors’ point is that the rights of challenge and appeal conferred by the Arbitration Act 1996 DO constitute real checks and safeguards. The right for a complainant to bring a claim in arbitration should therefore be distinguished from the right to complain to a regulator or an expert determination process, whose decisions would be outside the scope of the Act and harder to challenge.
It is also fair to say that it will be more difficult to challenge an arbitrator’s award than a judge’s judgment, especially if the right to appeal an award on a point of law under section 69 of the Act is excluded under the scheme’s rules. However, the primary driver of Lord Justice Leveson’s recommendation of arbitration is to improve access to justice. From that point of view, arbitration’s narrow challenge and appeal rights are an advantage, not a disadvantage.
Ned Beale
Can someone explain why an arbitration system would be better than, for example, a tribunal system, such as a media version of employment tribunals or asylum and immigration tribunals?