On 4 November 2013, defendant media law firm Wiggin LLP put out a press release entitled “Government proposals could encourage vexatious libel claims“. This referred to a public opinion survey commissioned by the firm from ComRes which found that a quarter of people who said they would not consider taking legal action if they were defamed online, said they would ‘have a go’ if the cost barrier was removed.
In fact, the survey says nothing at all about “vexatious claims” and provides no evidence for the contention that costs protection will encourage them.
This press release was reported, with varying accuracy, in a number of places. The Press Gazette report was entitled “Government proposal to protect poor from libel costs could lead to increase in claims, lawyers warn“, the Financial Times had “Reducing costs of UK libel actions could cause wave of litigation” with the Law Society Gazette changing “could” to “would”, with “Costs reform ‘will encourage “have a go” libel culture’”. The transformation of Wiggin’s cautious “could” to “will” is difficult to undertand.
Are these concerns actually supported by the ComRes survey? The full results are available on the ComRes website [pdf]. These were the questions and the answers:
Q.1 If someone posted an offensive comment about you online (e.g. on Facebook, Twitter or a newspaper discussion board), and they refused to remove it, would you consider taking legal action or not?
Yes – 39%; No – 32%; Don’t know – 29%
Q.2 Were you aware that if you took legal action against someone who posted an offensive comment about you online (e.g. on Facebook,
Twitter or a newspaper discussion board) and lost, that you might have to pay your own legal costs and the legal costs of the other party?
Yes – 59%; No – 41%
Q.3 If you did not have to pay the legal costs of the other party in the event that you brought a claim and lost, would you then be more
or less inclined to consider taking action if someone had posted an offensive comment about you online (e.g. on Facebook, Twitter or a
newspaper discussion board), or would it make no difference to you?
I would be more likely to consider it – 47%
It would make no difference to me – 45%
I would be less likely to consider it – 7%
Q.4 Currently, if a person brings a claim against another party (for example if they feel someone has posted an offensive comment about
them online, e.g. on Facebook, Twitter or a newspaper discussion board) and loses, they may have to pay the legal fees of both parties.
Which of the following statements, if any, comes closest to your view?
I think that this is fair – 36%
I do not think that this is fair – 40%
Don’t know – 23%
It is difficult to draw any clear conclusions from these questions and the answers given.
First, the questions do not relate to claims against the media but to claims against a private individual who had “posted an offensive comment”. It seems likely that respondents would assume that such individuals had similar means to themselves and would address questions of costs accordingly. The answers to question 4 – about the “fairness” of the current regime – must be seen in this light. If the questions had concerned defamatory allegations in newspapers it seems likely that the answers would have been very different.
Second, somewhat curiously, the questions do not directly relate to any known type of legal claim: an “offensive comment” may not be defamatory (it may be offensive because it is abusive) and is unlikely to be an invasion of privacy. A single offensive comment would not be harassment. In any event, most people’s answer to question 1 would depend on how offensive the comments were and how many were made. It seems unlikely that many people would consider legal action over a single offensive comment.
Third, although 47% of respondents say that they would be “more likely” to bring a claim if they did not have to pay the costs the alternatives are not made clear. At present, with a Conditional Fee Agreement (“CFA”) and After the Event Insurance (“ATE”) a claimant does not have to pay the costs if a claim is lost. The question gives no indication as to whether the replacement of the current system with qualified one way costs shifting would make any difference to a person’s willingess to sue.
Finally, although a minority of respondents said that they would be more likely to sue if they did not have to pay the costs, the question says nothing at all about “vexatious claims”. In fact, it is based on the assumption that a person has been the victim of an offensive comment. If such a comment was offensive and actionable then the claim would not be vexatious.
In short, this survey casts no light whatever on public attitudes to the proposed introduction of qualified one way costs shifting in publication proceedings. It certainly does not show that the replacement of the current regime of CFAs and ATE with qualified one way costs shifting will lead to an increase in vexatious claims or put pressure on the courts or small publishers.