The Supreme Court has dismissed appeals brought by the Murdoch, Mail and Mirror newspaper companies in relation to costs they must pay in libel and privacy cases they have lost – but at the same time the judges have thrown the future of access to justice in such cases into the lap of the government.
An effect of Tuesday’s judgment, unless the government intervenes, will be to make it harder – perhaps much harder – for ordinary people to bring actions for libel using ‘no-win-no-fee’ arrangements.
So, while the corporate papers failed to curb their costs in three cases they have already lost, they have succeeded, for now at least, in inhibiting future libel actions against them.
The pressure is now on ministers to act in defence of the citizen’s right to reputation. The existing Conditional Fee Agreement (CFA) system, better known as ‘no-win-no-fee’, was already open to the criticism that many lawyers would only take on the stronger cases; this judgement will make them even more cautious. Thus justice will be denied even more widely than it has been to date and newspapers will feel themselves freer to libel ordinary people who will be unable to defend themselves.
The cases on which judgment was handed down on Tuesday involved the Times, the Mail group and the Mirror group and concerned the ability of the winning side to claim high ‘success fees’ – a kind of CFA premium charged to the losing side – and high insurance costs.
The judges found that these costs must be paid because they were understood to be legally valid at the time. However, they also found that a past ruling by the European Court of Human Rights in Strasbourg (yes, these newspapers were relying on the wisdom of a European court) meant that in principle making losing defendants liable for success fees and insurance costs could not be justified.
What this means is that in future lawyers will probably not be able to add possible success fees to the balance when they weigh a decision whether to take on a CFA case. That is bound to make them more cautious, and consequently to make it more difficult for ordinary people to have their cases taken up.
It is worth saying that nobody loves the CFA system. It has always been messy, over-expensive and inadequate. It just happens to be all there is for ordinary people, since there is no legal aid to help meet the six- and seven-figure costs involved in High Court proceedings.
So the corporate press, though defeated in the test cases, has won another victory over the citizen.
Ministers must soon choose whose side they are on. Do they back their friends in the press and leave them free to libel and intrude even more than they have been doing? Or do they back the public and introduce meaningful measures to restore access to justice?
They have claimed [pdf], in relation to these very matters, that ‘this is a government that works for everyone and not just the privileged few’.
If they mean what they say, they will now commence Section 40 of the Crime and Courts Act, the post-Leveson measure already approved by Parliament that would give every citizen the right to low-cost justice through arbitration.