The Supreme Court decision in Flood, Miller and Frost: a response to Keith Mathieson from a lawyer who acts for both claimants and defendants – Jonathan Coad

In his piece on Inforrm yesterday, Keith Mathieson begins by describing the use of CFAs in cases against the media as a “scandal”. Evidently the Supreme Court did not agree with him – unanimously. One of the titles for whom he acts has already described judges with whom they disagree as “Enemies of the people”, so I suppose the judges can count themselves lucky not to have been attacked in similar terms.

He then complains that the threat of a CFA or ATE insurance “could be used to bulldoze a media company in submission.”  Mr. Mathieson knows all about the deployment of massive financial power when it comes to chilling free speech since he sent the claim letter on behalf of Paul Dacre and two other senior employees of Associated Newspapers to a crowd funded news website run by Byline Media which is investigating the gathering by Associated Newspapers of personal data.

Furthermore, in the two libel cases before the court Miller v. ANL and Flood v. Times Newspapers, it was the newspaper group that was found to have done all the bulldozing – with substantial aggravated damages awarded in each case by the first instance court to mark the newspaper’s poor conduct.

Mr. Mathieson omits to mention that CFAs and ATE insurance are also available to defendants and therefore vital to the free expression rights of small defendants, like Byline Media. Where there is a viable defence to a libel or privacy claim then such policies can be readily obtained; I have obtained them myself. Lawyers are only prepared to enter into CFAs where there is genuine merit either in the claim or the defence.

The real objection on the part of Fleet Street about CFAs and ATE policies is that it levels the playing field and ensures that newspapers who wrong others for commercial gain are held to account. They are well aware that 99.9% of the population is simply not able to afford to challenge false stories published by Fleet Street titles without the access to justice which these provisions bring. If Mr. Flood had not had the benefit of a CFA and ATE, then Times Newspapers would have simply ground him down financially and psychologically through the process of a trial.  It is also clear that if ATE premiums and CFA success fees are not recoverable from the losing party then the whole CFA and insurance regime will not work.

Mr. Mathieson does not mention the fact the costs in all cases (media or otherwise) are subject to costs budgeting and detailed assessment.  This means that a newspaper has input in the level of costs to be incurred by the claimant both before and after they are incurred.  These disputes are determined by an independent judge.

The reality is however that litigation against newspapers is labour intensive and expensive because of the manner in which newspapers conduct the defence of such claims. They then complain that claimant legal teams have incurred substantial costs in dealing with them.

As to the Frost case; MGN elected to behave in a completely unreasonable way towards a number of individuals which they had profoundly wronged by hacking their phones and illegally obtaining their private information.   In the Mirror MGN phone hacking cases, and as was observed on more than one occasion by Mr. Justice Mann, the obdurate belligerence of MGN meant not only additional distress for the victims, further damage to the already sullied MGN brand, but also the expenditure of large amounts of time by counsel and solicitors acting for the victims.

One figure which Mr. Mathieson does not include in his analysis is the amount paid by Associated Newspapers, MGN and the Times on legal fees to evade the consequences of their wrongdoing. The reality is that Fleet Street newspapers make it very hard for individuals who have been wronged to obtain justice. If they succeeded in denying victims of press abuse access to justice by means of the CFA systems then (as Fleet Street well knows) much wrongdoing on its part would remain unremedied.

There is certainly no danger whatsoever of such wrongdoing being exposed by IPSO, which still has to mount any regulatory investigation into any newspaper, let alone impose a fine. If it were not for CFAs then the vast and industrial array of phone hacking of which newsgroup newspapers and MGN have been found guilty would never have seen the light of day.

Jonathan Coad is a consultant solicitor at Keystone Law. Follow him @jonathan_coad.