The Empire strikes back

The Media's extensive lobbying, together with the imminence of a general election, has made the government succumb to a view promoted by the press regarding litigation costs in defamation actions. It is said that such costs are disproportionately high and that they deter freedom of expression.

It is a sad state of affairs that a vast, powerful and well-organised empire such as the media can influence government and the judiciary into action based on a series of arguments that just don't stack up.

Media pressure

There are numerous bodies looking into the area of costs in so-called 'publication proceedings'. Call me a cynic, but I cannot help but think that the impetus behind so many such enquiries stems from media pressure and lobbying.

The most recent illustration of this has been the Commons Culture, Media & Sport Select Committee on press standards, privacy and libel which heard submissions from both sides of the argument but which in large part seemed to have already adopted a similar view to that of the media.

Then there's the Oxford University report that was funded by Associated Newspapers (the publishers of titles such as the Daily Mail, Evening Standard and London Lite) and based on questions prepared by Reynolds Porter Chamberlain, a firm acting mostly for defendants. The report compared the costs of litigation in this jurisdiction with, among others '“ wait for it '“ such libel-happening places as Malta, Bulgaria and Cyprus (obviously, the costs of litigation were far greater in the UK than in those jurisdictions).

Now there is the 'Controlling costs in defamation proceedings' consultation paper published last month by the Ministry of Justice. I specialise in this area of litigation and I can honestly say that the 'consultation' paper seemed to appear out of nowhere. Yet, it basically says that subject to 'consultation' it intends to introduce far-reaching changes to costs in defamation (and presumably privacy) litigation because of the effect it is having on the media.

In relation to hourly rates charged by claimant lawyers in publication actions, the MoJ wants to set an upper limit for the amount that can be recovered from a losing media defendant, leaving the successful claimant to pay the difference.

Firstly, media defendants are nearly always much wealthier than claimants. Secondly, why should media defendants get special privileges? After all, if they shouldn't have published what they did then why should the claimant be penalised? Thirdly, media defendants often negotiate reduced rates from the law firms they instruct to represent them. Such deals are not available to claimants '“ and why should a claimant be faced with the dilemma of either risking having to pay the greater shortfall, or not instructing the best lawyers for the job?

Inequality of arms

Cost capping is unfair and burdensome. It will lead to greater litigation costs overall and satellite litigation about how much can be spent on a particular task. How, for example, can a costs judge decide whether a claimant should be entitled to prepare 10 witness statements instead of six, or how long it will take to prepare each statement? And how can a claimant properly convince a judge that work is reasonable and proportionate without either waiving privilege or providing information to a defendant which they ought not be privy to?

In addition, media defendants have in-house lawyers who can work on the case without 'charging' at all. What the MoJ is proposing is inequality of arms.

To say that the media are mighty would be an understatement. They can affect the outcome of an election, they have thousands of troops at their disposal, and many avenues in their control to publish articles that often advance their own agendas. Put bluntly, because the media is so vast and influential it can be heard much louder than the few of us who argue in favour of claimants' rights.

Yet claimants' rights are important, and increasingly so. Many publishers are their own worst enemy. They insist on publishing rumours, gossip, sex scandals and tittle-tattle. They then belittle the importance of freedom of expression and of the public interest argument by using those arguments to try to justify why they chose to publish such drivel in the first place.

A simple solution

That's why I would encourage those who have an interest in the right to preserving one's reputation to write to whoever will listen. I for one will be responding to all consultations urging the government and the judiciary not to get taken in by media spin, half-truths, misinformation, and pressure. What is needed is not a change to the costs regime but a change in attitude of certain elements of the media who feel above the law, and who want to have it all their own way.

There is a simple solution to all of this, which, it appears, all those investigating have failed to take properly into account: the media just need to ensure that what they publish is true or, if it concerns privacy, that what they publish is not an unjustified invasion of it. If the media do that, they have nothing to fear for they will not be paying the claimant any costs at all, and they will recover their own costs from the claimant or from the claimant's insurers.