What is the real motive behind defamation costs reform?
Lord Justice Jackson published his review on civil costs on 14 January, recommending the abolition of success fees and after-the-event insurance in all civil cases where conditional fee agreements (CFAs) were used.
Less than a week later justice minister Jack Straw announced the need for ‘an urgent interim measure’ to deal with success fees in defamation cases.
Straw announced a four-week consultation on proposals to limit the uplift charged by lawyers for winning defamation cases taken on under CFAs to 10% of their fee.
The current law permits lawyers to double their fee by claiming a success fee of up to 100% on top of their usual fee. This practice has been seen by some, seemingly the justice minister included, as contributing to the spiralling costs in defamation. Which in turn is thought to act to stifle journalists by deterring them from publishing articles that are in the public interest for fear of being sued, or forcing them to settle actions rather than defend them.
Straw is not happy with this situation and appears anxious to defend the freedom of the press.
‘Freedom of expression and investigative journalism are fundamental protections to the democracy of this country,’ he said.
‘Lawyers need to recover their costs and be rewarded for their efforts and the risks they undertake when providing people with access to justice in "no win, no fee" cases. But evidence suggests that the regular doubling of fees that currently takes place is simply not justified and the balance of costs between claimant and defendant needs to be reconsidered.'
Reforming the libel laws has been on the government’s agenda for a while, it is fair to say, but still the speed of this response to Jackson is curious.
I have been racking my brains to think of the last time the government responded so quickly to any report or consultation, and what the reason for its rapid response on this occasion could be.
Why would a struggling government that faces the prospect of a general election in months, and whose actions and policies have been met with increasing criticism by the press, want so urgently to make such a press-pleasing gesture?
Comments
I can help here. The "real
I can help here. The "real motive" for doing this is an increasing concern about the way these success fees are affecting media organisations and in particular regional newspapers. The ability of media organisations to be able to report in the public interest is central to our daily life. It is important that they are able to do so. Jack Straw has been concerned about this for some time, and is able to take a step towards LJ Jackson's review by reducing success fees through secondary legislation.
I guess it meets the need for relentless cynicism, ironically so very prevalent in the media, to find some ulterior motive but I am afraid there is no hidden agenda. There rarely is.
Mark Davies
Special Adviser to Jack Straw MP
Reducing Success Fees
Two comments:
1. The media certainly claim that success fees are affecting them adversely but no study has been conducted as to what is actually happening. The media could, of course, avoid libel claims by publishing allegations which are true. If what they publish is true or published responsibly then they have complete defences to libel claims. Their complaints concern false allegations published irresponsibly. There is a public interest in minimising these.
2. If the concern relates solely to the media why does the proposal extend to non-media publications as well - eg defamatory publications by public authorities?
Can we all go and live on
Can we all go and live on Planet Mark Davies?
It has politicians without ulterior motives who consider the welfare of the electorate and media acting in the public interest and not just for profit! They would never go along with a war of aggression, would they?.
Oh, and presumably "special advisers" to politicians who are equally selfless and not paid huge sums of money from the public purse.
A Selfless Cabinet Minister
After more than ten years in the heady reaches of power, which is our elective dictatorship or oligarchy (depending on the strength of the relevant Prime Minister), politicians who are part of government and their advisers seem to resemble Marie Antoinette in their tenuous grasp upon actual reality.
Thus, you have the wonderful Mark lecturing us on the fact that politicians have few ulterior motives or hidden agendas and it just so happens that the glorious Lord Chancellor is a little worried about regional newspapers being overwhelmed by libel costs. Of course, it is pure coincidence that this is just before an election where the great man may need press support.
Ah, what a noble man the first non-Noble Lord Chancellor for centuries must be. When he is not accusing human rights lawyers of being fat cats who drive BMWs or policemen (and women) of being lazy (comments which just happened to coincide with serious attempts to cut Legal Aid and Police budgets), he is, no doubt, preparing for the religious retreat which he will make after his great service to the nation comes to an end.
He will, I am sure, eschew all wordly goods and like St Simon of Stylites, live on the top of a pillar praying for the good of mankind and agonising over that most difficult decision he ever made, which was whether or not to support the war in Iraq.
The fact that life on top of the pillar may be the safest place to be, after the impoverishment of lawyers (caused by the selfless act of handing our privileges to large companies who give retired politicians directorships) has led to the collapse of our legal system, will be purely coincidental.
Jack Straw is only kidding himself
Are Jack Straw and Mark Davies aware of any stories which are true, but have not been printed for fear of litigation. I suspect they are not - they are just on the media bandwagon. The media wish to print rubbish with impunity but when they print lies they damage reputations, such that the damage is harmful and long lasting - often never restored. Those who extend this argument to Medical and Scientific debate also profer no evidence - we all remain free to properly and responsibly criticise anything we want.
There is no evidence behind what Straw and Davies are saying. The media want to publish what sells, not what properly and responsibly informs. Newspapers who print the truth have nothing to fear from litigation as our Courts are not bent and truth has a habit of prevailing.
Newspapers already use the Ford Pinto type calclations in their decsions to print - if Straw has his way then those calculations stack up even higher against the public.
How refreshing to see that
How refreshing to see that Mark, the special adviser to Mr Straw, is prepared to join us to explain the minister's thinking.
The Cabinet Office's minimum recommended period for consultations is 12 weeks. To dispel the impression (said to be a product of cynicism) that this an attempt to curry favour with the media by rushing something through before the election, perhaps he could share with us the thinking behind cutting the recommended minimum consultation period by two-thirds?