CFAs in libel cases have opened up access to justice, argues Jeremy Clarke-Williams


Historically, it was said that libel actions were the preserve of the rich or the mad. There was no legal aid available for libel and few could afford to take on a media publisher. The introduction of conditional fee agreements (CFAs) in libel cases meant that people of modest means could contemplate taking a libel action.



Now, in a well-publicised anti-CFA campaign, the media claims that a system introduced to create more balance in the justice system is out of kilter. It says that if a publication loses or settles a libel claim funded under a CFA, the publisher is liable to pay a fee that could add a 100% uplift to the basic solicitors' costs. It also says unworthy claims are succeeding because media defendants cannot afford to defend them.



CFAs have opened up access to justice, and a case from our firm is a prime example. We acted for a community nurse accused by a national tabloid in two consecutive front-page articles of hastening the deaths of 17 terminally ill children. Her life, career and family were devastated. We secured damages of £100,000 and a page-two apology. This public vindication enabled her to re-enter the profession she loved.



The media see CFAs as a green light for impecunious claimants. The media defendant is faced with the choice of either defending the claim at great expense with little prospect of recovering its full costs, or for commercial reasons settling the case at an early stage. Should we be feeling twinges of sympathy for the poor, put-upon media? No, for a number of reasons.



If a claimant loses a case under a CFA he may not pay his own fees, but he is liable for his opponent's costs, which will be substantial at the end of a contested action. This is a clear deterrent to a dubious claim. Additionally, if the claimant has secured insurance to protect against the risk of paying his opponent's legal costs, the security required from the insurer underwriting the claim suggests that the claim has merit.



Another risk is that, unless the claimant wins, his solicitors do not get paid. A fully defended libel action can involve a team of lawyers working for up to three years. If, at the end of that, the client loses, the financial impact on the firm will be significant. This makes early assessment of merits and prospects of success a priority for the claimant firm and tends to weed out frivolous or dubious claims.



If a dubious claim does get as far as court, the Civil Procedure Rules and the Defamation Act 1996 both contain provisions that allow a defendant to make an early application to the court to dismiss such a claim. If the action survives such a hearing, it follows that it has some merit to it.



Finally, if the media defendant has lost or settled a claim and objects to the level of costs it is being asked to pay, the bill can be subjected to detailed assessment by the Supreme Court Costs Office.



Despite the media campaign, over the past three years there have been discussions about CFAs in libel cases organised by the Civil Justice Council and attended by representatives from both claimant and media defendant lawyers. The claimant firms proposed a system of staged success fees, which would incorporate a minimal uplift if a media defendant settled a claim in its early stages. The success fee would only reach 100% if the action went all the way to trial. These proposals were embodied in a consultation paper issued by the Ministry of Justice last September. The media's reaction has been to take its arguments outside this process and start a campaign.



The fact is that CFAs have quite properly extended access to justice to huge swathes of the population. When reading the media defendants' take on CFAs, the prudent advice is: don't believe everything you read in the papers.



Jeremy Clarke-Williams wrote this article with Sarah Webb. They jointly head the media and reputation management unit at Russell Jones & Walker