by Gillian Phillips, director of editorial legal services at Guardian News & Media Ltd

Steven Heffer can’t resist the temptation to overstate his case (see [2010] Gazette, 9 April, 6). It is simply not the case that the press has ‘chosen not to report the findings of the report’ by Professor Alastair Mullis of the University of East Anglia and Dr Andrew Scott of the LSE.

Steven Heffer can’t resist the temptation to overstate his case (see [2010] Gazette, 9 April, 6). It is simply not the case that the press has ‘chosen not to report the findings of the report’ by Professor Alastair Mullis of the University of East Anglia and Dr Andrew Scott of the LSE.

In its article, Libel law: who’s shooting for reform?, published on page 1 of MediaGuardian on 15 February and online (where it is still available), the Guardian reported the findings of a discussion I chaired between three claimant media lawyers: Dominic Crossley (from Mr Heffer’s firm Collyer Bristow); Sarah Webb from Russell Jones & Walker; and Jonathan Coad from Swan Turton; along with Gavin Millar QC from Doughty Street Chambers; John Kampfner, chief executive of Index on Censorship; and MediaGuardian editor Jane Martinson. That article specifically referred to the Mullis/Scott report, as did a subsequent article published at guardian.co.uk on 30 March by Jonathan Heawood, director of the writers’ organisation English PEN, which (generously you might think) contained a direct link to the report.

Urgent reformNo one disputes that our current system of libel needs urgent reform. Last month, the Ministry of Justice published the report of its libel working group, which brought together perspectives from both sides of the legal profession, the media, non-governmental organisations, academia and the scientific community. All three major political parties have made recent commitments to reform libel law.

As for the specific debate on the inequities of a funding system that has allowed some claimant lawyers to charge base rates in excess of £450 plus a 100% uplift, well, that will no doubt continue. The current system’s shortcomings have been highlighted not only by Sir Rupert Jackson in his recent report, but also by senior members of the judiciary and the Culture, Media and Sport Committee on press standards, privacy and libel.

What the claimant lawyers’ lobby has failed to do since this debate began is to release their statistics on the number of claimant CFA-funded cases with success fees that they have won and lost, so that a properly informed debate can take place. Their own evidence suggests that they win many more CFA cases than they lose. And let’s also put that into context.

It’s not about squeezing a three-month consultation into four weeks – this debate goes back to at least 2003, with the publication of the consultation paper Simplifying CFAs, when the use of conditional fee agreements in publication proceedings first really emerged as a controversial issue.

Take, for example, the statement made by Nigel Tait, a partner at Carter-Ruck, who told BBC Radio 4’s Law In Action programme on 23 February, that Carter-Ruck has lost about 15 ‘big’ CFA cases and won between 200-300. As long ago as February or March 2003, Carter-Ruck said it had ‘successfully acted for about 200 people’. Extrapolating from that, if we take a figure that’s probably still on the low side of 300 wins, on my calculation that’s a success rate of 95%.

Take some other examples. Jeremy Clarke-Williams, a partner at Russell Jones & Walker and one of the LMS founder members, told the Culture, Media and Sport Committee on 24 February 2009: ‘In my firm we have a very rigorous risk-assessment procedure at the outset to decide whether or not we are prepared to take on a case on a CFA. So it is not surprising that the cases we do take on on CFAs are ones we expect to win’. Atkins Thomson, another claimant firm, says on its website that ‘it is a testament to our ability to judge these cases that, to date, we have never lost a claim undertaken on this basis’.

If Mr Heffer wants to have a proper debate on this issue, then he should start by disclosing how many successful CFA cases his firm has conducted for individual claimants and how many it has lost.

Gillian Phillips is director of editorial legal services at Guardian News & Media Ltd