Specialists exist for a reason, and to suggest that they be denied to defamation claimants is ridiculous, says Jeremy Clarke-Williams

It is reported that the leading civil liberties lawyer Kier Starmer QC and Anthony Hudson from Doughty Street Chambers in London have provided an opinion saying that nothing in the human rights legislation requires 'a premier claimant lawyer to be instructed' by those with a defamation claim 'so long as other competent lawyers charging a much more modest fee were available' (see [2006] Gazette, 27 April, 5).


It must be irritating indeed for newspapers to see those they defame instruct one of the specialist, well-regarded firms to pursue their claims rather than going to general litigators interested in having a go in this area.


One might take the concern further. Why is it that unfortunate individuals with heart conditions insist on being treated and operated on by specialists rather than general surgeons who would like to dabble in heart surgery? Why do the top companies in the UK tend to instruct the magic circle of City firms in corporate matters despite the fees they charge when so many other firms have perfectly competent company departments?


The answer of course is that people trust experienced specialists to do a job. When that job involves something of considerable importance to them, such as a legal claim arising from the public trashing of their reputation, then the importance of relying on someone who has been there and got a wardrobe of T-shirts assumes an even greater relevance.


Of course, engaging a highly trained specialist may cost more, but thanks to the access to justice reforms (and in particular the conditional fee agreement (CFA) regime) even an ordinary person of modest means can now contemplate taking on a national newspaper with the assistance of one of the top claimant practitioners in the field. Before those reforms, there was no legal aid for libel, so the newspapers could rest fairly easy in the knowledge that they could defame ordinary folk with virtual impunity. It was a brave man or woman who was prepared to risk everything they had funding a claim against one of the wealthy media groups. Now with the availability of CFAs and insurance, there is much more of a level playing field and one cannot help but think that it is this development that has contributed to the newspaper industry's concerns.


It is curious to suggest that the fact that a libel claimant can now take on a defendant newspaper on level terms might in some way be an infringement of the human rights legislation. Surely those who treasure civil liberties would regard this as a welcome improvement. After all, CFAs are equally available to defendants as to claimants.


It is interesting to observe that reports of the opinion do not suggest that libel defendants should open their work to 'competent litigators interested in entering the field' - the advice is apparently confined to claimants.


The well-established assessment of costs process within the litigation system enables unsuccessful parties to challenge excessive claims for costs against them. If the experience of the newspapers is that on detailed assessment the Supreme Court Costs Office tends to allow libel claimants the fees (and success fees) of the 'name' libel firms they have engaged, then perhaps that is because the work and risk involved merits recovery of fees at that level.


There are legitimate concerns about the cost of litigation generally, but whether libel claimants should be restricted in their choice of lawyer to the obvious advantage of media defendants is an entirely different issue.


Jeremy Clarke-Williams is a defamation partner at London-based law firm Russell Jones & Walker