Measures to protect individuals against major adverse costs when defending defamation claims brought by wealthy corporations were included in a Civil Justice Council (CJC) report published last week.
The report was prompted by concerns over changes in how ‘no win, no fee’ conditional fee arrangements will work following the 1 April implementation of the Legal Aid, Sentencing and Punishment of Offenders Act.
The act brought into effect a package of reforms included in the Jackson review of civil litigation costs.
However, in the light of the Leveson report the government delayed implementing these changes where they concerned defamation and privacy cases, and instead asked a CJC working group to consider costs protection measures to help secure effective access to justice.
The report’s recommendations include greater judicial case management with specialist judges to ensure proceedings are dealt with swiftly and at minimal cost. It also suggests agreeing how parties might lose their cost protection – for example, if a claim is found to have been dishonest or struck out.
Four scenarios are described in the report, including where a poor claimant sues a major media organisation and loses, but does not have to pay the defendant’s costs. Scenarios where a wealthy claimant sues a poor defendant and where both parties have equal resources are also discussed.
Working party chair and national firm Irwin Mitchell partner John Pickering said: ‘Defamation and privacy law is fast-changing and complex, not least because of the advent of social media and online publication. Our deliberations were also hampered by examining the issue without knowing what model of arbitration would develop in response to the Leveson inquiry.
‘Nonetheless, we have done our best to weigh up the pros and cons of various methods for protecting parties from major adverse costs in bringing or defending a defamation or privacy claim, as without such protection there is a real risk of people not receiving access to justice.’