DEFAMATION: top practices reach agreement with BBC and News International on costs


Two leading firms of defamation lawyers have struck out on their own to reach agreements with big media defendants on the costs of defamation cases after the Civil Justice Council's (CJC) efforts to mediate a cross-industry deal faltered.



The Gazette's sister publication, Litigation Funding, this month reveals that David Price Solicitors & Advocates has agreed a groundbreaking protocol with the BBC. Carter-Ruck has followed suit with News International, although this does not go as far as the former because it does not cap costs.



It comes as the CJC prepares to make recommendations to ministers about success fees and after-the-event (ATE) premiums in defamation cases (costs caps are further down the line). It is understood that the mediation came close to reaching an agreement, but collapsed at a late stage. This could lead to the Ministry of Justice imposing a deal, subject to consultation.



The David Price protocol was used for the first time to settle the claim of Inspector Ian Kibblewhite in relation to the book Not One of Us, written by Chief Superintendent Ali Dizaei and serialised in March as the BBC's book of the week. It caps costs at £250,000, inclusive of success fee; there is no success fee if the case is settled before proceedings are issued; no ATE premium is taken out unless and until the BBC rejects the claim; and if one party wishes to mediate, the other must agree and enter mediation in good faith unless it can give good reasons for not mediating.



Mr Price said: 'I believe that this protocol strikes a proper balance between ensuring access to justice and fairness to media defendants. There are "sticks and carrots" to encourage an early resolution, which in my experience of defamation, is in the interest of both parties.' He said his focus had been on a costs cap 'because it gives clients some financial guarantees'. Mr Price has offered the protocol to all other major defendants; the Daily Mail has shown some interest.



The Carter-Ruck agreement sets out the circumstances in which success fees ranging from 0% to 100% will be recoverable. It also outlines the parties' intention to conduct cases 'in a reasonable and proportionate manner'. They agree to provide estimates if requested 28 days prior to a particular stage or event in the litigation, and will notify the other side if there is a variation from the estimate in excess of 20%.



Other firms and defendants have been invited to sign up.



Neil Rose