Sarah Webb is wrong to say there is no problem with costs in publication proceedings (see [2009] Gazette, 5 March, 10). A December 2008 University of Oxford report revealed that libel costs in England and Wales were 140 times the average of 11 other European countries. Media litigation is conducted differently to other litigation – juries try cases and the burden of proof is on the defendant.

Defamation proceedings are not primarily about money. A claimant’s prime motivation is generally to clear their name or obtain an apology rather than to seek damages. Figures recently complied by the Media Lawyers Association for the Jackson review, based on information provided by a number of national and regional media organisations for 2008, show that there is a large disparity between the legal costs of claimants and the costs of defendants, which is not answered simply by media defendants handling matters in-house.

In most cases that involved solicitors on both sides, even where there is no conditional fee agreement, media defendants pay significantly more in claimant costs than they do in damages. In one (non-CFA) case, the claimant spent more than £2m to recover £115,000 in damages; and in another spent £1.7m to recover £105,000 damages.

Claimant solicitors routinely charge base hourly rates of more than £400 – when a CFA is added in, let alone the cost of an after-the-event premium, the costs easily double. CFAs are routinely used for celebrity clients in cases where there is little or no risk – that’s not about access to justice. In a case that Times Newspapers was involved in recently, a libel claim was made through solicitors after the Times had published an agreed correction through the Press Complaints Commission. The claimant will have known, therefore, that proceedings were unlikely to be defended. Within 14 days of the letter of claim being received, an offer of amends was made under the Defamation Act. The claimant’s solicitors accepted the offer and sought damages of £20,000 and costs of £54,000, based on a CFA with a success fee of 25% on solicitors’ fees and 100% on counsels’ fees.

As the Ministry of Justice rightly recognises, excessive costs may force media defendants to settle unmeritorious claims, which can create a more risk-averse approach to reporting and investigative journalism.

Stifling the free flow of information by allowing the unfettered existence of a punitive, disproportionate and unreasonable costs regime does not create a healthily state of affairs for the proper functioning of a democracy.

Gillian Phillips, Solicitor, Times Newspapers, London