The press gang

The civil procedure rules have made libel law a minefield for lawyers coping with complex and expensive litigation.

Lucky hickman finds newspapers and net publishers on their guard

Libel actions are traditionally seen as access to mega-bucks, enjoyed almost exclusively by the rich and famous.

They involve an ultra-expensive and lengthy process, presenting huge risks to publishers - facing the burden of proving their statements are true - and claimants, who risk airing dirty linen they may be hiding.

Though it is true that the sums in libel are still high, and following the introduction of conditional fees law firms are partaking of this - Peter Carter-Ruck & Partners most recently with a record 250,000 success fee (see [2001] Gazette, 11 May, 5) - the practice area is also undergoing radical shifts, brought about by the introduction of the Human Rights Act 1998, and by the march of the Internet.

England is still the favoured country to bring libel actions, according to Cameron Doley, managing partner of Peter Carter-Ruck & Partners.

'We are the beneficiaries of forum shopping, because our laws are generally recognised as being the most favourable to the claimant, with the possible exception of the Republic of Ireland,' he says.

However, he says that there has been a change in attitude in the courts, and a claimant win is no longer a foregone conclusion.

Gillian Taylforth, Jonathan Aitken and Neil Hamilton, of course, all famously found this to their cost.Mr Doley says: 'Over the ten years I have been working in this field, I have seen a big change.

When I started, claimants always won.

But George Carman changed all that almost single-handedly.

He didn't always win - but he did notch up some significant defendant victories, and this gave defendants the confidence to fight cases that should be fought.'Mark Bateman, an associate at London firm Davenport Lyons, says there is still a heavy burden on defendants in defamation cases.

'There is a big difference between knowing something is true and being able to prove it.

'The Penguin case against David Irving is a good example of that.

Penguin had to spend an awful lot of money doing that.

This case was a matter of principle, but from a commercial point of view it often makes more sense to settle.' Robert Clinton, head of media at Farrer & Co - which recently merged with specialist media firm Crockers Oswald Hickson - says: 'The combined effect of the Woolf reforms, the Defamation Act 1996 and the defamation pre-action protocol have led to a sea change.

In the Woolf era of active case management, you can no longer put a writ in a filing cabinet and leave it there.'He warns: 'Claimants who issue a claim as a sabre-rattling technique to force people to settle - but had no intention of taking it to trial - have got a tiger by the tail.'Once you start proceedings, the court will push it through to a conclusion whether you like it or not.

It's not just defendants it hurries up.'Mr Clinton says that since the reforms, libel proceedings are faster, and that generally judges are getting to grips with a more interventionist role.

But one defamation partner, who declines to be named, says: 'The Woolf reforms are an absolute disaster.

Judges are managing cases by expecting practitioners to deal off the cuff with everything.

You have to come fully prepared for anything and everything.

Cases which go to trial end up being much more expensive.' The lawyer continues: 'Judges are totally inconsistent.

A broadminded judge can use the Human Rights Act to ingenious effect to sort out anomalies, while a more conservative judge finds it difficult to embrace the opportunities the Act offers.

It's pot luck - you have a completely different outcome depending on who you get.

'The Court of Appeal seems to suffer from not having a libel specialist in there.

Lord Justice May, by default, is acting in that role and is doing a fairly good job, but you can't rely on him to sort everything out.'Olswang partner Debbie Ashenhurst, who acted for Russian businessman Dr Grigori Loutchansky in his successful libel action against The Times last month, says 'the quality of our libel judges is good at the moment', but agrees that libel laws make trials too long and cumbersome.

'People are being libelled as much as ever, but fewer are suing and many of those who do are well-advised to settle.' She explains: 'The new Civil Procedure Rules have arguably made litigation more costly.

Lawyers have to do more work at an early stage to assess the size of the case, the likely outcome, and so on.

A failure to do so and to conduct a case in a proportionate manner can impact on the costs award at the end of the case.

It makes it harder for even a winner to recover costs.

It has put a lot of people off.' Ms Ashenhurst says the single most dramatic change in the libel landscape is expansion of the qualified privilege defence brought about by the House of Lords decision in Reynolds v Times Newspapers Ltd and Others [1998] 3 WLR 862.

This protects newspapers if they 'responsibly' publish false material in the public interest.

Mr Doley says: 'Reynolds constitutes a recognition that newspapers should be able to report on matters of public interest, without automatically being hammered in the libel courts.

It is a relaxation of the strict liability laws which have applied for centuries.'Ms Ashenhurst says it will help raise journalistic standards, as journalists try to follow the ten guidelines set out by the House of Lords in Reynolds.

'It is relatively straightforward for a journalist, if he/she has enough time, to go through the checklist and obtain the benefit of the defence.

It could be a real boon for investigative journalists.' However, she adds that the new law is tough on claimants: 'Media defendants overlook the fact that Reynolds qualified privilege means there is no remedy at all for a claimant about whom a false statement has been made, as long as the journalist was careful.' 'In other European jurisdictions a qualified privilege-type defence is coupled with a right of reply or entitlement to a correction but here there is no remedy at all for the wronged claimant.

The law now expects a claimant to guess in advance whether or not the journalist did a good job.' However, as Meryl Evans, the partner at City firm Reynolds Porter Chamberlain who acted for The Times, points out, the Reynolds defence has only been used successfully once since the Court of Appeal ruling - in GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd and Others [2000] 1 WLR 2571.

Ms Evans says the judge's decision on the publication of the libellous Loutchansky material on The Times' Web site could have disastrous consequences for newspapers and Internet publishers.'This aspect of the decision I find Orwellian.

Although there was no positive evidence that anyone had accessed the articles on the site, the judge indicated that access and publication could be inferred from the sheer number of visitors generally.

Every time someone accessed the articles it is a fresh publication.' She explains: 'An article may be 30 years old - but if someone accesses it, it is potentially actionable without the limitation period applying.

Publishers can either expose themselves to infinite and immeasurable liability, or take articles off.

'Lack of contemporaneity diminishes the quality of privilege from absolute - if the report is of a court case, for example - to qualified.

Material which was once stone-cold unactionable, may or may not become so later on.' She is applying for permission to take the Internet strand of the argument to the Court of Appeal, while there are appeals pending on the hardcopy verdict.

Ms Ashenhurst says the Loutchansky case changed her mind about juries in complex libel cases.

'I don't think you should have a jury.

The cases are usually too complex.'The jury had a peculiar role in that case.

Although there were not many disputed facts in the case, the jury still had to answer 15 questions and it was too much for them.

They could only come to a verdict on 12 of the 15 questions.

I believe a single judge would be better in Reynolds qualified privilege cases.'Most practitioners agree that although claimant defamation work is as busy as ever, defendant work has slacked off.

Mr Clinton says: 'Papers are taking quicker decisions about how to deal with matters.

You get less of the routine work.'Mr Doley says: 'The introduction of no win, no fee has encouraged potential litigants, who would have seen it as too risky or overawing to have the confidence to bring a case.

We have the wealthy clients we have always had - but we have added many for whom beforehand libel was a closed door.'The lawyers agree that claimants are seeking other forms of redress, rather than going straight for defamation actions.Mr Bateman says: 'The Human Rights Act has impacted in a number of ways.

It gives claimants more options with regard to the type of action they can take.

Privacy is increasingly on the agenda, and the Data Protection Act can be used to force newspapers to correct something they have got wrong.'Mr Clinton says: 'It's such a vivid market, all sorts of other things are replacing straight defamation.

There is a case based on the Protection From Harassment Act [1997] being brought against a newspaper.'The case brought by Michael Douglas and Catherine Zeta Jones against Hello! magazine has also been crucial, he adds.

The Court of Appeal overturned an interim injunction preventing the magazine from publishing wedding photographs of the couple, on the basis that they had waived their right to privacy by selling the rights to another magazine.

But the court gave a strong indication that, in principle, it was prepared to acknowledge the existence of a special right of privacy which could be infringed.Mr Clinton concludes: 'I predict that in future it's going to be privacy, privacy, privacy.

A lot of cases have stemmed from the case, and it's an area of law that is fascinating to lawyers.

Opinion is divided as to whether we now have a stand-alone privacy law.'It appears the only certainty in the libel arena is that things will remain uncertain.

Mr Bateman says: 'Libel is increasingly an area of law where it is hard to predict what is going to happen, either when you are advising the claimant, or advising publishers if something is safe to publish.'Lucy Hickman is a freelance journalist