Update on 10% success fee order - Commons difficulties

The statutory instrument designed to implement the move to a 10% success fee recovery cap for CFA-funded libel cases, has hit a further snag. This time the difficulties have arisen in the House of Commons (see previous post re House of Lords and JR). A committee of MPs - including four Labour, three Conservative, and two Lib-Dem members - has voted 9-5 to require the matter to be considered on the floor of the House (details have been reported on the subscription news-source, Media Lawyer, but I can't find further info on the parliament.uk site - sorry! Update: but thankfully, Inforrm is better informed - see here).

The measure may well clear its Parliamentary hurdles in the 'wash-up' before Parliament is prorogued for the election - the Government is said to be looking to find time for this to take place - but it is to the credit of both Houses that they have highlighted the weaknesses in this specific proposal.

Libel-reformists have been expressing outrage on Twitter, and in particular are badgering Tom Watson MP (one of the Labour members). They would do well to read the evidence presented to the Lords Merits Committee on the inadequacy of the consultation and evidence relied upon by the MoJ (available here).

Everyone recognises the need to address the costs problem in libel actions, but this specific solution is liable to create its own difficulties. It won't significantly affect the chilling effect of threatened actions on impecunious defendants, while it will deny access to justice for all but (i) claimants with the most clear-cut of cases (which tend to be settled immediately once raised), and (ii) wealthy litigants. Indeed, the utility of CFAs for defendants as well as claimants has been highlighted in a number of recent cases involving scientists facing libel suits.

The proposed order is the proverbial 'bad law', based on political expediency and not any solid evidence base. As has been argued elsewhere, libel reform (the need for which is indeed pressing) must not be piecemeal and un(der)-principled.

Papers published on paparazzi harassment and libel reform

I've had a couple of research papers published in the last months that may be of interest to some. If that's the case, please let me know and I'll be happy to forward...

Scott (2009) Flash Flood or Slow Burn? Celebrities, Photographers and the Protection from Harassment Act. Media & Arts Law Review, 14(4), 397-424

• Abstract: In recent months, a number of female celebrities have been awarded court orders under the Protection from Harassment Act 1997 to constrain the excessive behaviour of the paparazzi. This is a novel, but unsurprising, use of the statute. Indeed, what has been most startling in this development is the fact that the statutory cause of action has never formerly been deployed in this way in the United Kingdom. The aim of this paper is to assess why this has been the case. In doing so, it reflects upon opposing perspectives on the interaction between celebrities and the media; details the origins of the 1997 Act, its requirements, and their application to the newsgathering context; reviews the jurisprudential forebears to the recent actions that suggested that the Act could be deployed in a newsgathering context come the appropriate case, and considers the operation, strengths, and putative weaknesses of alternative regulatory options (in particular, that offered in this respect by the Press Complaints Commission). The paper concludes by highlighting a combination of factors that may explain why the Act has been used only now, by musing on the ramifications for celebrities and the paparazzi, and by reflecting on the likely future interplay between the legal and regulatory avenues oriented towards combating the problem of harassment by photographers and other journalists.
  

Mullis and Scott (2010) Something rotten in the state of English libel law? A rejoinder to the clamour for reform of defamation'. Communications Law , 14(6), 173-183

• I've commented on this paper on MediaPaL previously. It has since had a fair, if often critical, run in the broader media and policy circles.

Politically motivated (?) 10% CFA success fee order gets rocky ride

In January, the Ministry of Justice opened a consultation on the imposition of a 10% cap on the recoverable success fee for CFA-funded libel claims. This consultation closed some 4 weeks later. It culminated, with what might be considered impressive rapidity, in the presentation to Parliament in early March of a statutory instrument (the Conditional Fee Agreements (Amendment) Order 2010, made under section 58(4) of the Courts and Legal Services Act 1990) designed to put the policy change into effect.

Interestingly, two weeks ago the House of Lords Merits of Statutory Instruments Committee drew 'the special attention of the House' to the measure, noting, "we regret that insufficient time has been allowed to produce a solution based on more robust evidence or on which there is broad agreement, and that might seem more likely to achieve the policy objective without the potential side effects". The Committee was worried about the haste with which the measure had been concocted, and noted that several other options on the table had been for some reason discounted.

The Committee received a number of persuasive contributions questioning the legitimacy of the order - included in an appendix to their report - from such figures as Nicholas Green QC (Chairman of the Bar Council), Carter Ruck Solicitors, the Law Society, Professor Richard Moorhead of Cardiff University (who has conducted an important scoping review of CFAs in the defamation and other contexts for the MoJ), and Which? (welcoming the change).

The Carter Ruck submission noted the "widespread concern within the legal profession that the proposed reduction in success fees would seriously reduce - if not eliminate altogether - the rights of ordinary individuals without substantial means to obtain access to justice in defamationa nd privacy cases". Professor Moorhead concurred: "I am aware of no objective evidence base from which the Government could draw its calculations for the 10% fee beyond that provided by those lobbying for one side or the other in the debate... without persuasive evidence to support it the basic economics of conditional fee agreements would suggest that at a level of 10% uplift would prevent all but the most meritorious cases from proceeding on a conditional fee. For rich litigants, this presents no problem, for poorer litigants this presents a major impediment to access to justice".

In light of all these representations, a motion of regret was subsequently raised by Lord Martin (the former Speaker of the House of Commons), requiring the Order to be debated on the floor of the House of Lords. This was duly done last week, with the result that Lord Martin withdrew his motion. The debate was very noteworthy, however, for the contributions offered by Lords Martin, Woolf, Scott and Pannick.

By way of aside, a lawyers' group has threatened to seek judicial review of the government's decision to introduce the new 10% cap on the basis, inter alia, that insufficient time was allowed for consultation, and that the government failed properly to take account of the impact on access to justice

The most excellent Inforrm Blog

Normally, new blogs of note just get posted up on the blogroll. That launched recently by Inforrm, however, is worthy of a more substantial trail. Its truly insightful, clear, and authoritative on matters concerning media law. Recent postings have focused on libel, privacy, harassment, freedom of expression and more. It will become essential reading - for me, it already is.

Find it here