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    Wednesday, 31 March 2010

    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 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.


    Andrew Scott said...

    Not everyone has taken this view - see So this is how it ends, is it?

    Andrew Scott said...

    You can find a persuasive explanation of the action taken by Tom Watson MP here.

    Andrew Scott said...

    The Government has now confirmed that there will be no time for this measure to proceed through the House of Commons, prior to prorogation. See, Inforrm for a useful comment. I very much doubt this will be the end of this particular story, nor should it be.

    Andrew Scott said...

    See here or here for a critique of Tom Watson's decision.

    Andrew Scott said...

    The evidence submitted by Lord Neuberger, the Master of the Rolls, to the Government's brief consultation on the abortive move to impose a 10% cap on CFA success fees has been published. It very much supports the line adopted by the MPs in the House of COmmons who stalled the introduction of the rule change - see here, and herefor comment.