High costs allow 'rich people' to exploit legal system, say media lawyers

A panel of media lawyers appearing before the House of Commons Culture, Media and Sport Committee expressed their concerns that current UK media laws suit rich individuals at the cost of freedom of expression.

The consultation into privacy, libel and press standards, began today as part of the government's review of escalating libel costs which many fear damage rights to freedom of expression.

The first set of witnesses, who normally act on behalf of media companies, were not convinced of the advantages of the Conditional Fee Agreements (CFAs). CFAs are intended, under a 'no win no fee' system, to provide access to justice for those who could not otherwise afford to pursue litigation. If the case is won the solicitor will charge a success fee.

However, the lawyers said that CFAs made newspapers reluctant to enter defamation cases. "It seems completely wrong that a system intended for people who did not have access should be exploited by rich people and their lawyers," said Marcus Partington, chairman of the Media Lawyers Association.

Tony Jaffa from Foot Anstey solicitors, who specialises in regional press cases, said 'every regional newspaper is solely concerned with the finances, never mind the merit'.

An unwillingness to publish stories that might provoke legal action was 'not because they [regional newspapers] publish poor stories', but instead an issue of finances, Jaffa said.

"Our job has turned from advising our clients on matters of law, to advising them on money," Jaffa said.

Keith Mathieson from Reynolds Porter Chamberlain LLP, agreed, saying that journalists, in particular the regional press, would rather not publish than risk expensive legal action. Newspapers are 'inhibited from defending their journalism because expensive to do so', he told the committee. "The way to change it is mandatory cost control which must be implemented by external body," he said.

The UK legal system is restricting freedom of expression, the lawyers on the panel agreed.

"[We're] now in a situation where American states are passing laws to protect American citizens from UK judgement. They think we do not do enough in the country to protect freedom of expression," said Partington.

Citing a memo from the US Congress, circulated around the committee, which expressed American views on UK law, Jaffa said: "You can see what they think of our laws and it's not very pleasant to read. "[They] think of our laws as 'terrorism'".

"If I was a parliamentarian I would be shocked that the United States regards our law in this light," he said. 

The 10-point Reynolds Defence, a form of qualified privilege, has not aided newspapers' freedom expression, they said, adding that it is rarely used as a defence by newspapers.

The problem, Mathieson said, is that by using Reynolds' defence, 'you're on a back foot,' because in other circumstances 'you'd be running a justification defence'.

There needs to be a better way of using Reynolds, he said, adding that he would like to see a 'more forgiving attitude to the way journalists operate.'

Partington said he would welcome statutory enforcement of Reynolds: a parliamentary decision to make Reynolds part of statutory law 'would be welcomed,' he said.
 
Lawyers in the second session, however, disputed that legal costs surrounding libel and privacy have escalated unnecessarily and defended CFA cases.

Most cases are settled very quickly, Mark Thomson from Carter-Ruck Solicitors, whose firm charges £400-an-hour before a staged success fee, told the committee.

Legal action is often prevented by newspapers giving story subjects prior warning of forthcoming publication, he said. Problems arise because a growing number of newspapers do not do this, he said.

Thomson refused to be drawn when questioned on the costs and issues surrounding the recent case involving Tesco and the Guardian, in which his firm represented the supermarket chain. He said details could not be discussed as the result of a confidentiality agreement.
 

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