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| Crime and Courts Bill [Lords], As Amended
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| New Clauses and New Schedules standing in the name of the Prime Minister |
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| and relating to press conduct |
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| | Awards of exemplary damages |
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| The Deputy Prime Minister |
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| | Agreed to on division NC21A |
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| To move the following Clause:— |
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| | ‘(1) | This section applies where— |
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| | (a) | a relevant claim is made against a person (“the defendant”), |
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| | (b) | the defendant was a relevant publisher at the material time, |
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| | (c) | the claim is related to the publication of news-related material, and |
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| | (d) | the defendant is found liable in respect of the claim. |
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| | (2) | Exemplary damages may not be awarded against the defendant in respect of the |
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| | claim if the defendant was a member of an approved regulator at the material |
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| | (3) | But the court may disregard subsection (2) if— |
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| | (a) | the approved regulator imposed a penalty on the defendant in respect of |
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| | the defendant’s conduct or decided not to do so, |
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| | (b) | the court considers, in light of the information available to the approved |
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| | regulator when imposing the penalty or deciding not to impose one, that |
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| | the regulator was manifestly irrational in imposing the penalty or |
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| | deciding not to impose one, and |
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| | (c) | the court is satisfied that, but for subsection (2), it would have made an |
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| | award of exemplary damages under this section against the defendant. |
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| | (4) | Where the court is not prevented from making an award of exemplary damages |
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| | by subsection (2) (whether because that subsection does not apply or the court is |
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| | permitted to disregard that subsection as a result of subsection (3)), the court— |
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| | (a) | may make an award of exemplary damages if it considers it appropriate |
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| | to do so in all the circumstances of the case, but |
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| | (b) | may do so only under this section. |
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| | (5) | Exemplary damages may be awarded under this section only if they are claimed. |
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| | (6) | Exemplary damages may be awarded under this section only if the court is |
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| | (a) | the defendant’s conduct has shown a deliberate or reckless disregard of |
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| | an outrageous nature for the claimant’s rights, |
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| | (b) | the conduct is such that the court should punish the defendant for it, and |
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| | (c) | other remedies would not be adequate to punish that conduct. |
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| | (7) | Exemplary damages may be awarded under this section whether or not another |
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| | (8) | The decision on the question of— |
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| | (a) | whether exemplary damages are to be awarded under this section, or |
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| | (b) | the amount of such damages, |
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| | | must not be left to a jury.’. |
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| | Awards of exemplary damages |
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| Mr Chancellor of the Exchequer |
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| To move the following Clause:— |
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| | ‘(1) | This section applies where— |
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| | (a) | a relevant claim is made against a person (“the defendant”), |
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| | (b) | the defendant was a relevant publisher at the material time, |
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| | (c) | the claim is related to the publication of news-related material, and |
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| | (d) | the defendant is found liable in respect of the claim. |
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| | (2) | Exemplary damages may not be awarded against the defendant in respect of the |
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| | claim if the defendant was a member of an approved regulator at the material |
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| | (3) | Where the court is not prevented from making an award of exemplary damages |
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| | by subsection (2), the court— |
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| | (a) | may make an award of exemplary damages if it considers it appropriate |
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| | to do so in all the circumstances of the case, but |
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| | (b) | may do so only under this section. |
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| | (4) | Exemplary damages may be awarded under this section only if they are claimed. |
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| | (5) | Exemplary damages may be awarded under this section only if the court is |
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| | (a) | the defendant’s conduct has shown a deliberate or reckless disregard of |
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| | an outrageous nature for the claimant’s rights, |
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| | (b) | the conduct is such that the court should punish the defendant for it, and |
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| | (c) | other remedies would not be adequate to punish that conduct. |
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| | (6) | Exemplary damages may be awarded under this section whether or not another |
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| | (7) | The decision on the question of— |
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| | (a) | whether exemplary damages are to be awarded under this section, or |
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| | (b) | the amount of such damages, |
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| | | must not be left to a jury.’. |
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| Mr Chancellor of the Exchequer |
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| To move the following Clause:— |
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| | ‘(1) | This section applies where the court is deciding whether the circumstances of the |
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| | case make it appropriate for exemplary damages to be awarded under section |
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| | [Awards of exemplary damages]. |
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| | (2) | The court must have regard to the principle that exemplary damages must not |
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| | usually be awarded if, at any time before the decision comes to be made, the |
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| | defendant has been convicted of an offence involving the conduct complained of. |
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| | (3) | The court must take account of the following— |
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| | (a) | whether membership of an approved regulator was available to the |
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| | defendant at the material time; |
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| | (b) | if such membership was available, the reasons for the defendant not |
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| | (c) | so far as relevant in the case of the conduct complained of, whether |
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| | internal compliance procedures of a satisfactory nature were in place and, |
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| | if so, the extent to which they were adhered to in that case. |
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| | (4) | The reference in subsection (3)(c) to “internal compliance procedures” being in |
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| | place is a reference to any procedures put in place by the defendant for the |
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| | purpose of ensuring that— |
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| | (a) | material is not obtained by or on behalf of the defendant in an |
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| | (b) | material is not published by the defendant in inappropriate |
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| | (5) | The court may regard deterring the defendant and others from similar conduct as |
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| | (6) | This section is not to be read as limiting the power of the court to take account of |
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| | any other matters it considers relevant to its decision.’. |
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| | Amount of exemplary damages |
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| Mr Chancellor of the Exchequer |
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| To move the following Clause:— |
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| | ‘(1) | This section applies where the court decides to award exemplary damages under |
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| | section [Awards of exemplary damages]. |
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| | (2) | The court must have regard to these principles in determining the amount of |
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| | (a) | the amount must not be more than the minimum needed to punish the |
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| | defendant for the conduct complained of; |
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| | (b) | the amount must be proportionate to the seriousness of the conduct. |
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| | (3) | The court must take account of these matters in determining the amount of |
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| | (a) | the nature and extent of any loss or harm caused, or intended to be caused, |
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| | by the defendant’s conduct; |
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| | (b) | the nature and extent of any benefit the defendant derived or intended to |
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| | derive from such conduct. |
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| | (4) | The court may regard deterring the defendant and others from similar conduct as |
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| | (5) | This section is not to be read as limiting the power of the court to take account of |
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| | any other matters it considers relevant to its decision.’. |
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| Mr Chancellor of the Exchequer |
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| To move the following Clause:— |
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| | ‘(1) | This section applies where a relevant publisher— |
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| | (a) | is a defendant to a relevant claim, and |
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| | (b) | is found liable to two or more persons in respect of the claim (“the |
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| | (2) | In deciding whether to award exemplary damages under section [Awards of |
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| | exemplary damages] or the amount of such damages to award (whether to one or |
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| | more of the persons affected), the court must take account of any settlement or |
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| | compromise by any persons of a claim in respect of the conduct. |
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| | (3) | But the court may take account of any such settlement or compromise only if the |
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| | (4) | If the court awards exemplary damages under section [Awards of exemplary |
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| | damages] to two or more of the persons affected, the total amount awarded must |
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| | be such that it does not punish the defendant excessively. |
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| | (5) | If the court awards exemplary damages under section [Awards of exemplary |
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| | damages] to one or more of the persons affected, no later claim may be made for |
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| | exemplary damages as regards the conduct.’. |
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| Mr Chancellor of the Exchequer |
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| To move the following Clause:— |
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| | ‘(1) | Any liability of two or more persons for exemplary damages awarded under |
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| | section [Awards of exemplary damages] is several (and not joint or joint and |
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| | (2) | Subsection (1) has effect subject to the law relating to the liability of a partner for |
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| | the conduct of another partner. |
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| | (3) | Where the liability of two or more persons for exemplary damages is several, no |
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| | contribution in respect of the damages may be recovered by any of them under |
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| | section 1 of the Civil Liability (Contribution) Act 1978.’. |
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| | Awards of aggravated damages |
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| Mr Chancellor of the Exchequer |
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| To move the following Clause:— |
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| | ‘(1) | This section applies where— |
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| | (a) | a relevant claim is made against a person (“the defendant”), |
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| | (b) | the defendant was a relevant publisher at the material time, |
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| | (c) | the claim is related to the publication of news-related material, and |
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| | (d) | the defendant is found liable in respect of the claim. |
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| | (2) | Aggravated damages may be awarded against the defendant only to compensate |
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| | for mental distress and not for purposes of punishment. |
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| | (3) | In this section, “aggravated damages” means damages that were commonly called |
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| | aggravated before the passing of this Act and which— |
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| | (a) | are awarded against a person in respect of the person’s motive or |
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| | (b) | are not exemplary damages or restitutionary damages. |
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| | (4) | Nothing in this section is to be read as implying that, in cases where this section |
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| | does not apply, aggravated damages may be awarded for purposes of |
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| The Deputy Prime Minister |
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| To move the following Clause:— |
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| | ‘(1) | This section applies where— |
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| | (a) | a relevant claim is made against a person (“the defendant”), |
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| | (b) | the defendant was a relevant publisher at the material time, and |
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| | (c) | the claim is related to the publication of news-related material. |
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| | (2) | If the defendant was a member of an approved regulator at the time when the |
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| | claim was commenced (or was unable to be a member at that time for reasons |
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| | beyond the defendant’s control or it would have been unreasonable in the |
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| | circumstances for the defendant to have been a member at that time), the court |
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| | must not award costs against the defendant unless satisfied that— |
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| | (a) | the issues raised by the claim could have been resolved by using an |
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| | arbitration scheme of the approved regulator, or |
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| | (b) | it is just and equitable in all the circumstances of the case to award costs |
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| | (3) | If the defendant was not a member of an approved regulator at the time when the |
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| | claim was commenced (but would have been able to be a member at that time and |
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| | it would have been reasonable in the circumstances for the defendant to have been |
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| | a member at that time), the court must award costs against the defendant unless |
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| | (a) | the issues raised by the claim could not have been resolved by using an |
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| | arbitration scheme of the approved regulator (had the defendant been a |
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| | (b) | it is just and equitable in all the circumstances of the case to make a |
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| | different award of costs or make no award of costs. |
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| | (4) | For the purposes of subsections (2) and (3), a claim could have been resolved by |
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| | using an arbitration scheme of an approved regulator if, at the time when the |
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| | claim was commenced, the approved regulator had arrangements in place for an |
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| | arbitration scheme under which the claim could have been referred for |
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| | determination by an arbitrator appointed under the scheme. |
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| | (5) | The Secretary of State must take steps to put in place arrangements for protecting |
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| | the position in costs of parties to relevant claims who have entered into |
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| | agreements under section 58 of the Courts and Legal Services Act 1990. |
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| | (6) | This section is not to be read as limiting any power to make rules of court. |
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| | (7) | This section does not apply until such time as a body is first recognised as an |
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| Mr Chancellor of the Exchequer |
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| To move the following Clause:— |
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| | ‘(1) | This section applies where— |
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| | (a) | a relevant claim is made against a person (“the defendant”), |
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| | (b) | the defendant was a relevant publisher at the material time, and |
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| | (c) | the claim is related to the publication of news-related material. |
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| | (2) | The court may take account of these matters in deciding any question relating to |
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| | an award of costs in the proceedings— |
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| | (a) | if membership of an approved regulator was available to the defendant at |
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| | the time when the claim was commenced, whether the defendant was a |
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| | (b) | if the defendant was a member at that time, whether a party to the |
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| | proceedings refused to make use of an arbitration scheme of the approved |
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| | (c) | if the defendant was not a member at that time, the reasons for the |
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| | defendant not being a member. |
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| | (3) | For the purposes of subsection (2)(b), a party refuses to make use of an arbitration |
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| | scheme of an approved regulator if— |
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| | (a) | at the time when the claim was commenced, the approved regulator had |
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| | arrangements in place for an arbitration scheme under which the claim |
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| | could have been referred for determination by an arbitrator appointed |
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| | (b) | the party refused to agree to the claim being so referred. |
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| | (4) | If the court takes account of the matter mentioned in subsection (2)(b), the court |
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| | must give the party concerned an opportunity to be heard about the reasons for |
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| | (5) | This section is not to be read as limiting any power to make rules of court.’. |
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