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7.30 pm
Mr. Edward Garnier (Harborough): I am grateful for the opportunity to speak in the debate. I am a practitioner in defamation at the Bar, and therefore have an interest in the subject under discussion.
I congratulate my hon. Friend the Member for Eltham (Mr. Bottomley) on introducing the debate, which has been most valuable. He has come up with a number of interesting and thoughtful ideas, which I hope will be developed when we debate the Defamation Bill when it arrives from another place. There are good things about the Bill--but a number of things need careful attention. I am sure that the Bill is getting that attention in the other place, but I hope that, when it comes into this place, we will be able to make further improvements to it.
I corroborate what my hon. Friend has said about what most libel complainants want. In my 20 years' experience at the Bar, I have found that most people do not want huge damages in a year's time or in two years' time--they want a speedy apology and correction, preferably in the next day's paper. My hon. Friend is quite right to draw hon. Members' attention to the fact that people do not necessarily want money but a quick solution.
I draw hon. Members's attention to an anomaly: newspaper defendants, predominantly large corporations, have a tremendous advantage over private litigants. Hon. Members know that legal aid is not available for defamation cases--nor should it be, as the Government spend quite enough money on legal aid on other matters. The costs and the damages that newspapers pay are allowable against corporation tax, which gives them an inbuilt financial advantage over private litigants. However, a number of private litigants are supported by trade associations, trade unions and other such organisations. There is not always an imbalance. Trade unions do not have the same tax advantages as newspapers.
The cost of libel actions is exaggerated by newspapers because they want to discourage people from bringing libel actions against them. I refer to the libel case in which my hon. Friend was most successful before Christmas, and I congratulate him on that result.
After a high-profile case, newspapers like to say that the cost of the action was X, but they add on lots of noughts. By and large, the figures are highly inaccurate--
they are plucked out of the air--and designed to deter people from bringing libel complaints against big corporations. That ought to be looked at. Greater accuracy by newspapers--not only in what they print in the first place, but in the way in which they report the size of costs in actions--should be encouraged.
Mr. Peter Bottomley:
The main coverage of the result of my case contained the spurious accusation that someone who is now working in central office is the person that I had taken the action against. It seems to me that cases run for a week, the newspapers ignore them, and then print inaccuracies. That strikes me as rather odd.
Mr. Garnier:
A lot of things are odd about libel actions--and that is obviously one of them. My hon. Friend was successful in his case, and greater currency should be given to his success and to the repair of his reputation as a consequence.
As I was saying, costs in libel actions are no greater than they would be in any big High Court litigation, such as a personal injury action. However, the difference is that legal aid does not cover defamation law, but insurance companies or legal aid cover most personal injury actions. The public or the individual are not made aware of the cost of litigation, but it has to be paid for one way or the other.
I have already mentioned the Defamation Bill--which is currently before the other House--but now is not the time to discuss it in detail. However, under the summary jurisdiction of the Bill, there is a proposed limit of £10,000 for damages when the judge alone hears a case in particular circumstances. I believe that, to most newspapers, £10,000 is petty cash. Perhaps we should consider increasing that figure to something more significant. I appreciate that damages are there to compensate and not to punish, but they must be of such a size that the newspaper is compensating--and knows that it is compensating--and not simply adjusting its petty cash book.
The Parliamentary Secretary, Lord Chancellor's Department (Mr. Jonathan Evans):
I congratulate my hon. Friend the Member for Eltham (Mr. Bottomley) on securing a debate on what I believe to be an important subject. I am particularly grateful to him for his timing, because earlier this month the Government introduced a Bill that brings forward reforms to defamation law and procedure that are designed to meet some of the concerns that he has expressed.
I am grateful to my hon. Friend for the balanced and well-argued way in which he dealt with the issues he raised. I also express my gratitude to my hon. and learned Friend the Member for Harborough (Mr. Garnier), whose views have to be seen within the context of his great personal expertise and reputation in defamation law.
It is widely believed that the costs of defamation proceedings are disproportionately high. Despite many attempts over the years to put things right, there is an
undoubted need to make further improvements in all civil proceedings, especially in proceedings for defamation. It must be significant that, when the outcome of a libel claim is reported, the estimated cost to the parties is almost always featured as prominently as--if not more prominently than--the result of the case.
My hon. and learned Friend the Member for Harborough gave us an insight into why that might be so. Even allowing for that, where a claim has succeeded, the amount of costs which it is estimated the loser will have to pay not infrequently exceeds the amount of damages that were awarded against him. In other words, the loser's financial position may be precarious simply as a result of the expense of the proceedings.
Mr. Denis MacShane (Rotherham):
As a former journalist who has been both a defendant and a litigant in libel cases, I welcome the Defamation Bill, which is long overdue. Geoffrey Robertson QC wrote a book some 10 years ago along the lines of the ideas that the Government are putting forward. With all due respect to the hon. and learned Member for Harborough (Mr. Garnier), I lost the profits on one book because the publisher left me to defend a libel case that I thought was worth defending.
My right hon. Friend the Member for Chesterfield(Mr. Benn) urged me not to defend the case, and I thought that he was being quite pusillanimous, but he proved to be right. Another case, in which I was the defendant, dragged on for five years. I was being protected by a trade union, a point that the hon. and learned Member for Harborough made. It went on for five years, we got to the court, we blinked, and each side was left with about £20,000 in costs.
Mr. Deputy Speaker (Sir Geoffrey Lofthouse):
Order. I thought that the hon. Gentleman was making an intervention--it is a long intervention.
Mr. Evans:
I was aware that my hon. Friends the learned Member for Harborough and the Member for Eltham were speaking from personal experience. Although I had noted that the hon. Member for Rotherham (Mr. MacShane) was present for the debate, I was unaware of his personal experience in this area. As I develop my response, the hon. Gentleman will be able to see that the Government are proposing in the Defamation Bill some measures that will be, in my judgment, helpful. Perhaps if the hon. Gentleman contains himself for a moment, I will be able to outline those measures.
In the context of the cost of proceedings, we are talking not only about rich, large companies which can absorb expenses, but, as the hon. Member for Rotherham has said, about ordinary people who can face ruin as a result of court costs. There must be times when people who have been defamed--perhaps very seriously--choose not to take any steps to restore their reputations, because they are not willing to run the risk of losing not just the case, but everything they have. That is clearly wrong.
The Government examined the current issues and complaints relating to the law of defamation and found that there were many justified criticisms--particularly concerning the way in which the law of defamation operates in practice. There has been a series of reforming measures, the first of which was to give the Court of Appeal power to substitute its own award when it considers that an amount awarded by a jury is either excessive or inadequate.
Before that power was conferred, the court's powers of review were inadequate. If the jury awarded an unreasonable amount, the court could set aside that award, but it could not substitute a reasonable sum unless both parties were content for the court to do so. It could also order a retrial, but we have heard during the debate that that is particularly unhelpful: if the first trial is expensive, it is clear that a second trial would be doubly so.
The existence, and the court's exercise, of that power goes much further than eliminating the cost of an unnecessary second trial when an appeal is allowed. Its effect will be that fewer cases go to appeal. Judges directing juries refer to awards which have been approved or made in earlier cases by the Court of Appeal. A corpus of such awards will provide guidance, which should enable judges to help juries by indicating what level of award might be in proportion to the wrong inflicted by the libel or slander. More of those cases are now coming forward.
Another justified criticism was that the rules and practice for pleadings in defamation cases are unnecessarily complex, adding to the difficulty and the cost of preparing and conducting litigation. Therefore, the Lord Chancellor invited the Supreme Court procedure committee to review the rules relating to pleadings in actions for libel and slander, with a view to proposing changes for the purpose of reducing the complexity of the procedure without having an adverse effect on the interests of justice. The committee established a working group under the chairmanship of Lord Justice Neill, and its report and recommendations were published in 1991.
Some of those recommendations have already been implemented through changes in the rules of court, and others are included in the Defamation Bill. This evening, I shall refer to two changes which are designed to provide swift and less costly disposal of defamation claims.
In those cases where the defendant concedes that he has published a defamatory statement which is not true, he will be able to offer to make amends for the wrong that has been done to the plaintiff. If the offer is accepted, there will be no need for a trial. The parties will negotiate the exact form which the amends should take and, if they cannot agree on the details, they may apply to the judge. He will assess what money compensation, if any, should be paid and settle the terms of a suitable correction and apology by the defendant.
The judge will assess the compensation using the same principles as assessment of damages for defamation, taking account of the other steps which the defendant has taken--or will take--to make amends, as well as any aggravating features. There will be no fixed upper limit on the amount that can be awarded.
As we heard during the debate, the court will also have powers of summary disposal similar to those which are available already in all civil claims other than defamation. However, in defamation cases, the court will always consider at an early stage whether the case is suitable for summary disposal. The judge will consider whether the claim has any realistic prospect of success and, if it has not, he may dismiss it. He will consider whether any defence has been put forward that has a realistic prospect of success. If not--and there is no other special reason why there should be a trial--he may grant summary relief if he considers that the relief which he has power to grant will compensate the plaintiff adequately for the wrong suffered.
The plaintiff can ask the judge to grant summary relief. That relief may include damages of up to £10,000, as my hon. and learned Friend the Member for Harborough said, but no more. Again, the parties may negotiate a suitable correction and apology which the defendant will publish, but, if they cannot do so, the judge will order publication of an approved summary of his judgment.
The problem of excessive and disproportionate legal costs is not limited to defamation proceedings. The Lord Chancellor's Department is well aware that such costs can apply across a wide range of civil litigation. Against that background, Lord Woolf is presently undertaking a review of civil justice. He has advanced a raft of new proposals in order to ensure that there is swifter access to
justice in future. That will be of assistance not only in the area which is the focus of the debate this evening, but across a wide range of civil justice, as I have said.
Finally, I am very grateful to my hon. Friend the Member for Eltham for bringing this important issue before the House. The Defamation Bill is presently in the other place, and, after consideration, it will come to the House. My hon. Friend has drawn attention, at an early stage and at an appropriate time in view of the fact that the Bill was published only a month or so ago, to the important issues which the House must consider in due course when the legislation comes before it. In that regard, I am deeply grateful to him.
Question put and agreed to.
22 Feb 1996 : Column 565Adjourned accordingly at fifteen minutes to Eight o'clock.
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