Memorandum submitted by
Russell Jones & Walker, Solicitors
Introduction
1. Russell Jones & Walker is a medium
sized firm of solicitors with offices in London, Manchester, Birmingham,
Bristol, Cardiff, Sheffield, Newcastle, Wakefield and an associated office in
Edinburgh.
2. The defamation and privacy department
is well known for its claimant work, but also regularly acts for defendants. It is consistently rated as one of the best
and busiest in the country.
3. Our diverse national client base
includes both private clients and members of unions and membership
organisations. In the latter category,
we are particularly known for the work we do for the Police Federation and its
members (being police officers up to the rank of Chief Inspector). However, we also act for the NASUWT, RCN,
GMB (Southern Region), League Managers' Association, Prospect (including the
Premiership Referees Group), Musicians' Union, Community and PCS.
4. The private clients we act for tend to
be ordinary individuals rather than celebrities.
5. Over the years we have successfully
pursued claims against virtually every national newspaper and TV company and a
huge number of local papers, magazines and book publishers.
6. We are experienced in advising on and
addressing the funding difficulties which ordinary people of modest means face
when contemplating an action to restore their reputation.
7. Our submissions below adopt the
headings used in the Committee's Announcement No.67 dated 18 November 2008. We have not responded to all the matters
raised.
The interaction between the operation and effect of UK
libel laws and press reporting
8. In a free and democratic society press
freedom is essential and the media's importance is often demonstrated by the
impact of investigative journalism. The
media are not simply reporters of the news, but can create the news by
uncovering misconduct and calling to account those holding positions of
authority.
9. Yet with such great power comes
responsibility. The law of defamation is
a necessary balance to freedom of speech to ensure an individual can protect
their reputation. It should not be
viewed as a yoke around the neck of the media, but rather a system of checks
and balances to help ensure the highest standards of journalism.
10. We have a powerful, influential and
robust press in this country which not surprisingly presses the case for more
freedom and less restriction at every opportunity. Potential claimants do not of course have the same platform or
influence to advance their position.
They must rely on the Courts to achieve the right balance. In our experience, that balance between the
operation of the libel laws and press freedom is deployed justly and fairly by
our Courts and the specialist judges.
The impact of conditional fee agreements on press
freedom...
11. Conditional Fee Agreements (CFAs) were
extended to defamation cases in 1998, primarily to provide access to justice
for claimants of modest means. The use
of CFAs has come under increasing criticism from media defendants, who argue they
have led to a 'chilling effect' on their freedom of expression. Having more than 25 years' experience in
defamation and having offered CFAs since their inception, we take a different
view: the contention that these are stifling press freedom seems to us to be
misplaced.
12. The press contends that it has been
inhibited because a media defendant can be required, as part of its liability
under an adverse costs order, to pay a success fee of up to 100% and a substantial
insurance premium if it loses or settles a libel claim. Consequently, the media argue, they are forced
to settle even unmeritorious claims for commercial reasons. We disagree.
13. First, in our experience, the CFA regime
is not used to bring unmeritorious claims.
If a CFA claimant loses their case, their lawyers do not get paid. Russell Jones & Walker, and no doubt
other claimant firms, would certainly not be prepared to gamble huge time and
resources on a frivolous claim in the speculative hope that it will be settled
by the media defendant with payment of costs.
The merits and prospects of success of any claim are rigorously assessed
before a CFA is offered to avoid this. Frivolous
claimants would also be deterred by the risk of paying the (substantial) costs
of their opponent if their claim failed. Insurance is only available for a claimant CFA with a favourable risk
assessment; insurers are no more willing to gamble with their money than
claimant solicitors. With relatively
modest damages at stake in defamation (and privacy) cases, only genuine claimants
who need to vindicate their reputations are willing to subject themselves to the
time and stress involved to see a case through to trial.
14. Media defendants also fail to acknowledge
that if a frivolous or speculative claim is brought against them, they could defend
it on a CFA. If their lawyers are
unwilling to represent them on a CFA, this would suggest they believe the claim
has at least reasonable prospects of success.
15. Secondly, the uplifts claimed by claimant
lawyers are not as extortionate as the press suggests. Russell Jones & Walker, and most other
claimant firms, have already introduced staged success fees to address the
concerns raised by media defendants, meaning the 100% uplift is only applicable
very close to trial. Modest success
fees are applied if a claim is settled in its early stages. It is also important to remember that
success fees are only paid when the newspaper loses or settles a claim, indicating
the claimant had a legitimate claim. Media
defendants often have either insurance or substantial resources to cover the successful
claimant's legal costs (including success fees and any insurance premium).
16. If the costs claimed by a claimant's
lawyers are considered to be unreasonable, the bill can be subjected to
detailed assessment by the Supreme Court Costs Office. Furthermore, the Civil Procedure Rules and
the Defamation Act 1996 each contain a number of provisions which offer a
defendant assistance earlier in the proceedings. For example, a defendant can rid itself of an unmeritorious claim
by making an application to the court to strike it out or seek to protect
itself in relation to costs by applying for an order for security for costs or
a costs cap. The defamation pre-action
protocol also requires the parties to consider alternative dispute resolution
before court proceedings have been issued.
We have mediated many libel claims in recent years to a successful
conclusion.
17. The reporting of Madeleine McCann's
disappearance and the subsequent police investigation is just one prominent
example which shows the freedom of the press has not been significantly inhibited
by the use of CFAs. While newspapers
might choose to make a commercial exit from a claim rather than risk
litigation, the evidence suggests it does not dissuade them from publishing often
quite startling defamatory material. In
fact, the libel laws now provide greater protection for defendants,
particularly through the defence of Reynolds qualified privilege (which
protects responsible journalism). This
has led to fewer cases being brought by claimants, particularly those on a CFA.
18. Claimants have as much right to protect
their reputations as media defendants have to protect their freedom of speech
and CFAs are the only way of providing access to justice for claimants of
modest means, putting them on an equal footing with the financial might of a
media defendant. One of our successful CFA
cases provides a good example of how access to justice in defamation can be so
vital. A community nurse was accused by
a national tabloid in two consecutive front-page articles of hastening the
deaths of 17 terminally ill children.
Her life, career and family were devastated, and without CFA funding she
would have been unable to take any action.
We represented her on a CFA, and secured for her damages of £100,000 and
a page 2 apology. This public
vindication enabled her to re-enter the profession she loved.
19. CFAs are sometimes also used by wealthy
claimants, but it is difficult to see how these stifle press freedom when such claimants
surely have the financial resources to satisfy any order for costs if their
claim fails (including any success fee or insurance premium if the newspaper itself
chose to defend the action on a CFA).
20. In conclusion, then, we say that CFAs
have performed a vital function in opening up access to justice for ordinary
people whose reputation have been attacked by the press, and we do not
believe that they have had a negative impact on press freedom. Until their introduction, such people were
effectively excluded by the cost and the difference in firepower from taking defamation
action against a media defendant.
... and whether
self-regulation needs to be toughened to make it more attractive to those
seeking redress
21. From our experience, there are a number
of problems which need to be addressed:
a. Defamation complaints do not specifically
fall within any of the clauses within the Code, meaning victims of a defamatory
publication have no means of redress.
b. The claimant is left powerless if they
do not feel a publication's offer to resolve the PCC complaint provides
adequate redress since the PCC generally offers no alternative.
c. The PCC's greatest sanction (if no
earlier resolution can be reached) is to oblige publication of its adjudication
in full and with due prominence (which is itself a rather nebulous term). This does not necessarily vindicate a
claimant's reputation. It is
understandable, therefore, that complainants may find this remedy unsatisfactory.
d. The PCC does not have the power to
award damages to a complainant or order payment of his or her legal costs. And while complainants can pursue PCC
complaints personally, they may not be familiar with the procedure and will
usually be up against a newspaper's experienced legal department. In our view, the CFA system is necessary
because it enables legitimate claimants of limited means to pursue through the
Courts a remedy to vindicate their reputation which will include recovery of
legal costs, and so permit expert representation and advice. Any complaint to the PCC must either be made
personally or at the complainant's own expense if he or she uses solicitors.
e. The time frame for lodging a complaint
with the PCC is much shorter than that for bringing a defamation claim (2
months as opposed to 1 year). This
restriction may leave claimants with no option other than a defamation claim.
f. Although a substantial number of
publications do subscribe to the Code of Practice, this is voluntary, so there
are cases where the PCC has no power to resolve a complaint.
g. The media is often critical of professions
or occupations which deal with complaints through self-regulation eg. the legal
profession and the police. Yet it
expects the public to accept that self-regulation is the most effective way of
dealing with complaints arising from press articles.
22. The PCC will be unable to provide a
realistic alternative to formal defamation claims for as long as its sanctions
and means of redress are limited.
What effect the European Convention on Human Rights
has had on the court's views on the right to privacy as against press freedom
23. The cult of celebrity has undoubtedly led
to an insatiable interest in every aspect of the lives of those in the public
eye, causing high-profile individuals to complain of intrusions into their
private life. However, such complaints
are not just the preserve of celebrities.
In Wainwright v Home Office
(which went right through the domestic courts to Europe) the House of Lords
held that because there was no common law tort of invasion of privacy, there
was no remedy available to a mother and son who had been humiliated and
distressed by a strip search on a prison visit in 1997, even though it breached
prison rules.
24. There was no right to privacy in the UK
until the incorporation of the European Convention on Human Rights into UK law
in 1998 (specifically Article 8). This
is balanced in the Convention by Article 10, which states everyone has the
right to freedom of expression, although this in turn is also subject to
restrictions, for example, to protect health, morals or the rights of
others.
25. The House of Lords grappled with these
new rights in Naomi Campbell v MGN Ltd.
While there were differences in opinion, the following principles
commanded unanimous support:
a. Under Article 8, an action for breach
of confidentiality now covers infringement of a person's right to respect for
his private life where the infringement involves disclosure of information
(including photographs).
b. The principles involved apply as much
between individuals or between individuals and non-government bodies as they do
between individuals and public authorities.
c. Article 8 applies when the person
publishing the information knows or ought to know that the other person can
reasonably expect the information to be kept confidential, because of its
private nature.
d. If Articles 8 and 10 both apply, the court
has to balance the competing considerations, neither being presumed to have
priority over the other.
26. Where it is faced with a claim for
invasion of privacy, the court's task is to embark on a two stage process:
a. First it must identify whether there
is a reasonable expectation of privacy such as to engage Article 8 at all. This
is the threshold test.
b. If that test is passed, the competing
Convention rights must be balanced, applying the test of proportionality to
each. This is the parallel analysis or
balancing test.
27. Inevitably, the Human Rights Act will, in
certain circumstances, act as a fetter on press freedom, but this is a
necessary restriction. Everybody should
have an entitlement to a basic level of privacy and it is essential that the
law reflects this basic human right. We
accept that the extent of the zone of privacy to which an individual is
entitled may vary from case to case.
28. The freedom of the press is preserved by
the safeguards built into the Human Rights Act, namely that the right to
privacy must be balanced against the right to freedom of expression (and other
Convention rights). The phrase used in
cases such as Max Mosley v News Group Newspapers Limited is the
requirement to apply an 'intense focus' on the individual facts of each case. This means the press can maintain its role
of "bloodhound" but only in legitimate circumstances.
Whether financial penalties
for libel or invasion of privacy applied either by the courts or by
self-regulatory body might be exemplary rather than compensatory
29. Exemplary damages are
intended to punish the defendant rather than compensate the claimant and historically
they are only available in tort and not in equity. But legal debate remains as to whether the emergence of a law of
misuse of private information has become a separate tort or is a modern day
breach of confidence originating in equity.
30. The courts have awarded
damages for stress caused by a breach of confidence but amounts have tended to
be comparatively small - usually less than £5,000. Larger sums have to be claimed through exemplary damages if
applicable, but the basis upon which these may be sought remains unclear. In Kuddus v The Chief Constable of
Leicestershire, the House of Lords held that the categories of cases in
which exemplary damages could be awarded were not closed. In Douglas v Hello Limited (No. 3),
Lindsay J left open the question of whether exemplary damages could be awarded
for breach of confidence.
31. Exemplary damages are
available through libel actions and depend on the claimant showing that the defendant's
act in publishing the libel was "with guilty knowledge for the motive that the
chances of economic advantage outweigh the chances of economic or perhaps
physical penalty" (Rookes v Barnard (1964)). The award made should be the minimum necessary to punish the
defendant and deter others. The profit
made by the defendant from publication is taken into account but is not
conclusive, as exemplary damages can be awarded even if there is no profit,
provided the defendant had mercenary motives.
32. In Max Mosley v News
Group Newspapers Limited, Eady J refused to grant a claim for exemplary
damages. He considered it questionable
whether such entitlement could be founded on privacy and/or breach of
confidence and felt it inappropriate to extend the scope of this relief into a
new area of law. He did not consider there
was any pressing social need in English law for the media to face the "somewhat
unpredictable risk of being fined" on a quasi criminal basis.
33. General damages in libel are
intended to vindicate and restore a reputation. But this outcome is impossible where embarrassing personal
information has been published and, indeed, the damage is only likely to be increased
by pursuing a court action. If there is
no injunction obtained to stop the damaging publication, no monetary award will
adequately compensate the infringement of privacy, no matter how great the sum
- as Eady J observed in the Mosley case.
34. So while exemplary damages
should remain available for libel, we do not believe the law should be extended
at present to allow their award in privacy cases. In any event, in our view to do so would require the intervention
of Parliament. Given that no financial sum can compensate for a breach of
privacy, we consider that there is no pressing social need for a change in the
law.
Whether, in the light of
recent court rulings, the balance between press freedom and personal privacy is
the right one
35. It is important to
remember that recent court rulings in privacy cases are only putting into
effect the protection afforded under the European Convention of Human Rights,
and in particular Article 8(1) ("Everyone has the right to respect for his
private and family life, his home and correspondence") and Article 10 ("Everyone
has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority
regardless of frontiers").
36. The case of Campbell
v MGN Limited recognised that these rights apply to disputes between
individuals and between an individual and a non-governmental body, such as a
newspaper. If a claimant can overcome
the first hurdle by demonstrating a reasonable expectation of privacy, it is
clear that the court is required then to carry out the next step of weighing
the relevant competing Convention rights by an "intense focus" upon the
individual facts of the case. In both Campbell
and Re S (a child), it was expressly recognised that no one Convention
right takes automatic precedence over another.
The Mosley case confirmed that the rights of free expression as
protected by Article 10, whether in respect of an individual selling a story or
the journalist working on it, must no longer be regarded as "simply trumping"
any privacy rights that may be established on the part of the claimant, nor can
it be said that without qualification there is a "public interest that the
truth should out".
37. Once a reasonable
expectation of privacy has been established, there must then be some
countervailing consideration of public interest which can justify the
intrusion. The media often argue that
public figures have to expect less privacy, or be seen as role models, as
justification for greater intrusion.
The balancing test has been best described as turning on proportionality
in the Douglas v Hello! judgment and whether or not the degree of
intrusion into the claimants' privacy was proportionate to the public interest
being served by it.
38. All recent cases have
involved a very careful analysis of the individual facts. It does seem clear, however, that once a
reasonable expectation of privacy has been established in connection with
sexual activities or orientation, medical information or the privacy of a
child, it is not for the Judge to express a moral judgement or be swayed by
personal distaste in order to deny that right.
Particular consideration has also been given to the use of photographs
or other visual images.
39. The Courts have been careful
and diligent in analysing the application of the European Convention on Human
Rights, taking into account the interpretations emerging from the European
Courts and House of Lords, and we say their approach appears to strike the
correct balance.
January 2009
