Memorandum submitted by Russell Jones & Walker, Solicitors
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.