Memorandum submitted by The Media Lawyers Association

 

 

This response is submitted on behalf of the Media Lawyers Association ("the MLA"), which is an association of in-house media lawyers from newspaper, magazine, book publishers and broadcasters[1].

Executive Summary

 

1. The media plays a vital role in allowing the proper functioning of a democracy by promoting the flow of information. An editorial in a recent Index on Censorship publication[2] (looking back at the UN Declaration of Human Rights on its 60th anniversary, in the context of Article 19, the declaration of the right of free expression), serves as a powerful reminder that the Declaration was not intended to be a hostage to political fortune or the vagaries and anxieties of a given age.

"... it's worth repeating some basics: the right to free speech means nothing if it only sanctions politically and socially acceptable views. It is the right that allows us to defend all other rights. Without it, there can be no free exchange of ideas, no means of challenging arbitrary abuses of power and therefore no democracy."

 

2. The MLA believes that these are the touchstones of the right of freedom of expression for all as recognised by the English common law. It is important that the United Kingdom continues to bear witness to and upholds these fundamental truths and does not get tempted by what may be perceived on one level as local difficulties to impinge on or restrict them.

3. In summary, the MLA believes that:

n the current system of press self-regulation works in practice for most people who choose to use it.

n UK libel laws have a direct restrictive effect on press reporting.

n excessive legal costs magnified in defamation and privacy by the unrestricted use of Conditional Fee Agreements (CFAs) and after-the-event (ATE) insurance have had - and continue to have - a serious negative effect on press freedom.

n the Contempt of Court Act 1981, and the principles underlying it, need to be re-examined in light of the expansion of the internet.

n judges are making a subjective law of privacy, with little foresight or regard to the long term impact of this and without any proper balancing against the detrimental effects that this has upon freedom of expression and the commercial reality of publishing.

n in order to protect the fundamental principle of freedom of expression, there is no role for financial penalties for libel or invasion of privacy being exemplary rather than compensatory.

4. We set out below our detailed comments on the areas raised by the Culture, Media & Sport Select Committee.

 

The McCann case and self-regulation

 

5. A number of the MLA members' organisations (for example the broadcasters) are subject to a different regulatory regime from the newspaper publishing members and they are not in a position to comment further on the specifics relating to the PCC. Nonetheless, the MLA as a group strongly supports a system of self-regulation for the print media. The MLA believes that the PCC offers a quick, cheap, flexible and effective remedy for the general public across a wide range of areas that it would be entirely inappropriate to regulate by legislation (for example intruding into grief / the covering of suicides / children / financial journalism). We understand that there was early and on-going offers of assistance and dialogue between the McCanns and the PCC but that, ultimately, the McCanns chose not to complain to the PCC, who accordingly had no basis on which to get more deeply involved. That case does not, in our view, have any bearing on how the PCC system of self-regulation works in practice for most people who choose to use it. It would be wrong to seek to review a system based upon the perceived experience of one particular case, which appears to be unique on its facts, as it could lead to a knee-jerk response.

 

The interaction between the operation and effect of UK libel laws and press reporting.

 

6. As matters stand, UK libel law operates as an unnecessary and severe restraint upon freedom of expression. Its operation can prohibit journalists from carrying out legitimate inquiries. As Lord Nicholls observed in Reynolds v Times Newspapers Ltd[3]: "Historically the common law has set much store by the protection of reputation.... There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority."

7. UK libel law is in need of urgent reform. It is widely recognised as being amongst the most oppressive in the developed world[4] and has a direct and constant limiting impact on press reporting. "Freedom of expression is the lifeblood of democracy"[5]. The balance between freedom of expression and the right to reputation has swung too far in favour of protecting reputation. It is heavily weighted against a defendant and in favour of a claimant. A claimant is presumed to have an unblemished reputation and the words are presumed to be false until proven otherwise. Aspects of the current laws in England and Wales have come under attack from the Human Rights Committee of the United Nations in their report in July 2008 entitled "International covenant on civil and political rights"[6]. The criticism focuses specifically on concern that UK defamation law is discouraging critical media reporting on matters of serious public interest, including through the "phenomenon of 'libel tourism'". More recently, in an adjournment debate at the House of Commons on the subject of libel laws, featuring contributions from Labour, Conservative, Liberal Democrat and UKIP MPs[7], concerns were expressed over libel tourism, fees in defamation cases, and the extension of defamation laws to the internet.

8. In our view, the following reforms to our current libel laws are urgently needed.

 

The introduction of a single publication rule for internet publications.

 

9. Currently, because of the effect of an 1849 judgment[8] there is no effective limitation period for articles retained on electronic databases. Anyone accessing a newspaper, magazine or television website containing archival material can cause the republication of a defamatory article giving rise to a new cause of action well beyond the current one year limitation period. Reliance on the rule in the Duke of Brunswick amounts to an unnecessary and disproportionate restraint on free speech[9]. We support the Law Commission's recommendation of a review of the way in which the viewing of articles from an online archive gives rise to a fresh cause of action, and causes the limitation period to begin anew.[10]

 

The removal of the automatic right to a jury trial in a libel action.

 

10. The Faulks Committee (1975)[11] recommended that, as in other actions for tort, jury trials for libel actions[12] should be the exception rather than the rule. They concluded that "the existence of the present almost unqualified right of one party to force a jury trial on the other against his will operates in many instances contrary to the interest of justice". Jury trials in personal injury actions were abolished many years ago. Solicitors acting for claimants often insist on their client's right to a jury trial. The involvement of a jury dramatically increases both the costs - including for the tax payer - and complications of a defamation trial, due in large part to the unpredictability of a jury's findings and also the scale of damages it chooses to award. Under the present system, "meaning" disputes, which are often at the heart of libel cases, can only ultimately be determined (unless the parties agree otherwise) by a jury. Section 69 of the Supreme Court Act 1981 should be amended so that libel claimants do not have an automatic right to jury trial. Giving a judge the power to resolve the meaning of an article in the first month of a libel action could lead to the speedy settlement of many libel actions. Alternatively, the courts should have greater powers to "order" the parties to a libel action to go to binding arbitration / mediation on the meaning of an article.

 

Limitations should be imposed to prevent or restrict large corporations and companies being able to sue in libel.

 

11. Trading companies and corporations cannot suffer injury to feelings; it is anomalous that under the UK law of libel, they can sue for libel. Corporations are protected by the law on "injurious falsehood", where they can sue over a false and malicious statement against business, property, or goods causing provable economic loss. They should be able to sue only where they can prove special (ie quantifiable and actual) damage[13]. In 2006, the Australian government introduced the Uniform Defamation Laws, which prevent corporations from suing for defamation unless they have fewer than ten employees or are classified as not-for-profit entities. The law allows an individual associated with the firm, such as a director, to sue for libel on the basis that the defamation of the corporation had resulted in damage to his or her personal reputation. Alternatives would be to introduce a law that required companies and large corporations to try and resolve matters via some form of mediation and / or to prove special damage.

 

12. There are a number of other reforms to UK libel law that the MLA strongly advocate:

 

(i) The scope for libel tourism should be curtailed. "Libel tourism" is a serious problem, which needs to be addressed. London has become the libel capital of the Western world[14]. Actions can be brought in the UK by individuals with little or no apparent connection with the UK at considerable expense to UK taxpayers, even though there has been minimal publication within the UK;

(ii) A recent study[15] found that, even where CFA related costs are not included in comparisons, England and Wales was up to four times more expensive for defamation actions than the next most costly jurisdiction (Ireland) and 140 times more costly than the other jurisdictions examined (when excluding England, Wales and Ireland from the average).[16] Consideration should be given to ways in which the procedure can be simplified (for example by the increased use of written submissions and the reduced use of oral hearings) reduce overall costs (as well as adjustments to the CFA regime, considered elsewhere in this submission)[17];

(iii) The incorporation of the Reynolds principles into statute. We welcome moves by the Parliamentary under Secretary of State, Ministry of Justice, to consider putting the Reynolds defence on a statutory footing. Journalists and news organisations need greater levels of certainty and clarity within which they can confidently make statements they reasonably believe to be true on matters of public concern. There is a case for also considering moves in UK law toward a stronger public figure/public interest defence as in New York and other US jurisdictions (and even according to the case law of the European Court of Human Rights, which recognises that public figures may be subject to more and stronger criticism than private individuals);

(iv) A review of the (rarely used) summary procedure should be implemented (the use of which has been restricted in practice by the right to jury trial)

(v) We welcome the Government's forthcoming consultation paper on seditious libel and criminal defamation and, as a matter of principle, support the abolition of these outdated offences;

(vi) A review of the justification for the burden of proof being on a defendant in a libel trial - often cited as one of the major incentives to 'forum shop' in the UK.

 

The impact of conditional fee agreements on press freedom.

13. Costs should be about fairness and justice. Conditional Fee Agreements (CFAs) or "no-win, no-fee" agreements were introduced as an alternative to civil legal aid to make justice accessible to the less well off. They were supposed to involve solicitors assessing the risk involved in litigation and being compensated for that risk by the use of a success fee or uplift on base costs. Their use in publication proceedings is invidious however. In practice CFAs in publication proceedings are rarely about assessing risk but simply permit lawyers (primarily claimant lawyers) operating under them to double their fees if they are successful (the uplift or success fee) and reclaim what may be a huge after-the-event (ATE) insurance premiums, even though it will never have been paid, from a losing defendant. Their use by celebrities and the wealthy is not about access to justice or fairness but about threat and blackmail. It is not just the small regional publications who daren't contest a complaint funded under a CFA for fear of the costs consequences, even though damages may be relatively low, this chilling effect pervades through to the heart of the publishing industry. The combined effect of CFAs, success fees and ATE insurance premiums in defamation and privacy cases undeniably has a direct and chilling effect on freedom of expression.

14. In Callery v Gray (Nos 1 and 2)[18] Lord Bingham recognised that CFAs "was obviously open to abuse in a number of ways". He listed 3 possible abuses, 2 of which are "excessive base costs" of claimant lawyers and "uplifts" bearing no relation to the risk in taking on an action. Lord Justice Brooke in Adam Musa King v Telegraph Group Limited[19], identified the inequity of CFAs in publication proceedings as follows: "it cannot be just to submit a defendant in these cases, where their right to freedom of expression is at stake, to a costs regime where the costs they will have to pay if they lose are neither reasonable nor proportionate and they have no reasonable prospect of recovering their reasonable and proportionate costs if they win". Mr Justice Eady, in a libel case in 2005, recognised the practical impact which conditional fee agreements have on press freedom when he said, "... there must be a significant temptation to media defendants to pay up something, to be rid of litigation for purely commercial reasons and without regard to the true merits of any pleaded defence. This is the so-called "chilling effect" or "ransom factor" inherent in the conditional fee system ..."[20] (emphasis added). In Campbell v MGN Ltd [21], Lord Hoffmann identified a further abuse which he referred to as the "blackmail effect" of CFAs in publication proceedings. See too Justice Secretary, Jack Straw's, remarks to the Labour Party Conference September 21, 2008 [22].

15. The way the system operates in practice is that it is effectively left up to costs judges, retrospectively, to try and control costs. This is far too late. The role of costs judges is not to control costs, as they have admitted themselves[23]. Judges who hear cases should take responsibility for controlling the costs pro-actively, by imposing, as and when appropriate, pre-emptive costs orders, fixed costs and cost capping. To leave these matters until a case has ended [or settled] has a significant chilling effect on the willingness and ability of the media to fight cases.

16. The MLA acknowledges the contribution that CFAs have made to access to justice in other areas such as road traffic accident cases and personal injury. However, we believe that they need fundamental reform in the area of publication proceedings. In order that the impact of CFAs on press freedom is limited to being no more than is necessary in order to achieve access to justice we would submit that the following changes should be considered as a priority:

n successful claimants should not be entitled, as of right, to recover success fees/uplifts and ATE insurance premiums from losing defendants in Article 10 cases (they will still recover regular costs and, as applicable, damages);

n prospective cost capping should be made mandatory in all Article 10 cases;

n lawyers should only be permitted to seek the recovery of legal costs which they certify are both "reasonable" and "proportionate".

The observance and enforcement of contempt of court laws with respect to press reporting of investigations and trials, particularly given the expansion of the internet.

 

17. We believe there is a strong case for a review of the Contempt of Court Act 1981, particularly in so far as it relates to archived material. The impact of the law of contempt in the UK goes way beyond pure freedom of speech issues - its ultimate purpose is to preserve the integrity of the system of the administration of justice as a whole[24]. The concept of strict liability contempt (ie regardless of intent) was introduced in the UK by the Contempt of Court Act 1981, which applies to all publications which create "a substantial risk" that the course of justice will be "seriously prejudiced". The very small number of prosecutions for breaches of the Act is a testament to how the mainstream media in this country obeys and respects the contempt laws.

 

18. However, things have changed greatly since 1981, not least with the advent of the electronic age, new technology and the world wide web, which have made reporting a truly global affair, reaching into the corner of every country in the world. Most if not all media organisations have publically available archives of all their past publications. These are generally not "displayed" on the face of the newspaper website as available and contemporaneous material, but lie passively in the newspaper's electronic archive until they are accessed, which needs a positive act of searching by a third party.

 

19. In September 2001, Lord Osborne delivered the opinion (no 2) of the High Court of Judiciary in Scotland in the case of William Frederick Ian Beggs[25]. He was being prosecuted for murder and assault. An attempt was made to commit various newspapers for contempt on the basis that their online archives contained "accessible" material which was "seriously prejudicial" to the accused. The judge ruled, inter alia, that there was no contravention of the strict liability rule because the test in section 2(2) was not breached[26].

 

20. In December 2002, the Law Commission published its Scoping Study No.2, which was primarily concerned with defamation and the internet. While the Commission concluded (Part Five) that this was not a priority for law reform and that the risks to publishers were overstated, it felt that "much of the prejudicial effect of such material" could be removed by an appropriate judicial direction to try the case on the evidence.

 

21. The current state of uncertainty as regards the impact of the law of contempt on archives therefore needs to be clarified. In so far as archived material is concerned, a practice of giving jurors robust standard instructions at the outset of a trial - (eg not to discuss the case with others, to disregard any media reports about the case; and not to be tempted to be amateur detectives and go searching for their own material on the internet, to make their decision based only on the evidence they hear in court) should be adopted. In Queensland and New South Wales, Australia, it has been made a criminal offence for jurors to conduct investigations about the defendant including by means of the internet.

 

The balance between press freedom and personal privacy.

 

22. The UK courts have developed a law of privacy out of the ancient law of confidentiality by recognising the effect of Article 8 of the European Convention on Human Rights ("ECHR"). It has reached the point where the tort is now "better encapsulated as misuse of private information"[27]. There is a fundamental tension between the rights to freedom of expression as set out in Article 10 of the ECHR, and the privacy rights articulated by Article 8. The MLA believe that the balance between freedom of expression and personal privacy has swung too far in favour of personal privacy[28]. This has been achieved through a series of judicial decisions, without any apparent sanction from government, or parliament or any wider public debate. Lord Hoffmann in Jameel v Wall Street Journal, gave a clear warning of this:

"Until very recently, the law of defamation was weighted in favour of claimants and the law of privacy weighted against them. True but trivial intrusions into private life were safe. Reports of investigations by the newspaper into matters of public concern which could be construed as reflecting badly on public figures domestic or foreign were risky. The House attempted to redress the balance in favour of privacy in Campbell v MGN Ltd [2004] 2 AC 457 and in favour of greater freedom for the press to publish stories of genuine public interest in Reynolds v Times Newspapers Ltd [2001] 2 AC 127."

23. Ironically, it was Lord Justice Hoffmann, as he then was, in 1994[29] who highlighted the dangers of an over restrictive law of privacy: "But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published".

 

24. The Human Rights Act 1998 ("HRA") required that a fair balance be struck between Article 8 of the ECHR (the right to respect for privacy) and Article 10 (the right to freedom of expression). The right of free speech should only be interfered with where there is a "pressing social need". However, in recent years, UK privacy case law has skewed that balance in favour of Article 8. It is unrealistic to see this simply in terms of tabloid style "kiss and tell" stories. It causes considerable practical and commercial difficulties, for example, for book publishers in publishing diaries, biographies and autobiographies and also for photojournalists legitimately working in public places.

 

25. There are genuine fears that the current approach of the courts to privacy injunctions could be detrimental to proper investigative journalism. These concerns were voiced most recently by Sir Charles Gray, a recently retired High Court Judge with considerable experience of both libel and privacy[30]. He said he had serious misgivings that the sort of expose of criminal or fraudulent conduct, which was a regular feature of national newspapers a few years ago, had ceased and that there was a real risk that somebody who was corrupt could use the law of privacy to trump a proper Article 10 defence of freedom of expression.

26. For example, in Cream Holdings Limited and Others v Banerjee and Others [2004] UKHL 44, a case that was about corrupt conduct, the Claimant attempted to restrain the publication by its former accountant Ms Banerjee and the Liverpool Echo of certain financial irregularities by the company. Cream claimed that Banerjee, as an ex-employee, was in breach of her duty of confidence and sought and obtained an injunction to restrain the newspapers from publishing any further confidential information given to it by her. The Defendants relied upon the public interest in the disclosure of financial irregularities. The newspapers were forced to take the case all the way to the House of Lords, who ultimately allowed their appeal, the newspapers having lost both at first instance and before the Court of Appeal. Sedley LJ in the Court of Appeal (minority) said that the facts that the Liverpool Echo wished to publish, were 'incontestably a matter of serious interest'; the House of Lords also found these matters were of serious public interest. Without the financial assistance and resources of Trinity Mirror Group, this case would not have been taken to the Lords. A local paper, with such a story today, but without the backing of a major group would probably just abandon such a case - either at first instance or after the Court of Appeal. It cannot be right that a newspaper, or anyone else wanting to exercise Article 10 rights, should have to spend the time or money going to the House of Lords to do that over a story which involved the disclosure of illegal activity.

27. There is currently a serious problem with the judicial interpretation of section 12 (4) of the HRA, which requires judges to take account of the PCC's Code of Practice. When the HRA was crafted, this provision was intended to be a buttress to press freedom. But, notwithstanding that section 12 was included in the HRA after a considerable amount of parliamentary scrutiny and debate, the courts seem to pay scant notice of it and pay little, if any, attention to the PCC's case law, for example with regard to whether public figures such as celebrities, politicians, sportspeople or businesspeople, who have previously been attention seeking, in effect have sacrificed some or all of their right to privacy. The requirement of Section 12 of the HRA has become progressively hollowed out as judges make their own interpretations[31]. Not only is this potentially highly damaging to self-regulation, it ignores the vastly greater experience of the PCC in tackling privacy cases - an experience which long pre-dates the passage of the Human Rights Act[32].

28. The commercial impact of an approach that is too restrictive must not be ignored. As Lord Woolf stated, in A v B and C [33]

 

"The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, then there will be fewer newspapers published, which will not be in the public interest"

 

This was also remarked upon by Baroness Hale in Campbell[34]:

 

"One reason why freedom of the press is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all. It may be said that newspapers should be allowed considerable latitude in the intrusions into private grief so that they can maintain circulation and the rest of us can continue to enjoy the variety of newspapers and other mass media which are available in this country."

 

Likewise, there is a very real risk, for example, that book publishers, hemmed in on one front by the enormous costs of fighting libel actions and on the other by the restrictive approach being taken by the courts to private matters, will have to become so risk averse as to excise vast swathes of legitimate areas of public information before daring to publish anything, or may even decide not to publish at all.

 

29. The courts have increasingly given priority to the rights protected by Article 8 at the expense of Article 10 rights. This imbalance applies irrespective of whether what is published is true or untrue. The only "defence" available to the media is whether what was published is in the "public interest", which is NOT a test required by Article 10. Determining what is in the public interest or is a "higher priority" to the protection of someone's reputation or privacy has become entirely dependent on the subjective views of a High Court judge[35]. We say that this is not a matter that should be left up to the subjective determination of the judiciary. The MLA accordingly endorses the advice from Antony White QC, (attached as Appendix 2 to News International's submission to the Select Committee) to the effect that a media defendant should be able to advance a defence in a privacy case that it "reasonably believed that it was acting in the public interest" when it published what it did. This would introduce a statute based test as to what is in the public interest, one which parallels the public interest test Parliament introduced as part of the Data Protection Act's protection for journalism.

Whether financial penalties for libel or invasion of privacy, applied either by the courts or by a self-regulatory body, might be exemplary rather than compensatory

30. There is no role for damages or financial penalties (for either libel or invasion of privacy) being exemplary rather than compensatory. Any restrictions on the rights provided by Article 10 must be narrowly construed, "convincingly established", and must be no more than that which is necessary and proportionate. When considering restrictions the courts must take into account the public interest in the free press and the potential "chilling effect" of restrictions. Last year, Mr Justice Eady ruled that:

"Exemplary damages are not admissible in a claim for infringement of privacy, since there is no existing authority (whether statutory or at common law) to justify such an extension and, indeed, it would fail the test of necessity and proportionality".[36]

31. As regards libel, the Neill Committee recommended[37] in 1991, the abolition of exemplary damages in the field of defamation. Although the Court of Appeal in 1995[38] awarded a sum in exemplary damages there remain serious question marks as to whether an award of exemplary damages could still properly be made in a libel case. It is difficult to see the logic behind the court being of the view that they are not available in a privacy action but that they are still available in a defamation action.

 

32. The MLA submits therefore that there is no role for exemplary damages in either a privacy action or a defamation action. Nor do we believe is it appropriate for the system of self-regulation administered by the Press Complaints Commission to have powers to award damages of any sort. Once financial penalties are introduced, the system would inevitably become more legalistic with the need for appropriate legal and technical procedures to ensure fairness to the parties. Indeed, the Culture, Media and Sport Select Committee accepted in the conclusions to its last inquiry into this area less than two years ago, the introduction of financial penalties would "risk changing the nature of the organisation and might need statutory backing to make the power enforceable".

 

 

 

January 2009



[1] set up to promote and protect, through co-operation, monitoring and lobbying, freedom of expression and the right of everyone to receive and impart information, opinions and ideas.

 

[2] Jo Glanville, Editor of Index on Censorship, "Extremism. Speak No Evil", Index on Censorship Vol 37, No 3, 2008

[3] Reynolds v. Times Newspapers Limited [1999] 3 W.L.R. 1010

[4] See the European and other comparisons in paragraph 12 below.

[5] R v Secretary of State ex parte Simms [2000] AC 115 at 126 E, per Lord Steyn

[6] UN Human Rights Committee, 93rd Session, 30 July 2008 CCPR/C/GBR/CO/6 - http://www.unhcr.org/refworld/category,COI,HRC,,GBR,48a9411a2,0.html

[7] http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm081217/halltext/81217h0001.htm#08121766000001

[8] Duke of Brunswick v Harmer - the Duke sent out his manservant to buy a back issue of a newspaper which he had overlooked some 17 years previously. By selling a back copy of the newspaper, the court held there was a second publication of the defamatory article. This enabled the Duke to sue for libel 17 years after the article had first appeared.

[9] Times Newspapers are challenging the rule as an interference with free speech under Article 10 ECHR in Loutchansky v UK.

[10] Defamation and the Internet: A Preliminary Investigation, Law Commission December 2002

[11] The Faulks Committee on Defamation (1975) (Cmnd. 5909).

[12] As currently provided for by s. 69 of the Supreme Court Act 1981.

[13] As was recommended by The Faulks Committee on Defamation (1975), para 342

[14] See for example (i) the case involving the American researcher, Dr Rachel Ehrenfeld, who was sued in London by a Saudi Arabian businessman, which has led to the New York state legislature passing legislation to protect writers working there from defamation judgments from countries without the same freedom of speech rights as New York; and (ii) Mardas v New York Times Company & Anor [2008] EWHC 3135 (QB), 17 December 2008, where Eady J allowed a claim by a Greek national against two US newspapers to proceed in the High Court.  One newspaper admitted there had been only 177 print-edition publications and 4 online hits in this country, and the other claimed it had 27 online hits but had not published the article in the UK in hardcopy.

[15] October 2008, "A Comparative Study of Costs in Defamation Proceedings Across Europe" by Programme in Comparative Media Law and Policy, Centre for Socio-Legal Studies, University of Oxford.

[16] Jurisdictions examined by the study were: Belgium, Bulgaria, Cyprus, England and Wales, France, Germany, Ireland, Italy, Luxembourg, Malta, Romania, Spain and Sweden.

[17] The MLA is setting up a working group to examine possible ways of simplifying publication proceedings.

[18] Callery v Gray (nos 1 and 2) [2002] UKHL 28

[19] [2004] EWCA (Civ) 613, paragraph 90

[20] Eady J in Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB), delivered on 4 May 2005

[21] Naomi Campbell -v- MGN Limited [2005] UKHL 61- Naomi Campbell sued MGN for breach of confidence and was awarded 3,500 damages and her costs. She entered into a CFA for the purpose of her appeal to the House of Lords. Her costs of that two-day appeal to the House of Lords were 594,470 including a success fee of 279,981.35.

[22] "I am concerned about another element of legal services - "No win, no fee" arrangements. It's claimed they have provided greater access to justice, but the behaviour of some lawyers in ramping up their fees in these cases is nothing short of scandalous. So I am going to address this and consider whether to cap more tightly the level of success fees that lawyers can charge."

[23] In the Response of the Cost judges of the Supreme Court office to the consultation paper: "Conditional Fee Agreements in Publication Proceedings" they stated, inter alia, - "It has never been the function of costs judges to control costs by means of a detailed assessment. By the time the case comes to be assessed the work has been done long ago and, provided the costs are proportionate, the test to be applied is one of reasonableness. The policy underlying this is that a successful party should be able to recover all the costs expended reasonably. Where, as a result of robust case management, or costs capping orders, the activities of the parties have been curtailed, the costs judge will reflect the court's orders in deciding what is reasonable and proportionate."

[24] See, for example Lord Diplock in AG v Times Newspapers Limited [1974] 3 All ER 54

 

[25] http://www.scotcourts.gov.uk/opinions/osb1910.html

[26] Lord Osborne, at para 24, "...the availability of the material as part of an archive, as opposed to part of a current publication, renders it less likely that it may come to the attention of a juror than would be the case if it formed part of a contemporaneous publication"

[27] HRH The Prince of Wales v Associated Newspapers Limited [2006] EWCA Civ 1776

[28] So that it has protected for example an adulterous football manager and prevented a cuckolded spouse from speaking out (CC v AB [2006] EWHC 3083 (QB)) and allowed a Canadian folk singer to prevent the publication of material that had already previously been published (McKennitt v Ash [2005] EWHC 3003 (QB); [2006] EMLR 178).

 

[29] R -v- Central Independent Television PLC (1994) Fam 192

[30] BBC Radio 4, Unreliable Evidence, 14.07.2009, chaired by Clive Anderson. Sir Charles Gray's experience of publication proceedings comes both from his days as a barrister and his time as a judge.

[31] As to the extent of this see, for example, the comments of Mark Thomson, a Partner at Carter Ruck in the British Journalism Review, September 2006 "Originally it was thought that section 12 of the HRA would protect the media. It is ironic that, in fact, section 12 has not had the intended effect. It is now clear that article 10 does not have priority over article 8; they have presumptive equality. The media codes now appear centre stage in any legal claim for invasion of privacy, and breach of the privacy codes may well persuade a court to find in the complainant's favour. At the very least, the codes do provide a minimum benchmark for journalism provided by working journalists."

[32] While the "zonal" argument [that talking about a particular zone of one's private life opens up the whole area to scrutiny] can be pushed too far, it would seem that if a person talks of a particular area of his private life (eg the Claimant's drug-taking in A v B, C and D, [2005] EWCH 1651, where Eady J refused an injunction on essentially zonal grounds), he can hardly have a reasonable expectation of privacy if others wish to disclose conduct of a similar kind in similar detail.

[33] [2003] QB 195 (aka Flitcroft v MGN Limited)

[34] [2004] UKHL 22

[35] As Mr. Justice Eady decreed in his judgment on the Max Mosley case: "It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval".

Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[36] Mosley -v- News Group Newspapers Limited [2008] EWHC 1777 (QB)

[37] 1991, Report on Practice and Procedure in Defamation, Supreme Court Procedure Committee, chaired by Neill L.J., Report on Practice and Procedure in Defamation.

[38] John v MGN Ltd [1996] 2 All ER 35