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Memorandum submitted by Jonathan Coad, Swan Turton solicitors
(1) Anecdotal evidence of abuse of the litigation process by Claimants
i. Those of us who have a very long experience of suing newspapers can all supply you with ample anecdotal evidence of serial abuse of the process by Defendant lawyers; tales of false promises of mediation for the sole purpose of delaying proceedings and wearing down an opponent, determined defences of an allegation which was not actually made in the article in order to break the will and the finances of an opponent; the loading of bills when the Claimant is obliged to pay; blatant attempts to mislead the Court; attempts to get behind the Claimant's lawyer and place direct pressure on the Claimant to settle etc.
ii. One of those that gave evidence for the Defendants this morning and made a point of how the system is abused by Claimant lawyers wrote this to me in response to a claim letter I wrote for a client who was ultimately vindicated at trial:-
"If your firm were foolish enough to advise your client to issue proceedings, and if in turn your client was foolish enough to take that advice, then he will learn to his immense financial cost that he has picked the wrong fight, over the wrong article, with the wrong newspaper".
iii. In that action my client was in effect obliged to appeal a decision by the PCC which had gone against him. In an attempt to evade liability, the newspaper ran their case right up till trial on a wholly false assertion as to what the article actually meant, which hugely increased the costs and delay of the action. After winning the trial he was faced with a six figure shortfall in his costs, despite having merely requested a correction at the outset which the newspaper had refused.
(2) The PCC and Peaches Geldof
i. I thought it might be helpful if I sent to you and your colleagues electronically the front page and fifth page of the Daily Star which carried the Article that I mentioned during the session, and the front page and page 2 of the Daily Star that carried the apology.
ii. This was a form of "redress" which was sponsored by the PCC which I hope illustrates the point both that it is in serious need of reform/replacement, and also that its virulent attack on the Media Standards Trust concerning its paper should be treated with immense caution.
(3) CFA's
i. On the issue of the profitability of the press, I have set out the statistics in my report on CFA's and Reynolds showing that the current profit of the national press is £1 billion per annum. Just to take Associated Newspapers as an example, if it were not a hugely profitable organisation why is it paying Paul Dacre £1.2 million per annum? I strongly suspect that is more than the four claimant lawyers put together that appeared before you yesterday.
ii. It is important for the Committee to remember the setting in which the argument made yesterday by those representing the press is made. In effect, there argument was that it is too expensive for newspapers to breach their own rules - the statistics showing that when their actions are tested in front of the scrutiny of a judge/jury they are almost invariably found wanting.
iii. Before then the point is reached is where either the newspaper finally concedes that it has got it wrong, or it is found by a court to have got it wrong, this is the journey that it must have undertaken:-
a) In breach of its own code (the PCC Code having been written by the press) the newspaper must have published inaccurate material having taken inadequate care in checking it (see paragraph 1 (i) of the PCC Code);
b) The publication at issue has been made by a newspaper which is a commercial organisation, the publication therefore being for profit as Piers Morgan makes clear in his book (The Insider) these decisions are often made on a straight commercial basis;
c) The resulting publication is a breach of the fundamental human rights of the subject of the allegations, it having now been established via a series of ECHR judgments that one of the elements of the Article 8 right is right to reputation. That means that the personal integrity for a phrase commonly used in the ECHR jurisprudence) of the individual has been wrongly robbed of them, and the general public as a whole has been misled;
d) The newspaper must then have breached its code again by refusing to comply with paragraph 1 (ii), which says that inaccuracies should be corrected promptly and with due prominence.
e) The Claimant is then faced with what is invariably a very stressful and forbidding prospect, taking on a very powerful media organisation, which has the power to do it damage, not only financially, but further damage reputationally. Many clients simply baulk at that proposition and take the matter no further.
f) The paper is then put on notice that the Claimant intends to protect his/her human rights for the benefit of a CFA, but despite all of the above, refuses to withdraw the allegation.
iv. If that point the paper takes a financial hit it can really only be regarded as self inflicted. Although, as I explain, I have not yet brought an action against a newspaper with the benefit of a CFA, I think it is important for the Committee to consider the arguments that were advanced on behalf of the newspapers in the light of the above.
(4) The Opinion Poll Survey about the PCC
i. The Committee will find at paragraph 22 of my report the result of an opinion poll survey that we have undertaken on the key activities of the PCC. It shows that in many instances, over 90% of the general public take a different view as to how it should operate/be constituted than the PCC. A regulatory body which operates in a way so directly against both the views and interest of those that it is tasked to protect is in serious need of reform/abolition.
1. Should the size and position of corrections/adjudications published by newspapers be:
a. Less prominent than the original; 4% b. Equal prominence to the original; 40% c. More prominent than the original. 56%
2. Should inaccuracies on the front page be corrected:
a. On the front page; 66% b. On an inside page. 34%
3. Should journalists be permitted to speak to children under 16:
a. Only on issues involving their own or another child's welfare with parental consent; 31% b. Only with their parents' consent; 67% c. Not at all. 2%
4. Should the Committee that writes the PCC Code of Practice be comprised of:
a. Only representatives from the press; 6% b. Representatives from the press and the general public; 69% c. Representatives from the press and representatives for complainants; 24%
5. Should meetings of the Commission to adjudicate complaints be recorded by:
a. A transcript; 3% b. A minute prepared by the PCC; 1% c. Both. 96%
6. Should a complainant (or his/her representative) be allowed to attend the meeting of the Commissioners which adjudicate their complaint?
a. Yes 99% b. No 1%
7. Should there be an independent appeal from PCC adjudications?
a. Yes 99% b. No 1%
8. Should the PCC be able to impose financial sanctions?
a. No; 0% b. Yes - a fine for the newspaper; 4% c. Yes - compensation for a successful complainant; 2% d. Yes - awarding professional costs to the complainant 5% e. A combination of these financial sanctions. 89%
9. Should the Commission be comprised of:
a. A combination of press representatives and non-press members; 55% b. Press representatives and representatives for complainants; 41% c. Non-press members only. 4%
i. On the issue of prominence (question 1) only 4% agreed with the PCC's policy that corrections/apologies should have less prominence than the original. Well over 90% thought that they should be at least as prominent as the original, and a striking 56% thought that they should be more prominent than the original.
ii.
As to question 2, two thirds of those questioned thought that front page
infractions should be remedied by front page apologies. This is again in
stark contrast to the practice of the PCC - notwithstanding the protestations
of Sir
iii. As to question 3, the PCC Code answers with proposition A. Only 31% of the population agree. 69% consider that children should enjoy more protection than the PCC Code provides.
iv. As to question 4, the PCC considers that representatives of the press should write the Code. Only 6% of the public agree with that. The other 94% think there should be some independent representation on that Committee.
v. As to question 5, PCC adjudications are only reported by a minute prepared by the PCC. 99% of the population disagree with that policy, and require both a minute and transcript of the meetings.
vi. As to question 6, complainants are not allowed to attend adjudications. Only 1% of the public agree with this and 99% think a complainant should be allowed to attend.
vii. As to question 7, the PCC refuses to permit an independent appeal from its adjudications. 99% of the general public disagree with them.
viii. As to question 8, the PCC refuses to impose financial sanctions. 100% of the population disagree with that policy.
ix. The only respect in which the PCC is supported is that the Commission should be a mixture of press and non press members (question 8).
February 2009
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