Supplementary memorandum submitted by Nick Armstrong, Partner for and on behalf of Charles Russell LLP
Further to my written submission of 13 January, there are two supplemental points I would like to make in the light of proceedings on 24 February when I appeared with other lawyers before the Committee.
1. The balance between Article 8 & Article 10 / The costs of media litigation
In my experience, most of the cases which proceed far down the litigation route (either to trial, or to 'the door of the court') feature conduct by journalists which falls short of the standards one would ideally expect. It is frequently this which prompts claimants to persevere with their claim. This has two consequences.
a) As far as costs are concerned, when the newspaper lawyers complain about the costs of litigation, they omit to give full weight to the failings by journalists which more often than not, either contribute to or are responsible for those costs having to be incurred.
b) In relation to the emerging jurisprudence on privacy, cases which proceed as far as a decision by the judges quite often feature failings by the press - with the result that protecting the claimant from such conduct often and inevitably assumes greater importance in the judge's mind (on the specific facts of the case being decided) than the more general principle of free speech. It is therefore difficult for that principle to prevail in judge-made law.
I am not clear how Parliament could compel greater emphasis on freedom of speech in deciding such cases, without running the risk of injustice to claimants, where journalists and editors (in their growing desperation for revenue, circulation and perhaps sheer survival) fall short of the standards that should be expected from them.
The press and those representing them need to realise that the best approach would be for standards of press reporting to improve so that judges shape the law with a sense of greater confidence that the press can be trusted with the responsibility that freedom of speech implies. An example of how things might improve is provided by the Television industry where there is a culture of careful fact-checking by journalists and the compliance/legal teams in accordance with the more detailed régime of the Ofcom Code.
In one question put during the second session on 24th February, Mr Davies said:
"It is quite a good racket, is it not, if you are going to take on a case that you are pretty sure you are going to win anyway and you shove it on a CFA and therefore double your income as a result? You are doubling your income on a case that you are absolutely certain you are going to win. It is nice work if you can get it. You should be paid less for cases that you are certain you are going to win."
The question (quite apart from slipping from "a case that you are pretty sure you are going to win" to "a case you are absolutely certain you are going to win") ignores the reality that there is no such thing as the latter. Where the opponent is fighting the case, it always means there are arguments or questions of interpretation on both sides. Straighforward complaints don't result in expensive litigation. Litigation is notoriously unpredictable in any event, especially libel litigation where a jury may well be deciding the outcome. In contested litigation, the lawyer is never "absolutely certain" of victory, and very rarely even "pretty sure" of success.
Further, a "double" income, i.e. a 100% uplift, is only sought and appropriate if the newspaper chooses to fight to trial. In that event, the newspaper will have consciously decided not to avail itself of the costs protection of the Part 36 settlement procedure - i.e. it is a case the newspaper thinks it can win in which case it would seek to bankrupt the claimant in the event of inadequate insurance.
In fact what happens at my firm and I believe in almost every other law firm (except perhaps one firm that automatically does 100% of its work on CFAs) is as follows. A case is scrutinised before being cleared by the partners to be done on a CFA, and it will only be authorised if there is a better than even chance of success - normally a better than 66% chance. Normally the formal advice of counsel is needed to that effect. The same applies if ATE insurance is to be obtained.
That still leaves a substantial risk of losing. If a firm acts on a CFA and loses, it will have worked for nothing - often for over a year. Most law firms have lost CFA cases they thought they had a good chance of winning, and hence got nothing - this included not just loss at trial, but also earlier "walk-aways" where the claimant's lawyers come to appreciate as litigation progresses that the claim is legally or evidentially problematic or disproportionate. Even when the firm wins the case for its client, it will have not been billing for a year or more. The success fee is to balance those disadvantages.
In my view therefore, wrongly caricaturing the process as a 'racket' is unhelpful to the debate. It wholly fails to take into account the economic realities of the process for the vast majority of law firms (as well as the fact that the CFA provides a genuine means of offering access to justice to those who would otherwise lack it).