Memorandum submitted by the Master of the Rolls
2. The Committee has outlined a number of areas in which it is interested in hearing evidence viz., statistical information regarding the number of defamation cases being heard before the courts, the percentage of time they take up and their cost to the tax payer; the relationship between the judiciary and the media; costs and access to justice in respect of defamation proceedings; contempt of court; and recently announced reviews.
have been asked by the Lord Chief Justice to prepare this written submission and
do so as Head of Civil Justice. I am sure that you will appreciate that in
preparing this document I have consulted others, and in particular, the
Judicial Office for
4. What follows is divided into three parts:
i) The Relationship between the Judiciary and the Media
This section deals with both issues raised by the Committee.
The first section, which is contained in paragraphs 5 - 11, deals with the judiciary's media-panel. The media plays a crucial campaigning and scrutinising role in any democratic society. The judiciary is rightly scrutinised by the media. It is not however appropriate for the judiciary to respond to such scrutiny. Since 2005 a number of judges have however been trained to speak on the judiciary's behalf in a limited number of circumstances. They do not comment on individual judgments, political matters or matters of social policy. Their role is a clarificatory one.
The second section, which is contained in paragraphs 12 - 39, deals with criticism that the courts have recently developed a privacy law. It discusses the case law that has been engendered by the Human Rights Act 1998. It does so in order to clarify: i) that the developments in this area arise as a consequence of sections 2 and 6 of the Human Rights Act 1998 and its incorporation of Articles 8 and 10 of the European Convention on Human Rights; ii) those developments have been made by the Court of Appeal and the House of Lords consistently with Strasbourg jurisprudence, as required by the Human Rights Act 1998; and iii) they have not been made by Mr Justice Eady.
It is not appropriate for the judiciary to comment on the policy, as given expression by the Human Rights Act 1998, which lies behind these developments.
ii) Costs and Access to Justice in Defamation Proceedings
This section is contained in paragraphs 40 - 51. Litigation cost is an area of concern both generally and specifically in respect of defamation proceedings. There are currently two costs reviews; one being conducted by the Ministry of Justice, the other is being conducted by Sir Rupert Jackson on my behalf. I cannot comment on the Ministry of Justice's review.
Sir Rupert Jackson's cost review, which encompasses a wholesale examination of costs, including both Conditional Fee Agreements and defamation costs, is on-going. It has reached the stage where a two-volume Interim Report has been published. That report is evidence-based. A copy is submitted with this evidence. It is anticipated that a Final Report will be published in December 2009. That will contain recommendations for reform. At the present time, while it is clear that there are widely held concerns about costs generally and costs in defamation proceedings specifically, it is premature for me to comment on what those reform proposals might be.
iii) Contempt of Court
The final section, contained in paragraphs 52 - 60, focuses on the Contempt of Court Act 1981. It does not deal with common law contempt. The 1981 Act balances the need to protect the right to fair trial with the right to free expression. It does so by protecting the integrity of the jury and by providing a framework within which the self-regulating media, which in respect of criminal trials generally acts in a responsible manner, can properly act as the eyes and ears of the public.
1) The Relationship between the Judiciary and the Media
judiciary is not, nor should it be, immune from scrutiny or criticism. It is
not above the law. Media scrutiny and comment may at times be uncomfortable,
but they are an essential, a fundamental, part of our open and democratic society.
Without effective media scrutiny of judicial decisions policy debates could not
properly arise. The courts apply and develop the law. The media comment on it,
draw attention to it and, as for instance Camilla Cavendish of
"free communication of information, opinions and argument about the laws which a state should enact (and I should add, its courts develop and apply) and the policies its government at all levels should pursue is an essential condition of truly democratic government. These are the values which article 10 exists to protect, and their importance gives it a central role in the Convention regime, protecting free speech in general and free political speech in particular."
6. The judiciary has traditionally not responded to adverse media comment. It is inappropriate for it do so. It speaks through judgments. If it were to do otherwise it would run the risk of undermining, or being perceived to have undermined, its independence, its ability to apply the law as between citizen and citizen and citizen and the State impartially, and public confidence in it. It would run the risk of politicising itself, not simply to its own detriment, but to the detriment of society as a whole. In order to ensure that the judiciary and society are not compromised in this way through being drawn into a debate arising out of its judicial decisions Parliament properly imposed a duty on the Lord Chancellor, through section 3 of the Constitutional Reform Act 2005, to uphold the independence of the judiciary and to defend that independence. This is all the more pertinent and important a duty where adverse comment is ill-informed or partial. I return to this.
respect of the judiciary's relationship with the media the Committee raises two
questions. First, it raises a question about the impact that the introduction
of a small group of media trained judges has had. Secondly, it raises a
question about the impact of media criticism on the judiciary. It does so with
specific reference to Mr
(a) Media-Trained Judges
the Lord Chancellor's duty the judiciary has since 2005 trained a number of
judges to speak publicly for it. The media panel scheme was set up by the
Judges' Council. It is overseen by its Communications Sub-Committee, which
monitors and evaluates both individual interviews and the success of the scheme
generally. The media panel was set up as a means by which the judiciary could
clear up media confusion which can simply and easily be rectified and thereby
improve public understanding and confidence in the justice system. It does not
exist to enter into a debate with the media or to respond to adverse comment by
the media. Currently, there are a number of serving judges on the panel who are
trained to undertake broadcast media interviews. They are located across
9. The panel is selective in respect of the interviews it gives. Panel judges are not available 'on tap' on any and every topic. There are occasions when we feel that an objective opinion voiced by a judge will be helpful e.g., where confusion has arisen about bail decisions, sentencing and housing repossession processes. There are also matters on which panel judges cannot comment. They never comment, for example, on individual judgments, sentencing or other judicial decisions. Equally, there are areas on which panel judges decline and will continue to decline giving interviews i.e., on matters that are overtly political, raise social policy issues or concern party political argument. Media attention on bail is a good example of where an issue developed and become too political for it to be appropriate for judges to give interviews about it. Once it became political and an announcement was made to review the law on bail it was decided that any interview would draw the judge into a conversation about what changes should be made. As such comment is inappropriate for a member of the judiciary, requests to interview panel judges were then declined. Once the situation changed and ceased to be a matter of political comment, panel judges were able to give a number of interviews.
10. Each interview request received by the Judicial Communications Office (JCO) is considered on its merits. Requests are discussed by the JCO with the relevant Head of Division as well as panel judges. Interview requests can be granted on the understanding that if a judge is asked a particular question, normally ones relating to a specific case, they will not be able to answer that question. Programme-makers tend to approach the JCO at the development stage. In this way it is possible to gain an understanding of the issues they are interested in, while outlining clearly what a panel judge can and cannot discuss or comment on. This aids programme-makers, as they understand the limits placed on the panel judge, while facilitating agreement of panel judges to be interviewed. To date Panel members have given twelve television and radio interviews across a wide spectrum of subjects. These are listed in Annex A.
11. The media-panel's creation is a new departure for the judiciary. It is still in its infancy. While we are proceeding with care, we hope that it is and will in the future contribute to better public understanding of the justice system and the role the judiciary plays in society.
Criticism of the Judiciary, Privacy and Free
role of the panel of media-trained judges' role is, as I have said, a limited
one. Where there has been adverse comment or criticism of the judiciary or
individual judges which would tend to undermine either judicial independence of
public confidence in our judicial system, it is, as Parliament intended, for
the Lord Chancellor to take action. One area where the judiciary, and
particularly an individual judge, have recently been the subject of sustained
criticism by the media is privacy and press freedom. Privacy and press freedom
are topics which are rightly subject to debate. They have, for instance, recently
been the subject of properly informed debate in
(i) Respect for Privacy
13. English law has not historically incorporated a general law of privacy. Parliament has examined on a number of occasions whether it should do so. Lord Mancroft introduced a privacy bill in 1961. It went no further than a second reading. Brian Walden MP introduced another such bill in 1969. It too went no further than a second reading. A number of reports and commissions examined the issue during the 1970s and 1980s but no general privacy law was introduced as a consequence. In 1990 the Court of Appeal affirmed that only Parliament and not the courts could create a general privacy law. As Lord Justice Leggatt said in Kaye v Robertson (1991) FSR 62 (Kaye).
"We do not need a [
14. Parliament did not then step in and take action. Many people would say that it still has not done so. They would in one sense be correct. Parliament has not enacted a specific Act of Parliament of the nature of Lord Mancroft's or Brian Walden MP's privacy bills. Parliament did however, as is well known, enact the Human Rights Act in 1998 (the 1998 Act) and through it incorporate into English law the European Convention on Human Rights. Article 8(1) of the Convention provides a right to respect for privacy and not a right to privacy: see Lord Walker in M v Secretary of State for Work and Pensions  2 AC 91 at . It is a general right, subject to such qualifications as are compatible with Article 8(2).
15. In enacting the 1998 Act Parliament introduced
a generalised right to respect for privacy not a general privacy law. It did so
in the knowledge, as Lord Irvine, the then Lord Chancellor, put it in November
1997, that there was no intention on the government's part "to introduce legislation in relation to
privacy" but that through the 1998 Act it was "expected that the judges would develop the law appropriately having
regard to the requirements of the Convention." As
Lord Phillips MR (sitting with Clarke and Neuberger LJJ hearing an appeal from
Lindsay J) put it in
"The enactment of the Human Rights Act 1998 provoked a lively discussion of the impact that it would have on the development of a law protecting privacy. The Government has made it clear that it does not intend to introduce legislation in relation to this area of the law, but anticipates that the judges will develop the law appropriately, having regard to the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms : see the comment of Lord Irvine of Lairg LC in the course of the debate on the Human Rights Bill (Hansard, HL Debates, 24 November 1997, col 771) and the submissions of the United Kingdom in Spencer (Earl) v United Kingdom (1998) 25 EHRR CD 105."
16. Parliament did not simply take this step. It took it in the full knowledge that it was doing so and that a general right to respect for privacy carried with it the potential to restrict free expression. Lord Bingham, then Lord Chief Justice, warned of this during the Parliamentary debate on the Human Rights Bill, as it then was. He said this
"Discussion of the new Bill so far would suggest, I think rightly, that one of the most difficult and sensitive areas of judgment will involve reconciliation of the right of privacy guaranteed by Article 8 with the right of free expression guaranteed by Article 10. While the law up to now afforded some protection to privacy (in actions for breach of confidence, trespass, nuisance, the new tort of harassment, defamation, malicious falsehood and under the data protection legislation) this protection has been patchy and inadequate. But it seems very likely that difficult questions will arise on where the right to privacy ends and the right to free expression begins. The media are understandably and properly concerned that the conduct of valuable investigative journalism may be hampered or even rendered impossible. It is very difficult, and probably unwise, to offer any opinion in advance about where the line is likely to be drawn."
17. I am not the first to conclude that they were prescient words. They were words, as I have said, which were made as the Bill, which became the 1998 Act, passed through Parliament. Parliament heeded the warning to some extent in that what is section 12 of the 1998 Act became part of the Bill. That requires courts, when considering whether to grant relief which might effect, if granted, the exercise of the Article 10 right, to
"have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-
(a) the extent to which-
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code."
18. Except in one respect, Parliament went no further than this in guiding the courts as to how they are to strike the balance between the Article 8 and Article 10 rights. The other means provided by Parliament, by way of guidance to the courts in their development of Convention rights and the balance struck between them, is set out in sections 2 and 6 of the 1998 Act. The former imposes an explicit obligation on courts and tribunals when determining questions arising in connection with any of the Convention rights to take account of, amongst other things, any "judgment, decision, declaration or advisory opinion of the European Court of Human Rights." The latter renders it unlawful for any public authority, and that includes courts and tribunals, to act in a way that is incompatible with a Convention right. This requirement is subject to the proviso that public authorities can act in a way that is incompatible with a Convention right if they are i) required to do so by primary legislation, or ii) if their actions give effect to primary legislation which cannot be read, or given effect to, in a way that is compatible with those rights.
19. These statutory provisions subject the courts
to an express obligation not only to give effect to the right of respect for privacy
and the right to free expression. They also require the courts to do so consistently
with the jurisprudence developed by the European Court of Human Rights (
20. To return to Lord Irvine, whom I cited earlier,
Parliament has required the courts to develop the right to respect for privacy
consistently with the requirements of the Convention, the Convention as
interpreted and understood by
21. A number of points can therefore be made.
First, Parliament introduced, through the 1998 Act and its incorporation of
Article 8 of the Convention, a right to respect for privacy. Secondly, it did
so in the full knowledge that incorporation carried with it potential problems
insofar as the balance between Article 8 and the Article 10 right of free expression
was concerned, and that the Strasbourg court had explained that Article 8
carried with it positive obligations to secure respect for privacy as between
individuals: see X and Y v the
Netherlands (March 26, 1985) Series A no.91, p.11 at ; Stjerna v Finland (November 25, 1994)
Series A no.299-B, p.61 at ; and Verliere
v Switzerland (dec.), no.41953/98 , ECHR 2001-VII as explained in Von Hannover v Germany  EMLR 21 (Von Hannover) at . Thirdly, it did
so expecting and requiring, under section 2(1) of the 1998 Act, the courts to
develop the right and, a fortiori,
the balance between it and the Article 10 right in light of
22. Parliament's policy decision, enacted through the democratic process and following full public debate, has had important consequences for the law's development and the balance that is struck between the Article 8 and 10 rights.
(ii) Judicial Development
23. The question might, reasonably, be raised as to whether there is a difference between a general right to respect for privacy and a general law of privacy and if there is what is it. There is a difference. The courts have been developing the general right to respect for privacy, as required by the 1998 Act. They have firmly rejected the introduction, by any body other than Parliament, of a general law of privacy.
24. It is not the case that the High Court is
developing a general law of privacy. It is not because the House of Lords, not
least though Lord Hoffmann's decision in Wainwright
25. Lord Hoffmann arrived at this decision for a
number of reasons; reasons which bear on the difference between the Article 8
right to respect for privacy and a general law of privacy. First, he noted that
there was a well-established difference between the identification of privacy
as a value that underlies a rule of law and may point to the direction the law
might take as it developed (Lord Irvine's point) and privacy's existence as a
principle of law in itself. There was a difference between an underlying value,
such as respect for privacy, and a concrete law, such as a general law of
Secondly, he noted that the Convention, as interpreted by the
26. Lord Hoffmann, and the House of Lords in Wainwright, have not had the last word
on the subject. In Campbell v MGN Ltd
 2 AC 457 (Campbell) the House
of Lords returned to the question of whether there was, since Article 8's
incorporation into English law, a general law of privacy. That decision is
well-known. It arose out of a claim by Naomi Campbell for breach of
confidentiality by the
"Since the content of that law is in some respects a matter of controversy, I set out what I understand the present state of that law to be. I start with some straightforward matters, before going on to issues of more controversy:
i) There is no English
domestic law tort of invasion of privacy. Previous suggestions in a contrary
sense were dismissed by Lord Hoffmannn, whose speech was agreed with in full by
Lord Hope of Craighead and Lord Hutton, in Wainwright v
ii) Accordingly, in developing a right to protect private information, including the implementation in the English courts of articles 8 and 10 of the European Convention on Human Rights, the English courts have to proceed through the tort of breach of confidence, into which the jurisprudence of articles 8 and 10 has to be "shoehorned": Douglas v Hello! (No3) (sic)  QB 125.
iii) That feeling of discomfort arises from the action for breach of confidence being employed where there was no pre-existing relationship of confidence between the parties, but the "confidence" arose from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use: as was the case in Douglas, and also in Campbell v MGN  2 AC 457. Two further points should however be noted:
iv) At least the verbal
difficulty referred to in (iii) above has been avoided by the rechristening of
the tort as misuse of private information: per Lord Nicholls of Birkenhead in
v) Of great importance in the present case, as will be explained further below, the complaint here is of what might be called old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information."
27. Whatever else can be said, it is clear beyond any doubt that the English courts have not, since the enactment of the 1998 Act, used Article 8 of the Convention as a vehicle to introduce into English law a general law of privacy, which would not necessarily require a balance to be struck between the Article 8 right and the Article 10 right, and which would apply generally rather than as present to those circumstances which are protected by a number of discrete causes of action e.g., "trespass, nuisance, defamation and malicious falsehood; there is the equitable action for breach of confidence and statutory remedies under the Protection from Harassment Act 1997 and the Data Protection Act 1998." On the contrary the House of Lords and the Court of Appeal have spoken with one voice: there is and remains no general law of privacy in English law. The position remains as it was in Kaye: it is only for Parliament to introduce one if one is to be introduced at all.
28. While the courts have not introduced a general
law of privacy, they have developed individual forms of privacy protection that
have long been known to English law. They have developed these individual torts
consistently with both Article 8 and Article 10 of the Convention and by
striking a balance between those rights and the values they express and protect.
They have done so for the reason I set out earlier: Parliament has required
them to do so. This is most clearly explained by Baroness Hale in her judgment
" The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights. In a case such as this, the relevant vehicle will usually be the action for breach of confidence, as Lord Woolf CJ held in A v B plc  QB 195 , 202, para 4:
"[Articles 8 and 10] have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court's approach to the issues which the applications raise has been modified because, under section 6 of the 1998 Act , the court, as a public authority, is required not to 'act in a way which is incompatible with a Convention right'. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of these articles.""
29. The same point was made by Lord Phillips MR in
"We conclude that, in so far as private
information is concerned, we are required to adopt, as the vehicle for
performing such duty as falls on the courts in relation to Convention rights,
the cause of action formerly described as breach of confidence. As to the
nature of that duty, it seems to us that sections 2, 3, 6 and 12 of the Human
Rights Act 1998 all point in the same direction. The court should, in so far as
it can, develop the action for breach of confidence in such a manner as will
give effect to both article 8 and article 10 rights. In considering the nature
of those rights, account should be taken of the
30. The Court of Appeal in both Ash and more recently in
31. The courts are not just required to take
account of both Article 8 and Article 10; they are required to strike a balance
between them. That balance has to be struck in such a way that neither Article
is afforded precedence over the other. This position was initially set out by
the House of Lords in
"The interplay between articles 8 and 10 has
been illuminated by the opinions in the House of Lords in
32. Applying the law, as Mr Justice Eady did in Ash, meant that despite section 12 of the 1998 Act, neither Article 8 nor Article 10 was to be given precedence. Mr Justice Eady had no choice in this matter. The doctrine of precedent required this, as acknowledged by Lord Justice Buxton in Ash at  - . It required its application in that case just as it did when Mr Justice Eady was faced both with Mr Mosley's application for an injunction, which he refused, in Mosley v News Group Newspapers Ltd  EWHC 687 (QB) at  and his substantive damages action in Mosley v News Group Newspapers  EMLR 20 at  - .
33. It is noteworthy that in the substantive damages
action Mr Justice Eady refused to accept Mr Mosley's submission that the
development of the law since the 1998 Act's enactment justified an award of
exemplary damages. He did so noting the chilling effect such damages would have
and that neither the common law nor statute, implicitly including the 1998 Act,
justified such an award in an infringement of privacy case. Moreover he held
that the extension of exemplary damages to such claims would be neither
necessary nor proportionate in cases where Article 8 and Article 10 rights
needed to be balanced: see  EMLR 20 at  - . This might well be
taken as a further example of the court's no less yet no more approach.
Equally, it could be seen as acknowledging that neither Article 8 nor Article should
be afforded precedence, as explained in
34. It should also be noted that the application of
section 12 of the 1998 Act in cases where Article 8 and Article 10 are in
issue, is also subject to the interpretation placed on it by the House of Lords
" The judge was also obliged by section 12(4)(b) of the 1998 Act , not only to have particular regard to the importance of the Convention right to freedom of expression, but also to any relevant privacy code. The Press Complaints Commission Code of Practice supports rather than undermines the conclusion he reached:
"3. 2 Privacy
"(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent. (ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note- Private places are public or private property where there is a reasonable expectation of privacy.
"The public interest
"There may be exceptions to the clauses marked 3 where they can be demonstrated to be in the public interest.
"1. The public interest includes: (i) Detecting or exposing crime or a serious misdemeanour. (ii) Protecting public health and safety. (iii) Preventing the public from being misled by some statement or action of an individual or organisation ..."
This would appear to expect almost exactly the exercise conducted above and to lead to the same conclusion as the judge."
35. It the circumstances it is apparent that the House of Lords and Court of Appeal in these, six, decisions, only one of which arose from a first instance decision of Mr Justice Eady, have explained a number of things very clearly.
35.1. First, that the 1998 Act, and specifically section 6, requires the English courts to give effect to both Article 8 and Article 10.
35.2. Second, giving effect to the two
rights in this way has required the court to absorb the principles enshrined in
Articles 8 and 10 into the tort of breach of confidence. As a consequence when
courts assess the question whether there has been a breach of the tort they
must now consider the balance that is to be struck between them. That balance,
as most recently explained by the Court of Appeal in
". . . first [to assess], whether the information is private in the sense that it is in principle protected by article 8 (ie such that article 8 is in principle engaged) and, secondly, if so, [then assess] whether in all the circumstances the interest of the owner of the information must yield to the right to freedom of expression conferred on the publisher by article 10."
These questions are
questions of fact, which require a variety of factors and circumstances to be
taken account of and weighed: a point made by Baroness Hale in
35.3. Third, the developments in the law expressed in the four judgments are ones that have been brought about because Parliament has required the courts, as public authorities, to act consistently with the requirements of the Convention.
35.4. Fourth, the courts have not just been
required to give effect to Articles 8 and 10 by absorbing them into the tort of
breach of confidence; they have been and are required to do so in light of
35.5. Fifth, when striking the balance between the Article 8 and Article 10 rights neither is to be accorded pre-eminence or precedence.
36. Some conclusions can be drawn from this.
36.1. First, it has been said that Mr Justice Eady has developed or is in the process of developing a law of privacy. This is patently not the case. No general law of privacy has been developed. Moreover what developments there have been of pre-existing individual torts which protect aspects of privacy have not arisen as a consequence of a plethora of decisions by Mr Justice Eady. Of the leading decisions in this area, referred to above, apart from the Ash decision, only one has arisen from a decision of Mr Justice Eady.
36.2. Second, each of the significant developments of the legal principle in this area has arisen as a consequence of appeals from first instance decisions to either the Court of Appeal or the House of Lords. The appeal process exists not only for the private purpose of ensuring the right result is reached as between the parties. It exists for the public purpose of ensuring that the law develops properly and is stated authoritatively and correctly. Equally, appellate decisions bind the lower courts, such as the High and County Courts. Mr Justice Eady in Ash therefore had no choice, when considering the balance to be struck between Articles 8 and 10, but to apply the law as stated by the House of Lords in Campbell and Re S (a child) i.e., to afford neither Article precedence over the other.
36.3. Third, the principles that the Court
of Appeal and House of Lords have articulated in this area, and which have seen
developments in respect for privacy, arise from the application of Articles 8
and 10 of the Convention consistently with the
37. It is more than apparent that the development of the Article 8 right to respect for privacy and its interrelation with the Article 10 right to free expression is one that has caused concern. This is evident not just from media debate, but by the very fact that the Committee is investigating the issue and has obtained a substantial amount of evidence on the subject. It is an issue which is properly the subject of democratic scrutiny and debate.
38. That scrutiny and debate if it is to be of
genuine value must be conducted in the light of the facts rather than assertion
or by way of attacks on individual judges who are doing no more than applying
the law consistently with the terms of the judicial oath. The position is that
the law has developed since 2000 through the appellate decisions of the Court
of Appeal and House of Lords. Mr Justice Eady has applied the law as those
courts have stated it, and where he has developed it his decisions have been
the subject of appellate scrutiny. Any further developments at first instance
will equally be subject to possible appellate scrutiny, and where necessary
correction, by the Court of Appeal, the House of Lords and, if necessary, also
39. It is a genuine policy question as to whether the
law, as it has developed since 2000, is democratically acceptable. It is for
Parliament to review and debate that question, as indeed it is through this
Committee's current investigation, mindful of the fact that the
Costs and Access to Justice in Respect of Defamation Proceedings
40. Litigation cost is a perennial problem which undermines effective access to justice. It is a problem which has been particularly acute over at least the last twenty years and was, as is well known, one of the bases on which Lord Woolf carried out his fundamental review of civil justice in the mid-1990s. It is a problem that remains acute now. The issues raised by the Committee in respect of defamation costs generally and defamation costs where Conditional Fee Agreements (CFAs) are used are instances of the wider costs issue.
41. There are currently two reviews being conducted into litigation costs. The first is a consultation entitled 'Controlling costs in defamation proceedings'. It is a Ministry of Justice consultation. Copies of the consultation are available from the Ministry of Justice, who are best placed to provide any further information.
42. The second review is being conducted by Sir Rupert Jackson on my behalf as Master of the Rolls and Head of Civil Justice. It is a wide-ranging review, which is examining litigation costs generally. Its terms of reference are to:
"Establish how present costs rules operate and how they impact on the behaviour of both parties and lawyers.
Establish the effect case management procedures have on costs and consider whether changes in process and/or procedure could bring about more proportionate costs.
Have regard to previous and current research into costs and funding issues; for example any further Government research into Conditional Fee Agreements - 'No win, No fee', following the scoping study.
Seek the views of judges, practitioners, Government, court users and other interested parties through both informal consultation and a series of public seminars.
Compare the costs regime
Prepare a report setting out recommendations with supporting evidence by 31 December 2009."
review is being conducting in three stages. The first stage, which ran from
January to April 2009, involved the preparation of a working paper. Evidence
was obtained during this stage through meetings conducted by Sir Rupert and his
team with court users and professionals, through the consideration of written
submissions and information received, and through comparative study of overseas
jurisdictions. An interim report setting out the position as it is to be
published today. A copy of the report is included with these written
submissions. The second stage, which will run from May to July 2009, will be
consultative. Seminars and road shows will take place in, for instance,
44. It is well-known that there is a good deal of concern about the level of costs incurred by claimants and defendants in defamation proceedings and those that give rise to issues of privacy and press freedom more generally. It is equally well-known that these are supplemented by concerns regarding the use of CFAs with success fees and After the Event Insurance (ATE) policies in such proceedings.
judiciary has noted these concerns, in court judgments, on a number of
occasions. When the effect that extending CFAs to defamation proceedings, as
Parliament did through section 58 of the Courts and Legal Services Act 1990 (as
amended by section 27 of the Access to Justice 1999) and the Conditional Fee
Agreements Order 2000 (SI 2000/823), was raised before Mr Justice Eady in King v
46. Mr Justice Eady's concerns were echoed and acknowledged by Lord Justice Brooke in his judgment when that case went to the Court of Appeal. He said this:
"It is not at all clear whether Parliament ever turned its mind to the consequences of defamation actions being conducted under a CFA without any ATE cover, or to the European Convention on Human Rights article 10 considerations that were of such concern to Eady J and Gray J . . ."
The reference to Mr Justice Gray is to his decision in Pedder v News Group Newspapers Ltd  EMLR 19. That was a case where an attempt to relitigate libel proceedings was struck out. It was struck out primarily because the claimants were funded via a CFA with no ATE policy. This was held in the circumstances of that case to expose the defendants to too great a costs risk, such that there was a chilling effect on the defendant's right to freedom of expression.
47. These decisions highlight the problems to which CFAs, with or without ATE policies, in the area of defamation could potentially give rise. The decision to introduce CFAs, with success fees, and ATE policies into defamation was however a policy decision taken by Parliament. It was done in order to increase access to justice in this area just as it was through their introduction generally: a point made by Lord Bingham in Callery v Gray (Nos 1 and 2). Indeed in that case the potential problems that could arise from the introduction of CFAs were noted by the House of Lords. Lord Justice Brooke in King summarised those potential problems as noted by the Lords in Callery as follows:
" In their speeches in Callery v Gray different members of the House of Lords expressed concern about certain features of the new arrangements, in particular the lack of any financial incentive for claimants to challenge either the size of their lawyers' fees or the amount of the uplift or the amount of the policy premiums: see Lord Bingham, at para 10, Lord Nicholls of Birkenhead, at paras 14 and 16, and Lord Hope of Craighead, at para 54. Lord Bingham, in particular, said, at para 10, that although the defendant's appeal in Callery v Gray was being dismissed:
"I would not wish to discount either the risk of abuse or the need to check any practices which may undermine the fairness of the new funding regime. This should operate so as to promote access to justice but not so as to confer disproportionate benefits on legal practitioners ... or impose unfair burdens on defendants ..."
 Lord Hoffmannn, for his part, was sceptical, at paras 18 and 31, about the extent to which courts could effectively police the matters that gave rise to such concern in that case."
48. Those concerns were, Lord Justice Brooke noted, all the more palpable where freedom of expression was in issue. To try and square the circle, as he put it, and to do so in an area where Parliament has decided that recoverable costs can be of an amount that otherwise might not be viewed as reasonable or proportionate, the Court of Appeal has developed the future costs-capping order. This jurisdiction has recently been formalised in the Civil Procedure Rules r. 44.18 - 44.20.
49. While the courts have noted the potential problems that might arise from the introduction of CFAs, with success fees and ATE policies, and have gone some way to balance a claimant's right of effective access to justice with that of a defendant's right to freedom of expression, they have necessarily done so within the framework provided by Parliament. If there are problems arising from that framework, Parliament will have to consider what steps it needs to take to rectify them and properly balance the right of access to justice and the right to freedom of expression. That is, of course, a matter of policy for Parliament
50. There is at the present time, it is fair to say, a considerable degree of debate as to the exact nature and extent of the problems that have arisen as a consequence of the introduction of CFAs both generally and specifically in respect of claims that give rise to issues of freedom of expression and/or defamation. The debate has been the subject of evidence to this committee.
51. It is anticipated that Sir Rupert Jackson's fundamental costs review will examine and analyse those issues. As noted earlier, a copy of his Interim Report is enclosed with this evidence. Costs in defamation proceedings are dealt with in its chapter 37 and schedule 17. That chapter and schedule set out the position as it is today and the evidence that lies behind it. Until Sir Rupert has completed his review and produced his Final Report in December it is not possible to say what remedial steps, if any, might need to be taken either through the Civil Procedure Rules or through legislation. Again, if problems are highlighted that require legislative intervention that is a matter for Parliament insofar as it raises issues of policy.
Contempt of Court
52. Open justice is a fundamental principle of any society committed to the rule of law. It is a principle that the English courts have long, and rightly, accepted. It is a principle that can however properly and in the interests of justice be subject to certain restrictions: see, for instance, the House of Lords' decision in Scott v Scott  AC 417. Restriction can properly be placed on it in order to secure an equally important and fundamental principle that all societies committed to the rule of law, and ours is no exception, adhere to: the right to fair trial. In some ways it can be said, and in my view rightly, that open justice secures fair trials and should only be restricted where adherence to it would do the opposite.
53. The importance of these two principles and their interrelation has in recent times been underlined in respect of criminal proceedings by the Court of Appeal (Criminal Division) in the context of contempt of court. The two principles were given recent expression by Sir Igor Judge, President, as he then was, in Re B  EMLR 5 at 18 - 19. He said this:
". . . in this country every defendant who appears before the court to stand his trial, whatever the charge, whoever he or she may be, is entitled to, and must receive, a fair trial. That was, in the memorable epithet of Lord Bingham of Cornhill, a "birthright". Although the epithet is relatively recent, the concept is of some antiquity.
An equally precious principle, hallowed by custom and the tradition of the common law, is the freedom of the media to act as the eyes and the ears of the public at large and, among their other responsibilities, to observe and contemporaneously to report the criminal proceedings involving the same defendant whose birthright to a fair trial must be protected. The administration of criminal justice must be open and transparent. The freedom of the press to report the proceedings provides one of the essential safeguards against closed justice."
54. The Contempt of Court Act 1981 (the 1981 Act) strikes the balance between these two principles; both of which form part of the essential foundations of our, and every, open democratic society. It protects press freedom, not least because as Lord Justice Lloyd put it in Attorney-General v Newspaper Publishing Plc  ChD 333 at 382 it brought about 'a permanent shift in the balance of the public interest away from the protection of the administration of justice and in favour of freedom of speech'. It did so by protecting fair and accurate contemporaneous, good faith, legal reporting (see section 4 of the 1981 Act). Moreover it does so by only prohibiting the publication of material where such publication creates a substantial risk that the course of justice in proceedings will be seriously impeded or prejudiced (see sections 1 and 2 of the 1981 Act).
55. The 1981 Act, specifically sections 1 and 2, also provides proper protection for the fair trial right, which it should be stressed does not simply guarantee due process for those accused of crimes (both innocent and guilty), but just as importantly ensures that justice is done for the victims of crime and for society as a whole. It provides justice for victims through ensuring that the trial process is not compromised and a verdict can properly be delivered. It provides justice for society as a whole by ensuring that the guilty are properly convicted, the innocent acquitted and the rule of law is thereby protected.
56. The 1981 Act protects the fair trial right by
prohibiting, at least in the context of jury trials, the publication of adverse
comment up until verdict, the publication of discussions that take place in the
absence of the jury or the publication of details of excluded evidence. In this
way it provides the framework for responsible reporting, while protecting both
freedom of expression and fair trials. It prohibits what might be called media
campaigns that could undermine fair trials and which jury directions might well
be insufficient to counteract.
57. The view expressed in Re B by Sir Igor, now Lord Judge CJ, is one which as I see it holds true because of the protection offered by the 1981 Act. It does so because the Act ensures that media campaigns, the reporting of prejudicial or excluded material, cannot take place. If such reporting and such campaigns were to become the norm it cannot be said with certainty that jurors would be in the position to abide by judicial directions because of the level and nature of exposure to press reportage. As Lord Justice Kennedy emphasised in upholding an appeal against a contempt conviction in 1997,
"With potential jurors receiving information in so many different ways high profile cases would become impossible to try if jurors could not be relied on to disregard much of the information to which they may have been exposed, but that does not mean that they can be expected to disregard any information, whenever and however it is received, otherwise there would be no point in withholding from them any relevant information, however prejudicial in content or presentation, hence the need for the law of contempt which we are required to enforce."
58. The small number of prosecutions under the 1981
Act is testament to the fact that it sets the balance well between freedom of
expression and the right to fair trial, properly guides press behaviour and
ensures that the jury system that lies at the heart of our criminal justice
system is not compromised. It is perhaps equally testament to the fact that
generally speaking our press is one that acts, where criminal prosecutions are
concerned, with probity and responsibility. Generally, it ensures that it does
not publish material detailing the background history to, or comment on, cases
once criminal charges have been brought, from then until trial or during the
trial. Equally, it does not generally publish material or report argument aired
in the absence of the jury during trials, or report material or evidence that
is ruled to be inadmissible. Without entering into the policy debate as to
whether media self-regulation should remain in place, it seems to me that in
59. Concerns have however been raised as to the
effect the growth of the internet has had. Material that UK-based media would
not publish due to the 1981 Act might well be placed on the internet by someone
or some organisation based abroad. As I understand the law, any such material
if published in the
60. This position may well change in the future. If it does, then to such an extent that the fair trial right is placed in jeopardy, it is a matter for Parliament to assess what steps it would need to take to protect it; and to that end I note the comments made in its evidence by the Department of Culture, Media and Sport, that it keeps the law of contempt under review. The options that might be available to Parliament, some of which have been canvassed by the other witnesses to the Committee viz., the approach taken by the State of Victoria, Australia which has rendered it illegal for jurors to conduct their own research or the adoption of the United States' approach which rests simply on jury directions, are not something on which I can properly comment. They give rise to policy questions that are properly for Parliament.
Sir Anthony Clarke, M.R
Judges' Media Panel Activity
 The criticism is, for instance, set out in News International Ltd's written submissions. The counter-argument has been put by, for instance, the Campaign for Press and Broadcasting Freedom.
 Kaye v Robertson (1991) FSR 62 at 66, "It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy."
 See cited in Errera, The Twisted Road from Prince Albert to Campbell, and Beyond: Towards a Right of Privacy?, in Andenas & Fairgrieve (ed), Tom Bingham and the Transformation of the Law (2009) (OUP) at 385
 Lord Irvine, 583 House of Lords Official Reports (5th Series) col 771 cited in Errera (2009) at 385.
  QB 125 at .
 Errera, ibid at 373.
 Human Rights Act 1998 s2(1).
 Human Rights Act 1998 s6.
  2 AC 406 at .
 Ibid. at  - .
 Ibid at .
 Ibid. at .
  2 AC 457 at .
  3 WLR 194 at .
 Wainwright v
  3 WLR 1360 at .
 See  EWHC 3003 (QB) at ff;  3 WLR 194 at ff;  3 WLR 1360 at ff.
  EWHC 1312 (QB) at .
 King v
  1 WLR 2000 (HL) at .
 Ibid. at  - .
 Ibid. at  - 103].
 NB: additional liabilities cannot be made subject to any costs cap.
 Attorney-General v Associated Newspapers Ltd  EMLR 711 at 721.