Written evidence submitted by David Price
of David Price Solicitors and Advocates
I understand that Mark Stephens told your committee
words to the effect that no rational lawyer would do defendant
CFA work (I hope that this accurate). As I mentioned to you previously
we do a large amount of CFA work for defendants in defamation
and privacy cases. Most of it is for individuals who would have
no representation (and therefore no access to justice) at all
if we were not acting for them. We also act for the Telegraph
on CFAs. I hope that any reforms to CFA will not hinder representation
to defendants. Mark is correct to the extent that it is commercially
very risky to do defendant work. If your reforms make it both
risky and unremunerative the result is likely that will we have
to stop acting for defendants which will mean that many will have
no access to justice (no doubt legal aid is out of the question)
and in some cases will go bankrupt even though what they have
said is true / comment or privileged, just because they cannot
afford to fight. You can have the names of the many defendants
we have helped. If you have interviewed claimants who have been
represented on CFAs, why not defendants?
It does frustrate me when I am acting for a defendant
where the claimant is represented by aggressive solicitors on
a CFA with ATE, success fees and all the trimmings. It does make
it much more of a risk to fight.
However, where access to justice is to be provided
by private practice lawyers the only way that this will be achieved
is if they have a financial incentive to do so. If the incentive
is not there they will not take the risk and then we get back
to the situation where only the rich can take on the media.
And as I have said, with defendant CFAs there
has to be a strong financial motive to take on the case because
of all the risks. So please be careful before you do anything
that will inhibit us offering such a service to defendants. It
is seriously unfair and unjust if a person who is sued does not
have legal representation. Most of our defendant clients are not
the very poor. They are ordinary people who find themselves dragged
into a defamation claim over something that they have said or
written, which may well be substantially true or privileged. They
may have some equity in their home but in practical terms cannot
justify the huge expense of funding the defence of a High Court
defamation or privacy claim.
Cost caps are very difficult to work within
when you are running a business. I think that there are some fundamental
problems with the substantive law and procedure that cannot be
rectified just by cost caps. I do not think Lord Justice Jackson
can address it as he is only dealing with costs.
The law is too complicated and it is wrong that
the defendant's means should be irrelevant in terms of compensation
and costs. Why should a small scale publication or an individual
blogger be faced with the same compensation and costs regime as
a wealthy national newspaper which has destroyed someone's reputation?
June 2009
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