Supplementary written evidence submitted
by 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.
2. CFAS
In one question put during the second session
on 24 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. Straightforward
complaints do not 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, ie 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).
March 2009
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