Written evidence submitted by Russell
Jones & Walker, Solicitors
Introduction
1. Russell Jones & Walker is a medium
sized firm of solicitors with offices in London, Manchester, Birmingham,
Bristol, Cardiff, Sheffield, Newcastle, Wakefield and an associated
office in Edinburgh.
2. The defamation and privacy department is well
known for its claimant work, but also regularly acts for defendants.
It is consistently rated as one of the best and busiest in the
country.
3. Our diverse national client base includes
both private clients and members of unions and membership organisations.
In the latter category, we are particularly known for the work
we do for the Police Federation and its members (being police
officers up to the rank of Chief Inspector). However, we also
act for the NASUWT, RCN, GMB (Southern Region), League Managers'
Association, Prospect (including the Premiership Referees Group),
Musicians' Union, Community and PCS.
4. The private clients we act for tend to
be ordinary individuals rather than celebrities.
5. Over the years we have successfully pursued
claims against virtually every national newspaper and TV company
and a huge number of local papers, magazines and book publishers.
6. We are experienced in advising on and
addressing the funding difficulties which ordinary people of modest
means face when contemplating an action to restore their reputation.
7. Our submissions below adopt the headings
used in the Committee's Announcement No.67 dated 18 November 2008.
We have not responded to all the matters raised.
The interaction between the operation and effect
of UK libel laws and press reporting
8. In a free and democratic society press
freedom is essential and the media's importance is often demonstrated
by the impact of investigative journalism. The media are not simply
reporters of the news, but can create the news by uncovering misconduct
and calling to account those holding positions of authority.
9. Yet with such great power comes responsibility.
The law of defamation is a necessary balance to freedom of speech
to ensure an individual can protect their reputation. It should
not be viewed as a yoke around the neck of the media, but rather
a system of checks and balances to help ensure the highest standards
of journalism.
10. We have a powerful, influential and
robust press in this country which not surprisingly presses the
case for more freedom and less restriction at every opportunity.
Potential claimants do not of course have the same platform or
influence to advance their position. They must rely on the Courts
to achieve the right balance. In our experience, that balance
between the operation of the libel laws and press freedom is deployed
justly and fairly by our Courts and the specialist judges.
The impact of conditional fee agreements on press
freedom
11. Conditional Fee Agreements (CFAs) were
extended to defamation cases in 1998, primarily to provide access
to justice for claimants of modest means. The use of CFAs has
come under increasing criticism from media defendants, who argue
they have led to a "chilling effect" on their freedom
of expression. Having more than 25 years' experience in defamation
and having offered CFAs since their inception, we take a different
view: the contention that these are stifling press freedom seems
to us to be misplaced.
12. The press contends that it has been inhibited
because a media defendant can be required, as part of its liability
under an adverse costs order, to pay a success fee of up to 100%
and a substantial insurance premium if it loses or settles a libel
claim. Consequently, the media argue, they are forced to settle
even unmeritorious claims for commercial reasons. We disagree.
13. First, in our experience, the CFA regime
is not used to bring unmeritorious claims. If a CFA claimant loses
their case, their lawyers do not get paid. Russell Jones &
Walker, and no doubt other claimant firms, would certainly not
be prepared to gamble huge time and resources on a frivolous claim
in the speculative hope that it will be settled by the media defendant
with payment of costs. The merits and prospects of success of
any claim are rigorously assessed before a CFA is offered to avoid
this. Frivolous claimants would also be deterred by the risk of
paying the (substantial) costs of their opponent if their claim
failed. Insurance is only available for a claimant CFA with a
favourable risk assessment; insurers are no more willing to gamble
with their money than claimant solicitors. With relatively modest
damages at stake in defamation (and privacy) cases, only genuine
claimants who need to vindicate their reputations are willing
to subject themselves to the time and stress involved to see a
case through to trial.
14. Media defendants also fail to acknowledge
that if a frivolous or speculative claim is brought against them,
they could defend it on a CFA. If their lawyers are unwilling
to represent them on a CFA, this would suggest they believe the
claim has at least reasonable prospects of success.
15. Secondly, the uplifts claimed by claimant
lawyers are not as extortionate as the press suggests. Russell
Jones & Walker, and most other claimant firms, have already
introduced staged success fees to address the concerns raised
by media defendants, meaning the 100% uplift is only applicable
very close to trial. Modest success fees are applied if a claim
is settled in its early stages. It is also important to remember
that success fees are only paid when the newspaper loses or settles
a claim, indicating the claimant had a legitimate claim. Media
defendants often have either insurance or substantial resources
to cover the successful claimant's legal costs (including success
fees and any insurance premium).
16. If the costs claimed by a claimant's
lawyers are considered to be unreasonable, the bill can be subjected
to detailed assessment by the Supreme Court Costs Office. Furthermore,
the Civil Procedure Rules and the Defamation Act 1996 each contain
a number of provisions which offer a defendant assistance earlier
in the proceedings. For example, a defendant can rid itself of
an unmeritorious claim by making an application to the court to
strike it out or seek to protect itself in relation to costs by
applying for an order for security for costs or a costs cap. The
defamation pre-action protocol also requires the parties to consider
alternative dispute resolution before court proceedings have been
issued. We have mediated many libel claims in recent years to
a successful conclusion.
17. The reporting of Madeleine McCann's
disappearance and the subsequent police investigation is just
one prominent example which shows the freedom of the press has
not been significantly inhibited by the use of CFAs. While newspapers
might choose to make a commercial exit from a claim rather than
risk litigation, the evidence suggests it does not dissuade them
from publishing often quite startling defamatory material. In
fact, the libel laws now provide greater protection for defendants,
particularly through the defence of Reynolds qualified privilege
(which protects responsible journalism). This has led to fewer
cases being brought by claimants, particularly those on a CFA.
18. Claimants have as much right to protect
their reputations as media defendants have to protect their freedom
of speech and CFAs are the only way of providing access to justice
for claimants of modest means, putting them on an equal footing
with the financial might of a media defendant. One of our successful
CFA cases provides a good example of how access to justice in
defamation can be so vital. A community nurse was accused by a
national tabloid in two consecutive front-page articles of hastening
the deaths of 17 terminally ill children. Her life, career and
family were devastated, and without CFA funding she would have
been unable to take any action. We represented her on a CFA, and
secured for her damages of £100,000 and a page 2 apology.
This public vindication enabled her to re-enter the profession
she loved.
19. CFAs are sometimes also used by wealthy
claimants, but it is difficult to see how these stifle press freedom
when such claimants surely have the financial resources to satisfy
any order for costs if their claim fails (including any success
fee or insurance premium if the newspaper itself chose to defend
the action on a CFA).
20. In conclusion, then, we say that CFAs
have performed a vital function in opening up access to justice
for ordinary people whose reputation have been attacked by the
press, and we do not believe that they have had a negative impact
on press freedom. Until their introduction, such people were effectively
excluded by the cost and the difference in firepower from taking
defamation action against a media defendant.
| and whether self-regulation needs to be toughened
to make it more attractive to those seeking redress
21. From our experience, there are a number
of problems which need to be addressed:
a. Defamation complaints do not specifically
fall within any of the clauses within the Code, meaning victims
of a defamatory publication have no means of redress.
b. The claimant is left powerless if they do not
feel a publication's offer to resolve the PCC complaint provides
adequate redress since the PCC generally offers no alternative.
c. The PCC's greatest sanction (if no earlier
resolution can be reached) is to oblige publication of its adjudication
in full and with due prominence (which is itself a rather nebulous
term). This does not necessarily vindicate a claimant's reputation.
It is understandable, therefore, that complainants may find this
remedy unsatisfactory.
d. The PCC does not have the power to award damages
to a complainant or order payment of his or her legal costs. And
while complainants can pursue PCC complaints personally, they
may not be familiar with the procedure and will usually be up
against a newspaper's experienced legal department. In our view,
the CFA system is necessary because it enables legitimate claimants
of limited means to pursue through the Courts a remedy to vindicate
their reputation which will include recovery of legal costs, and
so permit expert representation and advice. Any complaint to the
PCC must either be made personally or at the complainant's own
expense if he or she uses solicitors.
e. The time frame for lodging a complaint with
the PCC is much shorter than that for bringing a defamation claim
(two months as opposed to one year). This restriction may leave
claimants with no option other than a defamation claim.
f. Although a substantial number of publications
do subscribe to the Code of Practice, this is voluntary, so there
are cases where the PCC has no power to resolve a complaint.
g. The media is often critical of professions
or occupations which deal with complaints through self-regulation
eg. the legal profession and the police. Yet it expects the public
to accept that self-regulation is the most effective way of dealing
with complaints arising from press articles.
22. The PCC will be unable to provide a
realistic alternative to formal defamation claims for as long
as its sanctions and means of redress are limited.
What effect the European Convention on Human Rights
has had on the court's views on the right to privacy as against
press freedom
23. The cult of celebrity has undoubtedly
led to an insatiable interest in every aspect of the lives of
those in the public eye, causing high-profile individuals to complain
of intrusions into their private life. However, such complaints
are not just the preserve of celebrities. In Wainwright v Home
Office (which went right through the domestic courts to Europe)
the House of Lords held that because there was no common law tort
of invasion of privacy, there was no remedy available to a mother
and son who had been humiliated and distressed by a strip search
on a prison visit in 1997, even though it breached prison rules.
24. There was no right to privacy in the UK until
the incorporation of the European Convention on Human Rights into
UK law in 1998 (specifically Article 8). This is balanced in the
Convention by Article 10, which states everyone has the right
to freedom of expression, although this in turn is also subject
to restrictions, for example, to protect health, morals or the
rights of others.
25. The House of Lords grappled with these
new rights in Naomi Campbell v MGN Ltd. While there were
differences in opinion, the following principles commanded unanimous
support:
a. Under Article 8, an action for breach of confidentiality
now covers infringement of a person's right to respect for his
private life where the infringement involves disclosure of information
(including photographs).
b. The principles involved apply as much between
individuals or between individuals and non-government bodies as
they do between individuals and public authorities.
c. Article 8 applies when the person publishing
the information knows or ought to know that the other person can
reasonably expect the information to be kept confidential, because
of its private nature.
d. If Articles 8 and 10 both apply, the court
has to balance the competing considerations, neither being presumed
to have priority over the other.
26. Where it is faced with a claim for invasion
of privacy, the court's task is to embark on a two stage process:
a. First it must identify whether there is a
reasonable expectation of privacy such as to engage Article 8
at all. This is the threshold test.
b. If that test is passed, the competing Convention
rights must be balanced, applying the test of proportionality
to each. This is the parallel analysis or balancing test.
27. Inevitably, the Human Rights Act will,
in certain circumstances, act as a fetter on press freedom, but
this is a necessary restriction. Everybody should have an entitlement
to a basic level of privacy and it is essential that the law reflects
this basic human right. We accept that the extent of the zone
of privacy to which an individual is entitled may vary from case
to case.
28. The freedom of the press is preserved
by the safeguards built into the Human Rights Act, namely that
the right to privacy must be balanced against the right to freedom
of expression (and other Convention rights). The phrase used in
cases such as Max Mosley v News Group Newspapers Limited
is the requirement to apply an "intense focus" on the
individual facts of each case. This means the press can maintain
its role of "bloodhound" but only in legitimate circumstances.
Whether financial penalties for libel or invasion
of privacy applied either by the courts or by self-regulatory
body might be exemplary rather than compensatory
29. Exemplary damages are intended to punish
the defendant rather than compensate the claimant and historically
they are only available in tort and not in equity. But legal debate
remains as to whether the emergence of a law of misuse of private
information has become a separate tort or is a modern day breach
of confidence originating in equity.
30. The courts have awarded damages for stress
caused by a breach of confidence but amounts have tended to be
comparatively small—usually less than £5,000. Larger
sums have to be claimed through exemplary damages if applicable,
but the basis upon which these may be sought remains unclear.
In Kuddus v The Chief Constable of Leicestershire, the
House of Lords held that the categories of cases in which exemplary
damages could be awarded were not closed. In Douglas v Hello
Limited (No. 3), Lindsay J left open the question of whether
exemplary damages could be awarded for breach of confidence.
31. Exemplary damages are available through
libel actions and depend on the claimant showing that the defendant's
act in publishing the libel was "with guilty knowledge for
the motive that the chances of economic advantage outweigh the
chances of economic or perhaps physical penalty" (Rookes
v Barnard (1964)). The award made should be the minimum necessary
to punish the defendant and deter others. The profit made by the
defendant from publication is taken into account but is not conclusive,
as exemplary damages can be awarded even if there is no profit,
provided the defendant had mercenary motives.
32. In Max Mosley v News Group Newspapers
Limited, Eady J refused to grant a claim for exemplary damages.
He considered it questionable whether such entitlement could be
founded on privacy and/or breach of confidence and felt it inappropriate
to extend the scope of this relief into a new area of law. He
did not consider there was any pressing social need in English
law for the media to face the "somewhat unpredictable risk
of being fined" on a quasi criminal basis.
33. General damages in libel are intended
to vindicate and restore a reputation. But this outcome is impossible
where embarrassing personal information has been published and,
indeed, the damage is only likely to be increased by pursuing
a court action. If there is no injunction obtained to stop the
damaging publication, no monetary award will adequately compensate
the infringement of privacy, no matter how great the sum—as
Eady J observed in the Mosley case.
34. So while exemplary damages should remain
available for libel, we do not believe the law should be extended
at present to allow their award in privacy cases. In any event,
in our view to do so would require the intervention of Parliament.
Given that no financial sum can compensate for a breach of privacy,
we consider that there is no pressing social need for a change
in the law.
Whether, in the light of recent court rulings,
the balance between press freedom and personal privacy is the
right one
35. It is important to remember that recent
court rulings in privacy cases are only putting into effect the
protection afforded under the European Convention of Human Rights,
and in particular Article 8(1) ("Everyone has the right to
respect for his private and family life, his home and correspondence")
and Article 10 ("Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public
authority regardless of frontiers").
36. The case of Campbell v MGN Limited
recognised that these rights apply to disputes between individuals
and between an individual and a non-governmental body, such as
a newspaper. If a claimant can overcome the first hurdle by demonstrating
a reasonable expectation of privacy, it is clear that the court
is required then to carry out the next step of weighing the relevant
competing Convention rights by an "intense focus" upon
the individual facts of the case. In both Campbell and
Re S (a child), it was expressly recognised that no one
Convention right takes automatic precedence over another. The
Mosley case confirmed that the rights of free expression as protected
by Article 10, whether in respect of an individual selling a story
or the journalist working on it, must no longer be regarded as
"simply trumping" any privacy rights that may be established
on the part of the claimant, nor can it be said that without qualification
there is a "public interest that the truth should out".
37. Once a reasonable expectation of privacy
has been established, there must then be some countervailing consideration
of public interest which can justify the intrusion. The media
often argue that public figures have to expect less privacy, or
be seen as role models, as justification for greater intrusion.
The balancing test has been best described as turning on proportionality
in the Douglas v Hello! judgment and whether or not the
degree of intrusion into the claimants' privacy was proportionate
to the public interest being served by it.
38. All recent cases have involved a very
careful analysis of the individual facts. It does seem clear,
however, that once a reasonable expectation of privacy has been
established in connection with sexual activities or orientation,
medical information or the privacy of a child, it is not for the
Judge to express a moral judgement or be swayed by personal distaste
in order to deny that right. Particular consideration has also
been given to the use of photographs or other visual images.
39. The Courts have been careful and diligent
in analysing the application of the European Convention on Human
Rights, taking into account the interpretations emerging from
the European Courts and House of Lords, and we say their approach
appears to strike the correct balance.
January 2009
| 
