Examination of Witnesses (Question Numbers
80-99)
MR MARK
THOMSON, MR
JEREMY CLARKE-WILLIAMS,
MR JONATHAN
COAD AND
MR ROD
CHRISTIE-MILLER
24 FEBRUARY 2009
Q80 Chairman: You will have heard
in the earlier session Marcus Partington say that he believed
that on a regular basis lawyers representing claimants were prolonging
proceedings and as a result were racking up huge costs. Do you
accept that that happens?
Mr Thomson: No, I do not. I have
not seen it on any matter. Most cases settle very quickly. People
can form a view of risk, which has always gone on before CFAs
and after. You assess risk and you form a view and settle quickly.
We are all too busy to drag on a case. It is just not worth it.
Q81 Chairman: You heard examples
of cases involving relatively simple matters which should have
been possible to determine in a very short space of time going
on for days and days and then charging up huge costs.
Mr Thomson: I cannot comment on
cases I do not know about. I have dealt with two cases recently
on CFAs. One was of a dental technician who was accused of fraud
suing the BBC. He would not have been able to get vindication
without a CFA. Very quickly, as in most cases, the parties formed
a view and he was awarded £50,000 in damages. He has told
me that but for a CFA he would still be labelled a fraudster by
the BBC. There was a similar action last year, quite a significant
one, where an MP sued a local newspaper over quite serious allegations,
this was on a CFA, but it settled quickly and the success fee
was modest. Initially a complaint was made to the PCC but it got
bogged down in the process. They then consulted us and reasonably
quickly an apology on the front page of that local newspaper,
which has an impact for MPs, was negotiated, modest damages were
sorted out and his reputation was vindicated. The newspapers say,
"Well, they're always going to win". When you assess
the risk at the outset of a case you cannot guarantee that certain
determinations are right. There may be risks on the meaning and
risks on disclosure. It is by no means always black and white
as to what your assessment is. On one of the cases we were genuinely
concerned about whether it was defamatory, but the newspaper took
a different view and conceded it. Real risk assessment does take
place at the outset and there are concerns about it.
Q82 Chairman: So the kind of example
which was highlighted by Paul Dacre, which was of an action taken
by an MP which resulted in him winning £5,000 in damages
but where the total costs awarded against Associated Newspapers
was £520,000, you would just regard as being part of the
normal procedure under fees?
Mr Christie-Miller: Whenever we
meet a client for the first time and they say they have been defamed
by a newspaper or broadcaster what they are looking to achieve
is repair to their reputation. It is very much second best. It
is rather like a mirror that has been cracked and taped back together
again. You can go a certain way to repair a reputation, but once
these things are out there they are out there forever, particularly
in today's internet Google searches. It is no longer yesterday's
fish and chip wrapper what the newspapers say about you because
you type somebody's name into Google and you will find the same
old things coming back up at the top of the search. Clients are
not after the £5,000 of damages. What they are after is a
public vindication that these people got it wrong. If there is
one message that I would like to get across today, it is that
clients are looking either to protect private information that
should not be published in the first place or repair their reputation
after it has been damaged. If we can find some way to push the
assessment of what should be published back along the chronological
order then I think clients will be happy. Clients do not want
to get involved in two and a half years litigations where they
may or may not win at the end, they may or may not be supported
by a CFA, there will be some cost shortfalls and they may get
a jury award where the jury say, "Yes, we find for you,"
and they may get a sum of money, but that is not really what they
want, it is very much second best.
Q83 Rosemary McKenna: That is very
much exactly what I think this whole inquiry should be about,
that is, how we protect people's privacy and reputations. Here
we have two groups of very highly paid lawyers arguing amongst
themselves as to who is earning too much or who is being paid
too much and in the middle of it all we have the client who is
very often a very ordinary person going about their daily lives
and having their privacy invaded and sometimes it is libelous,
sometimes it is completely false and sometimes it is true, but
who really cares, who should know about it? Do any of you see
any evidence that the media is being more careful in what they
print given the huge sums of money that they have had to pay out?
Mr Christie-Miller: No. I think
it is quite the contrary. I think the media are being much less
careful. There have been a number of examples recently where the
media knew or suspected that they were going to be publishing
something which a court would injunct because it was invasive
of somebody's privacy and they decided, "Well, if we run
this and if we tell the target they will probably get an injunction
and we will not be allowed to run it. Let's run it anyway."
If one goes to some of the cross-examination of the News of
the World's editor in the Max Mosley trial, there is a reference
there to one of the considerations being that Mr Mosley would
seek an injunction if notice was given to him. There are many
examples. I can think of examples in my practice where people
have not been given notice of defamatory stories or stories which
are going to be in breach of their privacy and we suspect it is
because the newspaper—and it is not just newspapers—suspected
that they would be prevented from publishing that story. Whether
they should on an Article 8/Article 10 balance is a different
issue which I am more than happy to talk about if that is something
the Committee wants to move on to.
Mr Clarke-Williams: There was
talk of a Reynolds defence earlier and the requirement
for the newspaper to demonstrate responsible journalism. A key
component of that has always been putting your allegations to
the target of your article in advance and then publishing their
responses.
Q84 Chairman: Would you support calls
for a requirement for prior notification?
Mr Christie-Miller: Yes.
Mr Clarke-Williams: Yes.
Mr Thomson: Yes.
Mr Christie-Miller: I think it
would also make an enormous difference in terms of the amount
of follow-on litigation. All the lawyers here will make most of
their money from litigating afterwards, let us be honest. We do
not make as much money from dealing with a story prior to publication
but it is very much what our clients want. If there was a requirement
for prior notification of stories which are going to be seriously
defamatory—and Parliament would have to agree exactly how
the words worked—or likely to invade somebody's privacy
then I would be very much in favour of it.
Mr Coad: I regret that I have
not brought it with me, but the PCC publishes an Editors' Codebook
and the Editors' Codebook actually says that people should be
given advance notice. So it is actually something which the press
itself has endorsed because the Editors' Codebook is written entirely
by the press.
Q85 Chairman: So an example like
Mr Mosley, where the News of the World published a dummy
first edition and kept back the story about him until the latter
editions so that he had absolutely no warning and had no opportunity
to seek legal redress, you would legislate against that being
able to happen?
Mr Christie-Miller: We are not
working on the Mosley case.
Q86 Chairman: As a general example.
Mr Christie-Miller: As I understand
it, he is going before the European Court asking for a ruling
that there should be prior notice. I would agree that there should
be prior notice given on those kinds of stories and in the absence
of prior notice there should be some deterrent for the media if
they do not give notice. That may be an instance where there should
be an elevated costs award.
Q87 Mr Evans: Let me go back to this
thing about the CFAs and picking up the easy cases. I suspect
doing a risk assessment is quite costly in time devoted to it.
How many cases do you dismiss percentage wise?
Mr Christie-Miller: We have done
four CFAs in the entire history of the firm.[72]
They were two House of Lords cases for Naomi Campbell, the groundbreaking
privacy substantive case in the House of Lords and then a costs
case, a House of Lords case for Roman Polanski, one case for somebody
whose photographs of them taken on a private beach on honeymoon
were published, and then a third case that was a complaint to
a broadcaster to issue proceedings that were never issued.
Q88 Chairman: Mark Thomson, your
firm has been singled out as being the libel equivalent to ambulance
chasers. Presumably you would not accept that.
Mr Thomson: I am not on the CFA
Committee. They seem to reject a number of my cases and maybe
it is because they were involving privacy. I had a case two years
ago. We were in debate, it was not accepted on the CFA and they
did not accept it, the client accepted the risk and therefore
the potential of losing his house and we won. It was a case against
a celebrity magazine. We have differences of opinion. They seem
to reject a lot of potential cases when they assess the risk.
A lot of the area in privacy is still developing to some extent.
There is risk in that as the Naomi Campbell case pointed out.
She lost in the Court of Appeal and won in the House of Lords
by 3:2. CFA committees do not always take every case. There are
differing views about risk. We cannot look into the future and
predict precisely what a judge may say.
Q89 Mr Evans: Peter Oborne at the
moment is currently taunting the Home Secretary to sue him. Maybe
you should be staying by the phone, Mark. You may just get that
call on a CFA.
Mr Thomson: Suing on what?
Q90 Mr Evans: Allegations on the
Additional Cost Allowance. He has written serious allegations
and said, "Come on, sue me." Is that a case you would
relish to take on?
Mr Thomson: I think it may be
a political speech.
Mr Coad: I think it is important
in all of these things to remember that the litigation is a battle
of two sides. As far as the length of the case is concerned, it
is hard to get across from those on this side how extraordinarily
a newspaper can make something which should be relatively straightforward
a war of attrition. Secondly, you pick high profile celebrities,
but a lot of them are in a situation where realistically they
cannot afford to lose litigation and the newspaper can. Again,
unless you sit with a client through a trial or in the run up
to the trial you cannot understand just what tension that is.
They are not familiar with the litigation process whereas newspapers
are. There are enormous psychological differences of pressure
in litigation. Thirdly, in a non-CFA case if the newspaper decides
to make a big battle of something for whatever reason and it could
be a litigation that lasts 18 months, so a client could well be
faced with a bill of half a million pounds, which is a big sum
of money for a lot of them, then the reality is they will get
to a trial, so by the grace of God they win. Let us say they win
£10,000. There will be a costs shortfall, because they will
not recover all their costs because the courts control the amount
of costs, which will be considerably in excess of £10,000.
In those circumstances, in an attempt to vindicate them from an
allegation which is completely untrue they have gone through 18
months of hell, of having everything but the kitchen sink thrown
at them by the newspapers—and if we had time I could tell
you some reasonably hair-raising examples—and at the end
of that they make a net loss of £60,000, £70,000, £80,000
or £90,000 and they (i.e. the newspapers) know that.
Q91 Mr Evans: So you think some newspapers
sit down, they know what they are about to print is complete rubbish
and their accountants and lawyers say, "Alright, fair enough,
print it because it is only going to cost you £100,000 and
your circulation will go through the roof"?
Mr Coad: You will have to read
Piers Morgan's book where he describes that very process. So the
answer is it is not a question of me thinking it, they say that
is what they do. It is his first book. You will learn all you
need to know in there.
Mr Clarke-Williams: My firm's
statistics show approximately that we take on and pursue something
under 10% of the requests for advice that we receive in relation
to defamation and privacy claims and a much smaller percentage
goes to the CFA committee for risk assessment.
Q92 Paul Farrelly: I am sure the
Committee would find it helpful, because there is a dispute over
this, if you could provide us with the anonymized figures that
you have already submitted to the inquiry that is going on.
Mr Thomson: They are being submitted.
They have not yet been submitted.
Paul Farrelly: That would be very helpful.
The chilling effect of CFAs has been disputed. I want to move
on now to the issue of the chilling effect of defamation laws
as they stand in the UK. I could pick on the Police Federation
cases or speculate about whether we might have had better reporting
about City banks had we not got our libel laws. I just wanted
to take one case which has been mentioned and that is Tesco and
Guardian Newspapers. I think it is important to read the bare
bones of this for the record. The Guardian accused Tesco
of tax evasion but mistakenly it got the wrong tax. Tesco was
avoiding tax but it was Stamp Duty Land Tax when the Guardian
originally alleged it was Corporation Tax. Tesco sued for libel
and the editor for malicious falsehood. The Guardian apologised,
it corrected the story at length and made an offer of amends but
Tesco still pursued the action in court. Even though, thanks to
research by Private Eye, Tesco was indeed established to
be avoiding Corporation Tax through a labyrinth of offshore companies,
Tesco tried to omit that from the court's consideration, but Justice
Eady, who has been damned by Paul Dacre, threw that attempt out
and also the action for malicious falsehood. The action was settled
out of court for a small amount of damages. The facts of the case
are quite clear. The thrust of the Guardian's story was
correct.
Chairman: Paul, I think you should apply
for an adjournment debate on this issue rather than read it all
into the record!
Q93 Paul Farrelly: It was avoiding
tax aggressively and serially and the Guardian was left
with a bill that it is now disputing for £800,000 of which
£354,000 relates to the costs of hiring accountants and lawyers
to explain the tax avoidance schemes to the claimant's own side.
Surely that case shows how unbalanced the defamation laws are
in this country and that they are ripe for abuse by large corporations,
such as Tesco, to produce a chilling effect on responsible journalism.
How would you counter that argument?
Mr Thomson: There is a confidentiality
agreement in place on that settlement.
Q94 Paul Farrelly: You can generalise
from the case.
Mr Thomson: I cannot generalise
from the case without trespassing on our confidentiality agreement,
and it was not my case. I suggest you ask the Guardian
what their costs were at the time and their research costs, but
I cannot make any further comment. There is a confidentiality
agreement. I am going to abide by it.
Mr Coad: I know little more about
the case than what you say. I can only speak from my own coal
face experience and cite, for example, Fridays where I have been
suing a newspaper and I have had six letters on one day, where
I have attended a hearing on my own, where I have been met at
the hearing by a silk accompanied by the head of the newspaper's
legal team, accompanied by a senior partner from a City firm,
accompanied by the assistant to the senior partner of the City
firm, accompanied by the assistant to the assistant to a senior
partner of a City firm, and fought my corner on that basis. I
am sure it is perfectly possible to pick out situations where
apparently large corporations have abused the system. I cannot
comment on that because I have not read enough about the case
to be sure. Each of us here could equally tell stories about how
the litigation process has been abused by large media corporations
in order to deny people justice by using their superior financial
power. You have got to be set in that context because each of
us coal faces could meet you with half a dozen other stories where
the abuses have been entirely the other way.
Mr Clarke-Williams: I do not know
very much more than what you have read out about that particular
case, but what I do know is that the Guardian ultimately
settled that case and so they must have received advice that they
were likely to lose at trial and for that reason presumably concluded
that the articles which they had published were wrong. I do not
know enough about the detail of the case to know why the costs
escalated to what on the face of it are massive proportions, but
the fact of the matter is that this seems to be a case where the
newspaper got it wrong.
Mr Christie-Miller: Let us not
forget that it is not just getting it wrong. If the newspaper
published something that is untrue then they cannot justify it,
they cannot then go ahead and prove that they got it right. They
can rely on the Reynolds Defence. I differ somewhat with my colleagues
who were up here before in terms of how the Reynolds Defence is
being applied. The Reynolds Defence essentially is there to protect
responsible journalism and so if the journalism is responsible
and that test has been increasingly flexibly applied there are
no longer 10 hoops one needs to jump through. In fact, the case
of Jameel in the House of Lords said the opposite, that
it was a flexible test that should be applied depending on the
circumstances of a particular case. It is a sad day for investigative
journalism if (a) the story is untrue and (b) it was not even
put together responsibly. One of the questions we were asked to
consider was whether there should be a Sullivan v New York
Times-style defence here in this country. It would be an even
sadder day for investigative journalism if the story was not true,
it was not responsibly published and the only defence that the
newspaper had was that the person they were attacking was a public
figure and that the journalist who wrote the article did not do
it with actual malice, which in this instance means knowing that
it is wrong.[73]
That is a defamer's charter to be honest.
Q95 Paul Farrelly: We have explored
Reynolds. Let us take an example that Australia has adopted.
It has taken the inability of public bodies to sue, councils,
government agencies, one step further. Companies larger than 10
employees cannot sue unless malice can be proven. What effect
do you think that might have on responsible journalism in this
country if that changed the law made here?
Mr Coad: I think you have got
to remember that newspapers have the power to bring quite large
companies down and the people in those companies who are then
made redundant and lose their jobs also have rights too. Did you
say we have dealt with Reynolds?
Q96 Paul Farrelly: We have explored
Reynolds.
Mr Coad: I am not sure you have
with us because I think there are questions about Reynolds.
I think it is perfectly reasonable to say that there is a finite
amount of damages that a large corporation should be allowed to
recover. Let us take an example where a newspaper says, "baby
milk A is dangerous and you should not drink it and baby milk
B is fine". It would be extraordinary if there was no mechanism
whereby a company could go in front of a judge and say, "Well,
actually, our baby milk is fine and, by the way, we have had to
lay 500 people off and there is therefore a good reason for us
to come in front of a judge and establish that that is not true."
It would be an extraordinary state of affairs, it seems to me.
Q97 Paul Farrelly: The internet has
changed the rules of the game. We heard earlier about a simple
change of the law, updating the law into this age by stating that
a claimant should have 12 months to sue from the first publication.
How would you view such a change in the internet age?
Mr Thomson: I am not sure. If
we are talking about a defamatory article, so we are talking about
a defamatory online article, in my view the internet changes the
game a lot because once it is online it gets repeated. Google
makes all articles and everyone's previous articles available.
If there is an article online in a national newspaper and it is
wrong, what they normally do is remove the article online because
they are concerned about re-publication by others and their liability
for damages. If they have left it online as an archive then, knowing
there is a complaint already in force, they are taking a big risk
because of the way the internet disseminates information and therefore
allows for repetition of defamatory allegations. I think the law
as it is should stay because of the power of the Internet otherwise
archive defamatory allegations will remain available. So even
though a newspaper might have apologised and said someone is not
a car thief, the allegation is repeated, Google keeps putting
it on their search engines and it is still out there, whereas
the person who has won his action and has been vindicated is then
faced with effectively the same article appearing. The reality
is that with most newspapers when you complain, you ask for and
they remove the online article. They look into the story and they
either fight or settle and so it is a fairly narrow point.
Mr Clarke-Williams: Dealing with
the online publications by newspapers about which one's clients
complain is relatively straightforward. The newspapers have well-established
procedures for dealing with complaints of that nature. The problem
I encounter in tending to act for ordinary individuals is when
the allegations either spread out to more obscure online publishers
or where perhaps single issue fanatics operating out of back rooms
in remote parts of the country through rather obscure internet
service providers pump out defamatory material which, if you manage
to close it down, opens up elsewhere. That is a much more difficult
problem to deal with over the internet. Quite often one has to
just trust the online reading public to attribute the weight to
that sort of internet publication that it deserves and just assume
that these are not to be taken seriously or not to be assumed
to be true because it is extremely difficult and extremely costly
to chase down that sort of internet publication.
Q98 Paul Farrelly: Anyone in public
life is acutely aware of the problems with the internet and the
inability to do much about it in the blogisphere and the world
out there. There is one case currently that has received quite
a lot of media attention. There are a number of newspapers where
legal action has been threatened. I think legal action commenced
against the New Statesman where you were seeking to remove
references to an Iraqi businessman called Nadhmi Auchi even though
he stands convicted of fraud in France over certain dealings with
the oil company Elf Aquitaine. A lot of people would say that
is you using the chilling effect of UK libel law with the threat
of costs and damages against a small publication such as the New
Statesman and that is an abuse of the libel laws.
Mr Thomson: It is not my case.
I cannot comment. If an English publication is reporting and restating
a libel online then they have got to form their own view as to
the risks and whether they can justify that. People have a reputation
which is presumed and that is a good thing because they are innocent
until proven guilty. If they print online or print in hard copy
and they take the risk of publication, if it is wrong they should
correct it or at the very least withdraw the article. We are assuming
here the article is defamatory and untrue.
Q99 Paul Farrelly: It may be defamatory
but true.
Mr Thomson: In which case they
will no doubt say "We're not taking it out".
72 Note by Witness: Whilst Schillings have acted
in four CFAs in libel or privacy cases, the firm has also acted
on a CFA in one copywright case. Back
73
Note by Witness: In the instant circumstances, the correct
definition of actual malice is "knowing the story to be wrong
or recklessly disregarding the truth or falsity of it". Back
| 
