Press standards, privacy and libel - Culture, Media and Sport Committee Contents

Examination of Witness (Question Numbers 1000-1016)


19 MAY 2009

  Q1000  Philip Davies: Again that is encouraging. I certainly view, according to the comments you made earlier, that this, probably above all else, is having a chilling effect on journalists, in that they are becoming reluctant to print stories that they probably should be printing in the public interest as a result of it. But when we spoke to our eminent judges earlier, they seemed to indicate that there did not seem to be sufficient evidence upon which to act. We put it to them that a vast proportion—we heard 98%—of CFA cases were victorious. They only failed in 2% of cases, but they said that they did not have any evidence. From my recollection of what they said, they seemed to be encouraging the Government to find the evidence of this kind of thing, so that decisions could be made with all the facts in front of us. Does the Government plan to commission work to get the evidence of how CFAs are working in practice?

  Mr Straw: In defamation cases?

  Q1001  Philip Davies: Yes.

  Mr Straw: The evidence has been presented jointly by the Society of Editors and the Newspaper Society, who did a long schedule of known CFA cases. I do not think it was completely comprehensive and there has been further discussion between Lord Justice Jackson's staff, as I understand it, and the media organisations. I think where we will get to is that there will not be a huge argument about the data, there will be debate about what is reasonable. My view is this: first of all, in quite a number of cases, not in every case—which is what the plaintiffs' solicitors say—the ratio between the awards of damages and costs is very significant, not to say astonishing. In the case which we quote on page 7 of this document, the Daily Telegraph Group, who were awarded damages of £130,000, was significantly less than the claimants' costs, whose base costs alone, that is before uplift, were £317,000. Just picking up your point, I am as certain as I am sitting here that the very high risk of costs does have a chilling effect, particularly on the regional and local media. It is for them to give your Committee details if they have not already done so, not for me. In a matter involving one of the Lancashire newspapers—not, let me say, the one that circulates in my constituency—where they offered an apology for what at worst was a simple mistake and an innocent mistake, they face not only having to pay damages but ridiculous costs, because in the end they decided they had to quit because they were going to be at risk of more costs. That is not the purpose of a CFA arrangement. A CFA arrangement is there to ensure better access to justice; not that if people are inadvertently subject to some mistake which can be corrected they can then go in for a lottery.

  Q1002  Philip Davies: Is your main concern about CFAs the success fee, in the sense that the Master of the Rolls said that the success fee was there in order to cover the cost of cases that they lose? But if, as seems to be the case from the evidence that I have heard, they tend to go on CFAs when they think they have a case which is a racing certainty, which they could not possibly lose, so that there is no risk and they are, therefore, in effect, earning up to double for the easiest possible cases to prosecute, that seems to me to be sort of some kind of a racket and an abuse of what was intended. Is that your major concern about the CFAs?

  Mr Straw: I would like to refer you to the questions that we ask in the consultation document, which are about, for example, whether you introduce a maximum recoverable hourly rate and whether you have cost capping in every case or just in some. There are also questions about the issue of after the event insurance, including its prior notification to the other side, whether there should be a proportionality test to total cost, not just base costs, and also the scope of CFAs as a whole. We are now just past the closing date and we are currently assessing the responses to these consultations. That is where we are. But those are key questions, it seems to me.

  Q1003  Philip Davies: To be topical, do you fear that they may be sticking to the letter of the rules of CFAs but not necessarily to the spirit of the rules?

  Mr Straw: I am sorry, who are "they"?

  Q1004  Philip Davies: The lawyers who are taking these cases under CFAs, that they think they do not have a possible chance of losing.

  Mr Straw: What happens in all sorts of areas in litigation is people seek to push their advantage. They want to win. I used to earn an honest penny by that approach. The blunt truth is that if you are faced with a prospect of wining through some literal or casualistic interpretation or losing on the basis of conceding the spirit of what is behind that particular provision, your client would expect you to go for the former. That is how it is. What you have to do is to make sure the rules are pretty robust.

  Q1005  Paul Farrelly: Clearly I am so biased that I read some of the questions in this excellent document as rhetorical questions, because the answers are so blindingly obvious. Perhaps that was the spirit in which it was intended.

  Mr Straw: Not quite. I would not have decided to issue the consultation in advance of and in parallel with Lord Justice Jackson's review had I not thought that there was a particular mischief that needed to be dealt with. And I wanted to get on with it, so I was satisfied that the media organisations and others made a case. I have yet to see the results.

  Q1006  Paul Farrelly: This document is clearly about CFAs and defamation and this is the focus of our inquiry. Just so that we can take evidence on this and we do not lose the perspective on the wider application of CFAs, could you say a few words about your concerns about CFAs and their effect in the NHS and medical proceedings, just to give us some perspective?

  Mr Straw: Generally, one of those responding gave this answer in earlier evidence. CFAs, on the whole, have worked to improve access to justice in the context in which civil legal aid for these areas was removed. There was never civil legal aid for defamation but there was, for example, in areas of personal injury. You do not want, therefore, to throw the baby out with the bathwater. On the other hand, what concerns do I have? I think there is a particular problem in medical negligence cases of the interaction of the availability of legal aid with CFAs, which is the only area, essentially, of personal injury, in its widest sense, where legal aid is available. We have to be very careful here. It was decided 10 years ago not to exclude medical negligence cases from legal aid when all other PI cases were being excluded, because the number of medical evidence cases was rather fewer and the law was being developed and so on. Nobody wants to see an applicant of low means who has suffered egregiously under the hands of the NHS being denied access to justice. The interaction of those two is something I am looking at with some care. There is a wider issue about CFAs which is basically to do with the same issues as raised here, levels of hourly rate and levels of uplift and advance information of ATEs. Lord Justice Jackson is getting to grips with that and I look forward to his report.

  Q1007  Paul Farrelly: Just so that we can have a perspective, the operation of CFAs is a serious issue in defamation.

  Mr Straw: Yes.

  Q1008  Paul Farrelly: Just as a statement, it is a serious issue within the medical field as well.

  Mr Straw: It is not the principle, but it is the practice.

  Q1009  Paul Farrelly: It is the effect.

  Mr Straw: Yes. There is one other area. Either yesterday or today I told the House that I am going to take legislation to statutorily control contingency fee arrangements. These contingency fee arrangements are currently unregulated. They are the ones which are being used by certain solicitors' firms in respect of employment tribunals, particularly equal pay arrangements, where local authorities and trade unions have come to an arrangement, say, over equal pay and phasing it in, and then the lawyers acting for individuals have sued local authorities and sued the trade unions as well. These fees, for reasons to do with an anomaly in interpretation of the law, are currently totally unregulated, so I am going to deal with those.

  Q1010  Paul Farrelly: Your case with your Lancashire newspaper seems to be one particular case of which you are aware where the offer of amends procedure is clearly not working as it should. Another case we have taken evidence on is the case of Tesco v Guardian where the Guardian went through so many hoops, the like of which I have never seen as a former journalist, and clearly it did not work then. What consideration have you given to how the offer of amends procedure might be changed to give the swift and less costly redress that was intended?

  Mr Straw: I certainly think that needs to be looked at and actively considered. That was one of the surprises in this Lancashire newspaper case. Obviously I did not know all the details. I only had the explanation as the newspaper and the Society of Editors had put it to me, not the other side, but it did seem pretty odd.

  Q1011  Paul Farrelly: Coming on to responsible journalism again, there are different ways of cracking the nuts. In the Tesco case, the Jameel defence was not employed because they did not think it would work. They got the tax wrong but the thrust was right. It turned out that the company was aggressively avoiding the tax through additional evidence anyway. In the States, of course, Tesco might be considered a public figure and that sort of lawsuit would not be possible. Australia has gone further than the quarter-way house that we have; it has taken a different step, when it reformed its libel and defamation laws, of saying that certain bodies with employees of more than 10 cannot sue, although individuals can, and they have to go over certain hurdles. What would be the advantages and disadvantages in your opinion of an Australian law?

  Mr Straw: The advantages from the point of view of the media organisation would be obvious. They would escape liability in all circumstances. But bodies corporate do have reputations and on their reputations depend the livelihoods of, in large corporations, thousands of people and their share price, in which your pension fund or mine might be invested. I am aware, just, of the bare bones of what has happened in Australia, and I think we should always look at parallel examples but I would need a really strong argument in favour to move on that.

  Q1012  Paul Farrelly: Do you think that public figures should be required to face additional hurdles in defamation cases?

  Mr Straw: They are in practice. And privacy as well. I do not complain about this, for the avoidance of doubt, but the level of detail, for example, which is now available about our expenses is not available/could not be made available in respect of almost anybody else in British society. That is just true. That is something you have to accept. It goes with being an elected representative. If you are a senior minister, you work in a goldfish bowl. Maybe that is just life. My concern has never been about myself so much, although I think that if you, as I seek to do—I do not parade my family but keep them in the background—but if you do parade your family then I think it is tough—you are entitled to some privacy yourself as far as your family life is concerned. I think one's own family, in any event, is entitled to privacy unless they are adult and they volunteer for public life. As a matter of fact, on that I think the papers are gradually getting better rather than worse, but it is very important that members of family of people in public life, not least MPs, are protected.

  Q1013  Alan Keen: Why did you not intervene to defend Mr Justice Eady against Paul Dacre's when his attack on Mr Justice Eady was generally accepted to be inaccurate anyway?

  Mr Straw: My duty, indeed I swear an oath—three oaths altogether—to this effect: to uphold the integrity and independence of the judiciary. If I had judged that that was being significantly challenged in this case, I might have said something but I did not judge it necessary, and it is certainly not my role to provide a running commentary on particular judgments which may or may not be controversial. Indeed, that would then be to do exactly that which I am not supposed to do, which is, as it were, to second-guess what the courts have done. At the moment, if I had said anything about that case—in any event, it could have gone to appeal—I would have been interfering in essentially an argument between a court who happened to find on behalf of the plaintiff and the defendant newspaper (News International) and those who were supporting it. I think it is entirely appropriate in a case like that or loads of other cases for me not to offer a running commentary. It is different if you take criminal cases. Sometimes you get judges or magistrates being criticised for bail restrictions, for example. If I think it necessary—and I have in the past—I have gone out and said they may, as it transpires, have made the wrong call, but this is an impossible task that we are expecting people to do, to predict the behaviour of people on risk factors which they do their best on. You can never be certain that if you put an offender on bail or a defendant, he is not going to commit a further offence. I judge it on the particular facts.

  Q1014  Alan Keen: I can recollect that two lawyers agreed, when we put this question to them earlier on in the inquiry, that the law possibly should be changed, although it would be difficult. This is in the course of newspapers whose aim it is to sell newspapers, so the headline and also the introductory paragraph might indicate one thing to the public and, as long as further down they put that there was nothing wrong, nothing illegal, that means it is fine—and it does not matter how misleading the headlines or the introductory paragraph are. Two lawyers said they thought that the law should be changed so that that could be taken into account. The main thing was that the public were misled on purpose by the newspaper. Paul Dacre said, by the way, that the Daily Mail has never done that to his knowledge.

  Mr Straw: If there is argument about whether or not it is defamatory, it would be the article as a whole that would be taken. If in screaming headlines it says, "XYZ is guilty of these crimes" and he is accused of being a terrible person and then you get to the bottom of page 23 and in tiny type it says, "XYZ denied this and we do not have any evidence to prove it," of course it would be defamatory. As I have said earlier in answer to one or two questions, I look to see what your Committee says, Chairman, but I think it would be pretty difficult to try to come up with some mechanical rule which in advance of a particular case distinguished between what was said in the headline and what was said in the body of the story. How these things are judged in practice is that you look at the story and think, "What would any normal reader—the man on the Clapham omnibus—take away from this?"

  Q1015  Alan Keen: It seemed to be accepted that up until now that was okay.

  Mr Straw: I am not saying it is okay, but I am saying that of course headlines can be defamatory. I am not a defamation lawyer, but I am quite certain that if a headline was outrageously defamatory, the fact that later down in the story it said words to the effect, "Oh, by the way, we don't think this is true," or "It's only an allegation" would not be much of a defence. You can show that the headline was malicious, apart from anything else, and get exemplary damages. This note says: "The House of Lords indicated in the 1995 case of Charleston that, although the question of whether the text of an article is sufficient to neutralise an otherwise defamatory headline is a matter for the jury, a claim for libel cannot be founded on a headline or photograph in isolation from the related text and the question of whether an article is defamatory has to be answered by reference to the response of the ordinary, reasonable reader of the entire publication." That, really, is what I said.

  Q1016  Alan Keen: I was shocked when I received the expenses detail that the Telegraph are alleged to have bought to find that it included some of my staff's bank details. Who should care about that? Has any action been taken to make sure that the Telegraph is caring to keep that information?

  Mr Straw: Because the Daily Telegraph has the unredacted details, they will have access to a lot of information. As far as I know they have been extremely careful not to publish any of that detail. They have no interest, financial or public interest, in making any of it available. I am told that the Information Commissioner is in touch with the House authorities about this, because clearly there are various obligations under the Data Protection Act—which I am pretty certain the Telegraph would be well aware of.

  Chairman: I think we are in danger of straying into an area which would keep us here for another two hours. On that note, I would like to say thank you very much.

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