Examination of Witness (Question Numbers
1000-1016)
RT HON
JACK STRAW
MP
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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