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Lord Lester of Herne Hill: The last thing I want to appear to be is a traditionalist when it comes to the procedures of the 19th century. I am wholly persuaded by what has been said both by the noble and learned Lord, Lord Hoffmann, and by the noble and learned

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Lord the Lord Chancellor. However, I think that the noble and learned Lord, Lord Hoffmann, may turn out to be an optimist if he thinks that the members of my profession will not seek to graft onto the new phrase a great deal of the baggage from the past. But no doubt a Pepper v. Hart reading of this debate may serve to discourage that from happening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 35:

Page 8, line 13, at end insert--
("This is not an exhaustive list of the matters which may be considered.").

The noble Lord said: This is an amendment by way of a probing query. It is to establish whether or not it is intended that in Clause 8(4) the statement of matters to which the court shall have regard is to be wholly and exclusively exhaustive. I beg to move.

The Lord Chancellor: This was in the clause for consultation. We concluded in the light of the consultation that it was redundant, and I think it is so. The intention is that these matters are ones that the court should have regard to. But they are not exhaustive.

Lord Williams of Mostyn: I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Meaning of summary relief]:

[Amendment No. 36 not moved.]

Lord Lester of Herne Hill moved Amendment No. 37:

Page 8, line 22, leave out ("£10,000") and insert ("£25,000").

The noble Lord said: Under Clauses 8, 9 and 10 of the Bill, it is envisaged that every defamation action shall come at an early stage before a judge to determine whether it is suitable for summary disposal. The aim of the introduction of summary proceedings is, according to the Lord Chancellor's consultation paper, to offer a streamlined disposal procedure where the claim is straightforward and less serious. I find it disappointing, therefore, that the initial ceiling on the amount of damages that can be awarded under the summary procedure has been set at a level which is so low. I perfectly understand what has been said already in the debate by the noble and learned Lord, Lord Hoffmann, that it is not designed to deal with cases where the plaintiffs are after serious money. But at the moment few juries would award less than £10,000 to a successful plaintiff. Indeed, £10,000 would hardly begin to cover even the costs of the average plaintiff in a libel action, so heavy are the legal costs of proceedings of this kind.

I believe that the operation of the summary procedure is likely to be constrained as a result. Under Clause 8(3) of the Bill, a case will not be disposed of summarily unless the court is satisfied,

    "that summary relief will adequately compensate [the plaintiff] for the wrong he has suffered".

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Unless judges were to adopt the attitude that the mandatory publication of an apology or the text of the judgment, provided substantial vindication for the plaintiff warranting a much lower award of damages, it seems likely that £10,000 will be considered such a small sum that the number of cases considered by judges suitable for summary disposal will be very restricted. That will entirely subvert the reasons for the introduction of the summary procedure, resulting in the procedure becoming merely an extra interlocutory stage in every defamation case and actually adding, perversely, to the cost and length of defamation litigation.

The alternative scenario is that judges will frequently dispose of cases summarily by awarding the maximum of £10,000 damages. Although that will be perfectly in accordance with the aims of the summary procedure, it will be likely to result in a host of additional appeals from disgruntled plaintiffs and the courts would then become overburdened. There is a power in Clause 9 for the Lord Chancellor to amend the maximum amount of damages by order. I suggest that it might be preferable for the Bill to be amended on its face to make it workable from the outset rather than seeing it amended by order in council at a later stage out of necessity because the summary procedure proved to be unworkable or much less used than it ought to be in practice. I beg to move.

9.15 p.m.

Lord Williams of Mostyn: I support this amendment substantially on the basis which was put forward by the noble Lord, Lord Lester of Herne Hill. It is true, as he said, that Clause 9(1)(c) allows for an order by the Lord Chancellor to increase the amount, but inertia being what it is, the temptation will be to say, "Well, Parliament thought that it was appropriate in 1996 and therefore there will be no significant increase for some time". It is simply a discretionary power for the judge to manoeuvre within the ceiling of £25,000. It is not a vast sum these days even in terms of personal injury awards, which are far too low, I suggest, and certainly in terms of what one expects in libel awards in the moderate area. Therefore, I invite the noble and learned Lord the Lord Chancellor to accede to this amendment.

Lord Hoffmann: I shall not repeat what I said earlier about the purpose of this procedure. Unless I misunderstood him, some of the points made by my noble friend Lord Lester of Herne Hill seemed to be based on a misreading of the Bill as it now stands, but they might have been properly directed to the Bill as it went out for consultation.

The Bill as it now stands states in Clause 8(3),

    "Unless the plaintiff asks for summary relief, the court shall not act under this subsection unless it is satisfied that summary relief will adequately compensate him for the wrong he has suffered".
In other words, if the plaintiff is making the application for summary relief and is content to have £10,000 or less, the court is not concerned whether that will be adequate. It is up to the plaintiff to decide that he is going to act under that procedure and choose that as his limit in order to get the other advantages of the summary

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procedure. It is only if the defendant is seeking to rely on the summary procedure and have the action dismissed as a trivial one, that the judge has to be satisfied that, come what may, the plaintiff would not be able to recover more than £10,000.

The Lord Chancellor: I gratefully accept the point made by my noble and learned friend Lord Hoffmann. But even with that point it is a difficult matter to decide what the right figure should be. The intention behind this series of clauses is to provide a reasonably speedy remedy for plaintiffs who are not particularly concerned about serious money, although in my book £10,000 is quite serious money. I can understand that others have a different appreciation of that. The precise level is difficult to decide. I do not know why £25,000 is thought to be a particularly appropriate amount either. The idea that a plaintiff should be able to go for that means that in many cases it will be an advantage to the defendant to accede to that procedure. I do not want to lose that because I want to give the person who wants a summary and rapid remedy a remedy which is likely to be attractive from the defendant's point of view also. The protection of the £10,000 limit is important for the defendant. I am willing to consider this further, but at the moment I am inclined to think that the £10,000 figure is reasonable for the purposes of this clause.

Lord Lester of Herne Hill: I am grateful to the noble and learned Lord, Lord Hoffmann, for correcting my misreading of the Bill. I suppose that my real concern is to set the figure as high as one reasonably can to compensate plaintiffs without deterring defendants from taking part in the procedure. I think that £10,000 is lower than the amount for which newspapers would be likely to settle under the procedure. It is a question of judgment.

The noble and learned Lord the Lord Chancellor asked: why £25,000? The answer is that in my practical experience that is the sort of figure which newspapers would tend to regard as a reasonable top limit for such a procedure. I am not saying that because that is what I have been told by newspapers; it is a judgment from my experience of seeking to settle cases. I still regard £10,000 as very low. I am seeking to tempt the parties into more and more settlements under this procedure by raising the figure. I am sure that this matter will have to be reconsidered at some stage and I would hope that it will be sooner rather than later. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

Clause 9 agreed to.

Clauses 10 and 11 agreed to.

Clause 12 [Evidence of convictions]:

On Question, Whether Clause 12 shall stand part of the Bill?

Lord Williams of Mostyn: This is a troublesome clause which, on the basis of the correspondence that I have received, concerns many who act in this area. Its consequence would be that previous convictions would

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be proof in respect of the plaintiff that he had committed the offence in question, but not in respect of the defendant or any person giving evidence on behalf of the defendant. I believe that that opens the door to collateral attacks on criminal convictions. It may cause unfairness to certain plaintiffs, such as doctors, other professional men, police officers and prison officers. The noble and learned Lord the Lord Chancellor was kind enough to write to me at length on the matter, but I am afraid that I remain unconvinced. I do not see why a plaintiff should be disabled whereas a defendant and/or his witnesses are not.

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