UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 275-i
House of COMMONS
MINUTES OF EVIDENCE
TAKEN BEFORE
CULTURE, MEDIA AND SPORT COMMITTEE
PRESS STANDARDS, PRIVACY AND LIBEL
Tuesday 24 February 2009
MR NICK ARMSTRONG, MR TONY JAFFA, MR KEITH MATHIESON
and MR MARCUS PARTINGTON
MR MARK THOMSON, MR JEREMY CLARKE WILLIAMS, MR JONATHAN COAD and MR ROD CHRISTIE-MILLER
Evidence heard in Public Questions -1 - 118
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Transcribed by the Official Shorthand Writers to the Houses of Parliament:
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Oral Evidence
Taken before the Culture, Media and Sport Committee
on Tuesday 24 February 2009
Members present
Mr John Whittingdale, in the Chair
Janet Anderson
Philip Davies
Mr Nigel Evans
Paul Farrelly
Alan Keen
Rosemary McKenna
Mr Adrian Sanders
Helen Southworth
________________
Memoranda submitted by Charles Russell LLP, Foot Anstey Solicitors and the Media Lawyers Association
Examination of Witnesses
Witnesses: Mr Nick Armstrong, Charles Russell LLP, Mr Tony Jaffa, Foot-Anstey Solicitors, Mr Keith Mathieson, Reynolds Porter Chamberlain LLP and Mr Marcus Partington, Chairman, Media Lawyers Association, gave evidence.
Chairman: Good morning everybody. This is the first session of the Committee's new inquiry into press standards, privacy and libel. It is an inquiry which we anticipate will take a number of weeks and we are beginning by concentrating on the legal side. We have two panels this morning roughly divided between: the first panel representing those who appear for defendants; and the second panel those who appear representing claimants. It is probably not an exact delineation but is a rough guide. May I welcome, on to our first panel: Nick Armstrong from Charles Russell; Tony Jaffa of Foot-Anstey; Keith Mathieson of Reynolds Porter Chamberlain; and Marcus Partington Chairman of the Media Lawyers Association.
Paul Farrelly: Chairman, could I make a declaration of interest before we start. I am card-carrying member of the National Union of Journalists and have been since I worked as a journalist for Reuters, Independent on Sunday and Observer, which of course is owned by the Guardian Media Group. Whilst at the Observer, Chairman, I was a defendant in a libel action involving Peter Carter-Ruck and Partners; and, just for the avoidance of doubt, their client was a Richard Lanni, a very unsavoury Yorkshire former scrap merchant who had very questionable business dealings with the later convicted fraudster Stephen Hinchliffe. I make that declaration to make it clear it is not pertinent to current cases that are live in the media that we might consider.
Q1 Philip Davies: Could you tell us if there are any problems, as you see it, with the Conditional Fee Agreement scheme?
Mr Partington: Where to begin! There are huge problems with the Conditional Fee Agreements; but it is not really the Conditional Fee Agreements - the real problems lie in the base costs of solicitors who use them against media defendants, the success fees which are then charged on top and then the ATE premiums. Some of the people who sit behind me, who act for claimants, they charge £500/£575/£650 an hour; if you then double that with a 100% success fee you are over £1,000 an hour; you then add VAT on top and you are talking about a huge figure per hour. On top of that the premiums for ATE insurance run at roughly £68,000 per £100,000 worth of cover. The claimant does not pay for that insurance; they incur the premium but they then claim it back from the defendant. The vast majority of cases against the media are won by claimants. I estimate that Carter-Ruck, the main firm, probably lose maybe 2% of CFA cases. I think it would be interesting to ask them how many CFA cases they win and how many they lose. So the vast majority of cases they win but, yes, success fees can go up to 100%. The solution, we would suggest, is to eradicate the recovery of success fees from losing defendants. That would still leave Conditional Fee Agreements, which exist, for example, in Ireland where people have access to justice; there should then be mandatory prospective cost-capping of base costs to limit the level of fees which are charged; and there needs to be a proper examination of ATE insurance; we would say ATE premiums should not be recovered.
Q2 Philip Davies: Why is cost-capping used so rarely?
Mr Partington: Because the judiciary avoid cost-capping.
Q3 Philip Davies: It is not lawyers that avoid cost-capping then?
Mr Partington: You cannot get a cost cap with a claimant lawyer unless by agreement.
Mr Mathieson: I think the way in which the courts approach the question of cost-capping makes it extremely difficult to make out a case for a cost cap. You have got to show that costs are being incurred at a disproportionate rate; and you have got to show that it will not be possible to control those costs retrospectively. Those are pretty hard tests to fulfil. There have been very few cases in which cost-capping orders have actually been made for that reason. While I have got your attention, may I just mention one particular case I have had recently which shows the way in which CFAs operate in practice against the media. This was a case in which I acted for Reuters who were sued by a professional tennis player - not a well-known professional tennis player. His complaint was over a report that he had the worst record in professional tennis. This was not a desperately important story, nor was it a story which required much in the way of investigation or defence in the event that it was eventually to come to court. The tennis player employed his solicitors on a no-win no-fee basis. Reuters was extremely keen to defend the allegation. It thought that what it had published was basically true. There were, as there always are, slight niggles over aspects of the report, but basically Reuters was very keen to defend the case, and wanted to defend the case; it wanted to show that its journalists had done a proper job. Eventually it decided that it had really no option but to settle because it was faced with potential costs of trial for this comparatively unimportant libel case of £1.2 million. Those were the costs that it was going to have to pay the other side if it took the case to trial and lost. As you probably know, defendants do not have great record when it comes to taking cases before juries. So there was a clear risk even in a case where it was advised that it had a pretty strong case. It settled some four months before trial after the case had been going for five or six months; the costs that Reuters is now being asked to pay the other side are £250,000; that compares with Reuters' own costs of £31,000; so there is a massive disparity between the costs that are being claimed by claimant lawyers and the costs that are actually being charged to large international media organisations by firms such as mine.
Q4 Philip Davies: If, as you said, Carter-Ruck only lose in the region of 2% of cases where they are on a Conditional Fee Arrangement, why on earth are you as lawyers allowing your clients to take these cases to court. If you know there is a 98% chance that they are going to lose surely the best way to cap their costs and to reduce the costs is to say, "You're on a loser here, mate. Why don't you just settle out of court?"
Mr Jaffa: I do not think that is the right way of looking at it. I should say I speak from the perspective of the regional press, so all your local papers are the kind of people that I advise, and they are not thinking in terms of litigation; they are thinking in terms of what happens, even though we think we are right - "we" the little (whatever it might be) newspaper of somewhere in any part of this country. Their sole test is whether the costs of the claim, not to put too fine a point on it, are going to put them out of business. I do not think the question you have posed is the right one. I think the correct question is: if people have a legitimate claim then the relevant newspaper should apologise. If they do not have a legitimate claim - if there is an issue, whatever the defence might be - then the press should be entitled to defend themselves. At the moment, no regional paper can do that. I went on record about 15 or 18 months ago in the Evening Standard saying that I cannot see any regional newspaper ever defending a claim in the foreseeable future. That is not because they are poor journalists; not because they publish poor stories; it is entirely due to a small regional newspaper facing costs based on somewhere between £400-£600 an hour times a 100% success fee, plus the ATE premium, plus VAT and so on and so on. That is what it is all about.
Q5 Philip Davies: I know you did not think it was the right question to ask but I did ask it, so if you could have a crack at answering it! Is not the best way to cap people's costs for you to give better advice to defendants to say "This isn't worth pursuing through the court because you're on a hiding to nothing"? If you are going to lose 98% of the cases why incur that risk to your clients?
Mr Armstrong: My interest is on both sides because I represent television companies by way of defence to claims, but against the press I tend to act for claimants; and I have not, in cases that I have handled, had to operate a CFA. I have been able to settle most of the cases I have handled without needing a CFA. It is not about black and white; it is about finding ways of solving legal issues with newspapers, and most of the time it is possible to resolve that. I am slightly conscious that these big money cases that preoccupy everyone are actually, in my experience, the minority of the work that goes on in media law. The vast majority of those cases are dealt with within weeks or months without CFAs, at reasonable costs to both parties, or one of the parties if they pay the costs.
Mr Partington: Most cases are resolved. To give you an example: there was an article the Guardian yesterday about how Tesco sued the Guardian and they made an offer of amendment under the Defamation Act 1996, which is a procedure which is supposed to allow cases to be resolved quickly and relatively inexpensively. I do not know what the damages were, because I think it is confidential, but I would be very surprised if the damages were more than £10,000 - they are probably less than £10,000. That was a case where the Guardian made an offer of amendment - which, as I say, is a set procedure to try and resolve cases quickly - and the costs bill is £800,000.
Q6 Chairman: Are you suggesting that your counterparts acting for claimants with a CFA in place are going to prolong proceedings in order to maximise their costs?
Mr Partington: If I could answer it like this: in 2002 there was a case called Callery v Gray and Long Bingham said in the House of Lords there were three risks inherent in the CFA system: first, because there was no client checking on the charges that their lawyers were incurring, there was a risk that base costs would rise and rise and rise; the second risk that he identified was the possibility that excess success fees would be sought; and the third risk was with ATE premiums there would not be a proper market and they would be out of control. There is nothing to stop a claimant lawyer taking a case on a CFA and prolonging it for as long as they can, unless the defendant makes an offer which they accept. If you take the case Mr Mathieson referred to where Reuters want to defend its journalism, there may be very good reasons why you might not want to make an offer and that case can be prolonged by the claimant lawyers unless you are prepared to make a financial offer, which effectively makes an admission because if they accept the financial offer they will be entitled to a statement in open court, which is an admission that you have made a mistake.
Q7 Chairman: You say there is "nothing to stop" - do you think it is happening?
Mr Partington: Without a shadow of doubt.
Q8 Chairman: On a regular basis?
Mr Partington: Yes.
Q9 Paul Farrelly: A final question along that track: one area I am interested in, with respect to the potential abuse of CFAs, is the extent to which they are used by people who have got deep pockets because they are not means tested at the moment. The (Naomi) Campbell case was one interesting example in privacy action. Are you aware of any examples in libel cases where CFAs have been used by people who could otherwise afford the action?
Mr Mathieson: Yes, I have got one which came in last week in which a premiership footballer has the benefit of CFAs against a number of newspapers. I do not know what his earnings are but I would guess they are not un-adjacent to about £50,000 a week.
Mr Partington: Two of the organisations that are members of the Media Lawyers Association, Trinity Mirror and News International, are being sued; it is a privacy action by Ashley Cole; he is on a CFA; his lawyer is charging £575 an hour with no doubt 100% uplift; he has three counsel; he has ATE insurance. Roman Polanski, the film director, he sued in libel - and that might be a topic you will come onto, libel tourism - but he never actually came to this country to prosecute the action, but Mr Polanski sued in libel; Mr Mathieson's firm was acting for the defendants; he was on a CFA. Cherie Booth was another person who has taken advantage. I believe Sharon Stone sued using CFA.
Q10 Chairman: You are not suggesting these people should not be allowed to use CFA?
Mr Partington: CFAs are not the problem. Conditional Fee Agreements are not the problem. The problem is the recovery of the success fee. We would say that those sorts of people do not need Conditional Fee Agreements with success fees for access to justice. It has got to be remembered that Conditional Fee Agreements were introduced under the Access to Justice Act 1999 to give access to people who hitherto did not have access. No-one here is going to argue against that, but it seems completely wrong that a system that was introduced for people who did not have access should be exploited by rich people and their lawyers.
Q11 Chairman: You say it should be means tested?
Mr Partington: Effectively, yes.
Mr Mathieson: I would just qualify what Marcus said in relation to the base costs. The success fees are a problem; but the base costs, that is to say the starting fee before the application of the percentage uplift, there is still a problem on no-win no-fee arrangements, in libel cases in particular, because the client in a CFA has no interest in controlling the amount that his solicitor is charging. We are probably labouring the point slightly, but we see these cases in which solicitors are charging £450/£500/£550 an hour because it is no-win no-fee; the client is never going to have to pay that; it is the media, in all probability, who are going to end up paying those sums. If you were to say to a client, "Look, I charge £650 an hour", or whatever, the client is going to say, "I'm sorry, that's far too expensive". On a CFA they are not going to say that and, therefore, there is that potential for really very high charging rates which can only be retrospectively controlled, which is itself a problem.
Q12 Rosemary McKenna: What you are suggesting is rather like people applying for legal aid in taking forward cases, ordinary people. Is it not the fact that these people, who are very well off, by winning their cases are actually establishing case law to help ordinary people when they come to the courts, when they appeal to the media? Are not the people who are losing out, in cash, the media, which is why you are saying that this ought to be stopped?
Mr Partington: If you are concerned about rich people establishing precedents which other people who are not so rich can use, that can happen without Conditional Fee Agreements and success fees.
Q13 Rosemary McKenna: But your arguments are only about money, are they not? They are not about whether it is right or wrong justice?
Mr Jaffa: That is what our job is. That is unfortunately the situation we have reached. Our job has turned from advising our clients on matters of law, to advising them on money. That is what it has come down to. We spend collectively, independently of each other, more time than ever before just telling them what the financial implications are. Let me give you an example which has just sprung to mind. Probably about this time last year one of your colleagues, an honourable Member, sued a regional paper - or threatened to - and at the very first meeting I had with the editor we spent about 15-20 minutes considering the legal issues; we then spent two hours considering the financial, and that was the driving force throughout. Every newspaper, whether national or regional, but particularly the regionals - the smaller the more significant this issue becomes - every regional newspaper is solely concerned with the finances of what is happening, never mind the merits. That is the harsh reality of it, and it is all due to the success fee and the ATE premium.
Q14 Rosemary McKenna: But it is not having any success in stopping the media printing stories about people that are either inaccurate or plain wrong?
Mr Jaffa: If they are inaccurate or wrong then they can have a remedy - access to justice via a CFA - but there is no need for a success fee. The ATE premium, I would argue, is astonishingly high and unnecessarily high. I am not suggesting that people should be deprived of their remedies, either at law or through the PCC. What I am suggesting is that the success fee element of a CFA is crippling the regional press, and the ATE premium is crippling the regional press.
Q15 Rosemary McKenna: Then stop printing stories that are not accurate.
Mr Mathieson: Can I just make a quick point. Of course the media continues to make mistakes; the media will always make mistakes; that is one of the by-products of having a free society with freedom of expression; there is no way that we are ever going to stop that. The media will try and improve their standards; but the point about the current cost of libel litigation is that it is not just about money; it is about freedom of expression. What is happening is that at the pre-publication stage the press are inhibited from publishing stories because of the fear of what it might cost if they get some part of it wrong, in good faith.
Q16 Rosemary McKenna: Fine.
Mr Mathieson: No, I think the premise of your question is that the newspaper thinks to itself, "Well, I've got this completely false story, if only it wasn't going to cost me I would publish it". That is not the way journalists work. They work on the basis that they think what they are publishing, to the best of their ability, is true; but there comes a point when they think, "Hang on, this is a bit dangerous. If I've got one little bit of it wrong it's going to cost me a lot of money". This is particularly true for the regional press who have fewer resources. That is at one end. The other end, and this is one reason why I mentioned the Reuters case, is that media organisations are inhibited from defending their journalism, from defending those stories, because it is so expensive to do so.
Q17 Paul Farrelly: From my experience as a journalist, lest this be thought of purely in monetary terms, I am aware that many of the actions taken by large corporations in particular are not primarily about money. There were two cases that were very notable where the avowed intention of the litigant was to drive the publisher out of business - that was the James Goldsmith v Private Eye Pressdram case and Jonathan Aitken v Guardian, where what the Guardian had printed was true but it was only fortuitous rummaging through a cellar in Switzerland where the Guardian was able to prove that Jonathan Aitkin was in Paris at the time he was maintaining he was somewhere else. Do you think, on top of the chilling effect that defamation laws have already, that the operation of CFAs has produced a double chilling effect in essence?
Mr Partington: Yes.
Mr Jaffa: Absolutely.
Q18 Alan Keen: If I could make an observation, first of all. The fact that second-hand car sales people and estate agents are doing so badly at the moment - I think there are three professions represented today which have probably slipped into the relegation zone: journalists, lawyers and Members of Parliament. We should remember that when we are discussing these important issues. We have all seen and we anticipated a good few years ago there was a problem in the banking industry. We saw the massive bonuses and we knew they were being justified on short-term gains and it has all come to hit us all. Is there a structural problem in the legal profession in fees? We have already established one, the recovery of success fees. That is one you have established. Is there another one? Is there a problem in the profession? The money shuttles to and fro around the profession itself and Keith Mathieson said it is the media that suffer in the end, because in the end it is the ordinary person on the street who buys the newspapers or watches TV who suffers, because that is where the final cost goes down to. Is there another structural problem in the legal fees, in the legal profession, with the way that the fees are generated and distributed?
Mr Partington: What I think would be helpful would be if there was a complete change of approach. At the moment, traditionally any cost control has been exercised by the courts right at the end of the case. With CFAs you have got a double whammy fighting even against the costs. Even arguing about the costs you are potentially spending a thousand pounds an hour. The cost control needs to come forward and be done in a mandatory prospective sense for Article 10 cases. The cost judges, who are traditionally regarded as the people who control costs, are on record saying to the Ministry of Justice that their job is not to control costs. That is what they told the Ministry of Justice in one of their submissions to one of the consultation papers from the Ministry of Justice. There needs to be a whole greater control by the court system of the charges that solicitors incur and therefore seek recovery of. It goes back to what Mr Mathieson was saying about the basic hourly rate. If you compare the hourly rates which we are talking about, for example, with the rate that people who carry out criminal work would recover from the public purse, they are way out of line, way out of line. The way to change it is to have mandatory prospective cost control, we would say. It must be implemented by an external body, because unfortunately lawyers will try and get away with what they can get away with.
Mr Jaffa: Can I add to that by saying, do not get bogged down on thinking purely about litigation, because the overwhelming majority of complaints against your local papers do not go to litigation - they are all settled. So what people like me end up having to do is look at the rate that the court apparently will allow, depending upon the location of the claimant's solicitor. They always claim more, and I have to try and persuade them that: the hourly rate should be reduced; that it did not warrant a success fee; that the amount of time they have spent on it is excessive. But there is nothing that I can actually do, in the absence of any court proceedings, other than my own charm, personality and silver tongue (which is not that effective, I have to say); there is no control at all; it is purely a matter of persuasion. If they say, "No, if you don't settle on our terms we're going to sue you", which brings us back to the point we were talking about earlier. Yes, in litigation there are those issues, but 98% of all complaints go nowhere near the court, and it is all down to negotiation; and we are (and I come back again to success fees) in a particularly weak position. The high hourly rates, for someone who is based out of London like me, I can only dream of those riches. If only. We can make an honest living by charging the rates that we charge. The claimants' lawyers, in my eyes, are earning a phenomenal amount of money. That is the structural problem that I see.
Q19 Alan Keen: Could I ask about online newspapers and magazines. The PCC changed its policy to extend to on-line newspapers, has that made a difference? What difference has it made? Has there been less defamatory stuff?
Mr Partington: I do not think it has made any difference. Material published in a newspaper or on-line is treated in exactly the same way. There is, however, a problem about on-line archives because there is nothing to stop somebody finding something in an on-line archive and suing because of that publication, even though the original article was published ten, 15 or 20 years ago; because every time they download it is regarded as a fresh publication. The Media Lawyers Association thinks that should be urgently examined - about whether there should be a single publication rule, and how we deal with archives; because there is a danger in which people can bring actions in respect of material in archives which there is absolutely no possibility of defending.
Q20 Chairman: When you say "there is a danger", has it happened?
Mr Partington: Yes.
Q21 Chairman: People have taken out actions for material which was written years ago?
Mr Mathieson: Yes, we have all had experience in several cases. What it means is that the limitation period which Parliament has said should apply to newspapers does not apply to on-line newspapers, and that seems to me to be inconsistent and it is a very simple change to the law which is required to implement the change.
Mr Partington: What actually happens in truth is that people will complain about something that is published on-line, and because of the difficulty of defending it, because of years later, the natural instinct is to just remove it whether it is true or not; which I think we all lose out on in that sense because the public loses information, and accessed information, which could well be true; but it is safer and earlier for media organisations to just say, "Okay, I'll take that down", because they might not be in a position to defend it, so we all lose out, I think.
Q22 Alan Keen: The people administering the sites - there is the editing aspect of it; if they take stuff off they are getting liability, are they not, for editing the site rather than just letting other people put stuff on? Does that apply?
Mr Partington: There is defence under section 1 of the Defamation Act about whether you are an innocent publisher of material. That was designed to protect ISPs. For any media organisation, if they put archive material up there they will be regarded as the publisher of it and therefore they will be liable.
Mr Mathieson: That will include third party contents too in all probability under the law as it is currently applied.
Q23 Alan Keen: Is the ISP provider in the same position as a newspaper? I am not talking now about newspapers on-line; I am talking about websites. Does the internet service provider become liable in the same way as a newspaper becomes liable for publishing letters, or is there a distinction there?
Mr Mathieson: No, there is a distinction. Section 1 of the Defamation Act refers to publishers, authors and editors as having liability for defamation. If you not a publisher, authority or editor then you will have the benefit of the defence under section 1 of the Defamation Act if somebody tries to sue you for libel. An ISP will normally escape liability because it is not an author, editor or publisher; but generally, as soon as the ISP is notified of the defamatory material, it has to act to take the material off-line, otherwise its continuing act in keeping it on-line may expose it.
Q24 Alan Keen: What is the difference between a site that is recognised, it has got a heading that says, "I am the local newspaper [something] publishing news", and those sites which somebody else administers, not the internet service provider but someone has a site and lets other people put blogs on there? How is that liability?
Mr Mathieson: There may not be much difference legally if the person, as you describe it administers the site, acts as an editor and decides what goes on the site, or enables material to go on there, then it may well be liable for defamation.
Q25 Paul Farrelly: I remember in my time when the threats duly came from a Russian billionaire that they were going to sue me - you counted down the days until the year was up, but with the internet things have moved on. Mr Mathieson, can I just be precise about the simple change in the law you were referring to, to bring the law up into the internet age as Parliament intended. Would that be to restricting the ability to sue for 12 months from the first date of publication on the internet?
Mr Mathieson: Yes.
Q26 Paul Farrelly: That would be the simple change?
Mr Mathieson: Yes.
Q27 Janet Anderson: I wonder if we could turn to the Human Rights Act, and the balance between Article 8 and Article 10. Of course Article 10 is concerned with the rights of freedom of expression; and Article 8 respect for private family life, and I think is largely interpreted to cover reputation now. I just wonder if I could ask each of you: what do you believe to be the current balance between those two articles? Marcus, would you like to start maybe by referring to the (Naomi) Campbell case, which I think was one of the seminal cases in this area?
Mr Partington: The Media Lawyers Association firmly believes that the balance between freedom of expression and personal privacy has swung too far in favour of personal privacy. The safeguards which were designed by Parliament in section 12 of the Human Rights Act have, we would say, been largely and quite cleverly overridden by the courts; and therefore the balance, we would say, is skewed too far in favour of Article 8.
Q28 Janet Anderson: You are saying that section 12 has failed to protect freedom of expression?
Mr Partington: Yes. I think section 12 has failed to do what Parliament intended it to do; which was clearly that the courts were to give freedom of expression a greater stress than they actually have. The truth is now, we believe, that it is very easy to get through the Article 8 doorway, but it is much harder to defend something in Article 10 terms.
Mr Jaffa: I think that is probably right. The regional press is not faced with anything like the level of activity that the nationals have. Thinking back over the last, say, 12 months for the regionals for which I act, there have been a number of cases where information has been in the public domain, whether by the website or actually in the paper, and yet the claimant has gone off to the High Court and obtained a privacy injunction, notwithstanding section 12. It is hard for me to understand how that can be. These are not international celebrities; these are cases involving a young lad who was brain damaged at birth and was suing his local health authority for a phenomenal amount of money. There was a clear public interest in that story for local people and yet, despite the information about the claimant (the child was not identified or anything; it was a perfectly respectable story), they were still injuncted, despite section 12 and despite the Article 10/Article 8 balance that is supposed to be taken into account. There was another story where there was an injunction because a private company was placing delinquent youths in a residential area, and these were not just youths who were in a bit of trouble, they had gone through the whole system and this was the final opportunity to reform them. The local paper found out about it - a clear issue for local people, for the neighbours who lived around them; they were in a residential street; it was in the public domain this information if you knew where to look for it - the paper published a story and then was injuncted. Again, I cannot see how section 12 can be said to be working properly in those specific examples. I just do not see it happening; but we do not get it as much as the nationals do, that is for sure.
Q29 Janet Anderson: You think your freedom of expression is actually being hampered?
Mr Partington: Yes.
Janet Anderson: Do you think that that view is taken in other countries? The reason I mention that is, we were recently in Barcelona and we had a meeting with the editor of La Vanguardia, which I think is one of the biggest broadsheet in Barcelona, and one of the questions he was asked was: if there were a case of a politician who claimed to be happily married and was discovered to be having an affair, and if there were a footballer who claimed to be happily married and was discovered to be having an affair, would he see it as his job to publish the details? He said, "In the case of the footballer, yes; in the case of the politician, no, because we have no interest in politicians' private lives". Do you think there are different standards in different countries?
Q30 Mr Sanders: Yes, it is self-evident!
Mr Partington: There are definitely different standards. One of the things I am not sure we are going to have time to come onto, but obviously we are now in a situation where American states are passing laws to protect American citizens from UK judgments -----
Q31 Chairman: I hope we will come on to that.
Mr Partington: ----- because they think we do not do enough in this country to protect freedom of expression.
Q32 Chairman: You have suggested that Parliament attempted to give weight to freedom of expression and privacy through section 12 in the Human Rights Act but that that is not actually happening. Would you share the judgment of Paul Dacre that that has come about due to arrogant and amoral judgments of one man?
Mr Partington: No. It is not down just to the decisions of one man; but as we say in paragraph 27 of our submission the requirement of section 12 has been progressively hollowed out as judges make their own interpretations; and that is judges in the plural; it is not just one judge but a succession of judges. Mr Thomson from Carter-Ruck who sits behind me, and you will be hearing from, said he thought it was originally thought that section 12 would protect the media, but it is ironic that in fact section 12 has not had the intended effect. That is a claimant lawyer saying that actually section 12 has not had the effect. I would not agree with what Paul Dacre said and the words you have just quoted back to me. The problem is the judiciary has not gone with what Parliament intended in section 12.
Q33 Chairman: I can quite understand your reluctance to criticise an individual judge, but it is your contention essentially that the judiciary are interpreting section 12 in a manner which was not the intention of Parliament?
Mr Partington: Correct.
Q34 Chairman: They are doing it knowingly, presumably?
Mr Partington: Yes.
Mr Mathieson: I think what I would say, and I agree that the balance has swung too far in favour of Article 8, is that one thing the courts find it difficult to take into account is the inherent value in freedom of expression. There has been declared by the courts what they call a "presumptive equality" between Article 8 and Article 10. Those of us who defend and value freedom of expression would say that there is an inherent value in having a vibrant and varied press and broadcasting industry; and that in itself is something which should be taken into account when you are weighing the respective interests of privacy on the one hand and freedom of expression on the other. I think Paul Dacre's speech reflects his frustration at the courts failure to recognise that the media has its own importance.
Mr Armstrong: I would add to that by saying simply that the law has been skewed slightly because it has developed through a relatively small number of high profile cases on a small number of specific sets of facts. It is quite difficult for a judge to keep in mind the generality of that proposition, I would argue, when faced with the specific facts of an individual case where you may have shortcomings by the journalists, and the nature of the investigation and the intrusion that has taken place he is bound to focus more on that. In a way the problem is intrinsic in the decision-making process where the facts of an individual case will tend to cast those general points into the shadow. I think that is where the skew has come because we are dealing with cases involving celebrities if you like, by and large, that have been decided by the courts, and a relatively small number at that. It is not a very in-depth jurisprudence yet.
Q35 Rosemary McKenna: The PCC code and privacy, the Press Complaints Commission, how relevant is the code today in privacy cases; could the procedure be made more effective?
Mr Jaffa: I think the PCC's code is absolutely spot-on. I really get very cross when I hear people say that the PCC is ineffective; that the PCC code is ineffective. The relevant provision of the code concerning privacy reflects Article 8 and it takes into account Article 10 as well - the wording does. If you go to your local regional paper, or the editor, he will tell you like every other regional newspaper editor that as soon as anything comes in from the PCC they jump to it; they take it extremely seriously. It is a fabrication for people to say that the PCC is an empty vessel; that the code is worthless; and that, from my experience, regional editors ignore it; that is simply not true. It is a working document; it develops as time goes by; and from the regional press's perspective it is extremely effective, first of all, in preventing infringements of privacy, because they take it seriously; and then, if there is a complaint and it turns out that the code has been contravened, in rectifying it.
Q36 Rosemary McKenna: Because they cannot prevent the publication of an article?
Mr Jaffa: I cannot speak for the PCC, but I think you will find they will say that they can more and more frequently; they are taking early action.
Mr Armstrong: What I find in my conduct cases is that the presence of the PCC and the code and their involvement at a pre-publication stage does have a persuasive effect. You are right that they cannot issue an injunction or prevent publication peremptorily; but in terms of persuasion and adding force to the argument of prevention of privacy intrusion it does have an effect. I do find it generally a very useful additional tool.
Mr Partington: I would agree with that. Many people do not know that the PCC proactively will warn newspapers before a story, or as a story develops that, for example, certain people do not want to be approached; certain people have been approached and do not want to be approached again; and that sort of thing happens all the time but it happens maybe on a quiet, behind-the-scenes, level which is actually very effective. If newspapers are told, for example, that somebody does not want to be approached then they would obviously adhere to that instruction by the PCC. A lot of the work the PCC does perhaps does not get the focus and the praise that it deserves, but it is quite effective behind the scenes. I think what is very important is the PCC in those circumstances is used by the non-celebrities, the ordinary people who can approach the PCC and then use their services to get what they want.
Mr Jaffa: I think the one difference between me and the others here is that my colleagues and I check stories. The nationals operate in a different way from the regional press; and my colleagues and I check stories before they are published, obviously to try and prevent legal problems arising; but one of our key considerations is the code. Is this story going to contravene the PCC code? My clients, and you will see from my submission paper that I represent a fair number of the regional press, really do take the code seriously; and they take proactive action by talking to people like me to try and ensure that the material they publish complies with the code. It is all in the background; nobody knows about it but it is really there, I can assure you.
Q37 Mr Evans: Do you think the PCC have been effective, for instance, in cases like the Royal Family, or wannabe Royal Family, Kate Middleton, for instance, when clearly she was rather disturbed by the amount of attention she was getting?
Mr Partington: I think that is probably a question that would be better addressed to Kate Middleton, perhaps. I think it has been effective. I think Kate Middleton is an interesting example of somebody who, on one level on certain occasions, does not seem to want publicity, but for somebody who does not want publicity to go to the most high profile nightclubs in London where there are lots of photographers outside seems strange behaviour for somebody who then wants to complain about press ------
Q38 Rosemary McKenna: So because you go to a high profile nightclub you want publicity, is that what you are suggesting?
Mr Partington: What I am suggesting is that if you want to have a quiet, unassuming private life there is a way of doing it.
Mr Sanders: Do not go out with a member of the Royal Family!
Q39 Rosemary McKenna: Are you suggesting that it is inappropriate for someone to go to a high profile nightclub but object to intrusion into their privacy?
Mr Partington: No, not at all.
Q40 Rosemary McKenna: That is just what you said.
Mr Partington: No, let me clarify. If you go somewhere which is high profile and there are photographers there you are likely to be photographed, so it is difficult for you to object to being photographed because it is not against the law to photograph somebody in a public place.
Q41 Rosemary McKenna: But not harass them?
Mr Partington: No, absolutely not. No-one is trying to defend any sort of harassment.
Q42 Mr Evans: The fact is going out with Prince William means that you are a centre of attention.
Mr Partington: Absolutely.
Mr Evans: In some cases, some may argue that there was so much attention at one stage that it was actually damaging the relationship.
Chairman: We have already done an inquiry on that particular aspect.
Q43 Mr Evans: Could I ask on a separate case the rise of citizen journalists, which means that the paparazzi may not be taking the photograph of whoever it may be but the citizens are and they are sending them in. Do you think there is a special role there for the PCC to get involved as well in saying that newspapers should show a lot more editorial control over some of the stuff that is being sent to them?
Mr Mathieson: I think there are two aspects to that question: one is the taking of the photograph itself which may in some circumstances amount to an invasion of privacy. The PCC plainly cannot really do anything to control members of the public. The second one is the publication of photographs. I think the PCC would regard it as being within its existing jurisdiction to adjudicate about the appropriateness of publication of photographs wherever they come from.
Mr Partington: We would certainly regard it as our obligation to check that the material we were publishing that was sent in was legitimate.
Q44 Paul Farrelly: I just want to come to the issue of responsible journalism, which some people might feel is a contradiction in terms. The so-called Reynolds defence at one stage earlier this century seemed like a godsend for responsible journalists but it does not appear to have worked out that way. Why is that defence so rarely used?
Mr Mathieson: I think one reason is actually cost. It is quite an expensive defence to run in practice because it means enquiring into precisely how a story was put together, and that means going out interviewing people and getting witness statements and all that kind of thing. The other reason is that it shifts the emphasis of the case from the truth or otherwise of the allegations that are being sued upon to the conduct of the journalist. In a sense I think claimants are quite content to allow that shift of emphasis to take place in certain cases, because it gives them a means sometimes of attacking journalists; because with journalism, like most fields of human activity, its practitioners are imperfect. It is often not terribly easy to get information, whether it is from private or public sources. We have often found that when we are pursuing Reynolds responsible journalism defences that we come across just one email which suggests "Oh, hang on, maybe he shouldn't have done it that way", and we have to call time on the responsible journalism defence because we know that would be blown out of all proportion, we would say, by the other side, who would regard it as a gift to their case. It has been applied in a rather restrictive, rather strict, rather judicial sort of manner without, at times, much regard to the realities of how journalists actually operate.
Mr Armstrong: Quite a complex way. It is quite difficult to anticipate the judicial thinking that will be applied retrospectively when prospectively advising on how the article should be published, in my experience.
Mr Partington: I want to second what Mr Mathieson just said there. The ten tests that were introduced were supposed to be quite loose, but the feeling is that they will be potentially rigidly adhered to; so unless you feel that you have passed through each of the ten tests without fear of being attacked by the other side, you are wary about using the defence. Of course, anyone who does anything might with hindsight say, "Oh, I could have done that. Or maybe I could have done that". I think that fact sometimes gets in the way. There is criticism afterwards: "Oh, well, you could have made that telephone call; or you should've looked at that ", rather than actually examining what the journalist did and being slightly looser about the ten tests.
Q45 Paul Farrelly: Most people, apart from those who inhabit neo-conservative think tanks, would probably agree that a serious of articles such as the Guardian has recently run questioning whether companies aggressively avoid tax, which was a case mentioned previously, Guardian v Tesco, is in the public interest. Is one of the problems - whether you are trying to run, if you get it right, a justification defence; or, if you get it wrong or slightly wrong, a Reynolds defence - that in those cases all the disclosure comes from you and that the litigant has no onus to disclose anything at all?
Mr Mathieson: That is right. If you are running a Reynolds responsible journalism defence you are starting on the back foot. If all your facts were absolutely spot-on you would be running a justification defence. You are right; you are starting from the wrong place in a sense.
Q46 Paul Farrelly: Can the balance of disclosure be easily addressed?
Mr Mathieson: I myself think the way of making the Reynolds defence a better defence - and I do not mean by that a better defence so that it is easier for the media to run; I mean a defence which simply works in the overall interests of freedom of expression - is to have a less judicial, more forgiving attitude to the way in which journalism operates in practice, having some regard to the realities, which I think the defence at the moment somewhat lacks.
Q47 Paul Farrelly: The development of the case law in privacy has been referred to in the questioning. Do you think it is satisfactory in such an important area that the protections for reporting in the public interests is left to the courts to develop, and not guided or helped by statute?
Mr Partington: It is left to the courts and I think it is inevitable that it would be left to the courts, but I think Parliament can provide guidance as it sought to do through section 12 of the Human Rights Act. I think it is probably obvious that there needs to be a re-examination of why that guidance, which was given to the courts by section 12, has effectively been skewed in favour of personal privacy against freedom of expression.
Q48 Paul Farrelly: I am talking now about libel and defamation. We do not have the First Amendment here. Could statute help guide the courts in giving more protections to the media when reporting in the public interest?
Mr Partington: Yes, I think so. I think the willingness of Parliament to put the Reynolds defence on a statutory footing is something that is to be welcomed.
Q49 Chairman: Could I finally move on to the issue which you touched on earlier, which is libel tourism. How do you feel about the fact it is now apparently becoming quite common for overseas citizens who object to a publication by an overseas publisher to take action through the British libel court?
Mr Mathieson: Personally I think it is nonsensical to allow, as we have done, Icelandic banks to come to the UK in order to sue Danish newspapers, or to allow Paris residents, film directors, who have been banned from the United States, to come to London, if not in person at least by telephone from Paris, in order to sue a US-based magazine. I just cannot see that it makes any sense at all to allow our courts to be used in this way. The threshold of admissibility of claims by characters such as Roman Polanski, Russian oligarchs and so on is simply too low.
Q50 Mr Sanders: Is it not good business?
Mr Mathieson: It is good business. I confess it is.
Q51 Mr Sanders: In a recession should we not be encouraging it?
Mr Mathieson: I am arguing against my own commercial interests here.
Q52 Chairman: We were advised in some of the earlier briefings we received that there is provision whereby the judiciary can strike out such actions as simply the UK not being the most appropriate jurisdiction in which to bring them. Why do you think that is not happening?
Mr Mathieson: I just think the existing case law has become too restrictive. There are cases in which that can be done; for example, if there is no evidence that a website received any significant number of hits from this jurisdiction, then the courts in such cases have said that the action should not be allowed to proceed: but there have been many other cases in which only 30 or 40 instances of publication have taken place within this jurisdiction which have been considered to be sufficient to allow the case to proceed.
Mr Partington: I think traditionally the view has been taken that if there was one publication in this country it proceeded on the premise that that was enough to found jurisdiction in this country. There has been too rigid a view traditionally that if there is any publication in this country that this country could have jurisdiction; and, as Mr Mathieson says, although there has been an easing of that, it is still too easy for people who have very limited links to this country to assume jurisdiction. Mr Sanders says we are adopting a "good for business" attitude encouraging people through the door.
Q53 Chairman: But we have had examples of people coming to the UK who order books to be delivered to them in UK in order to establish publication in the UK and therefore use that as an excuse to go to the UK courts?
Mr Partington: Have we?
Q54 Chairman: So we are advised. Equally, websites with the Ukrainian example. The Ukrainian website which said something about a Ukrainian oligarch which was accessed, I think, 120 times within the UK by the Ukrainians and that was regarded as therefore justification for it to be brought before the UK courts.
Mr Mathieson: Very often these hits to the websites are by the claimant and his own advisers.
Q55 Mr Sanders: Given that claimants have to acquire proof that their reputation can be damaged here, that actually seems to require a wider definition. How would you narrow it down? What would you do to more closely define who could or could not use a UK court in these actions?
Mr Partington: I am afraid the premise of your question is wrong.
Q56 Mr Sanders: Do they have to prove that they have a reputation that could be damaged?
Mr Partington: No, they do not have to prove that. They only have to prove that it has been published here. Firstly, I think there needs to be much greater scrutiny about whether the person is connected to this country, properly connected to this country; secondly, I think there needs to be a much greater scrutiny of the extent of publication in this country; and, thirdly, I think there needs to be a greater scrutiny of whether there is a more appropriate forum for the issue to be dealt in. To give you an example about the Ukrainian, anyone would think, "Why isn't that being dealt with in the Ukraine?" I suspect the real reason why everyone comes to London is because it is such a claimant-friendly jurisdiction.
Q57 Chairman: It was put to us actually in the Ukrainian case that one of the reasons they came to London was that a judgment in the UK courts would be seen to be a proper judicial process, whereas a judgment in the Ukrainian courts would not be quite as "robust", shall we say.
Mr Partington: But not in America.
Q58 Chairman: Indeed, not in America. Given that you regard the present situation as absurd, do you therefore have sympathy with the Libel Terrorism Protection Act which has been passed in America, and the free speed act which is currently before Congress?
Mr Partington: I am not sure "sympathy" is the right word. I think it is very regrettable that we are in a situation where one of our chief allies is in a situation where it is taking steps to pass laws because we do not do enough in this country to protect freedom of expression, and to allow libel tourism. I think as a country we should do something to stop that.
Q59 Chairman: You regard it as understandable that that is the reaction in the States?
Mr Partington: Yes.
Q60 Chairman: Do you think if that legislation does pass through Congress that is going to do significant damage to the reputation of British courts?
Mr Partington: To be honest, I think that damage has already started happening. I think the fact that the steps have already been taken in America, and are being taken, has already created that damage.
Mr Jaffa: If you read the press releases that accompany the bill that is before Congress now, and if you read the memorandum that accompanied the New York Act from the Governor, you can see what they think of our laws; and it is not very pleasant to see that we are described in those terms. I have no personal experience of this, so this is just a general observation; but I find it really very distressing that they should think of our laws as terrorism. Just think what that implies. If I were a parliamentarian I would be absolutely shocked to think that the United States regards our law in that light.
Q61 Chairman: I think it came about as the result of a specific case.
Mr Jaffa: The New York one did, yes.
Q62 Paul Farrelly: Just for the record, Chairman, the Reuters case you referred to against a tennis player, for the record could you name the tennis player?
Mr Mathieson: Yes, Robert Dean.
Q63 Paul Farrelly: Which nationality?
Mr Mathieson: British.
Q64 Paul Farrelly: He was a British tennis player; publication happened here?
Mr Mathieson: Yes, he is a British player who actually plays most of his tennis in Spain, as it happens. He is a British national, yes. I am not suggesting in any sense that he was guilty of libel tourism. It was a Reuters' publication in this jurisdiction.
Chairman: Could I thank the four of you very much.
Memoranda submitted by Russell Jones & Walker Solicitors and Schillings Lawyers
Examination of Witnesses
Witnesses: Mr Mark Thomson, Carter-Ruck Solicitors, Mr Jeremy Clarke Williams, Russell, Jones & Walker Solicitors, Mr Jonathan Coad, Swan Turton Solicitors, and Mr Rod Christie-Miller, Schillings Lawyers, gave evidence.
Chairman: We now move to the second session this morning and our second panel who generally represent claimants. May I welcome Mark Thomson of Carter-Ruck Solicitors, Jeremy Clarke Williams of Russell, Jones & Walker Solicitors, Jonathan Coad of Swan Turton Solicitors, and Rod Christie-Miller of Schillings Lawyers. Philip Davies is going to begin.
Q65 Philip Davies: I believe very strongly that freedom of expression is one of the most precious things that we should defend in this country. In a democracy we often rely on the media to expose wrongdoing by people in authority and that seems to me to be a good thing. The allegation that we heard in our previous session - Mr Thomson, you seemed to be the main person in the line of fire from what I could hear so perhaps you might want to tell us your thoughts on this - is that the exorbitant fees that you charge, particularly in relation to Conditional Fee Agreements, are preventing the press from publishing certain stories that they should be publishing because they fear having to cough up extortionate amounts of money to firms like yours. What would you say in response to them?
Mr Thomson: I do not think that is right. The number of libel claims in the courts since the new rules came into force in 1998 have remained around about the same; they have gone down a little bit. There has been no significant change since the CFA regime came in, so statistically that is not right. The reason why there are expensive litigations in my personal experience is because of the way the defendants, who determine the issues in the case, run the case. Most cases, as the previous panel said, settle very quickly with an apology, modest damages and modest costs. It is when the defendants decide to defend cases that the costs escalate on both sides and probably at equal levels. The whole point about CFAs is that they do provide access to justice to people who cannot afford it and against newspapers who have very substantial resources. It is important that they should have that right to get remedies, as can anyone else. I do not think that it is having a significant chilling effect. The number of claims is around about the same. A lot of these claims are brought about because press standards in my view have dropped in the last 15 years.
Q66 Philip Davies: We have heard that the typical hourly fee might be somewhere in the region of £600 an hour and on a Conditional Fee Agreement, with 100 per cent uplift, that will be £1,300 an hour plus VAT. If firms like yours are so concerned about access to justice then perhaps reducing those fees would be a good start, would it not?
Mr Thomson: Those figures are not correct. Our fee at the moment is £400 an hour, which is about the standard rate in the industry.
Mr Evans: Are you having a sale?
Philip Davies: It is the credit crunch!
Q67 Chairman: On the £400 an hour point, on top of that you still have your success fee.
Mr Thomson: It is a staged success fee.
Q68 Chairman: And you have the ATE premium on top of that.
Mr Thomson: Yes, and that is staged as well.
Q69 Chairman: If you add in all the additional costs what is the total per hour?
Mr Thomson: It depends when it settles. Under The Times Carter-Ruck cost agreement, if they have checked the story and it is then settled within 14 days the success fee is zero, so it stays at £400 an hour. Because of the way the staged payments work, it is only if the newspaper decides there is merit in fighting the case that the uplift increases at the end of the case. Most cases in reality do settle within 14 days. If the other media got involved - and they refuse to at the moment for their reasons - and adopted the Carter-Ruck Times Agreement, if it is settled quickly there would be no success fee.
Q70 Philip Davies: What proportion of cases that you take on under a CFA do you win and what proportion do you lose?
Mr Thomson: I do not know those figures. They are confidential. There are a number of committees looking at costs at the moment. Our firm is providing the data anonymized to those various committees. They will be provided in anonymized form.
Q71 Philip Davies: Why is it confidential how many cases you win and lose?
Mr Thomson: I do not know what the answer is anyway.
Q72 Chairman: It was suggested it was a 98% success rate.
Mr Thomson: I do not think that is right.
Mr Clarke Williams: I think it should be pointed out as well that, of course, when the Conditional Fee Agreement is entered into by a firm of solicitors it can represent a very considerable investment by that firm because you are agreeing to act on a "no win, no fee". In my firm we have a very rigorous risk assessment procedure at the outset to decide whether or not we are prepared to take on a case on a CFA. So it is not surprising that the cases we do take on on CFAs are ones we expect to win. It has rather been presented as if everybody who walks through the door is immediately put on a CFA and cases are run willy-nilly and because of the defects of the system large cheques are then written out at some stage in the future by newspapers to firms of solicitors. That is not what my experience is.
Q73 Philip Davies: It is quite a good racket, is it not, if you are going to take on a case that you are pretty sure you are going to win anyway and you shove it on a CFA and therefore double your income as a result? You are doubling your income on a case that you are absolutely certain you are going to win. It is nice work if you can get it. You should be paid less for cases that you are certain you are going to win. Surely you should be paid more for the trickier ones, not a vast amount of money for the easy ones.
Mr Clarke Williams: The 100% success fee would only kick in at trial. The success fees which would be claimed and may well be compromised at a lower level are much less if a case settles early. If the same risk assessment is applied by the newspaper or the defendant and they decide that they are going to lose then cases are generally settled at very modest levels early on. Obviously as a case progresses - and it can sometimes take a year and a half to get to trial, it may involve two or three or four people working on a case - the risk to the firm who is conducting it under the CFA increases and therefore that is why the success fees rise as a case approaches trial.
Q74 Chairman: Is that not exactly the problem which was outlined to us by Tony Jaffa earlier, that actually because of this structure he advises his clients that they had better settle because it will not cost them anything like the amount of money it will if they have to go to trial? You are creating a financial incentive to settle a case whether or not you actually believe you stand a reasonable chance of winning it in court.
Mr Clarke Williams: First of all, CFAs are available to defendants. If the defendants think they have a good case and the claimant is under the CFA but with insurance then they know that they will get paid or if a claimant is one of these wealthy celebrities with funds to pay. If a defendant risk assesses the case and thinks they are going to win there is nothing to stop their lawyers acting for the newspapers under a Conditional Fee Agreement and that does occasionally happen.
Mr Coad: There is a lawyer called David Price who does work on CFAs. CFAs are as much available to defendants as they are to claimants. It is something which is available to all of the gentlemen who have spoken to you before us. There is nothing to stop them taking on CFAs. At the risk of slightly pulling their leg, I think if you visited some of their offices you might be surprised at their size and grandeur and City locations. I say this because my firm does not do CFAs or at least we have not yet done a CFA against a newspaper. If you visited Reynolds Porter Chamberlain or Taylor Wessing or whatever you would find them in very big, smart City locations and you would find us on two floors of a converted Wesleyan chapel in Covent Garden.
Chairman: That is because you do not do CFAs!
Q75 Philip Davies: We will resist getting the violins out just for a minute. Is the answer to this problem that the costs should be capped by the courts on a far more routine and regular basis than happens at the moment? Is that not the solution to this particular problem?
Mr Coad: I do not know whether this is commonly understood, but the courts do fix and assess costs. The newspaper always has the opportunity to do what we used to call TACs or have costs assessed. The courts have control over the costs.
Q76 Philip Davies: It does not happen very often where costs are capped, though, does it?
Mr Coad: The cost-capping regime is an interim measure, but at the end of the case, if the newspaper objects to the costs that are being incurred by the claimant, be it on a CFA or not, then the court can go and say, "No, we won't have this," and challenge them and have them reduced.
Mr Christie-Miller: There has also been consideration of the cost-capping regime. Just yesterday the Ministry of Justice put out a variation to the civil procedure rules which introduces rules relating to cost capping and those were subject to extensive input from many interested parties, including representatives of the media and some of the gentlemen who are sitting behind us. Those representations were considered and the Civil Procedure Rules Committee decided that the cost-capping regime should be as it was presented yesterday. In addition, Lord Justice Jackson is undertaking a review of civil costs generally. So these things are being considered.
Q77 Philip Davies: Are you all unanimous in the view that there is no way that the Conditional Fee Agreement could be altered or amended in order to protect the freedom of expression and freedom of speech of the media?
Mr Thomson: I think that The Times Carter-Ruck protocol which the other media refuse - I am not sure if the Committee has seen it - is a fair staged agreement and reduces risk early on. The Times adhered to it. The Civil Justice Committee is considering bringing it into law. I think that is a solution. If the newspaper checks their facts before, which is rare now, in 14 days and settle there is no success fee. If that was adopted throughout that would reduce such chill as there is.
Mr Clarke Williams: A very important part of the access to justice provisions being introduced was to try and settle disputes at a very early stage. In defamation, as a pre-action protocol, which means that parties are meant to exchange full details of their claim and the defence before they get to the stage of litigation, there is a requirement to consider alternative dispute resolution, such as mediation. There are all sorts of provisions which encourage parties to try and resolve things at an early stage when costs are low.
Q78 Philip Davies: I am all for people having access to justice and things being sorted out quickly, but surely it must be wrong if a regional newspaper or even a national newspaper is settling a case where it feels in its heart of hearts that what it has put is right because the risk of the huge costs at the end of it might threaten to put it out of business. Surely that is not justice if you get to the stage where people are settling cases not on the merits of the case but simply because they cannot afford to run the risk of potentially losing it because it might finish them off. That cannot be justice, surely.
Mr Clarke Williams: I think you have to look at the number of libel writs against the overall turnover and profit of Fleet Street. I think you have got to keep some sense of proportion here. There are a whole range of defences available and there is an enormous array of privileges available to the press. I think you have just got to keep some sense of proportion, the number of libel writs against the turnover of Associated Newspapers or News International and remember that there is an enormous media corporation here and a relatively small number of libel actions.
Q79 Chairman: It is worth pointing out that most newspapers now are barely profitable at all; indeed, a large number are not making money. So the idea that these are institutions awash with money to pay out in libel damages I do not think is an accurate one in today's climate.
Mr Clarke Williams: I cannot pretend to have done more than looked at the published figures, but the published figures, as far as I can work out from looking at what is said by the press about themselves, is still a turnover of about £8 billion with a profit of about £1 billion. They are still reasonably substantial figures.
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 suing the BBC who was accused of fraud. 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 Baker, which was of an action taken by an MP which resulted in him winning £5000 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 year 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 Clarke Williams: 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 Clarke Williams: We have done four CFAs in the entire history of the firm. 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 Pollansky, one case for somebody whose photographs of them taking on a private beach on honeymoon were published, and then a third case that was a complaint to a broadcaster that issue proceedings 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 attention 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 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 Baker, 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, 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 that 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 ten 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 and 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 malice, which in this instance means knowing that it is wrong. That is a defamous 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 ten 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".
Q100 Alan Keen: I would like to ask two questions which may not be related to law exactly. One of the previous panel was kind to newspapers by saying all they want to do is be responsible journalists. The main aim they have got is to sell newspapers, that is really why they are there and how they sell newspapers and how they get people buying more of them is something which they act on. I have complained to the BBC about the fact that headlines are given out as the news starts which are sometimes misleading, and the BBC are in competition with other newspaper programmes, with Sky and ITV at times. By the time they get to the full discussion or the full news item on it it is not quite the same. Newspapers are guilty of this all the time in that headlines come out to get people to buy the papers and by the time you have read 17 paragraphs you realise that it is not quite the same as the headline made out or the opening three paragraphs. Is there anything in law that can reflect this? My experience is that newspapers have got away with it by saying they did not do anything wrong.
Mr Clarke Williams: I think that would be regarded as skillful journalism because one is obliged, if one is pursuing a defamation claim, to consider the whole of the article. Therefore, the poison of a headline can sometimes be corrected by what appears later in the article itself. You are absolutely right. I have got one case on at the moment where the headline contains all the evil. I had one comparatively recently for a union leader which was suggesting in the headline that she was encouraging her teacher union members to sleep with underage pupils. That is not what she had said and the article itself revealed that, but the headline was a very startling thing to confront the reader with. At the moment as the law stands the article and the headline would be analysed very closely by a court and a determination would be made as to whether or not the headline was corrected by what is read below.
Q101 Alan Keen: Should the law be changed so that the public are not misled by headlines?
Mr Clarke Williams: It is an interesting point to raise because it is something which I think clients find more difficult to understand than many other areas of defamation or they cannot understand why a headline which is patently defamatory and untrue does not give them a cause of action simply because you can pick through the rest of the article and find a correction to it. If you asked the man in the street, the man on the Clapham omnibus, they would say, "Yes, that is something which one ought to be allowed to bring a claim on," because it is what strikes the viewer in the eye, I suspect more so on Internet publishing as well. I think people surf, cruise, whatever, the websites and I think they read headlines and skip on and quite often do not read the article as well, but in a legal case the article itself would be read very carefully.
Q102 Alan Keen: Should the law be changed?
Mr Clarke Williams: Yes, I think it probably should.
Mr Thomson: I am not sure. I think it is presumed that viewers read the whole article. They may not empirically and it may be unfair, but it is presumed that they read the whole article. It would get quite technical to just sue on a headline. Everyone knows newspapers sex up the headline to sell newspapers. I think it would get quite technical just to sue on the headline. I am sure the people behind me would be outraged by the suggestion and it would be quite complicated. That may be a change too far.
Mr Coad: I think it is a real problem, though, because if you go and buy petrol or go to a newsagent or walk past stalls at a station or you turn on breakfast vision, something will be held up to the camera and there will be a headline. One of my favourite ones is the Evening Standard report of the Michael Douglas and Catherine Zeta Jones case, which of course they won, they won their privacy battle. The headline of the Evening Standard was "Michael Douglas and Catherine Zeta Jones lose privacy battle". For an awful lot of people who walk past the stands that is all they have ever learned. I agree with Mr Thomson that it does create technical difficulties, but the reality is that particularly front pages are an advert and the adverts are sexed up and they send a signal. Since the reality is that millions of people see the front page who do not buy the newspapers, that is all they get and at the moment neither the law nor the PCC provides an adequate remedy for that. I absolutely agree that it is a problem that needs to be addressed.
Q103 Janet Anderson: Let us turn to the Human Rights Act and the balance between Article 8 and Article 10. It was suggested in the previous session that section 12 had not been interpreted correctly by the judiciary very often, that the weight was now in favour of the personal privacy rather than freedom of expression and that there was a failure on the part of the courts to understand the value of freedom of expression. I wonder if you would just like to comment on that.
Mr Christie-Miller: Article 8 protects rights to privacy and Article 10 freedom of expression and they are supposed to be equal under the European Convention on Human Rights. They are given a match. There was agitation in the Human Rights Act, the legislation which introduced that for section 12, but section 12 is a step up in terms of protecting the media rather than a step down.
Q104 Janet Anderson: That is not what they were saying in the other session.
Mr Christie-Miller: Let me explain why I believe that that is not correct. If I am applying for an injunction to prevent an employee from starting another job somewhere, for example, then the test I am going to apply as to whether I should have an interim Cyanamid test is a much lower test. Essentially it revolves around whether I have got a serious issue and where the balance of convenience lies. If I am looking to restrain somebody's freedom of expression rights under Article 10 there is a different test which applies, which is the test introduced by section 12 of the Human Rights Act. That test is whether I am likely at trial to get an injunction - and "likely" has been interpreted all the way up to the House of Lords as meaning essentially 50:50 - which is a much higher test than the old fashioned pre-human rights test. So actually the media are more protected by section 12 of the Human Rights Act, but I think the complaint is the way in which more likely to succeed is being interpreted by the judges. Again, all of the jurisprudence says that when deciding where the balance lies between 8 and 10 and section 12(3) there should be an intense focus on the facts. What judges are doing is they are looking at the very detailed facts of specific cases and saying is this individual more likely than not to get an junction at the end of trial and sometimes they say yes and sometimes they say no and most of the time the judges will say, "You can protect that bit of information because that relates to your medical condition. You can't protect that bit of information because you have put that information into the public domain yourself." You may have talked about how much you are paid, for example. "You certainly cannot protect that bit of information because that is just not capable of being protected." So there is a division between what information can and cannot be protected and it is decided on the facts by experienced judges. I do not think it is right to generalise and say that those judges are not giving due weight to Article 10. They are looking at the facts of each particular case.
Q105 Janet Anderson: So you think that interpretation is fair, the way it has been interpreted?
Mr Christie-Miller: Personally, acting for claimants, I think the judges have made individual decisions which I would rather they had not made. I would rather they were more claimant friendly and the media will say exactly the opposite, that they would rather the judges apply this in a more defendant friendly manner, but the judges are applying an intense focus on the specific facts and are deciding whether or not something is likely to be injuncted at a trial or not.
Mr Clarke Williams: I agree with Rod. I think judges are conducting a very careful balancing exercise. As has been mentioned, because it is a phrase which occurs repeatedly in case law, they do so by applying an intense focus to the facts of that particular case. It may be, from something which was said earlier, that the cases which tend to go all the way to trial and which therefore become the guiding case law are slightly unusual, they often involve celebrities. Certainly my experience in acting for ordinary members of the public is that where privacy issues arise I notice much greater anxiety on the part of the newspapers to settle those claims at an early stage. I suspect that a claim by an ordinary member of the public over privacy issues which went all the way to trial would carry less of a stigma than some of these celebrity cases which have attracted so much attention. The fact is, if one reads something like the Mosley judgment, I do not think that Mr Justice Eady could have done a more conscientious job in seeking to balance freedom of expression against the rights to respect for privacy and come up with the decision which he did. I think it is being fairly applied. I think to suggest otherwise is to come back to the unfair suggestion that the judges who are determining these cases are in some way biased against the media or biased in favour of an individual's right to respect for privacy and I do not think that is a fair allegation to make.
Mr Coad: I take this on a more general level because I think if you simply go out and buy newspapers today you will find them full of all sorts of material which you might think is private or controversial. You can take a list of scalps that the press have been able to have notwithstanding all these cries of foul. The fact is that the British press does fulfill its role as a watchdog, as it should and none of us would want it to be any other way, but it is simply not true to look at our papers and say they are anodyne or newspaper editors are downtrodden. The simple going and purchasing day-by-day of newspapers or looking at websites just gives an entire lie to that. I really think that the evidence there is overwhelming, that there is not an unreasonable restriction on what they can publish either on section 12 or on any other basis either.
Q106 Janet Anderson: Do you think there should be harsher penalties available?
Mr Coad: Harsher penalties for the invasion of privacy?
Q107 Janet Anderson: Yes.
Mr Coad: The whole issue of invasion of privacy is better dealt with on an injunctive basis. It goes back to the point that we made earlier on about prior notification. It is scant comfort for a client to receive a modest sum of money from a newspaper after their lives have been wrecked one way or another. It is not a great way of protecting privacy by paying the money after it has been breached. So the preferable way is to develop some kind of system where there is an effective protection for privacy. Do I think the penalties are too high? No, I do not think they are. Given the value to newspapers of the private lives of celebrities or otherwise, the vast sums of money which they choose to pay on the market for these things and since they are published with profit then I do not think that the current fines notionally that they get for breaching people's human rights are excessive. I would also add that the Press Complaints Commission Code of Practice is written entirely by the press and the press has written in at paragraph 3 of the Code virtually verbatim Article 8. So at least there is recognition by the press itself that this is a value which they themselves should take note of.
Mr Thomson: I think the balance is about right. There are certain areas that privacy law could develop and particularly paparazzi activity of people. I think the real problem with the media and the tabloid media is that in essence they have now a policy they do not notify in advance, which means that whether it is accurate or not they do not know, if it is private they fear an injunction and just as a policy they do not notify so the damage gets done. They know the risk of an injunction. Mr Mosley's situation was that he could not even get an injunction restraining the video for which there was no public interest and probably never was and that is the major issue about this area now. There is a policy of no notification and that means that victims, whether it is a celebrity or anyone else, are not told in advance about the publication and it means that the damage is done sometimes permanently, and sometimes when the damage is done they do not want to go to trial because it is too distressing and embarrassing. It used to be when I started in practice the media would notify. Nowadays generally the tabloid media do not. There are a lot of victims who do not have an effective remedy and who cannot face the sort of trial that Catherine Zeta Jones or Naomi Campbell had to face. It is a real issue. Whether it is the law, whether it is Parliament should intervene or whether it is the regulators should put it in their Code, something ought to happen because there are real victims and they are not just celebrities whose lives are being affected by this and sometimes permanently and irretrievably and it is a big issue.
Q108 Janet Anderson: Would you say that the way things are at the moment is encouraging irresponsible journalism?
Mr Thomson: Yes. I think it has got worse. I think online articles are particularly risky and vulnerable to claims. The practice at the moment is that press standards have got worse and there are more victims. The media know this. Sometimes it is just too embarrassing. I have a number of claims where the client would have won, but given that they published the article, which was deeply embarrassing, they just did not want to go to court and face the full publicity of an action. If they were notified it would have been, for a small amount of money, resolved either by agreement or by a judge. When I am notified in advance and so you are given a few hours to seek to complain what generally happens is - because I know all the media lawyers - that you will make a call and say do not do it and maybe you will threaten an injunction. A lot of the time it is three phone calls and they say, "Alright, we won't publish those pictures of so and so with their kids," but the issue is when they do not notify and the general policy is they do not. There are real victims everywhere in England and Wales without an effective remedy and they do not want to face the Mosley publicity trial and they are left without a remedy.
Q109 Janet Anderson: So that general policy that is being adopted of not notifying people means that journalists are encouraged to be sloppy because they think "Well, I'm going to get away with it"?
Mr Thomson: A lot of the intrusive articles are inaccurate as well. Nothing is ever plainly private. There is a mixture of inaccuracies and privacy. I had a client where the newspaper wanted to publish details about his cancer treatment and one published details about his cancer treatment but they got the details wrong. There is no public interest in this. He was an actor. Because they did not check in detail the facts they had got the wrong kind of treatment and it caused him, his family, his wife and his friends huge distress.
Q110 Mr Sanders: How do you view the Press Complaints Commission? When would you advise your clients to seek redress through the PCC rather than another route?
Mr Coad: You do not really get redress from the PCC since they have elected to have only one sanction and that is the publication of a correction and apology. As you know, I have written a substantial paper on this. If I may, I am going to demonstrate a point which, I have to say, I have my client's permission to do. As I have tried to say, you are looking for a litmus test about a regulator: How can you judge the effectiveness of what they are doing? I complained about this article.
Q111 Chairman: You will have to describe it.
Mr Coad: I would like you to see it.
Q112 Chairman: It will not be on the record unless you describe it.
Mr Coad: I will read it out: "Peaches: spend night with me for £5,000". You see it as millions and millions and millions of people see it either on breakfast television, at petrol stations or at Tube stations or whatever and this is your headline point. Not one single word of this story was true; not a syllable of it. Not only was it there, but if you turn to page five you will find - and I have made photocopies of all these - that it carries on in the same vein. On a Blue Peter basis of "Here is something which I made earlier" here is the paper that carries the apology. The point is, Mr Whittingdale, it is not there. That is it, that is what the millions and millions of people who have seen it will have seen. In fact it is there.
Q113 Chairman: Where is that?
Mr Coad: Thank you, you have made my point.
Q114 Chairman: It is actually necessary, if this is to be useful, for you to tell us.
Mr Coad: I will point it out to you but I have made photocopies. Perhaps you would like someone to pass them round.
Q115 Chairman: I am sorry to be difficult but photocopies will not appear. If you want this taken as evidence, you have to describe it.
Mr Coad: It is on page 2, in size it is 2.6% of the correction. This is what the newspaper admitted. I do not think I need to tell you that what the headline implies, but the newspaper accepts and says: "We apologise to Peaches for the implication in the headline that she provided services of a personal or sexual nature for the payment of a fee." So the newspaper accepted that that is what the implication was on the front page. The point is this: the newspaper agreed, as they could do no other, that the front page story was inaccurate, but what they would not do was put the correction on the front page. I went to the PCC and made the point that millions and millions of people who do not buy the newspaper will have seen this on the front page and therefore the only place for the correction to be is on the front page. In the 2003 Sir Christopher Meyer came in front of you and said of prominence, not once but twice, that of course corrections must be at least as prominent as the original article otherwise it would be ridiculous. I think we would agree with that. You will see that also in my paper I have done a little survey and he said that on a front page where there has been a hideous transgression - and you may think that accusing a 19-year-old girl of prostitution on the front page of a national newspaper might possibly be a hideous transgression - in those circumstances the apology should be on the front page, or at least trailed on the front page. Well, it was not. If you have a regulatory body which has as its sole sanction the publishing of corrections and apologies, and time after time they flout that in favour of the very industry that pays them and appoints them and set them up, then that is the clearest indication, in my view, that it is a body which is failing. It causes the most intense frustration and people simply cannot understand it. They cannot understand how an editorial decision can be made on one day that this story is of sufficient importance to go on the front page, but miraculously when it comes to correcting it, and a volte-face is undertaken, the editorial decision is taken no, it should be elsewhere, or it should be a tiny fraction of the original story. As far as you go back to redress, that is the only redress that the PCC gives. My last point, and then I will shut up, is that there are three interest groups when it comes to an apology: there is the newspaper; there is the individual family, friends and whatever; and there is the general public who have been misled in the first place. The striking thing about the PCC policy on prominence is that invariably it favours the newspapers' interests because the only interest group where it is best the apology is kept small is the newspaper. It is invariably the newspaper that persuades the PCC to agree to a 5% size apology, so the interests of the complainant and the general public who have been misled are set aside in favour of the newspaper. There simply can be no other explanation of a body like this, that it is failing the complainants and it is obviously, and fatally, biased in favour of those that set it up and fund it.
Q116 Mr Sanders: That is a very persuasive example of failing. What needs to happen to bring about the remedy that many people believe the PCC is there to obtain for them?
Mr Coad: There needs to be root and branch reform of the PCC. My own view is that the better thing would be to change this entirely anachronistic system we have whereby footage that is shown on a newspaper website is regulated by one body but if it is shown on television it is regulated by another. We now have a rapidly converging set of media. The only sensible thing to me - and also to avoid the competitive advantage that newspapers have by regulating themselves, which of course the broadcasters do not have - and I should add that I have spent quite a lot of my time defending broadcasters - the only sensible thing is to place newspapers under Ofcom and for them to be regulated. You read a newspaper on the screen, you watch television programmes on a screen through your PC. Why on earth should there be any difference in regulation? Why for example should the PCC be allowed to operate a system where there is no independent representation on the Code Committee? You cannot turn up at hearings where your complaints are being adjudicated, rather like Guantanamo Bay. There is no substantive appeal to decisions of the PCC and this cannot be right.
Q117 Chairman: We are at 1 o'clock which means we are going to have to stop in any second, but I am anxious that the other three of you say whether or not you agree with Jonathan Coad about the inadequacy of the PCC?
Mr Thomson: It has a role but it is a limited role. The Code is reasonably good but it should be amended and it should include notification so that it is part of their professional obligations to notify. It has a limited role. The notification of harassment procedure is quite effective and I am sure is of use. If someone is being harassed by the media they do actively intervene, but the adjudications and the complaints procedure is not, in my view, a sufficient remedy. They have a limited role and for serious complaints and serious libels they are best dealt with between lawyers rather than through the PCC.
Mr Clarke-Williams: I agree with that analysis. For minor inaccuracies it can sometimes be a sensible option for a client, but, I am afraid, the inadequacies so graphically described by Jonathan mean that it has engendered enormous cynicism about the Press Complaints Commission, which has got as far as the general public, and quite often members of the general public say, "There is there is no point going to the PCC, is there?" when I meet with them at the initial client meeting. That is a sad reflection on the way in which it is regarded.
Q118 Paul Farrelly: It appears very rapid and proactive when it comes to members of the Royal Family, for instance in the issue of the Evening Standard saying that Prince Philip had got prostate cancer, but not when it comes to ordinary members of the public. Is that a fair assessment?
Mr Clarke-Williams: It is certainly my experience acting for ordinary members of the public rather than members of the Royal Family, yes.
Mr Coad: That is a good point but, as I recall, the prostate cancer story was most of the front page. I will never understand why there was a kind of postage stamp note on the front page saying that there had been a correction, but the correction was page 14 or something like that, so for those who walked past and saw the story and did not buy the Evening Standard, which would be millions, the story was effectively not corrected.
Mr Christie-Miller: I have not got any newspapers or a PowerPoint presentation so I cannot compete with Jonathan, but I am not quite as damning as Jonathan is. I tend to agree with Jeremy and Mark a little bit more. There are certain things the PCC is very good at. If one has a non-defamatory inaccuracy, so it is not something that is open to be sued upon, then the PCC is the right person to use. In addition, we have had instances where the media have - and I am not quite sure of the right word - amalgamated photographs to make an untrue set of circumstances appear. Again in non-defamatory circumstances the PCC Code has bite on those, but, other than that, if it is serious, use the courts I think. That is always our experience.
Chairman: I am afraid we are having going to have to stop here. Can I thank all four of you very much.
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I HAVE PUT THIS ON AS IT IS THE FIRST MINUTES OF EVIDENCE BY THE COMMITTE WHO WILL SHORTLY HEAR EVIDENCE FROM GERRY MCCANN BUT
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