Lord Justice Jackson reports on libel costs
14 Jan 2010Lord Justice Jackson’s report on civil litigation costs has endorsed the recommendations on limiting of costs put forward by Index on Censorship and English PEN’s report, Free Speech Is Not for Sale
In a report published today, Lord Justice Jackson noted: “Many articles have recently appeared in the press concerning libel tourism and the effects of current libel law and the costs regime. A report entitled “Free Speech is not for Sale” by English PEN and Index on Censorship (“EPIC”) was published in November 2009 and gained wide publicity. The report argues that English libel law imposes excessive restrictions on free speech and has a chilling effect upon journalism and publishing. EPIC makes a number of recommendations for reform, one of which is: “Cap base costs and make success fees and ‘After the Event’ (ATE) insurance premiums non-recoverable.”
“… In relation to costs, I am in agreement with certain of EPIC’s conclusions. In particular, for the reasons set out in chapters 9 and 10 above, I consider that success fees and after-the-event (“ATE”) insurance premiums should cease to be recoverable.”
However, the report proposes that an increase in damages awards of 10 per cent, along with “qualified one ways cost shifting”: “By ‘qualified’ one way costs shifting I mean that the claimant will not be required to pay the defendant’s costs if the claim is unsuccessful, but the defendant will be required to pay the claimant’s costs if it is successful.”
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2 Comments so far
Richard Wilson
Jackson’s use of the term “access to justice” seems very one-sided. If a rich litigant were to sue me for libel over something I’d said, there’s no way I could afford legal representation – especially if there was no prospect of my ever being able to recover my costs. I’d therefore be denied access to justice in any meaningful sense. Without proper legal representation I’d certainly be denied the right to a fair trial.
It’s not only freedom of expression that Jackson is proposing to set aside in favour of his particular definition of “access to justice”. His proposals would also, in effect, deny a great many defendants the right to a fair trial.
I don’t think we need to accept an either/or choice between freedom of expression (and the right to a fair trial) on one side, and “access to justice” for defamation claimants on the other. Creating a low-cost ‘libel tribunal’ (or directing defamation cases to the small claims court) would allow those who feel they’ve been defamed their day in court – whilst at the same time helping to keep costs down to a level where defendants are actually given a fair hearing.
The system that Jackson is proposing would make it even easier for malicious litigants to sue, and would further reduce the cost of bringing and losing a malicious case. Even more so than now, dubious characters with money to spare would be able to buy the silence of their critics by repeatedly threatening libel, and occasionally bringing cases to court which, even if they were destined to lose, would still impose substantial, unrecoverable costs on those who had criticised them.
Even for a large newspaper with significant resources, it’s difficult to see how it could make financial sense to run exposés of super-rich serial litigants (in the mould of the late lamented Robert Maxwell) if there was no way at all of recovering their defence costs – even when they were able to prove their facts in court.
defamation cases in Ireland
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