Libel reform washed out?
07 Apr 2010

Bob SatchwellJack Straw’s measure to reduce success payments to lawyers in ‘no win no fee’ libel cases sunk by a misinformed backbench rebellion, says Bob Satchwell

The reform of CFA success fees had been championed by one of the government’s most senior ministers. A senior judge had pointed to the need for change and John Whittingdale, chairman of the House of Commons Select Committee on Culture, Media and Sport had called for swift action.

What does it say about the working of government that this simple but urgently needed reform was allowed to become a casualty of petty politics in the pre-election wash-up?

Opponents to a change that would have tempered a dangerous disincentive to scientific debate and proper journalistic inquiry on behalf of the public seem to have been seduced by the arguments of lawyers who most benefit from success fees — hardly an independent voice.

They claimed consultation had been too short when the issue had been dissected and debated for at least three years.

They said there was a danger that less well off people could be denied representation because lawyers needed high success fees in no-win-no-fee actions. The fact is that claimant lawyers select the cases with the greatest chance of success.

They suggested more evidence of wins and losses was needed. Sadly claimant lawyers were distinctly shy on the subject but only recently one let slip that as many as 300 victories had been set against as few as 15 failures. Such figures would require far less than ten per cent success fees to compensate for the losses.

Justice Secretary Jack Straw was persuaded that it was not in the public interest to discourage journalistic investigation and comment across the media from the smallest local newspaper to the biggest nationals and the BBC. That has been the result of fees being doubled and what one distinguished law professor described as 130 per cent profiteering.

A simple and relatively easy solution was found in the form of a change in regulations that are normally nodded through parliament.

It was an interim measure that could have been equally easily reversed if access to justice was threatened or if well-heeled lawyers found themselves in the poor house.

It is a disgrace and another parliamentary and political scandal that a tiny number of misinformed politicians should have been allowed to thwart a carefully thought through reform that would have helped reinvigorate reporting and debate that is a vital part of the democratic system that they are supposed to uphold.

Bob Satchwell is Executive Director of the Society of Editors that has members in national, regional and local newspapers, magazines, broadcasting and digital media, journalism education and media law

2 responses to “Libel reform washed out?”

  1. Bob Satchwell says:

    All of the detailed evidence was submitted to the House of Commons Select Committee and to the Ministry of Justice consultation. That’s why the Secretary of State decided to amend the regulations.

  2. Richard Edwards says:

    It is this article which is misinformed:
    1. “Senior judge pointed to the need for change” – yes he did – with a balanced package of measures – including costs protection for impecunious claimants. The proposed reform did not have this balance – which is why it was OPPOSED by senior judges (the Master of the Rolls and the Senior Costs judge were against).
    2. “a change that would have tempered a dangerous disincentive to scientific debate and proper journalistic inquiry on behalf of the public”: In fact two of the three well known “scientist defendants” (Singh and Thomsen) were using CFAs to defend claims. There is no evidence that CFAs are a discincentive to scientific debate – quite the contrary. No one has actually produced evidence to show that journalistic inquiry has been damaged – most of the arguments come from tabloids who never engage in it. In Bob’s words “hardly an independent voice”
    3. The reduction of success fees to 10% has not been “dissected and debated” for 3 years – actually it was only proposed in January. The Government’s own advisers have admitted that there is no evidence to support 10%.
    4. There is no evidence that lawyers regularly take 100% success fees – 100% is the maximum, all the evidence was that the average success fee was much less than that.

    Let’s have a rational, evidence based, debate Bob, not simple repetitions of the same old prejudices.