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The following letter appeared in today’s Guardian (26/03/12)
The legal aid sentencing and punishment of offenders bill will have its third and final reading on Tuesday in the House of Lords. Parliament is therefore on the cusp of passing a law that will grossly restrict access to justice for ordinary people in privacy and libel cases, without even any saving to the public purse. We strongly object to the passing of this unjust measure and urge you to amend it before it is too late.
Of course we are the first to recognise that legal costs in many cases are too high and also that some reforms are justified, but the bill includes changes to conditional fee (“no-win, no-fee”) agreements and to after-the-event (“no-win, no-premium”) insurance schemes which will effectively make them non-viable in libel and privacy cases, where financial damages to a successful claimant are far too small to cover these costs as the bill currently proposes they should. So only the rich could take on a big newspaper group. A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy or corporate libel claimants. Although the aim of reducing costs is very laudable, the position of lower and middle income claimants and defendants in these types of cases has simply been ignored.
Even if a lawyer will take a high-profile case without a “success fee” that compensates for the risk of losing some cases, or even does the case pro-bono, there is still the enormous risk to defendants and claimants that if they lose, they will have to pay the other side’s costs. A person of ordinary means in that position basically has the choice of living with injustice or risk losing their home.
Lord Justice Jackson recognised this problem when he proposed an alternative to insurance in his review but the government – without explanation – has not accepted his recommendations in these cases.
In practice this means that in future ordinary defendants, like Peter Wilmshurst, Hardeep Singh and Heather Brooke will also be unable to get support for legal action taken against them, often by large institutions with deep pockets trying to silence them. That would be bad news for science and medicine, for free religious debate and for transparency in the public interest. And victims of the tabloid press like Christopher Jefferies, Bob and Sally Dowler, Kate and Gerry McCann and Robert Murat will not be able to take legal action against the tabloids for hacking into their phones, for false accusations and for gross misrepresentation. Newspaper corporations with big legal departments and their own insurance would scare people off by the prospect of facing a million pounds worth of costs if they lose. This is obviously both wrong and unfair to the ordinary citizen with a good case.
The bill simply fails to consider people like us. Unless a change is made on Tuesday, the government will have succeeded only in uniting both claimants and defendants from modest backgrounds – together with their supporters – against the government and much of the good will generated by the setting up of the Leveson inquiry and promising a libel reform bill will be lost.
We urge you to take action now to amend the legal aid, sentencing and punishment of offenders bill to specifically remove libel and privacy cases, or you will stand accused of being unfair to ordinary people and giving yet more power to large media corporations and corporate libel bullies.
Gerry and Kate McCann