No-Win, No-Fee Libel Law Is a Real Danger to Press Freedom; MEDIA ANALYSIS

The Evening Standard (London, England), June 3, 2009 | Go to article overview

No-Win, No-Fee Libel Law Is a Real Danger to Press Freedom; MEDIA ANALYSIS


Byline: Roy Greenslade

THERE may well be a view in certain quarters that journalists who complain about the libel law are little different from sailors who complain about the sea. I make no apology, however, for railing against a law that restricts freedom of expression.

It is recognised across the globe that Britain has the most oppressive libel law in the developed world. Indeed, that is why people from other countries are only too happy to use our courts, rather than their own, to pursue legal actions. Libel tourism, as it is known, is the most obvious manifestation of the fact that our laws place severe limits on press freedom compared with other countries.

Before I go further, I must stress that I believe individuals must have a way to protect their reputations and, incidentally, also their privacy. I am not in favour of ditching libel law in its entirety.

But it is clear that the balance between freedom of expression and the right to reputation has gradually swung too far towards the latter. To counter this lack of balance, newspaper lawyers have asked the Government to consider sev-eraurgent reforms, such as the introduction of a single publication rule for internet publication, the removal of the automatic right to a jury trial and some limitations to restrict large corporations and companies from being able to sue for libel.

These would be important changes, and I support them. There is a further reform, however, that I believe is crucial to restoring the rights of reporters to investigate and commentators to write without the fear of being sued -- a restriction on the use of conditional fee agreements (CFAs). In common par-lancethey are known as no-win, no-fee agreements and I admit that I have changed my mind about them because, when they were originally introduced in 1995, I believed they offered people who would not normally have the funds to pursue court actions the chance for redress.

In principle, they were a good idea because legal aid was not available for libel actions. CFAs enable solicitors to offer their services -- to, supposedly, less well-off people -- on the basis that if the case is lost, the client would not have to pay.

If they win, solicitors are compensated for having taken the risk by claiming a success fee above their normal costs, which can literally double their money. In addition, once the legal process is under way, clients have been able to obtain after-the-event insurance (ATE), though they are not required to pay any premiums until the conclusion of the case, and the money is only payable on success.

In practice, the system has not worked out as planned, nor as I expected.

First, the well-to-do, including highly paid celebrities, have been regular beneficiaries of CFAs.

Second, the combination of success fees for solicitors and the rising costs of ATE have proved to be a potent mixture, sending costs into the stratosphere even though the damages involved in most actions are usually relatively small.

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