Fleet Street is not on its Knees
Edward Yell
Published in Solicitors Journal: 5 August 2008
The use of conditional fee agreements (CFAs) in libel actions never fails to provoke indignation amongst media organisations and Defendant lawyers alike. It is the perceived unfairness of a success fee, coupled with the potential liability for a sizeable ATE insurance premium, which is so hard for Defendants to swallow.
Recent media coverage of this issue has gone so far as to label the libel CFA regime as ‘grotesque’ and has argued that so extreme are the costs’ implications that freedom of speech, along with the media’s right to a fair trial, has been fundamentally undermined. Aside from the obvious self-interest in making such proclamations, the coverage frequently neglects a number of important issues.
Foremost amongst these is an individual’s right to access for justice. The CFA regime has allowed many impecunious individuals to bring proceedings that would have otherwise been impossible. Perhaps the best examples are the cases of Lynn Walker who was wrongfully accused of murder or, more recently, the proceedings brought by Robert Murat against various media outlets. Libel law is not simply the domain of the slighted celebrity.
Further, whilst some critics will support CFAs for the impecunious they balk at the idea that the wealthy should have access to the system. Given that libel claims can be prohibitively expensive, just how wealthy do you have to be to be denied a CFA? With proceedings brought by wealthy claimants, there is no real reason why defendants should not themselves act on a conditional fee basis.
Critics of the CFA regime frequently point to cases such as Jones v Associated Newspapers where damages of £5000 were dwarfed by costs in excess of £300,000. On face value such a discrepancy appears absurd but the MP wanted an apology for a false allegation and did not get one. Discrepancies of this kind are almost always caused by a refusal by defendants to accept that they have got it wrong.
In practice, there are a host of options available to a defendant to avoid the costs of CFA litigation. The offer of amends procedure allows Defendants a quick and inexpensive escape route when obvious journalistic ‘cock-ups’ have been made. Similarly, following Reynolds, defendants need not even get the story right, provided of course that their journalists have acted responsibly. Also it should not be forgotten that an article need be only substantially true; a fair degree of window dressing is allowed.
Regrettably such is the public’s demand for salacious gossip and scandal that the media continues to publish material they know to be false. Reputations are destroyed by simple market equations. Even with issues of genuine public interest journalists cannot resist the urge to sex things up, and this applies equally to the recent criticism of the CFA regime. With a combined turnover of £6bn and only around 100 libel writs a year, Fleet Street is not on its knees.