Jack 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
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This article originally appeared in Media Guardian
The most disparaged parliament in living memory may end its life this week in characteristic style. A small band of refusenik MPs are planning to stay behind to prevent one last piece of business from being passed.
These are plans, presented by Jack Straw, the justice secretary and a latter-day convert to libel reform, to limit the success fees won by avaricious legal firms in cases conducted under conditional fee agreements (CFAs), better known as “no win, no fee”. In one fell swoop, and somewhat hastily, Straw has sought to cut back the costs that law firms can charge the other side after successful cases – from 100% to 10%.
Reform of CFAs has been an important part of our broader campaign with English PEN and Sense about Science to change England’s hideous libel laws, which are skewed towards the rich and powerful and have helped to chill free expression in the UK and around the world. The issue is complex. The original idea behind “no win, no fee” was admirable, allowing ordinary and often impecunious people either to defend themselves or to sue for damage to their reputations. However the system is open to abuse, with law firms cherry-picking risk-free cases and wealthy individuals using CFAs to bully people into submission.
Last week, it was assumed that Straw’s plans would go through easily. But this did not take into account the small number of MPs nursing resentments over the way the media have treated them during the expenses scandal. Several of them, led by Tom Watson, a close ally of Gordon Brown, have won defamation cases against newspapers. They belong to the old school that sees the fourth estate as a feral beast needing to be tamed, rather than understanding the extent to which robust investigative journalism and fair comment have been silenced in recent years. They also ignore the significant impact of costs on NGOs investigating corruption, as well as on scientists, academics, publishers and authors.
If these malcontent MPs succeed, they will have made a small dent in the bigger campaign. The battle for free expression in the UK has become attritional. The forces of resistance have begun to organise, and they are lobbying hard in parliament, particularly targeting the Tories. While Labour have belatedly joined the Lib Dems in committing themselves to the principle of libel reform, the Tories remain unclear in their intentions, with several key figures enjoying close relations with the law firms at the heart of the problem.
Yet for every setback there is a cause for celebration. On Thursday, the scientist Simon Singh secured an important victory when the court of appeal ruled that his negative remarks about chiropractors were “honest opinion” rather than fact. In other words, he does not have to provide hard evidence to support his claims against the British Chiropractic Association. The specifics of the judgment are welcome. Arguably even more important is the language used.
In their ruling, the judges not only dismiss the arguments used by Justice Eady in his initial ruling last May. They point to broader ramifications. For nearly two years since publication of Singh’s Guardian article, they say: “it seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices.” That is a devastating indictment.
The judges go further, saying of Singh’s piece: “The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.”
This ruling just may be part of a pattern. Already one or two cases that might have been brought by foreign litigants – using the UK, as ever, for what has come to be known as “libel tourism” – have been rejected on grounds of jurisdiction.
Judges are sensing the public mood and moving with it. Yet it could all unravel quite quickly with an incoming government asking for yet another review, giving time for the law firms’ lobbyists to cash in and wreck reform. The litigant companies will move back on to the offensive, sniffing their chance to regain lost ground, and lost profits. The battle for libel reform has barely begun.
John Kampfner is Chief Executive of Index on Censorship
Once in a while, in these days of antagonism towards the political-legal establishment, something happens that gladdens the heart. The ruling yesterday by three of the UK’s most senior judges in the long-running defamation case against the science writer Simon Singh was one such moment.
The Lord Chief Justice, Lord Judge, and his appeals panel have not just ruled against a critical aspect in the case brought by the British Chiropractic Association (BCA). They have set a precedent that should make it considerably harder for organisations to try it on in this way in the future.
For Index on Censorship and our partner organisations, this marks the latest victory in our campaign to reform England’s hideous libel laws. Since we launched our 10 proposals for change last November, we have seen public opinion shift steadily in our favour, with the law struggling to keep up.
Singh’s two-year campaign has already cost him £200,000 in fees. It is testament to his courage that he has seen it through. Time and again in recent years other scientists, authors, journalists and NGOs have decided to settle, and to apologise, simply for fear of destitution. Too often they have had nothing to apologise for, but have been bullied into it.
In his ruling, Lord Judge condemns the use of protracted litigation for its “chilling effect on public debate”. The judgment made clear that Singh’s negative remarks on chiropractic care were “honest opinion”, rather than a statement of fact, thus sparing him the need to prove his case through evidence – and delivering a telling rebuff to the libel-judge-in-chief, Justice Eady, who had ruled against Singh last May.
“[Singh’s] opinion may be mistaken,” the panel said, “but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian Ministry of Truth”.
The courts must still adjudicate on the claim for defamation, but on the strength of this verdict, the BCA will be under considerable pressure to withdraw its claim.
John Kampfner is Chief Executive of Index on Censorship
A Statutory Instrument that would have reformed costs in English libel cases was stalled at committee stage tonight after several Labour MPs voted against their party whip to bock a reduction of lawyers’ success fees from a 100 per cent mark-up to 10 per cent. Chris Mullin, Peter Kilfoyle, Tom Watson and Jim Sheridan, and Conservative Julie Kirkbride acted against the move. Watson and Kilfoyle have both taken advantage of Conditional Fee Agreements in past court cases. Other Conservative MPs abstained from the vote.
The proposal will now go to a full parliamentary vote.
[Note: post updated to 12.05 a.m. to clarify Julie Kirkbride is a Conservative party MP]