Alastair Brett is a solicitor and managing director of Early Resolution CIC. He is the former legal manager at The Times and The Sunday Times.
Press self-regulation or statutory intervention? Black or Leveson? Those are the questions on everyone’s lips following publication of the Leveson Report into the culture, practices and ethics of the press.
Or is there a third way? Could the Press neatly throw the ball back at the judiciary and see just how good they are at reforming their own house? If the press is feral and unruly, changing the law is like watching a glacier move.
The one thing everyone can agree on is the appalling cost of litigation and how difficult it is to get redress against the press.
Leveson is a clever man and close to the Lord Chief Justice, who believes implicitly in a free press and an independent judiciary – “two pillars of a healthy democracy” – as he has referred to them in the past.
Any suggestion of “pre-publication”, regulation or control, sends shivers down the press. Indeed, Leveson’s only real mistake was to talk about Ofcom being the ‘long stop’ or validating body which might lie behind any new independent regulatory body, checking that it is doing its job satisfactorily and fairly.
The panic caused by the mention of Ofcom is not just because it is a licensing body and believes in impartiality and fairness but also because its head or chair is appointed by the Government using Parliamentary procedures for public appointments. Coupled with its ability and willingness to impose fines on recalcitrant radio stations, Ofcom is the ultimate bogeyman to free speech fanatics occupying the blue corner.
So who should guard the guardians? Some analysts, the Prime Minister included, advocate delaying legislating on the “long stop” or “validating” body until sometime in the future.
Key to the new regulator’s performance will though be whether or not it can offer victims of press intrusion and bad behaviour access to justice through a fast track, fair and cost effective dispute resolution system. And that system must involve awarding damages to those press victims whose reputations have been trashed or their privacy invaded.
Leveson has recommended a new system of free binding arbitration, paid for by the industry, as an alternative to High Court litigation which everyone accepts is cripplingly expensive.
However, any such new arbitration system will remain optional and therefore ineffective unless it is introduced under statute OR the judiciary build in real incentives for rich claimants and/or powerful defendants to go down this new fast track arbitration route. If they choose not to go down this free and independently run ADR route, they will be seriously penalised when it comes to recovering their legal costs.
Central to any new arbitration system must be a fail-safe filter system so that spurious claims by vexatious litigants are weeded out on day one.
So we come back to the judges and whether or not the Civil Procedure Rules Committee will make it absolutely clear that those not using the new quick, cheap and fair independent arbitration system will be heavily penalised in costs.
If the judges make it clear that they will implement Leveson’s recommendations on costs and exemplary damages for those publishers not joining the new regulated system, then statutory intervention might just be put on a back burner.
Lords Black and Hunt might therefore, along with their editors, think long and hard about tossing the ball back into the court of the judiciary and the High Court Rules Committee to make sure that what Lord Leveson advocates under a free arbitration system, run by a new regulator, actually has strong incentives and deterrents.