Caldecott: challenge mark-up
Stories about foreigners, paupers and the royals used to be seen as carrying little risk of attracting legal actions, but times have changed, Andrew Caldecott QC warned.
- October 28, 2016
- November 4, 2013
- September 17, 2013
He said that foreign politicians and businessmen started sueing British papers in the Eighties and now the names of claimants issuing libel writs “read like a Tolstoy novel”.
He told the conference that stories involving foreigners were now a “cue for caution” for newspapers as libel actions involving them could be very expensive.
Caldecott also argued that the position of potential litigants without the means to sue had been “turned on its head” by the introduction of “no win, no fee” conditional fee agreements.
“Now they are the most dangerous claimants,” he said. “Because of the conditional fee agreement, it’s double your money for the claimant’s solicitors but no win for the newspaper. If the newspaper wins, it has no real prospect of recovering its costs from the unsuccessful claimant.”
Conditional fee agreements have caused controversy because lawyers can claim up to a 100 per cent markup on their costs if they win, on the grounds they have risked getting nothing if they lose.
Caldecott suggested that the media should find the right case and challenge the 100 per cent mark-up on costs under the Human Rights Act, claiming it infringed freedom of expression.
He predicted that members of the Royal Family would still be unlikely to sue for libel because that could leave them open to be cross-examined in court. But he did point to the Queen’s recent action against the Daily Mirror, after the fake footman’s revelations, which showed she was prepared to go to the courts to protect her privacy.
Caldecott advised journalists to be highly disciplined in keeping notes in case of libel actions and claimed some reporters’ shorthand was “so idiosyncratic that they cannot read it after a couple of days”.
He said tape recording was the “most perfect” way of keeping records.
He also advised journalists to back up and save notes that were written directly into a computer, rather than edit them down for a story.
DOMINIC PONSFORD AND JON SLATTERY REPORT FROM THE PRESS GAZETTE/NEWSPAPER SOCIETY LAW FOR JOURNALISTS CONFERENCE