With the Privy Council due to meet next week and consider rival press regulation Royal Charters, former Times Newspapers legal chief Alastair Brett believes now is the time for the newspaper industry to set aside its fears about creating a libel disputes arbitration service
If MPs crossed the Rubicon last March and started meddling with press freedom by introducing a Royal Charter for press regulation, the press is now drinking in the ‘Last Chance Saloon’. If it carries on crying “no statutory intervention” it could end up with the worst of all worlds – the Government’s Royal Charter, costs protection orders for claimants with marginal claims against the press and having to foot the bill for almost every media dispute. If ever there was a case for the press to think again, now is the time.
The fact is that the Government is hell bent on providing ‘access to justice’ either with a 'free' arbitral system, as recommended by Leveson, or introducing “one way costs shifting” as recommended by Lord Justice Jackson through “costs protection orders” for claimants of modest means. Thus, even if a newspaper wins a long expensive and hard-fought libel or privacy claim, it will not be able to recover what could be huge legal costs from the other side.
The Government’s latest Consultation Paper, “Costs Protection in defamation and privacy claims: the Goverrnment’s proposals”, should send shivers down the spine of all Fleet Street lawyers. If conditional fee agreements and the recoverability of ATE insurance premiums and 100 per cent success fees from losing defendants were hated, what the Government is now proposing is not a lot better. The simple fact remains: any dispute resolution system must have built into it a system under which vexatious or frivolous claims can be struck out with costs except in very rare cases. On that one principle, Fleet Street should stand shoulder to shoulder in responding to the Government’s consultation paper.
What the press must now do is distinguish clearly between post publication dispute resolution systems – in relation to which there has to be statutory intervention and the press must do a deal with the Government – and pre-publication editorial control – something which is totally sacrosanct to any editor and any half decent democrat – and in relation to which the Government must back off. That does not mean that the Government should not be encouraged to introduce a statute, like the Constitutional Reform Act 2005, which set up a totally independent judiciary, to underpin an entirely independent free press with its own regulatory authority and Code of Practice.
The quid pro quo for a degree of statutory intervention and setting up the Fourth Estate as a bulwark to our democracy, with free speech at its heart – like the First Amendment in the USA – would be that no one could issue a high court claim for defamation or privacy and seek damages against the press without first having been through a mandatory, 28-day “fast track” adjudication process, like in the construction industry. Just such a process was introduced into the construction industry in 1996 following Sir Michael Latham’s report, “Constructing the Team”. This cheap fast track adjudication system, not a million miles from what Lord Justice Leveson has recommended in his “free arbitral system” for the Press, has proved remarkably successful in resolving disputes in the construction industry.
If the press does not want “costs protection orders” to lead to something equivalent to 'legal aid blackmail' – 'pay up quickly and it won’t cost you more than a couple of thousand pounds but fight the claim and even if you win it will be a Pyrrhic victory as you will never recover your costs' – the press needs to offer up a financially sound, quick 'fast track' arbitration or adjudication system which will give access to justice but cut off claims which are frivolous, vexatious or an abuse of process at the outset.
The press should therefore offer to pay for an independent experienced arbitrator possibly with two lay assessors, to decide a key issue – like the meaning of the words complained of or if they are honest comment or a statement of fact. I used to offer just such a system at The Times and it never cost more than a few thousand pounds. With the key issue, like meaning, determined at the outset, both sides know where they stand and the claimant either backs off or the newspaper has to apologise and make an offer of amends. In short, it is not hard to settle all outstanding issues once the key issue has been determined.
Any major changes to dispute resolution systems, particularly ones which force both sides to go down a cheap, fast track adjudication route need statutory underpinning. The press must be open to this. If Fleet Street continues to rail against “statutory intervention”, even when this applies to post-publication dispute resolution, it will suffer a far worse fate and end up facing claimants either with costs protection orders or those who cannot begin to pay the newspapers costs once they have lost the case and the costs have run into hundreds of thousands of pounds.
So the press must embrace some statutory intervention, principally a quick, cheap fast track arbitration system for all libel and privacy claims. The cost of the arbitrator deciding the key issue would be paid for by the industry but after that either side could go down in costs if the case iwa lost. There would also be a filter for all claims. The new press regulator could use a small group of experienced independent lawyers to filter claims: some would automatically go forward to 28-day adjudication while other claims would be deemed so frivolous as to be rejected and the claimant invited to make a Part 8 application to the High Court to have the case certified as “justiciable”. If it was deemed justiciable, the newspaper would have to pay the costs of the application and it would be sent off to arbitration. If it was not justiciable, the claimant might well have to pay the costs of the newspaper for wasting time.
If the press offers some kind of “free” arbitration system along these lines, it might just stop the Government introducing one way costs shifting and Costs Protection Orders for claimants of modest means. That could lead to terrible injustice and become a real nightmare for those nationals who believe they should fight some privacy and/or libel claims as a matter of principle. And it could decimate the regionals and less wealthy nationals.
Alastair Brett is former legal manager at Times Newspapers and now runs Early Resolution CIC, a not for profit company set up to help those locked in libel litigation