Talking point: CFA attack is an attack on justice

Access to justice can only be achieved in libel claims with the use of CFAs. Therefore, if, as Patrick Smith said in his article (Press Gazette, 4 April), they are ‘a growing problem for the media’, then the attack on them will be an attack on access to justice which, like freedom of expression, is a fundamental cornerstone of a democratic society.

I was one of the solicitors on the claimant side that spent many hours at meetings held in Theobalds Park and other venues under the guidance of the Civil Justice Committee (CJC) and the Department for Constitutional Affairs (now the Ministry of Justice). Along with other claimant firms that were broadly castigated in Patrick Smith’s article and by the media defendants’ lawyers, we sought to find a solution to the debate about CFAs in libel cases which protected the balance between claimant and defendant.

The proposal put forward by the claimant solicitors, which was endorsed by the Ministry of Justice in its consultation paper, was not some side deal done by a limited group, but a carefully thought-out proposal which the claimant solicitors and the CJC understood had been approved by all the media organisations who were well represented at the meetings.

This agreement was reached after the claimant solicitors had agreed to provide statistical information showing, in fact, that the uplift achieved on successful defamation claims barely, if at all, covered the losses

suffered on unsuccessful ones, because the unsuccessful cases tended to be lost at trial when far more significant costs had been incurred, so illustrating the necessity for CFA uplifts to apply to on a ‘basket of cases”.

This information was to be provided in return for corresponding statistical information from media organisations supporting their argument that CFAs had a chilling effect on freedom of expression. This offer to exchange information was not taken up by the media.

Because legal aid has never been available for libel claims, they used to be the preserve of the rich, or those funded by insurers or trade organisations. They were the only ones who could be placed on a level playing field with the media.

CFAs have meant that this is no longer the case. That the rich also make use of them is not a reason to get rid of them or make them in some way ‘means tested”.

There exists under the civil procedure rules and the rigorous cost-assessment provisions the means to ensure that the media has ample opportunity to settle any claim for libel

economically and at an early stage where they have their facts wrong, or to protect themselves against the avaricious claimant where they are risk. There also exists scope for defendants to strike out the whole or part of an unmeritorious claim at an early stage, and if, at the end of an action they do have to pay the claimant’s costs, then these can be rigorously scrutinised by specialist costs assessors in the court.

It is worth mentioning that in such circumstances these costs assessors must resolve any doubt about the payment of the costs in favour of the paying party so ensuring that when the media do have to pay costs, the balance is in their favour. But if the media is able to side-step the consultation process and through its enormous collective power go direct to government to seek to restrict access to CFAs, the people hurt will not be the rich and famous, who still would be able to fund their actions, but the type of client that we, and the other claimant firms, act for on a regular basis.

For example, a community nurse who was accused by a national tabloid on two consecutive front-page articles of hastening the death of 17 terminally ill children by over administering morphine. Her life, career and family had been devastated. We secured six-figure damages and a substantial apology which enabled her to re-enter the profession she loved.

CFAs may be an inconvenience for media organisations requiring them to strive for higher journalistic standards in what is a deadline-driven world, but the need to impose checks and balances on the media cannot be a reason to remove CFAs in libel actions.

Sarah Webb

Partner, Russell Jones & Walker

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