Open letter to Prime Minister on 'no win, no fee' agreements for libel and privacy cases

Posted: March 27, 2012 at 9:05 am

The Hacked Off and Libel Reform campaigns have backed an open letter to the Prime Minister yesterday, signed by Kate and Gerry McCann, Christopher Jefferies, Robert Murat, Zoe Margolis and others.

Christopher Jefferies, arrested on suspicion of Joanna Yeates’ murder and released without charge, said:

“It can not be rational or fair for people like me to be denied access to justice in seeking to defend our reputations against powerful newspaper groups, especially at a time when the Leveson Inquiry is revealing the potentially malign influence of media organisations. The Government should disapply this bill to cases such as mine, otherwise the legislation will introduce serious injustices. ”

Dr Simon Singh, of the Libel Reform Campaign, said:

“Although I did not wholly rely on a “no-win, no-fee” agreement when I successfully defended myself against the British Chiropractic Association, scientists, doctors and writers like me nearly alwaysneed some help in financing a defence against a wealthy libel claimant. Without proper provision, we will be unable to defend our freedom of expression. I know the Government understands the importance of reforming libel law to make it fairer for all, so I am optimistic the problem will be solved.”

One of the signatories, Dr Peter Wilmshurst, a consultant cardiologist, who used a CFA to successfully defend himself from 3 libel actions brought by an American Medical Device company after he exposed flaws in a clinical trial they were conducting on a heart device, said:

“The Government say they expect people to pay lawyers’ success fees from their damages. But defendants in libel actions don’t win damages, they only win their free speech rights. So if success fees are not to be paid by the losing libel bully, why would any lawyer be willing to take a case like mine?”

“These reforms obviously don’t work for innocent libel defendants and I am shocked the Government has not yet listened to our plight.”

“If this bill becomes law in its current state,people like me will not only have to risk their house for the other sides costs, but would not be able to find a lawyer. It is a terrible attack on free expression of doctors and scientists.”

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Dear Prime Minister,

The Legal Aid Sentencing and Punishment of Offenders (LASPO) Bill will have its third and final reading on Tuesday in the House of Lords. Parliament is therefore on the cusp of passing a law that will grossly restrict access to justice for ordinary people in privacy and libel cases, without even any saving to the public purse. We strongly object to the passing of this unjust measure and urge you to amend it before it is too late.

Of course we are the first to recognise that legal costs in many cases are too high and also that some reforms are justified, but the bill includes changes to Conditional Fee (“no-win, no-fee”) Agreements and to After-The-Event (“no-win, no-premium”) Insurance schemes which will effectively make them non-viable in libel and privacy cases, where financial damages to a successful claimant are far too small to cover these costs as the bill currently proposes they should. So only the rich could take on a big newspaper group. A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy or corporate libel claimants. Although the aim of reducing costs is very laudable, the position of lower and middle income claimants and defendants in these types of cases has simply been ignored.

Even if a lawyer will take a high-profile case without a “success fee” that compensates for the risk of losing some cases, or even does the case pro-bono, there is still the enormous risk to defendants and claimants that if they lose, they will have to pay the other side’s costs. A person of ordinary means in that position basically has the choice of living with injustice or risk losing their home.

Lord Justice Jackson recognised this problem when he proposed an alternative to insurance in his review but the Government – without explanation – has not accepted his recommendations in these cases.

In practice this means that in future ordinary defendants, like Peter Wilmshurst, Hardeep Singh and Heather Brooke, will also be unable to get support for legal action taken against them often by large institutions with deep pockets trying to silence them. That would be bad news for science and medicine, for free religious debate and for transparency in the public interest. And victims of the tabloid press like Christopher Jefferies, Bob and Sally Dowler, Kate and Gerry McCann and Robert Murat will not be able to take legal action against the tabloids for hacking into their phones, for false accusations, and for gross misrepresentation. Newspaper corporations with big legal departments and their own insurance would scare people off by the prospect of facing a million pounds worth of costs if they lose. This is obviously both wrong and unfair to the ordinary citizen with a good case.

The LASPO bill simply fails to consider people like us. Unless a change is made on Tuesday, the Government will have succeeded only in uniting both claimants and defendants from modest background together with their supporters against the Government and much of the good will generated by the setting up of the Leveson Inquiry and promising a Libel Reform Bill will be lost.

We urge you to take action now to amend the Legal Aid, Sentencing and Punishment of Offenders bill to specifically remove libel and privacy cases, or you will stand accused of being unfair to ordinary people and giving yet more power to large media corporations and corporate libel bullies.

Yours sincerely,

Signatories

Christopher Jefferies – Libel claimant vs newspapers

Gerry and Kate McCann – Libel and privacy claimants vs newspapers

Peter Wilmshurst – Libel defendant vs a corporation on Public interest publication

Robert Murat – Libel Claimant vs newspaper

Hardeep Singh – Libel defendant vs Religious leader in India

Nigel Short – Libel Defendant (OWLS Sheff Wednesday fan site) vs company

Zoe Margolis – Libel claimant vs newspaper

2 comments

  1. bob gaffey - reply

    hopefully this will happen. Cameron may be under greater pressure to do so due to the CASH FOR POLICY saga
    bob

  2. D-Notice - reply

    Your letter misses out the fact that the changes will simply put CFA-fuded cases back to how they were before April 2000, i.e. success fees & ATE will be irrecoverable from the losing side.

    It also ignores that this is how it has always been in Scotland.

    Given that in neither situation can it be realistically said that it there are issues with access to justice, I don’t think you can claim that the planned changes “will grossly restrict access to justice for ordinary people”.

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