Justice Secretary Ken Clark and Lord Justice Leveson have discussed changes in “no win, no fee” agreements for libel and privacy claims.
Clarke, who is leading the government’s policy on conditional fee agreements (CFAs), said he had “no desire to create a litigious society” and discussed the possibilities for a non-judicial body to handle small libel and privacy claims.
He said he thought justice in the UK had become too expensive for “all participants”.
Lord Justice Leveson said: “The concern that has been expressed in the inquiry is that by changing the rules of CFAs you may have the consequence of moving the boot back onto the other foot again.
“One of the concerns that I’ve been interested to raised with people is to suggest that a [regulatory] system might also have as a third arm… an adjudicating arm in relation to small claim privacy, libel type actions which could be conducted on an inquisitorial basis without cost, or very limited cost, and therefore be much more available for everybody.”
Clarke said he was concerned newspapers would be flooded with thousands of small complaints if a new regulatory body allowed claims to be processed, rather than through the courts.
He said: “I think the idea that the regulator might answer all our prayers and be a regulator, a mediator of disputes proposing a remedy and, in certain cases, actually adjudicating and giving a modest award is quite attractive.”
He went on to say financial penalties would be easy to decide but the difficult part would be setting out guidelines on retractions and apologies.
He added: “The more you start setting out the specific powers, you are undoubtedly going to have people refusing to comply with its orders, probably, unless it has some statutory underpinning.
“The history I think shows that without teeth in the end you’re wasting your time if some section of the print media just refuse to join it and won’t submit anyway.”
Clarke said he was wary that a adjudication body would be open to abuse from sensitive people attempting to win small payouts from the press, and said “highly litigious” people had a chilling effect on the press.
He said: “In most of these cases I don’t think finance should play a large part in it. I don’t think great sums of damages are often appropriate unless somebody can demonstrate they have suffered a substantial financial loss in the course of their career and their business.
“It is the prominent apology. It’s sometimes just the agreement that [a newspaper is] not going to do it again, which will be quite a valuable remedy if we could find some cheap and efficacious way of providing it.
“So far as public funding is concerned, I owe it to my Treasury colleagues to say that the government has no money, which it certainly doesn’t, but it is an interesting proposition, as long as we don’t produce thousands and thousands of trivial small complaints.”
He told the judge in principle he found the proposal attractive and would respond in writing at a later date.