Do our libel laws work?

The Times, November 22, 2005

In the last of the Times Law series on the libel laws, Michael Beloff, QC, argues that, in spite of ‘undeniable absurdities in the current regime’, the media ‘can be a little too shrill with protests about the danger to the freedom of expression’

A WELL-KNOWN libel lawyer, asked about Lord Hoffmann’s denunciation of the way in which “no win, no fee” deals in libel cases have developed, merely sighed.

He referred back to the ringing condemnation by the law lord of the “blackmailing effect” of these conditional fee arrangements (CFAs) in libel cases. This condemnation was delivered in the House of Lords ruling in the litigation brought by the supermodel Naomi Campbell in her privacy action against the Mirror Group. “One week it’s the media, the next it’s the claimant,” the libel lawyer smiled. No matter how the underlying legal landscape changes, that’s the reality.”

Given that libel is an area of law peculiarly possessed of cliché, the cynical libel lawyer’s reliance on one was understandable. Libel laws are habitually described as having a “chilling effect”, CFAs as creating a “ransom factor” and London as the “libel capital of the world”. Claimant lawyers castigate the deep pockets of super-rich media defendants and the supposedly relentless march of reform in the media’s favour. But what, amid the cliché, is the reality?

One man who has seen it all is Michael Beloff, QC, the President of Trinity College, Oxford, and a member of Blackstone Chambers. Once dubbed “the Bar’s renaissance man”, Beloff’s career has spanned a myriad complex legal battles, including a number of high-profile libel cases for both claimant and defendant. Beloff counted the late, great libel advocate George Carman, QC, as a close friend, and has appeared in The Guinness Book of Records for obtaining the highest award of libel damages. What does this éminence grise of the defamation world think of the state of our media laws, particularly in the light of the House of Lords’ ruling in Campbell? “There are undeniable absurdities inherent in the current regime,” Beloff says. “The House of Lords recognised them in its Campbell judgment, but felt unable to offer any more than the suggestion of a legislative solution.”

The absurdities to which Beloff refers are those of a system that allowed a supermodel of evident means such as Campbell to claim “a hair’s-breadth victory” in protracted, and costly, privacy litigation: “It is absurd that someone in a profession whose incumbents tend to prefer not to get out of bed for less than £10,000 a day was able to avail herself of a CFA. It is, moreover, bizarre that Ms Campbell’s award of damages £3,500 in a privacy claim, the House of Lords journey of which was funded by a CFA should be dwarfed so dramatically by her legal costs.”

The House of Lords clearly sympathised with media arguments about the iniquity of libel CFAs. As well as Lord Hoffmann’s memorable upbraiding of their “blackmailing effect”, the highest court in the land pointed out that, since the client is never paying the bill, market forces that would otherwise moderate legal fees do not exist. The Mirror’s argument that Campbell’s costs — more than £1 million in total, with almost £300,000 accrued in going to the House of Lords — were themselves so disproportionate as to be incompatible with Article 10 of the European Convention on Human Rights (which guarantees freedom of expression) was also met with favourable concern. But, for all the sympathy, there was no panacea. “The scheme under which such liability was imposed was a choice open to the legislature,” the House of Lords said. In other words, what the Government had prescribed, the Government would have to undo.

Beloff believes that the House of Lords was right to take this strict view. But he believes that there is, in the short-term, a way of tackling abuses of the CFA system. “The Woolf reforms enabled judges to be much more proactive, and they should continue the increasing intervention in case management that the past few years have seen. Judges must be astute to the danger of abuse, and must not hesitate to penalise chancers when they see them.”

The onus lies on the judiciary, therefore, to control what Beloff says is a change in the essence of the infamous “chilling effect”. “What used to be the chilling effect of libel law per se has subtly shifted,” he says. “There have been changes to the law in the media’s favour — the introduction of the Reynolds defence, the trend away from high damages awards and the implementation of the offer of amends defence in the Defamation Act 1996. But there is a new chilling effect, and it came when the door to libel CFAs was opened. Now it is the prospect of litigation on an endless scale, often with no prospect of costs recovery even if successful, that chills media defendants.”

But if Beloff appears to be a man who falls into the media camp when it comes to the libel debate he does not take its side entirely. “The law is, presently, weighted fractionally in the media’s favour,” he says. “The media can be a little too shrill with protests about the danger to freedom of expression. All too frequently we see irresponsible, inaccurate journalism, and ordinary people’s lives ruined with little or no public interest justification. There have been a number of reforms to libel law in recent years, and while CFAs present problems, at least they do provide a means of redress to impecunious people.” He adds, though, that a cap on the success fee recoverable under CFAs “would be desirable”.

Was the cynical, if shy, libel lawyer right? If every dog has his day, we should see a victory for the media; perhaps, one day, the “legislative solution” to the current regime may even arrive. In the meantime, those who cherish freedom of expression will hope that the judiciary is as proactive as Beloff counsels.