The three Cs of changing libel: Costs, Citizen critics and Corporations

Lord Lester of Herne Hill brought his private member’s defamation bill to City University, London last week to be scrutinised by lawyers, journalists and academics, ahead of the government’s own white paper, due to be published early next year.

The collection of papers provided a spectrum of views, building on Lester’s bill which was introduced to the House of Lords in May 2010. While divided in their approaches to reform, the speakers and panellists agreed some form of change to England’s libel law is necessary.

Three Cs came out of the discussion, with costs the dominant talking point. Razi Mireskandari (partner, Simons, Muirhead & Burton) believes that ‘if costs were addressed it would resolve a lot of the issues’. ‘In my paper I set out a regime that is very workable,’ he claimed. This included several recommendations: to cap costs; to cap early rates; to cap success fees and to introduce fixed and staged success fees and staged ATE (After The Event) insurance premiums.

Solicitor advocate Mark Lewis (Taylor Hampton) pointed out that people don’t always go after the ‘deep pocketed defendant’; sometimes the company goes for the individual who is far less resourced to fight the action.

It was for Magnus Boyd (partner at Carter Ruck), who once secured a front page apology to Tesco by The Guardian, to argue the case for a corporation’s right to reputation. He explored corporations and libel, looking at Lord Lester’s proposition that a body corporate which seeks to pursue an action for defamation must show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss. Boyd raised the question of how to define this ‘substantial financial loss’. What terms should be used to define the body corporate? he asked. It could form the basis ‘for significant and expensive applications which will increase the costs of the litigation and slow the passage of the claim,’ he said.

Libel reform campaign proponents emphasised the importance of the civic voice. Tracey Brown (managing director at Sense About Science) framed her argument around the citizen critic, arguing that the public interest is served by the publication of ‘uncertain information’ and that open discussion allowed ideas to be disputed and scientific progress to be made.

Mark Lewis’ client, Dr Peter Wilmshurst (consultant cardiologist at the Royal Shrewsbury Hospital), brought personal experience of being sued (in an ongoing libel action) to the forum, in his paper about the impact on science and medical research. He outlined the personal pressures of a libel action: expenses, time, bullying, and the effect on family and life. Wilmshurst emphasised the need for open scientific debate: scientists and doctors are under threat of a gagging libel action whenever they question the messages that device and drug manufacturers want put across, he said. Medical and scientific advances will be delayed and the public and patients will be put at risk unless we have a public interest defence, he believed.

Professor Alastair Mullis (University of East Anglia) and Dr Andrew Scott (London School of Economics) proposed a two stream treatment of libel: firstly, a libel tribunal/county court; and secondly, through the high court, where damages could be awarded, but with no damages for vindication or intangible harm. The majority of cases would proceed through stream one, with a strong incentive to settle cases quickly.

Needless to say, with such a range of speakers, the debate was lively with plenty of disagreements, and I’ve only touched upon fragments of the day in this post. Libel has not yet been ‘reframed’ and the debate continues from here – in fact, Lord Lester emphasised that he welcomes further comment and criticism. Papers will be made available in book form, details of which will be announced on the Reframing Libel site.

With thanks to Oliver O’Callaghan and Natalie Peck, from the Centre for Law, Justice and Journalism, City University London, for their contribution.

This is a guest post by Judith Townend. Judith Townend is a freelance journalist and MPhil/PhD research student at the Centre for Law, Justice and Journalism, City University London. She blogs at and is @jtownend on Twitter.