New proposals on defamation costs

Ministry of Justice publishes consultation paper on measures to control costs

The Government has launched a consultation paper on proposals to curb legal costs in defamation actions.

Acknowledging media organisations’ concerns that litigation costs in defamation actions were having an effect on freedom of expression and preventing publication of matters in the public interest, Bridget Prentice, the Justice Minister said:

"The aim of these proposals is to bring more effective cost control to litigation in defamation proceedings and to ensure that costs in this area are more proportionate and reasonable," she said.

"We need to ensure that people’s right to freedom of expression is not infringed, and media organisations continue to report on matters of public concern."

The Government has indicated that conditional fee agreements in the context of defamation actions are being reconsidered. Other measures being looked at include fixed or capped hourly rates and compulsory consideration of cost-capping. The measures would be implemented by way of amendments to the Civil Procedure Rules Practice Directions and protocols. The Government believes that legal representatives and clients, in particular those using CFAs in such cases should find the process more transparent and be able to make better informed decisions about the likely costs of the case early in the proceedings.

Lawyers for media organisations are due to give evidence to the Commons Culture, Media and Sport Select Committee on the effects of CFAs shortly.

The Bar Council welcomed the proposal that legal costs should never reach a level so as to inhibit freedom of expression but also said that CFAs have provided access to justice for individuals attacked by the media where no legal aid exists. The Bar Council’s spokesman also noted that staged success fees give the opportunity for media defendants to settle meritorious claims at an early stage, before the uplift effect of the success fee has had much effect on base costs.

According to The Ministry of Justice about 220 defamation cases are issued in the high court at the Royal Courts of Justice each year. It estimates that a further 300 claims are settled before court proceedings are issued.

The Ministry of Justice consultation paper ‘Controlling Costs in Defamation Proceedings’ was published on 24 February 2009.