Defamation Bill [HL]

Lord Borrie Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Borrie]

My Lords, we are now about half way through the debate and the one thing that seems uncontroversial among Members of your Lordships’ House is that the purpose of defamation law is to strike a fair and reasonable balance between free expression and free speech on the one hand, and the reputation of individuals on the other. Indeed, although the noble and learned Lord, Lord Hoffmann, did not agree with a great deal of the Bill, he agreed with Clause 11. This clause makes a distinction between an individual and a company, a corporate body, which cannot rely on the word “reputation” but must prove financial loss if it is to succeed in a libel action.

Although what I have said so far is uncontroversial, a strong feeling, which I share, has emerged from the debate that the present law as applied by the courts—and, just as serious, the perceived application of the law if there may in due course be a court case—has shifted too far against free speech. Like many other noble Lords, I appreciated, the excellent speech of my noble friend Lady Hayter of Kentish Town. She gave the example of Which?, the consumers’ association, being inhibited. Although it stood up bravely for what it believed was correct, none the less it had to put up with a great deal of angst over a period because of threats of libel action.

The issue of threats is serious in regard to the chilling effect of the law on everyday expressions, views and comments of no great significance. However, the wider public interest in the Bill demonstrates that the existing law seriously inhibits discussion and debate on scientific, medical and other matters which are of interest not only to the parties involved but to us all. It surely is of major public interest and concern if debate about the merits of some new medical advance is prevented because it involves questioning or criticism of the medical claims of a particular pharmaceutical company.

I believe—this is meant to be, in part, an answer to the noble and learned Lord, Lord Hoffmann—that free discussion is not only a matter of self-indulgence of the critic or a sop to the media, but is vital in order to keep under public review assertions and claims made about all kinds of products and services. I commend the noble Lord, Lord Willis of Knaresborough, for giving examples of that kind in his maiden speech.

I am pleased to support the thrust of the Bill because its initial, principal clauses provide key defences to actions for defamation. There is no doubt that the higher courts themselves have in recent years endeavoured to reform the law. The noble Lord, in his extensive note on the Bill, made that clear. Especially noteworthy was the House of Lords Reynolds case in 2000-01 allowing responsible publication on matters of public interest even if it included inaccurate and incorrect information. The noble and learned Lord, Lord Nicholls of Birkenhead, listed 10 non-exhaustive matters to be taken into account in determining whether the defence is applicable. Unfortunately, various lower courts subsequently interpreted those guidelines more as hurdles, each of which had to be overcome in order for the defence to succeed.

Some years later in the Jameel case, the House of Lords—which I believe on that occasion, included the noble and learned Lord, Lord Hoffmann—sought to strengthen the new defence. Unfortunately, although perfectly proper in accordance with precedent and convention, those decisions were by a 3:2 majority, at least in part, and the common practice or convention of each Law Lord giving a separate judgment meant that the law, even as enunciated by the majority, is left in a somewhat uncertain state, as the noble Lord, Lord Pannick, explained so well a short while ago. I note for the sake of the record that our new Supreme Court the other side of the square follows the same convention as did the House of Lords Law Lords sitting in their judicial capacity. The remedy seems to be—this is the main thrust of my argument—statutory provision. It must be carefully drafted and may be improved, despite the excellent assistance in drafting that the noble Lord, Lord Lester, has had from Lord Justice Neill.

The highest courts in the land can of course clarify and advance the common law to the benefit of the whole community. But majority decisions and separate judgments are often antipathetic to clarity of decision-making for the future. The attempts of the higher courts to advance the law in this field only emphasise the urgent need for statutory provision, at least along the lines of the Bill, to remove the more serious deterrent effects of the present law on desirable debate and discussion.

I also support Clauses 14 and 15, which reverse the presumption in favour of trial by jury in defamation cases. Emphasis has already been laid on how slow we are in this country in reforming the law. It happens to be 35 years since the Faulks committee under Mr Justice Faulks recommended that the courts have discretion as to whether in the interests of justice trials should be by jury, judge and jury or just by judge alone. The noble Lord, Lord Lester, is bolder, because he advocates a reversal of the present presumption. Problems concerning the management of cases, the length of proceedings, hung juries and costs all favour the view that normally speaking the presumption should therefore be trial by judge alone. I welcome the provision in the Bill that a jury trial should be held only if it is in the interests of justice to override those concerns. A non-exhaustive list of circumstances that may be relevant are set out in Clause 15.

There has been some mention but not a lot so far in this debate of the formidable report on the review of civil litigation costs conducted by Sir Rupert, Lord Justice Jackson, published towards the end of 2009. But the report had some interesting things to say about the present presumption in favour of a jury trial in defamation cases. In practice, the number of judge-alone trials for defamation has been increasing, whereas the number of jury trials for defamation has remained static. Sir Rupert Jackson pointed out that the use of juries increased trial costs by some 20 per cent to 30 per cent. Judges are well able to decide the issues. He also makes the point that, if there is any error at a trial by judge alone, it is much easier to appeal against a judge’s reasoned judgment than against the judgment of the jury, which is not reasoned at all. Those are powerful arguments and I support the thrust of the Bill.