Defamation Bill

Debate between Lord Browne of Ladyton and Lord Marks of Henley-on-Thames

Thursday 17th January 2013 Grand Committee

[Lord Browne of Ladyton]

My Lords, this amendment is designed to probe the Government on the possibility of creating a defamation county court. The idea of having such a court has already been discussed in a previous session of your Lordships’ Committee. It was a recommendation of the Joint Committee, at least in a pilot sense. At this time of day, I shall spare your Lordships the pain of having to listen to me read the whole of the paragraph that refers to this from the Joint Committee’s report.

However, for the purposes of the record it is paragraph 87, which I will read in short. It starts with a sentence that I think we would all agree with:

“Some witnesses argued that costs would be reduced if libel cases were generally dealt with by county courts rather than the High Court”.

It goes on to make a good argument, concluding:

“The Ministry of Justice should implement a pilot scheme to determine how this proposal might work in practice”.

This amendment is our attempt to set a statutory framework for such a pilot scheme. The idea behind it is to significantly reduce the costs of defamation proceedings; an issue that we have agreed is a shared concern.

The drafting of this amendment will prove not to be perfect but it is intended to be a probe. However, it is based on the Patents County Court. By way of background, the Patents Court is not a county court in the usual sense but a specialist court for the resolution of intellectual property disputes. It was originally set up in 1990 but was set up under its most recent guise in late 2010, with the aim of providing efficient intellectual property case trials as an alternative to costly and time-consuming High Court trials.

The key provisions of the Patents County Court are that costs are on a fixed scale, capped at £50,000, while the damages that the court can award are limited to £500,000 and each trial is aimed to be concluded—wait for it—within two days. The court has recently started giving non-binding opinion, generally during the case management conference stage of proceedings and before trial, as to the likely outcome of the case. I suspect that all noble Lords in this Committee would welcome that environment for the early and swift deliberation of cases that got to trial, never mind the issue of some pre-trial provision or alternative dispute resolution, which noble Lords have previously discussed.

When this idea was discussed during our previous session, the Minister said that he would go away and think about the idea. With this amendment I am providing an opportunity for the Minister to tell us where his thinking presently is. For the purposes of the record, the exchange that I am referring to was with the noble Lord, Lord Faulks during the first day in Committee at col. GC 458. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I strongly support allowing county courts to hear all but the most serious defamation cases. As the noble Lord has said, it was a recommendation of the Joint Committee; indeed, it was the noble Baroness, Lady Hayter, and I who advocated it very strongly on that committee. Quite apart from the complexity of the law and the arcane procedures that we have developed, one of the main reasons why costs have become so high in these cases has been the development of a highly specialist Bar and specialist solicitors, all conducting cases very expensively exclusively in the High Court.

The simplification of the defences in this Bill, coupled with the simplification of procedure and more extensive and earlier case management, should make it possible to reduce the complexity of defamation cases substantially. In those circumstances, the development of county court expertise with designated judges to manage and hear these cases would make justice, importantly, more local, quicker, cheaper, simpler, and in all ways more accessible. Of course there will always be cases that are complex, difficult and paper-heavy. They will require High Court expertise and the attention of specialist High Court judges. However, I hope that for the generality of cases county courts will become the norm and that therefore the cases will become simpler to sue, to defend and to resolve. We recommended trialling county courts for defamation cases; I ask that that happens soon.