Defamation Bill

Debate between Lord Browne of Ladyton and Lord Phillips of Sudbury

Tuesday 5th February 2013 Lords Chamber

[Lord Phillips of Sudbury]

I wish to make a short point. I wholly agree with what my noble friend Lord Lester said about the confusing drafting of Clause 4(2). It is a most barbaric concoction and, coming in an age when we are all trying to make legislation as accessible as possible to other than legal experts, it really will not do. One particular aspect adds to its inadequacy; namely, reference to,

“an accurate and impartial account of a dispute to which the claimant was a party”.

I do not quite see why this clause should apply only to a dispute to which a claimant was a party. Why would it not apply to a matter in which the claimant had an interest? There may be no dispute there but it could be to do with a campaign where again there is no dispute. Apart from the generality, that is a bit of a drawback.

[Lord Browne of Ladyton]

My Lords, I have no amendment in this group but I wish to speak partly in support of Amendments 6 and 7. I am persuaded, I think, that Amendment 7 may bring more to the clarity of this legislation than Amendment 6. I also wish to express some concerns about Amendments 6 and 7, which require clarification. I hope that we will be able to get that clarification from the Minister and perhaps reflect during the rest of the process of this Bill on whether the total effect of Amendments 6 and 7 will be as is being argued.

I approach this from a slightly different perspective. My reading of the effect of these amendments is that they are designed to improve Clause 4, which I accept, but that they would remove the element of subjectivity in the test of whether the publication was in the public interest. The clause has been substantially amended and, in fact, it has been recast. That has been welcomed, particularly by the promoters of these amendments, as the noble Lord, Lord Taverne, made clear at the outset. This is a much improved clause but, as I understand it, the aim has been to move away from Reynolds but to reflect the case of Flood in the law.

Defamation Bill

Debate between Lord Browne of Ladyton and Lord Phillips of Sudbury

Tuesday 5th February 2013 Lords Chamber

[Lord Browne of Ladyton]

My Lords, for the reasons that the Minister spelt out, I strongly welcome this amendment. I thank the Minister for listening so carefully to the argument put before him in Committee and responding in this way.

[Lord Phillips of Sudbury]

My Lords, I am just nitpicking again but we might as well get this right. I think the amendment should start by saying that in line 4 an “(a)” should be inserted after the word “order”. There is no “(a)” to balance the “(b)” introduced by Amendment 22. As I say, that is nitpicking but I am sure I am right. We better get it right for Third Reading.

Defamation Bill

Debate between Lord Browne of Ladyton and Lord Phillips of Sudbury

Thursday 17th January 2013 Grand Committee

[Lord Browne of Ladyton]

My Lords, Amendment 51C would disapply the LASPO Act in relation to defamation proceedings and Amendment 51D would apply one-way costs shifting to defamation proceedings. Both the amendments are probing amendments. I have some sympathy with the Minister in being prodded on this issue again. He may have thought that he had seen it off with his letter of 10 December and the assurances that he has repeatedly given us, but I am afraid that I shall invite him to discuss again costs in relation to defamation.

As noble Lords will be aware, and as I think the Minister is acutely aware, this issue was addressed during the passage of the LASPO Bill, when calls were made to disapply it in relation to defamation and privacy proceedings. Assurances were given by the Minister that this would be addressed in the Defamation Bill. I do not seek to keep him specifically to that assurance, because I suppose that, on one view, a substantial amount of water has passed under the bridge since that debate and many other things are going on. Whatever intention other noble Lords may have in the debate that will ensue on this, I have no intention of transgressing into the debate about the Leveson recommendations and their consideration in tri-party talks; I have managed until now not to mention “Leveson” anywhere in your Lordships’ House, and I had intended to keep it that way.

Throughout the passage of this Bill, we have had further assurances that something will be done to address the cost of defamation proceedings, and the Government recently gave a commitment that LASPO would not apply to defamation until they had resolved the situation in relation to costs. That stay of execution, as it were, is very welcome. Our amendments are, however, designed to elicit further information from the Government as to the timing of these proposals and what they will consist of, to the extent that the Minister is in a position to share that information with me.

I want to make one very specific point to the Minister which I hope he will address when he responds. I have before me his letter of 10 December 2012, which was very welcome and very helpful in covering a number of issues before the Committee convened to consider this Bill in detail. Under the heading “Cost Protection in Defamation and Privacy cases” it sets out that,

“the Government is keen to provide some form of cost protection so as not unduly to damage the interests of impecunious parties. The Government has asked the Civil Justice Council (an independent advisory body, chaired by the Master of the Rolls) to advise on this by the end of March 2013”.

So I realise that we will have to be patient until the end of March 2013 to see what the council under the chairmanship of the Master of the Rolls advises. In order to instruct those deliberations, we have the benefit of annexe A to the letter, which sets out the terms of reference of the Civil Justice Council’s remit.

I am limited in my understanding of all of this, never having practised in this jurisdiction, but I understand that cost protection is designed to protect a party from the liability to pay the other side’s costs if their case fails. If my case fails, cost protection is designed to protect me from the liability to pay costs, or to reduce my liability. That addresses half of the problem. The serious part of the problem is how does one deal with the impecunious client who does not have the ability to institute proceedings in the first place if LASPO and the Jackson reforms are applied to defamation? How does one encourage lawyers to take on cases on some form of contingency basis, in the light of the application of LASPO and the Jackson reforms? The Government may believe that that is dealt with through the cost protection order process, but I am not satisfied that it is. Will the Minister address that issue? I beg to move.

[Lord Phillips of Sudbury]

My Lords, I cannot clearly say whether I do or do not support these two amendments as they have all sorts of ramifications and implications. What is common ground between the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is that the position of not only the impecunious would-be litigant, but that of the not-well-off would-be litigant in relation to defamation, whether as plaintiff or defendant, is astonishingly unsatisfactory. It makes this branch of law, more than any other, one in which equality before the law is frankly mythical, unless one finds an extraordinarily public-spirited solicitor who will in effect act for nothing if his client’s case collapses. Even then, there would be costs possibilities for the poor litigant, whether as defendant or plaintiff, in that he or she may end up having to pay the other side’s costs. All I am doing is sympathising with my noble friend Lord McNally in having to answer these two issues. At the moment, there is no ready answer, although the idea of changing the recently passed LASPO legislation for defamation has its own problems if one believes, as I do, that the methods of paying lawyers under the conditional or contingency fee system have led to great problems of public interest. That is a rather ineffectual contribution to the debate on these two amendments.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I am grateful for the support of the noble Lords, Lord Marks of Henley-on-Thames and Lord Mawhinney, but I am not surprised by it because the amendment draws support already from the report of the Joint Committee. I am grateful also for the overt support of the noble Lord, Lord Phillips of Sudbury.

I have to thank the Minister for his flattering if somewhat inaccurate and probably libellous description of me. It is unworthy of him to suggest that I am a bandwagon-jumper in any sense. I will privately produce evidence to him that this is an issue which I have been discussing with members of the legal profession in England in various guises for some months now, because it is not entirely what he and the noble Lord, Lord Faulks, described and discussed. This very specific provision is presented in this fashion, taking advantage of the specialist Patents Court, to make another criticism that I think the Minister will have to face should he seek our shared ambition of moving these cases to the county court—that is, there are already specialist judges who do these cases, but they are in the High Court. There will be, I predict, resistance on the part of the judiciary, among others, who will say that this difficult, complicated work, which requires High Court judges, has to be kept there.

The reason why I presented the amendment in this fashion, having thought about it for some time—since long before the exchange between the noble Lord, Lord Faulks, and the Minister took place—is that I cannot think of a more complicated area of law and fact than patent law. If a specialist court at county court level, with specialist judges, works for that area of the law, then I believe it can work for defamation.

I am also told that it is in the nature of the legal profession that our very senior judges tend to have been in the profession for a period of time and retire. I am not entirely sure what further lifespan on the Bench—that is the wrong phrase—what further time on the Bench the judges in the High Court who are specialists on defamation have. Although I do not know this, the suggestion was made to me that there is a probability that they will retire, or at least that a significant number of them may, within a comparatively short time. I am not sure whether that is right but they will have to be replaced sometime, and it should not be beyond the ability of the legal profession to produce judges at county court level who have this specialism.

I am not entirely sure whether the Minister is right that the creation of a specialist court or courts, such as the patent courts, does not require primary legislation. If it does not then I am interested to know why the patent courts were created by primary legislation if we can create specialist county courts without it, but maybe the law has been changed since they were created.

[Lord Phillips of Sudbury]

Might the noble Lord encourage the Government to look at the possibility of empowering registrars of county courts to do much more of the preliminary work? They could have a much bigger role, but again that might require primary legislation.

[Lord Browne of Ladyton]

I am grateful for that intervention from the noble Lord, Lord Phillips. The best that I can say is that I am sure the Minister has heard that suggestion, and when he is deliberating further on this potential development I am sure that he will take into account.

I am reassured that this is sufficiently high among the Government’s priorities to be a possibility—that is the best that we can expect at this stage. We will continue to keep an eye on this issue while the Bill is before the House.

Defamation Bill

Debate between Lord Browne of Ladyton and Lord Phillips of Sudbury

Monday 17th December 2012 Grand Committee

[Lord Browne of Ladyton]

If the noble Lord will excuse me, I will give way to his noble friend the solicitor first; then I will get to the barrister.

[Lord Phillips of Sudbury]

I must confess to being confused by the noble Lord’s argument. He started with a passionate point about making the law more accessible and understandable to the ordinary bloke, which is what the noble Lord, Lord Mawhinney, was concerned about. But how can it serve that purpose to have two words instead of one in circumstances where we already have had very experienced lawyers disagreeing as to the meanings of those two words? I note that the noble Lord has not advanced any view on the difference between “substantial” and “significant”. It seems to me that his recipe would confuse the layman.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for his intervention but I am perfectly happy to adopt the distinction that the noble and learned Lord, Lord Mackay of Clashfern, offered the Joint Committee and that the chair of the Joint Committee has reported to us. I will live with that. I am happy to accept that. But that is not my point. Although I am speaking to amendments in my name and that of my noble friend, I am using them as a device to try to get some clarity of the Government’s thinking so that our Parliament can say, “We support that thinking. Therefore, people outside can have some understanding of what at least we think we are doing with the law”.

If anyone goes away and reads this, here we have an interesting debate in which a number of differing opinions have been expressed, all supported by eminent lawyers. If that leads to clarity, I am happy to go along with it. It may not be possible to provide the clarity that people crave. But my argument is that in our debates we should at least give some clear indication to people outside—they should not need a law degree for this—about where we are setting this bar and what it means. There are a number of ways in which one can do that, including reference to examples.

I turn now to the Minister’s response. I am grateful to him for the way in which he engages in the debate on these issues. Perhaps the noble Lord, Lord Lester, will allow me to make this point, then I shall take his intervention. I am grateful to the Minister for the way in which he engages in the debate and I know that he will listen carefully to any further points that I or anyone else want to make. I will go away and look carefully at what he has said.

While the Minister was speaking, I was looking carefully at what Jonathan Djanogly said in the equivalent debate in the House of Commons. He will be pleased to know that there was a lot of similarity. But there was some difference and it is that difference for which I am grateful.