Defamation Bill

Debate between Lord Faulks and Lord Browne of Ladyton

Monday 17th December 2012 Grand Committee

[Lord Faulks]

My Lords, not out of loyalty to my late uncle, I think there was a considerable amount in the majority view of his committee. The amendment here restricts a remedy to circumstances in which the defamatory statement,

“is so gross as to cause serious harm to individuals or a breach of the peace”,

which is a very significant hurdle indeed.

There is something, I suggest, that is rather crude about the fact that a defamatory statement or statements can be published and the potential claimant can read about them, can begin action in respect of them, but the moment he or she dies that is the end of the matter although the harm remains unremedied and the anxiety and loss may well have ramifications for his or her family. That is a crude cut-off point.

I know that the Minister he has already given anxious thought to this matter, but I ask him to consider, if there may not be a claim for damages, that there might at least be a remedy by way of an injunction or apology, so that those in the position of the Watsons, referred to by my noble friend Lord Hunt of Wirral, would at least have the satisfaction of knowing that their daughter’s honour had been thoroughly vindicated and could rest a little more easy in the wake of such an appalling tragedy.

[Lord Browne of Ladyton]

My Lords, in the House of Commons, Helen Goodman sought to amend this Bill to allow certain categories of close relatives to bring defamation actions in respect of statements made about a deceased person up to a year after that person’s death. That amendment is in the same area—in principle if not in effect—as that of the amendment moved by the noble Lord, Lord Hunt, today. She drew substantially on the Watson case and gave a compelling argument that this set of circumstances was crying out for redress. I do not intend to add to what the noble Lord, Lord Hunt, has said today, but the Watson case was one of three examples she used, and it is a particularly shocking case.

The family suffered greatly, losing two children as the result of a series of incidents, and then on the day of the funeral of their son, who undoubtedly killed himself because of the way in which his sister’s reputation was trashed, the allegations were repeated in an attempt to try to justify them. We sought to divide the Committee in the House of Commons on this issue—not, as my honourable friend Rob Flello explained, because we thought that the Government’s position in resisting the amendment could be criticised, but because of these shocking circumstances and other cases like it. Unfortunately there are far too many cases that are crying out for resolution and some remedy in the form of a response by government and politicians which recognises that there is a need at least to try to protect the reputation of a family and their daughter in these dreadful circumstances.

--- Later in debate ---

[Lord Browne of Ladyton]

I shall also speak to Amendment 7, which stands in my name and in the name of my noble friend. The underlying purpose of this amendment is similar to that of the amendment which has just been spoken to by the noble Lord, Lord Mawhinney. He seeks to do much the same thing as the amendment that stands in my name, but by a requirement for action before a court action can proceed. I seek to do it by what could be called—in the context of the discussion that we have just had—a multiple fracture of the prohibition against putting case management in the Bill.

I have no delusions that this will find support in Committee because it is such a multiple fracture, but it is quite deliberately so for a purpose. It is our attempt to implement the recommendations of the Joint Committee, but it goes further and does so for very specific reasons. Those reasons are that on this side of the House we have to be convinced that the holistic approach that we favour can address the fundamental issues of the problem that is before us and has its manifestation in all the many examples that we have heard this afternoon and which are recorded faithfully in the deliberations on this Bill since it was first introduced in its draft form.

I muse here—listening to the noble Lord, Lord Mawhinney, speaking to us in his distinctive Northern Irish accent and as I rise to speak in my Scottish accent—that there is more than one jurisdiction in these islands. I consider also, and I have considered this in other circumstances often, that until very recently—over hundreds of years certainly as regards Scotland—this Parliament in a statutory sense legislated for more than one jurisdiction on these islands. Only one of these jurisdictions has turned into the defamation capital of the world.

The answer may be as simple as the answer given to my intervention on the noble Lord, Lord Lester of Herne Hill, that this is a function rather of a niche ability that has developed in the Bar in London, which cannot be contained by case management appropriately with the tools that we give to the judiciary. There may be other reasons for it, but it seems that the answer probably to what we need to do to the defamation laws of England and Wales lies somewhere in these islands.

I am not entirely sure what it is because I have no particular expertise in this area of the law, but it is curious that lawyers, judges, courts and laws that are very similar to each other have operated in these islands in distinct jurisdictions but only one of them has got into this difficulty. Trying to identify the reason for that, and to address it, is what should be exercising our minds. We may, as I suggested in my intervention, be addressing it in the right way by changing the test and by doing all the other things that are in this small but comparatively complex piece of legislation or it may be much more important that we make changes in the way in which cases are managed and in which the costs of them are racked up.

This amendment seeks to insert a clause for early resolution procedure against the background that the Government originally announced that they would do this in the draft Bill and in the Commons explained why they were not willing to do that. We have now the advantage of the letter of the noble Lord, Lord McNally. I am pleased that the document that he read out earlier in relation to cost protection is the final annexe to his letter. This document does not need to be put into the public domain; effectively, it is in the public domain in any event. With my imperfect understanding of civil procedure in England, it seems to me that this protects a party from the liability to pay the other side’s costs if a case fails—if I understand what cost protection is. This seems to me to be half the problem.

If I had to face the prospect of having to litigate in an action for defamation with a substantially wealthy opponent, no matter which side of the argument that opponent was on, I suspect that in this jurisdiction it would cost me a significant amount of money just to engage in that litigation. I would be terrified at the prospect of losing and having to pay the other side’s costs, and I am pleased to note that parties in defamation cases may be protected from that. However, the prospect of having to pay the costs of my own side would still be terrifying.

The letter goes further and provides what I hope are many of the answers to the points being raised in this debate. The documents attached to it seem to be a set of guidelines on how the Government would like the existing case management rules to be amended or applied in order to try to achieve earlier resolution. It looks at how the existing strike-out procedures should be applied. Indeed, on reading the Minister’s letter in a holistic way, it is clear that, while not using exactly the same words, many of the issues are reflected in the amendment we have tabled. However, it is important to note that in this amendment we have gone further and provided that one of the key issues to be determined, under subsection (3) of the proposed new clause, is costs management.

To save other noble Lords and noble and learned Lords from pointing out why this is an inappropriate thing to do in a Bill, perhaps I may say that I readily accept that that is right. However, I think that the Government need to be given the opportunity to spell out the steps they intend to take to address the issues that lie at the heart of the problem we are facing. If we can make a contribution towards shaping a holistic approach, despite the fact that this goes beyond what the Bill should say in the strictest sense, that will assist in increasing the confidence of Parliament in this revision of the law. What is much more important is that it will increase Parliament’s confidence that a holistic approach, as referred to by the noble Lord, Lord Lester of Herne Hill, will not quickly put us back into the situation we are in already, but that there is some hope of addressing it.

I am offering the noble Lord this amendment to provide him with an opportunity to explain in accessible terms the steps that the Government are taking which are complementary to the legislation, and to offer the Committee some assurance that not only will they be completed by the time the legislation is ready to be put into force, but that they will be effective in terms of addressing the issues that are at the heart of this problem. Before I sit down I would suggest to him that if it has not already been done, perhaps a study of how at least one of the other jurisdictions in these islands deals with defamation issues might be instructive. I will say again for the benefit of the noble Lord, Lord Lester, that of the several jurisdictions in these islands, only one of them has become the libel capital of the world.

[Lord Faulks]

My Lords, I understand what is behind these amendments and of course I share the desire of other noble Lords that matters should be settled or litigation avoided if that is at all possible. My noble friend Lord Mawhinney said that his committee on the whole eschewed recommendations for case management. However, by this amendment he seeks to go into that area.

A word of caution might be appropriate. There is always a danger if you set up a series of procedures to be undertaken because you will frontload costs and increase the overall bill of litigation. Although I accept what my noble friend Lord Lester said about the libel Bar and its propensity to make rather arcane rules on pleading, for example, there are specialist libel judges who are well aware of all the issues, and defendants and claimants regularly bring matters to a judge at an early stage for determination in order to serve their clients well.

I do not think that we should proceed on the basis that this is an entirely unco-ordinated, inelegant process. No doubt, improvements can be made, as the Minister will tell us. I await with interest to hear what is suggested. But I respectfully suggest that these are rather cumbersome amendments which will not, I fear, achieve what they intend to do.