Defamation Bill

Debate between Lord Faulks and Lord May of Oxford

Monday 17th December 2012 Grand Committee

[Lord Faulks]

I declare an interest as a practising barrister. I practise principally in the law of tort, which includes, but does not specialise in, defamation. I am sorry that I was not here at Second Reading, but I have had the opportunity of reading the Second Reading speeches.

The aim of this group of amendments is clearly to provide a further hurdle to prevent vexatious and frivolous actions. I am sure all noble Lords agree that that is a desirable aim, but a claimant already has to cross a considerable hurdle in establishing that something is potentially defamatory. With great respect to the noble and learned Lord, Lord Scott, many of the decisions about meaning and whether something is potentially serious—if this amendment is accepted—will be taken without a formal rehearsal of evidence, simply on the pleadings, the submissions, by both sides.

I respectfully say that it seems to me that the word “serious” embraces “substantial”. It is a simple word which, after all, we ask juries to consider in cases of serious bodily harm. I entirely agree with the noble and learned Lord, Lord Scott, about the lack of need for guidance. It is something that judges would be perfectly capable of deciding without any such guidance. The question is whether the plaintive has a substantial hurdle to overcome. The word “serious” seems to me to provide a substantial hurdle.

I entirely agree with what my noble friend Lord Mawhinney says about funding, which is critical to this. Much of the problem in this area has been caused by CFAs and the immense bill of costs that tends to mount up for claimants who then sue defendants of perhaps fairly modest means who have been unable to fight cases because of the threat of those costs. After the LASPO Act comes into force in April, this will be much less of an issue, but it is important. I know that my noble friend the Minister will be answering on this. It is important that there should be some means of pursuing these cases when they have crossed the various hurdles which will, no doubt, be in the Bill when it is enacted, and I ask the Minister to do what he promised at an earlier stage in the legislative process. It is all very well to have a proper inhibition, but there should nevertheless be a meaningful remedy.

[Lord May of Oxford]

I shall offer some thoughts as a practising scientist who on one occasion only was confronted with a legal letter of, essentially, a threatening kind because I had accurately described something as a bunch of garbage. I promptly folded. I did not have the courage of Simon Singh or the principle that lead the journal Nature to spend £1.5 million on a ludicrous suit. We have a very tricky thing to try to solve. We are internationally known. The Americans have passed legislation to cut themselves loose from us. The United Nations has formally criticised what we have been doing. We are known as the place where you come if somebody living in Iceland has irritated you in Australia because of the extravagant and extraordinary costs, which have no analogue anywhere in the world, of dealing with these issues.

My father was a lawyer, and I have every sympathy and understanding that we are wrestling with a very difficult problem. One or two words will not capture it, but the spirit is sensible enough. Part of the problem is the legal costs, and they are something that we are clearly not going to legislate about. As we look at this, we should not look at this through a purely legalistic prism. We should try to see a way forward to have sensible legislation that means that if you criticise on valid scientific grounds the chimerical claims of someone—I shall not name an example—you will not be confronted with the dilemma of principle that people are being confronted with now. This is what has brought this. I see the problem, but the issues raised by the legalistic arguments that are not sensitive to the underlying facts are substantial and difficult to solve but need to be confronted. Do not just explain to us what we all understand. Of course there has to be some careful examination of it by competent people, but that is not necessarily served by the way we use expert witnesses in these legalistic things.

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[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.

[Lord May of Oxford]

I commend very highly subsections (5)(c) and (d) of the new clause proposed under Amendment 7. This is the first mention that I have come across—although I have not read every word—of “public interest”. As many noble Lords will know, there has been a lot of pressure from many sectors of the outside community that the Bill does not do enough in looking at public interest as an offsetting factor. As regards subsection (5)(c), I wonder whether the words “complained of” are “a statement of fact or opinion”. If they are a statement of fact, it seems to me that, defamatory or not, or financially injurious or not, a fact is a fact and no one should be liable for stating a fact. Yet—I am becoming parrot-like in repeating again and again—I can give many examples where people have had huge pressure on their time and been put to ludicrous expense in defending a matter of fact. I hugely welcome those two proposals.