Defamation Bill

Guy Opperman Excerpts

Tuesday 12th June 2012 Commons Chamber

[Sadiq Khan]

For the second time the hon. Gentleman has made an intervention about a point that I am coming to. I shall come to the procedural pre-action work that I think is missing from the Bill and which the Committee should look into.

Let me move on to concerns about access to justice. The Justice Secretary will not be surprised to hear me say that under this Government we have seen access to justice seriously curtailed. The recently passed Legal Aid, Sentencing and Punishment of Offenders Act 2012 will have an impact on defamation cases. Claimants in defamation actions will no longer be able to insure themselves against costs, and even if they are successful, they may have to pay some or all of their damages in lawyers’ fees. Although some other claimants—for example, in personal injury cases—will be protected against costs, no such protection is in place in libel cases. It is not clear whether high profile cases brought by individual members of the public—such as that brought by the McCann family against tabloid newspapers—would now happen. We would like to see similar protection for such cases as that given to personal injury cases, rather than simply limiting defamation cases to the most wealthy.

The Justice Secretary will be aware of the campaign co-ordinated by Hacked Off and the Libel Reform Campaign, which included a letter that the McCanns recently sent to the Prime Minister expressing their concern about access to justice. I want to quote part of that letter, which is very powerful, and which I hope will be considered by the Committee during the passage of the Bill.

“A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy libel clients…In future, ordinary defendants, like Peter Wilmshurst, Hardeep Singh and Heather Brooke would also be unable to get support for legal action against them often by large institutions with deep pockets trying to silence them. That will be bad news for science and medicine, for free religious debate and for transparency in the public interest...And victims of the tabloid press like Christopher Jeffries, Bob and Sally Dowler, Kate and Gerry McCann, and Robert Murat will not be able to take legal action against the tabloids for hacking into their phones, for false accusations and for gross misrepresentation”.

On that subject, my colleague Lord Prescott made it clear during the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill in the other place that his successful defamation claims against newspapers would not have been possible if the Government’s proposals on civil litigation had come into force. In response to Lord Prescott’s remarks, the Minister, Lord McNally, assured the other place:

“I cannot imagine that the kind of issues that the noble Lord, Lord Prescott, has raised tonight will not be dealt with fully in that Defamation Bill.”—[Official Report, House of Lords, 27 March 2012; Vol. 736, c. 1332.]

Yet I do not see those issues being dealt with anywhere in the Bill. If the Government do not bring forward proposals to address this deficiency in Committee, we will have to do so.

[Guy Opperman (Hexham) (Con)]

Does the shadow Minister agree that, as a result of Lord Leveson’s review into press intrusion and the ability of the man in the street to get access to justice in libel, the issues that he is now raising could be readdressed?

[Sadiq Khan]

I thank the hon. Gentleman for his intervention; I know that he practises in this area of the law. In answer to his question: there is no guarantee that that will happen. This Defamation Bill gives us an opportunity to ensure that access to justice remains a possibility for all our citizens, and we ought to take that opportunity in the hope that another judge in another inquiry might come up with a solution. Let us bear in mind that there were two defamation Acts in the last century, and just one in the century before that. It is possible that there will not be another during our parliamentary careers, so it is appropriate for us to take this opportunity to ensure that this Bill is as perfect as possible.

--- Later in debate ---

[Mr Buckland]

I was trying to illustrate the point by saying that there is a fine balance to be struck between freedom of expression and the rights of individuals to protect not only their privacy, but their reputation.

It has been said that reputation is a question of taste, but it is also a question of approach. Some take a very relaxed approach to attacks on their reputation. For example, when in his old age the Duke of Wellington heard about a book that was to be published about his private life, he famously said: “Publish and be damned.” That might well have been because he realised that most of the allegations in the book were true—I can say that only because the noble duke is long gone. Some take Groucho Marxs’s attitude. To Confidential, the infamous magazine published in the US from the ’50s onwards, he wrote:

“If you don’t stop printing scandalous articles about me, I’ll be forced to cancel my subscription.”

Sometimes, however, when there is no alternative, the only reasonable response to defamatory or libellous representations is for the individual to seek legal advice and to take action. That very much depends on the individual, the circumstances and the context. The Bill addresses, as well as primary legislation can, the nuances and the infinite range of contexts within which libel and defamation actions can be brought.

On alternative dispute resolution, to which many hon. Members have referred, no matter what we do to reform the law, the question of the cost of the legal procedure will remain. Like the Ritz, the law remains open to all, to adapt a well-worn phrase. The Jackson reforms were much criticised in the context of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but they will not serve to change significantly access to justice in libel cases. Legal firms seeking to build their reputation will always be interested in taking the cases of well known individuals who have had their reputations besmirched, such is the way of practice.

[Guy Opperman]

Does my hon. Friend agree that the practice of libel is such that a potential claimant will be massively dissuaded from seeking to bring an action without some degree of cover for the costs they could incur? Does he also agree that the way out of that situation is to institute protective costs orders for actions brought in the public interest?

[Mr Buckland]

I am grateful to my hon. Friend for his constructive suggestion on what—I concede—is a problem. Jackson has recommended an uplift in damages to help to deal with the non-recoverability of after-the-event insurance and success fees. I accept that that will not be enough in some cases to deal with the loss to the individual that the recouping of costs and the plaintiff’s damages will mean. That is why alternatives such as the one he suggests have great merit. I would like to think that we will see a more sophisticated development, such as a before-the-event insurance market. Perhaps a person who becomes a celebrity or goes into public life could gain an advantage by taking out before-the-event insurance, but I accept that we are in the early days of such a market, if one can exist.

On the public interest defence in clause 4, I support the understandable reluctance of the Joint Committee on the draft Bill and the Government to seek to define the term in law. The Joint Committee on Privacy and Injunctions found that what “public interest” means evolves from year to year and from case to case. It is far better to leave the term to be defined according to the case in which it is invoked.

The question of determining whether the defendant has acted responsibly in the public interest is dealt with in the Bill; the Bill suggests that the court may have regard to a non-exhaustive list of factors. My right hon. and learned Friend the Lord Chancellor dealt with that in his speech, but in my intervention on him, I highlighted the danger of such a list becoming a set of hurdles over which defendants would have to jump before establishing their defence. My view is that if the Bill contained a catch-all consideration—namely, a provision that allowed the court to consider all the circumstances of the case—the danger of that non-exhaustive list becoming a set of hoops through which defendants had to jump would be adequately addressed. With that caveat, therefore, I support clause 4.

Much has been said about the internet. I do not need to rehearse those arguments, so I will turn instead to clause 12, an interesting clause that gives the courts the power to order publication of the summary of a judgment made in a defamation case. That is a welcome change, which is a reflection of the public interest not only in allowing damages to be claimed by people whose reputations have been unjustifiably besmirched, but in obtaining proper restitution for that individual—in other words, in restoring, as much as possible, the reputation of the person aggrieved to its previous state. However—coming back to dear old Mrs Trellis—let us face it: that is what the object of the law should be all about. It is not just a question of damages; sometimes—I would say in most cases—damages should be a secondary consideration. It is all about trying to restore the wronged reputation of the individual concerned, although in privacy cases, once the secret has been brought out into the public domain, it is impossible to put the cat back into the bag, so to speak. Nevertheless, the question of intrusion remains and, in that context, there can be proper redress of grievance for the individual concerned. Once again, the two issues come together in an inevitable way.

This Bill is the product of much careful consideration. It is the better for it, which is why I am happy to support it on Second Reading. I commend the Bill to the House.

--- Later in debate ---

[Michael Ellis (Northampton North) (Con)]

It is a pleasure to follow my hon. Friend the Member for Cambridge (Dr Huppert), who is a fellow member of the Home Affairs Committee. It will come as no surprise to Members that I support the Bill. I do so because it defends the sanctified right of freedom of speech that this House has sought to protect for generations and, I expect, will continue to seek to defend. But it is also a good Bill because it recognises that there are limitations to the right of freedom of speech—sadly, the courts have not always recognised in recent years that there are limitations to certain rights. With every right there is a responsibility, for example, and it would not go amiss to notify the human rights courts of that point occasionally. The right to freedom of speech has been recognised in the courts for many years but, to use the classic example, it does not extend to allowing a person to go into a crowded theatre and shout, “Fire.” We have to recognise that those rights must be curtailed.

The Bill will rebalance the law to ensure that people who have been defamed are able to protect their reputations, and it is right that they should be able to do so. Freedom of speech and freedom of expression are not, and must not be, unjustifiably impeded by actual or even threatened defamation or libel actions. The reality is that sometimes even the threat of a defamation suit can prevent a person from making a fair comment on something, giving an opinion about a product, service or individual, or expressing a doubt about something. Many will take the view that it is simply not worth it and decide it is easier not to refer to a particular area of controversy because they do not want to risk getting a solicitor’s letter and the very expensive defamation actions that would follow. The Bill will ensure that the threat of libel proceedings is not used to frustrate scientific, medical or academic debate, for example. Sadly, there have been examples of the peer-reviewed work of academic experts and others and their freedom to speak freely on those subjects being endangered by threats or actual suits for defamation.

We need to reduce the potential for trivial claims and address the perception that has arisen in some parts of the world that this country is suitable for libel tourists, the people who come to this country, despite the fact that only one or two of their books or magazines have been sold here, to take an action for defamation because the law in their home country is in some way unsuitable for their purposes. We do not want this country to be seen as a libel tourism haven, and that is addressed in the Bill.

In my judgment, it is right that the test for determining that a statement is suitable for defamation proceedings is whether it has caused “serious harm”. Cases sometimes go before the courts in this country when even a reference to someone being ugly or in some way antisocial is enough to justify a libel action. It is a matter of fact and degree, but in my judgment it is right that serious harm should be proven before a statement can really be considered defamatory.

The Bill also deals with the new statutory defence of responsible publication on matters of public interest, to which I have already alluded. Such things as peer-reviewed academic, medical and scientific analysis, which sometimes necessarily has the effect of rubbishing someone else’s academic work, should be appropriately open to debate, so long as there is no clear malice, and not subject to over-sensitive legal actions. The Bill updates and extends the circumstances in which the defences of absolute and qualified privilege are available, including extending qualified privilege to peer-reviewed material.

I am also impressed by the way the Bill goes some way towards addressing the issues that have arisen in recent years concerning the publication of defamatory material on the internet. The single publication rule that the Bill introduces will prevent an action from being brought in relation to the publication of the same material by the same publisher after the one-year limitation period. It has been quite easy for people to take defamation actions against newspaper websites, for example, and others if they repeat the libel that was originally the subject of an action. It is very easy for those websites to be insufficiently monitored so that they repeat the libel and a further and new action can then be taken. It is right that a limitation of one year be put on that, because the nature of the internet is such that it is very easy to draw down the material that was the subject of the libel and repeat it.

Another feature of the Bill that has been referred to in the Chamber is that it will remove the presumption of a jury trial in defamation actions. I would passionately seek to defend the right to a jury trial in almost every case, and certainly criminal cases. There are now very few civil cases that would be subject to jury trial—I can think of malicious prosecution, false arrest and false imprisonment, but very few others.

This Bill will not remove the right to a jury trial in defamation proceedings, but it will remove the presumption that a jury trial should be the forum that is utilised. We should of course trust our judges to exercise their lawful discretion to order a jury trial when they think it appropriate, and there will be some cases in which a jury trial will be appropriate, especially one involving one person’s word against another when there is very little other ancillary evidence, because juries are equipped to make a judgment on witnesses when they hear them from the witness box.

[Guy Opperman]

On jury trials, does my hon. Friend not accept, however, that in civil liability trials and in all number of other pieces of litigation, the judge is taken out of the assessment of the truth of individual witnesses, and that credit is something judges are well used to judging on a regular basis? Does he not also accept that there is a possibility of our merely returning to a situation in which we have endless jury trials, instead of trusting the judges to get on with the decision?

[Michael Ellis]

I recognise my hon. Friend’s point, and the common law will no doubt develop in this area, but I hope that, if this Bill becomes law and removes the presumption in favour of jury trials, judges will recognise that jury trials will be less frequent than heretofore. I will be corrected if I am wrong, but I seem to recall that until relatively recently juries in defamation cases had a part to play in deciding the quantum of damages after successful defamation proceedings, and I recall also some rather large figures for damages awarded against various periodicals. I am a great fan of Private Eye, possibly because I have not featured in it—[Interruption.] I am not inviting it, and I emphasise that!

--- Later in debate ---

[Guy Opperman (Hexham) (Con)]

I, too, support the Bill, and on defamation I fundamentally believe, as Shakespeare wrote:

“The purest pleasure mortal times afford

Is spotless reputation: that away,

Men are but gilded loam or painted clay.”

That was said in “Richard II”, a king who sadly did not last long enough as a Yorkist to enjoy much of his spotless reputation, as he was shortly killed thereafter, but his reputation, spotless as it was, went with him to the grave.

The world is clearly changing. My hon. Friend the Member for Northampton North (Michael Ellis) and I shared an illustrious, or non-illustrious, career as barristers in a former life, and my old copy of “Carter-Ruck on Libel and Slander”, the definitive edition from 1997, features not a single paragraph about libel and slander on the internet, because of course such a thing did not exist in those days.

We now face the dreaded heretic that is the internet troll. Many of us would not have known, until a couple of years ago when we took public office, what an internet troll was, nor would we have been subjected to the great delights of annihilation in print or prose, such that we all now have to face the slings and arrows of outrageous internet fortune on a regular basis, but the development of the law requires this Defamation Bill, which we are considering, and it can only be a good thing.

My hon. Friend said that we must move with the times, but sadly the reason why we have Lord Leveson’s inquiry is that too many political parties moved with The Times for far too long, and Mr Murdoch and his empire have been far too close to too many people on a repeated basis—such that I am beginning to distance myself from The Times.

[Michael Ellis]

I didn’t mean The Times newspaper!

[Guy Opperman]

I accept the possibility that my hon. Friend was not referring to that, but was referring to the development of events over the past few years.

It is absolutely vital to ensure that we have a free press and an ability to speak out without fear or favour—that is fundamental—but justice must be accessible to the people who receive comments from such a press. The Bill definitely increases that accessibility, and I welcome that wholeheartedly. Any interpretation of such legislation must take account of the countless stories told throughout this debate of people whose reputations have been annihilated on the internet and elsewhere.

[Bob Stewart]

Would it not be fair for people of little means to have the opportunity to go to, say, a defamation ombudsman who could give them advice and help them before they spend one penny? At the moment, the law seems to be available only to those who can afford it, and that is wrong. It should be possible for a man or woman of no means to be able to go and get decent advice from someone who knows what they are talking about.

[Guy Opperman]

I am delighted to say that to a certain extent such advice does exist. There more developed citizens advice bureaux and victim support organisations are able to provide such assistance, as are the Bar Pro Bono Unit and the Free Representation Unit. I have represented individuals in libel cases as part of the Bar Pro Bono Unit, and there will certainly continue to be such accessibility. However, my hon. Friend identifies one of the fundamental flaws in the Bill, which I hope will be remedied in Committee.

The Jackson report that was instituted by reason of the Legal Aid, Sentencing and Punishing of Offenders Act 2012, which we passed on 1 May, ensured that there is no ability to recover the cost of insurance for the litigation. The consequence of that is that individuals who wish to bring such litigation against a newspaper would have to risk a great deal were they unsuccessful. There is a way round that. The way forward is for the courts is to develop what they have developed in other branches of the civil litigation arena—a protective costs order. In the case of Compton v. Wiltshire primary care trust, the protective costs order was extended to a local group of individuals to make the case a matter of public interest. This means that were someone to wish to bring a civil action against a public organisation or a newspaper and it was in the public interest for them to do so, they would be protected were they to lose the case because the very fact of bringing that action constituted something that was in the public interest. I suggest that we will see that development in libel and defamation law. As my hon. Friend the Member for Northampton North said, common law will develop to accommodate the fact that, sadly, there is no legal aid and precious little to assist the individual litigant in taking a case against the newspaper or public institution that has defamed them.

The nature of this Bill is such that there is general agreement that we need to move forward and have a better understanding of such access to justice, which is patently not there at the moment. I should make a declaration as a trained mediator and as someone who was at the Bar and has earned a moderate living as a barrister. [Interruption.] I was not a very good libel lawyer, I hasten to add. The shadow Minister just said that I used to practice extensively at the Bar in this field, but I assure him that I was of no quality whatsoever in libel cases; I got far too irate. A greater use of mediation at an early stage can only assist. Looking at the various problems that arise in libel, the mediation and the apology at the early stages are most important, not necessarily the damages that are ultimately sought, but we get so enmeshed in the process of litigation that we end up with a case that has mushroomed way beyond the reality of the loss entailed. I therefore welcome the extra mediation and alternative dispute resolution processes that the Bill will bring about.

I warn that there can be a sad tendency to have a great deal of discussion at the early stages of the litigation process. I have witnessed that in many a case. One has to clear hurdles at the outset to prove that the nature of one’s case gets over a certain threshold and it would be not unheard of for a newspaper or a public organisation with deep pockets suddenly to attack the individual and say, “We don’t accept the judge’s finding that you’ve got over this hurdle—we shall appeal this.”

I represented Mrs Compton in the case of Compton v. Wiltshire primary care trust, which concerned the health services in the constituency of my hon. Friend the Member for South Swindon (Mr Buckland). There were 14 separate pieces of litigation involving the primary care trust that went all the way to the House of Lords on seven separate occasions. Her original hurdle was overcome and tested all the way to the House of Lords. These early hurdles must have a finite end. If one has a preliminary hurdle to get over in a defamation case, as is now set by the Bill, there should be one single right of appeal and then the matter moves on. Without that sort of process, an individual may find themselves enmeshed in ever-deeper litigation before the case has even got off the ground. By that stage, years have passed, their reputation is gone, and their ability to respond to the libel or defamation has totally dissipated. I warn the Minister that there needs to be strict guidance on the maintenance of the alternative dispute resolution process as it goes through.

I am glad that my hon. Friend the Member for South Swindon has returned to his seat. I sat through his lengthy and impressive speech, in which he said, if I remember correctly, “The law, like the Ritz, is always open.”

[Mr Buckland]

I said that it is open to all.

--- Later in debate ---

[Guy Opperman]

I apologise to my hon. Friend. It is possible that he dines in larger and more salubrious establishments than the rest of us, who are more Little Chef and Happy Eater people. I am sure that those days of the Ritz are sadly gone.

As lawyers practising in this field, we know that it is important to have accessibility, because without that there is no justice. There is a long history of those who have been defamed, from Oscar Wilde to Winston Churchill to Marie Stopes to W. E. Gladstone. It is good to see the Liberal home affairs spokesman, the right hon. Member for Carshalton and Wallington (Tom Brake), in his place. Of course, Gladstone was the last man to be libelled from the grave. His son took an action on behalf of the reputation of W. E. Gladstone and his family, who he felt had been maligned and libelled, and was successful before a jury trial.

That brings me nicely, with a slightly Radio 2 link, to jury trials. That issue must be addressed with robust guidance. It is not sufficient to say to the courts that the presumption should be against jury trials. The Secretary of State said that in matters where there is a genuine test of credibility, there would be a jury trial. I entirely accept that, but it would be extraordinarily rare to have a libel case without a genuine test of credibility. The whole purpose of libel law is to test the meaning and intent of certain words.

[Michael Ellis]

Does my hon. Friend accept that in many cases it will not only be about the word of one person, the plaintiff, against that of the other, the defendant, because there might be supportive material that backs up one against the other, such as e-mails, an exchange of letters, other documentary or ancillary evidence, or supportive or corroborative evidence from other witnesses?

[Guy Opperman]

I regret that my hon. Friend—eminent lawyer, lion of Northampton and feared throughout the west midlands legal circles though he is—has identified the fundamental problem with his own argument in a sort of self-defeating prophesy. There will surely be an assessment of the individual merit of these e-mails and of whether they have been written by an individual who can be accounted for. All those matters will come under the test of credibility that he has espoused and that was put forward by the Secretary of State.

That all goes back to the issue of a jury trial. I have no problem with jury trials. I conducted nine murder trials and umpteen Crown court trials. The short point is this: if we are to reform the libel system so that defamation is no longer tried by a jury, save in the most exceptional circumstances, the test cannot be, “Who do we believe?” As I attempted to explain earlier, that question is assessed by district judges, county court judges, circuit judges and every other judge in the country on a daily basis. We do not need a jury trial to assess that. One could argue that 99% of all trials in this country are conducted in the absence of a jury, when judges assess the merits of an individual’s credibility. With respect, I urge the Secretary of State and the Committee to address this issue so that there is proper guidance on it.

This matter has rightly been dealt with on a cross-party basis. I support the idea of having a draft Bill. It is patently clear to those of us who have endured the delights of guiding such wonderful Bills as the Health and Social Care Bill through this House, drafted as well as they were, that we are now debating a Bill that has been considered by sane and intelligent persons on a cross-party basis, and that we are therefore fine-tuning rather than redrafting. That, I assure the House, is something that we should all welcome.