Defamation Bill

Lord May of Oxford Excerpts

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 Browne of Ladyton]

I accept what the noble Lord has said and I respect it enormously. I do not treat it light-heartedly. I think he makes a serious point. I feel I may have lost my powers of advocacy actually because I was not seeking to argue to change the words. I was seeking simpler clarification of the words and was using the only device that is open to me in these circumstances. I may not have served that purpose and may have opened up the opportunity for debate, but I do not think that I have done anything other than give some people who are not lawyers a window into the world that we will be living in when lawyers get hold of what we produce.

[Lord May of Oxford]

I do bear in mind that we want to move on. I may well have missed some of the points, but I think part of the missing of points is cultural sliding past each other. I completely agree with what the noble Lord has just said. One ideally wants a simple procedure where a good judge hears what it is all about from well-chosen people. However, I reel back in dismay when I hear other people who said that he examines the material that has been assembled. The noble Lord clearly does not mean that and if it is going to be like that then I am with him.

My one experience of this kind comes out of the Meadow case. Noble Lords may remember this incompetent statistician who created a quite serious set of problems. In the wake of it, some of the medical statisticians at the Royal Society said, “Why don’t we make a report on it?”. I said, “No, why don’t I talk to Hayden Phillips and we will get together with some legal people to ask how we can be more helpful?”. Indeed, we got together with Igor Judge, the noble and learned Lord, Lord Judge, this was before he was Lord Chief Justice, and had a very interesting conversation but it was slightly strange.

I do not apologise for boring noble Lords with this because I think it is illustrative. When I was in school, we had a rather good debating team which consistently beat the debating team led by Murray Gleeson. The captain of our team is now a High Court judge in New South Wales. They have a new way of handling expert witnesses, which is along the lines that the noble Lord just advocated. Instead of getting a credentialed expert witness such as Meadow or somebody else from a company that gives credentialed expert witnesses who are often not very expert, the judge asks appropriate people who would be a good person to bring in. Then he holds a mini tutorial in which the two sides are able to ask questions, but one seeks understanding. The whole Meadow thing would never have happened had that been done.

However, after we had presented this idea and a willingness to help do it, it was explained to us that we simply did not understand. We were missing the point of the legal system. What would be really appreciated would be if the Royal Society would set up a committee to formally accredit expert witnesses, which did not seem to us what the debate was about. I am worried that what is being described and what is in your Lordships’ minds are not easily going to be translated into anything that is not almost as expensive as what is currently being used as a weapon. In the situation involving Nature and Simon Singh, the people who were being criticised did stand to lose by the criticism, but the expert opinion was that the criticism was valid. It could have been settled by a judge in half an hour, but the defence cost Nature £1.5 million.

[Lord Browne of Ladyton]

I am again grateful to the noble Lord, Lord May, whom I think I misnamed earlier. However, I have no intention of going any further with this, having made the point I want to make at this stage. I am grateful to the Minister for his response. He has added to my understanding of what the Government are seeking to achieve, and I broadly support that. If it achieves the objective, I will go away and think long and hard about what is now on the public record. If that is sufficient, I will abandon my search for any further clarity in this area. If it is not, I may of course return to this issue at some later stage in the Bill, but for the moment I beg leave to withdraw the amendment.

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[Lord Lester of Herne Hill]

I should be careful what I say, because I shall now offend some members of what is known as the libel Bar. I am not a proper defamation lawyer, although I have dabbled in it. My dealings with my colleagues at the libel Bar have led me to conclude that the great technicality and obscurity of elements in the existing law are no fault of the judges but are very much the fault of my colleagues who have enjoyed very inward introspective legal practices that have added to the problems. In the framework we now have, it is extremely hard for the judiciary to cut out the nonsense that is there as a result of my fellow practitioners. I am sorry to defame a group of them, but there it is.

The other thing I wanted to say, which my noble friend Lord Faulks has referred to, is about the unsatisfactory idea of focusing on the company as though the company is a monolithic concept. If you focus just on the company, you leave out all kinds of other powerful bodies that are not companies at all: a trade union is a good example, although that has been dealt with in the case law in a particular way; many unincorporated associations; and many bodies that are very powerful NGOs, for example. The problem with the word “company” is that it is both underinclusive and overinclusive. It is underinclusive because it does not catch other powerful bodies that are not in corporate form, and it is overinclusive because the little dress shop company that my noble friend Lord Faulks has in mind—a one-director company—is in a completely different position from McDonald’s. That is why it is fact-sensitive and can be dealt with by the judiciary only on a case-by-case basis.

The amendments that we are now considering do not trespass on the courts in overreach. They are dealing with one aspect of the problem. The holistic approach involves case management, procedural rules and guidance in order to counter the kind of problems that the noble Lord, Lord Triesman, had in mind.

I am therefore enthusiastic about these amendments, but they do not and cannot deal with the whole of the problem.

[Lord May of Oxford]

I am wholly in favour of these two amendments. I want to raise one question that probably illustrates one of my many areas of ignorance. I worry a little bit that saying a statement is not defamatory unless it has caused substantial financial loss will run up against classic examples of where a large organisation, like a corporation, has used costs to silence someone, but there are many examples of where people have persisted in their criticism. If anyone who is interested in these case horror stories e-mails me, I can send them a list of a dozen different illustrative stories. Despite costs of £500,000 or £1.5 million, and the loss of time to the person involved, the better cases, such as those involving an unsafe medical device or people in South Africa being told that they should buy a particular person’s vitamin pills and that AIDS medicines are ineffective, have been effective and have inflicted serious loss on companies that should have been put out of business.

That brings us back to our very first issue. In most of these cases, a good judge, with two or three experts, could have settled the matter in half an hour. Whether AIDS drugs or vitamin pills are effective is beyond dispute; yet it took 17 months and £500,000 to settle it. I suspect that I am, in some sense, out of order by raising this, but there is a slight overtone that causing substantial damage gives you a reason to start suing someone. I think that we need to go right back to our first discussion about having to ask whether the damage was based on an accurate description of untruths or unknowing or knowing faults and lies in what was being marketed.

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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.

[Lord McNally]

My Lords, again, I want to be able to think about and to look at the arguments that have been deployed. As I have said, I am not so experienced in the law as to know where this balance is, particularly on case management. I know that the Select Committee and a lot of the evidence given by individuals and organisations as this Bill progressed emphasised that good case management was part of the key to dealing with early resolution and the problem of cost. Whether it is wise or even proper to try to write these matters into an Act of Parliament rather than trust the judiciary to deal with these matters, certainly I look forward to a meeting with the Master of the Rolls early in the new year and to talk to others about this.

In the mean time, let me put on record the responses to these two amendments. Amendment 5 would make it compulsory for the parties to use a form of alternative dispute resolution before a defamation claim could come before the court. The Government are firmly committed to reducing the costs of defamation proceedings and to resolving legal disputes by techniques other than litigation wherever possible. The overriding objective of the Civil Procedure Rules puts the onus on courts to encourage and facilitate the use of alternative dispute resolution, and the Pre-action Protocol for Defamation already requires parties to consider some form of alternative dispute resolution, including mediation or early neutral evaluation.