Libel and Defamation Cases: Cost to Public Funds

Lord Wolfson of Tredegar Excerpts

Monday 14th June 2021 Lords Chamber

[Lord Rooker]

To ask Her Majesty’s Government what is the estimated cost to public funds of people based outside the United Kingdom using UK courts to mount libel and defamation cases against (1) people, and (2) publications, based in the United Kingdom.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, court fees are set to achieve full cost recovery, and thus the cost to public funds of libel claims brought by people from outside the United Kingdom in England and Wales is negligible.

[Lord Rooker (Lab)]

Is the Minister aware that five Russian billionaires are involved in a strategic lawsuit in London against the journalist Catherine Belton as a result of her book, Putin’s People? Why should Igor Sechin, Roman Abramovich, Mikhail Fridman, Petr Aven and Shalva Chigirinsky be using London lawyers Carter-Ruck, CMS, Harbottle and Lewis and Taylor Wessing to silence a journalist? These grubby law firms should be struck off and the barristers whom they are paying to do this work should be disbarred. Our courts are being abused by these people, and as Nick Cohen said in the Observer, they are making London

“the censorship capital of the world.”

What are the Government doing about the co-ordinated, shameful abuse of our courts, which must have started life in the Kremlin?

[Lord Wolfson of Tredegar (Con)]

My Lords, it is not what the Government are doing but what the Government have done. Section 9 of the Defamation Act 2013 provides that if a defendant is domiciled out of the jurisdiction then London can hear the case only if the judge is clear that this is the appropriate forum. That Act also contains defences of truth, honest opinion and public interest.

[Baroness Helic (Con) [V]]

My Lords, strategic lawsuits against public participation—SLAPPs—are lawsuits brought by powerful individuals or bodies to silence anyone who investigates or criticises them. Before her assassination, the late Daphne Anne Caruana Galizia faced 47 different legal actions trying to prevent her reporting on corruption, and countless legal threats, including some launched by English lawyers with the threat of action in English courts. Other countries, such as Australia, parts of the US and Canada, have passed legislation to prevent SLAPPs, including mechanisms to quickly dismiss them, and sanctions for those who abuse the courts in this way. Can Her Majesty’s Government follow suit?

[Lord Wolfson of Tredegar (Con)]

My Lords, the Government always take action to protect freedom of expression to safeguard the work of journalists. The forthcoming online safety legislation will enshrine in law protections for journalistic content and free debate. We will, however. also keep a very close eye on what is called the SLAPP jurisdiction. My noble friend mentions Australia and Canada; she may also wish to read a recent judgment from the Western Cape High Court, the case of Mineral Sands Resources (Pty) Ltd, in which Deputy Judge President Patricia Goliath set out in very clear terms the advantages of a SLAPP jurisdiction. This may be the first occasion of a David praising the work of a Goliath.

[Lord Pannick (CB)]

My Lords, the Written Question tabled by the noble Lord, Lord Rooker, focused on the cost to public funds, which the Minister fully answered. The Oral Question contains an attack on barristers and solicitors for representing clients. Does the Minister agree that any litigant, whoever they may be and wherever they may come from, is entitled to legal advice and representation, and that it is the job of the judge to decide what the legal rights and wrongs are?

[Lord Rooker (Lab)]

They have vested interests.

[Lord Wolfson of Tredegar (Con)]

My Lords, that is absolutely right. With respect to the comment of the noble Lord, Lord Rooker, from a sedentary position, it is not a vested interest point, it is a fundamental principle of the rule of law. A lawyer should not be identified with their client, and perhaps I may say that I would not want to be identified with all my former clients. But they are all entitled to representation in free and fair courts, which is what this country provides.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, as well as concern that English law is still being abused by threats and court action from powerful individuals against journalists and authors reporting on financial crime and corruption, there is credible evidence of women who have alleged abuse facing libel threats and actions from wealthy men as it has proved an effective way to shut women up. Does not the defence of legitimate debate, freedom of expression, safety of journalists, exposure of corruption and encouragement of women to report violence and abuse demand at least a review and reassessment of the measures that can be taken to prevent such actions by corrupt, violent and wealthy figures?

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Lord makes a very important point. There are, of course, the defences of truth and, in relation to what is said in court, there is of course absolute privilege. As the Minister who played a significant part in taking the Domestic Abuse Act through this House, I will certainly want to ensure that the protections it gave to women are not undermined by people exploiting the law of defamation.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Defamation Act 2013 was an important coalition achievement. The pre-legislative committee on which I served was unanimous, so we now have the serious harm threshold, the serious financial loss requirement for companies and the defences of honest opinion and publication in the public interest. To curb libel tourism, as the Minister has just said, Section 9 requires any claimant outside the UK to show that

“England and Wales is clearly the most appropriate place”

for defamation action. It was a test applied strictly by the Court of Appeal last year in Wright v Ver. While we should certainly keep the Act under review, is not the law now restrictive enough?

[Lord Wolfson of Tredegar (Con)]

My Lords, I agree with the noble Lord that the law is well balanced. We think that the Defamation Act 2013 is working well. I thought I heard the noble Lord say that Section 9 applies where a claimant is domiciled outside the UK, but I think that it is actually where the defendant is so domiciled. With that small correction, I agree with the noble Lord.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in October 2019, the MoJ published its post-legislative memorandum regarding the operation of the Defamation Act 2013 since it came into force. It concluded:

“There has not been any body of opinion calling for a review … of the Act. That may be because … it is still too early to feel their full impact—


that is, of its provisions—

“given the length of civil litigation.”

Following the concerns raised in November last year in an article in the Guardian, we have now heard further concerns from my noble friends Lord Rooker and Lord Browne, who mentioned how women who allege abuse may face libel threats from wealthy former partners. In the Minister’s view, does this not all add up to a re-review of the operation of the 2013 Act?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, as I have said, the 2013 Act is regarded as working well and there are no current plans to reform or revise it. However, we will always consider a review if significant problems are demonstrated. Indeed, the 2013 Act itself was a response to such concerns and problems. Obviously, it is inevitable that libel cases will still be brought, but we consider that the Act gives the courts a proper basis on which to determine them by setting out the correct legal framework. The decisions of the courts in interpreting the 2013 Act have helped to reinforce the intention and policy underlying that Act.

[Lord Wallace of Saltaire (LD)]

My Lords, in answer to a Written Question that I received two weeks ago, the Foreign Office stated:

“Persons or entities designated under the Sanctions and Anti-Money Laundering Act 2018 are not banned from initiating action in UK courts.”


Does that incidentally mean that if costs were awarded against such people or entities, they would be forbidden to reimburse them? Does the Minister not regard this as a fundamental abuse of British sovereignty?

[Lord Wolfson of Tredegar (Con)]

My Lords, the response from the Foreign Office was absolutely right. Legislation imposes proportionate sanctions where warranted, but restricting access to justice is something else. When it comes to payment of costs awarded against such people, I can say to the noble Lord from experience that there are ways in which such costs can be ordered and paid, but one has to be very careful in such circumstances not inadvertently to breach the sanctions regime.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, does the Minister agree that part of the problem raised by this Question is the absence of an appropriate, independent alternative dispute resolution mechanism for those unfairly treated by the press? Do the Government have any plans to consider this?

[Lord Wolfson of Tredegar (Con)]

My Lords, the short answer is yes. I would disagree with noble Lord in only one respect; that is, when he calls it alternative dispute resolution. We should not see these forms of dispute resolution as being alternative in the sense of being somewhat outré or unusual. They should be absolutely at the forefront of our civil justice system, and indeed, we are making changes throughout our civil justice system to make sure that only cases that really cannot be resolved outside of court end up in court.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, all supplementary questions have been asked and we now come to two First Readings.