Defamation Bill

Robert Flello Excerpts

Wednesday 12th September 2012 Commons Chamber

[Jeremy Wright]

I thank Members for their kind words of welcome to me and my fellow Justice Minister, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant). I also echo the tribute the hon. Member for Newcastle-under-Lyme (Paul Farrelly) has just paid to my predecessor, my hon. Friend the Member for Huntingdon (Mr Djanogly), whom I thought the hon. Member for Bishop Auckland (Helen Goodman) was very harsh on, as he certainly was involved in the concessions—

[Robert Flello (Stoke-on-Trent South) (Lab)]

The hon. Gentleman was not in Committee.

[Jeremy Wright]

Well, I have read the Hansard reports and I thought the hon. Lady was harsh on my hon. Friend.

I welcome the official Opposition’s attitude to new clause 1 and amendments 5 and 6. The hon. Member for Bishop Auckland made a couple of points, however, which I shall try to address. On jurisdiction, the Government would not pretend that in this Bill we have resolved the international problem she describes. As she knows, it is an extraordinarily complex problem that requires a great deal of work. We are not there yet, and work will continue.

On clause 5, claimants can begin proceedings and obtain judgments in this country even if the operator of the website or the person making the statement is abroad. Then, of course, the issue becomes one of enforcement of judgments. There are international agreements with some countries for that, but I do not pretend that the situation is perfect, and we will look again at what we can do to improve it. The fact that we cannot do everything should not mean we do nothing, however, and this Bill goes a considerable way to dealing with many of the problems.

On amendment 6, I entirely agree with what the hon. Lady said about the desirability of moderation on websites. We do not want disincentives to that, which is why we have tabled amendment 6, and I am grateful for her support for it.

There is no consensus on amendment 7, however. I cannot subscribe to the hon. Lady’s view that clause 5 should be removed. I acknowledge that she said it is not the official Opposition’s intention simply to leave the problem in question unaddressed by removing the clause, but, for the purposes of Report stage, that is the effect of her amendment. It would remove clause 5 and it would not replace it with anything. It is important to bear that in mind.

We will be seeking views on regulations. It is important to ensure that a broad range of views are sought, and that we make sure we get things right. We hope to have secured the necessary input by the end of the year.

The hon. Lady referred to the note of proposed procedure presented to the Committee. It was never intended that that should be the regulations. That was intended as an indication of the Government’s thinking on these matters. Clearly, a good deal of detail is yet to be confirmed. I hope she will accept that that note was designed merely to give an indication of where we are headed.

The hon. Lady made a perfectly fair point about authors refusing to hand over their contact details, rightly saying that if they refuse to hand those over to website operators we will still be requiring claimants to go to court to obtain the Norwich Pharmacal orders, of which she is now intimately aware, and that will put them to expense. That is true but, again, I say to her and to the House that we are trying to strike that delicate balance between the interests of defendants and the interests of claimants. Our procedure attempts to make things easier for claimants, in respect of authors who do not want to say who they are to the website operator, in which case their comments will, of course, be taken down from the website, as well as for authors who are prepared to make their contact details available and whose details will then be passed on by the website operator to the claimant. The hon. Lady said that the Hacked Off campaign has wording that may resolve this problem. If that is the case, I am sure that Lord McNally, who is dealing with this matter in the other place, will be delighted to hear from the campaign and will give that full consideration.

As for the suggestion of placing a notice of complaint next to the posting that was originally causing the problem, I do not think it is fair to say that it is simply a problem of cost. As I understand it, potentially defamatory statements may be embedded in more than one website. We therefore also face the problem of deciding which website operator should be responsible for placing a notice of complaint next to the posting, and that technical problem should not be entirely passed over.

The hon. Lady rightly highlights a wider problem for the Government in respect of anonymity on websites. Again, it is right to say, in the interests of balance, that anonymity can in some cases be entirely justified. Whistleblowers are the most obvious example in that regard, and we would not wish to legislate in a way that prevented whistleblowers from acting under cover of anonymity. We hope that, under the procedures in clause 5, if someone maintains their anonymity and refuses to give their details to the website operator, any defamatory statement or potentially defamatory statement that is complained about will be taken down from the website. Finally, may I reassure her that nothing in the Bill conflicts with the e-commerce regulations?

I very much welcome the support of my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) for new clause 1 and for amendments 5 and 6. He rightly echoes the comments of the right hon. Member for Rotherham (Mr MacShane) about the difficulty of catching up with Wikipedia. The internet in general is a fast-changing landscape. All of us, as legislators, are running to catch up with it and to do our best to ensure that we achieve the right balance between freedom of speech and the protection of those who may be defamed within that arena.

My right hon. Friend is also right to say that further consideration of the Bill will be given by Lord McNally, with whom I know he is in conversation, and by the other place. However, my right hon. Friend will recognise, to be fair to this place, that there has at least been some movement by the Government on this clause. Even with the time constraints imposed on us, we have been able to shift our ground somewhat through the amendments I have proposed today.

That brings me to the comments made by the hon. Member for Newcastle-under-Lyme (Paul Farrelly). He deserves thanks, and I pay tribute to him, for his assiduous contributions in Committee. His contribution, along with that of the hon. Member for Stoke-on-Trent South (Robert Flello), has obviously moved us towards the Government amendments that I have proposed today. The hon. Member for Newcastle-under-Lyme says that new clause 1 is narrowly drafted, and that is so to a degree. The problem is that with a wider amendment the Government would risk continuing the situation where people who run websites take down statements that they fear may be defamatory and that may leave them open to condemnation without those statements necessarily being defamatory. That is why we have made our judgment in new clause 1 that only when a judgment has been reached will the order be available for courts to make to ensure that those statements can be taken down.

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[Jeremy Wright]

Of course they do. The hon. Gentleman is right to say that I omitted to mention that and of course that is exactly the point. The court’s right to make injunctions remains, and although interim injunctions are rare, they are still available. The purpose of the subsection is to ensure that they remain so. With that, I ask that hon. Members support new clause 1 and amendments 5 and 6, and I urge them to resist amendment 7.

Question put and agreed to.

New clause 1 accordingly read a Second time, and added to the Bill.

New Clause 2

Disapplication of Legal Aid, Sentencing and Punishment of Offenders Act 2012

‘Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 shall not apply in relation to civil actions for defamation, malicious falsehood, breach of confidence, privacy or publication proceedings.’.—(Robert Flello.)

Brought up, and read the First time.

[Robert Flello]

I beg to move, That the clause be read a Second time.

I have already welcomed both new Ministers to their places while in a Committee, but I shall repeat the exercise because it is welcome to see them both on the Front Bench today. The spirit of consensus that was started on Second Reading ran into some thick treacle in the Public Bill Committee, but perhaps a fresh approach with a fresh set of Ministers will allow us to return to those heady days.

I make no apology for bringing the new clause to the attention of the House. It was tabled by my hon. Friend the Member for Hammersmith (Mr Slaughter) in Committee only for us to run out of time for a proper debate and a proper Government response. It is important that right hon. and hon. Members on both sides of the Chamber understand the situation and the context in which we propose the new clause.

If I use the term “CFAs”, I hope everyone knows that I am referring to conditional fee agreements. I will also refer to after-the-event insurance, and I might slip into calling them ATEs. Some extremely knowledgeable Members will have no problem understanding CFAs, ATEs and various other acronyms, but I hope the House in general will be clear what I mean if I use them.

Conditional fee agreements, also known as no win, no fee agreements, were first made possible in personal injury cases by secondary legislation under the Courts and Legal Services Act 1990 and were introduced in 1995. They were meant to provide greater access to justice for those who did not qualify for legal aid but were unable to afford legal representation. Defamation cases were never covered by legal aid.

From 1995 until April 2000, there was limited take-up of CFAs, as some of the costs were still borne by the claimant. The Access to Justice Act 1999, which came into effect in 2000, introduced significant changes and reduced the scope of legal aid, particularly for personal injury, on the basis that those cases could now rely on CFAs. At the same time, the 1999 Act made CFAs more usable by allowing the recoverability of the success fee and the after-the-event insurance premium. It therefore became possible for people to take legal action without the fear of losing everything because of significant cost implications, although it was still necessary, of course, to find a lawyer willing to take the case because, if they lost, the lawyer would lose his or her fee. That is an important point at which to pause for consideration, as lawyers would therefore prefer to take on only those cases that they believed they could win.

Just so we are clear, damages awarded to claimants in defamation cases are typically between £10,000 and £20,000, whereas the costs of such litigation frequently run to many hundreds of thousands of pounds, but the Government now seem to think that the fees lawyers charge will come down if fewer people can get access to justice. Two situations could arise—[Interruption.] Before I explain them, let me welcome the Secretary of State, who has just taken his place on the Treasury Bench.

Let us consider a situation in which a person feels that they have been defamed, perhaps by the media, as is too often the case and as happened in the horrendous and tragic case we heard about earlier. The claimant would currently be able to agree a no win, no fee agreement, and if the person won, he or she would keep their damages and the lawyer would be entitled to get a success fee of between 10% and 100% depending on the conduct of the case. The insurance premium could also be recovered. The cumulative effect of the cases that lawyers win helps them to offset the costs of the cases that they lose. If the claimant loses, the insurers will pay the other side’s costs.

Let me give some examples of ordinary people who have been libelled or intruded on by the media and would otherwise not have been able to afford legal representation. Robert Murat was grossly defamed after the disappearance of Madeleine McCann and won significant damages from almost a dozen news outlets. He was supported by the use of a CFA. We all know that Christopher Jefferies was “monstered” by the press after he was arrested for questioning by the police in the Joanna Yeates murder trial, despite the fact that Jefferies was released after two days without charge. It is difficult to see how he could have received fair redress without the use of a CFA.

[Sir Peter Bottomley]

Was the case of Mr Jefferies, which the hon. Gentleman rightly raises, pursued under defamation law or some other provision?

[Robert Flello]

I refer the hon. Gentleman to my new clause; I think he will then get the point.

Sylvia Henry was a social worker who was wrongly accused of being negligent in the Baby P case. As a consequence, she was horrendously defamed and banned from carrying out child protection work. The CFA helped her to challenge the press’s accusations. A newspaper we have heard mentioned many times today, The Sun, apologised after reporting that Mr Abdul Patel was an evil terrorist who had been jailed for his part in a transatlantic terror plot. Mr Patel has never, as the paper acknowledged, had any involvement with terrorism acts. He was helped by a CFA. Finally, Elaine Chase was a paediatric community nurse who was falsely accused by The Sun, on the front page and inside that paper, of hastening the deaths of 18 terminally ill children by over-administering morphine. She fought and won her case with the support of a CFA.

We will now have a double whammy under this Bill and the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby a claimant will, quite rightly, have to pass a higher test to bring the claim but will also need the financial resources to go to law. Is that fair? How many people who have been defamed will have the case to go to court but not the means, and will therefore have no way of clearing their name?

Let us consider the other side of the argument, which is the position of the defendant. As the relevant part of the LASPO Act is not yet in force, a defendant also has the ability to use no win, no fee conditional fee agreements and after-the-event insurance. If the defendant is successful, the lawyer gets paid and receives a success fee from the claimant. Of course, the defendant does not receive damages. Alternatively, if the defendant loses the lawyer does not get paid but the ATE policy pays the claimant’s costs.

Let me give a couple of examples to illustrate my point. Members of the Public Bill Committee will be familiar with the case of Peter Wilmshurst, but it is important that it is understood by the wider House. Peter Wilmshurst was a scientist who was sued by the American pharmaceutical firm NMT Medical after he criticised its research at a US cardiology conference in 2007 and his comments were quoted by a journalist. Henrik Thomsen, a Danish radiologist, was sued by GE Healthcare for comments he made about a drug, again at a conference. If they had been unable to rely on CFAs and ATEs, they probably would not have been able to defend themselves at all.

As a result of the LASPO Act, defendants will now be faced with three options. First, they can issue a grovelling apology, even if they were absolutely right to say what they did, and hope that that is sufficient to avoid being sued. Secondly, they can try to defend themselves in court without legal assistance or any legal advice and face losing; they will also probably face highly paid, highly skilled lawyers on the side of a major corporation. Thirdly, they can try to scrape together the money to pay a lawyer while bearing in mind that if they lose, the cost might wipe out all their resources. Do we really want eminent doctors and scientists running the risk of losing everything, or preferring not to take the risk and retracting what they said, even though it might be correct and that scientific and medical research might save lives? Of course, the Minister will say that the barrier to pursuing a case will be higher once this Bill is enacted and that that will stop vexatious and intimidatory claims, but that will not happen without an early strike-out route.

My new clause also covers privacy cases, and there can be better illustration of the harm that the LASPO Act will cause than the terrible case involving Milly Dowler. Sally Dowler has gone on record, saying:

“At the outset we made clear that if we had to pay the lawyers, we could not afford to bring a claim; or if we had any risk of having to pay the other side’s costs, we couldn’t take the chance. If the proposed changes had been in place at that time we would not have made a claim. Simple as that, the News of the World would have won, because we could not afford to take them on.”

That is why it is so important to exempt defamation and other matters covered by my new clause from the LASPO Act.

We are not alone. Even Lord Justice Jackson talked about moderated success fees, but the Government have not included his proposals to mitigate the impact of the LASPO Act. The Bill rebalances defamation law in favour of defendants. If we do not remove cases from the LASPO Act, we will condemn wrongly accused people to not receiving justice. How can that be right?

We did not have sufficient time to explore the issue fully in Committee, so let me take the opportunity to put on record what was said in a letter to the Prime Minister on 26 March, in advance of the final stages of the LASPO Bill. The letter was signed by Christopher Jefferies, Gerry and Kate McCann, Peter Wilmshurst, Robert Murat, Hardeep Singh, Nigel Short and Zoe Margolis.

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[Jeremy Wright]

May I begin by expressing pleasure at seeing my hon. and learned Friend the Member for Harborough (Mr Garnier)—if he is not a right hon. Gentleman, he should be—in the Chamber, as he brings considerable professional expertise, as we all know, to the debate? I also welcome the contributions of other right hon. and hon. Members who have spoken.

I am delighted that the hon. Member for Hammersmith (Mr Slaughter) is speaking for the Opposition. He and I spent many happy hours discussing the Legal Aid, Sentencing and Punishment of Offenders Bill, but I am sure that neither he nor I nor you, Mr Deputy Speaker, would want to rerun all those happy hours. I accept the provisions under consideration relate to the substantive law of defamation; we are not here to review LASPO, which was subject to full parliamentary scrutiny—as I recall, very full parliamentary scrutiny—before receiving Royal Assent only a few months ago.

It is important to make it clear what the Government’s proposals will do. We are not talking about removing access to CFAs. We are talking about reforming and changing CFAs. The basic rationale for those reforms is that we wish to rebalance the system to make it fairer between claimants and defendants and correct the anomaly whereby those who bring cases have no incentive to keep an eye on legal costs. At the moment, the recoverability of success fees and insurance premiums from the losing side can have the perverse effect of preventing defendants from fighting cases, even when they know they are in the right, for fear of disproportionate legal costs if they lose.

High and disproportionate costs have a negative impact, not just because they can deny access to justice but, more broadly, because they can lead people to change their behaviour in damaging ways because of the fear of claims. Nowhere is that more true, as has been said in our debate, than in relation to responsible journalism, as well as in relation to academic and scientific debate. In MGN v. the UK—the so-called Naomi Campbell privacy case—in January 2011, the European Court of Human Rights found that the existing CFA arrangements, with recoverability in that instance, which the new clause would preserve, were incompatible with the right to freedom of expression under article 10 of the European convention on human rights.

Editors and journalists have long warned of the chilling effect of the current libel regime and argued that part of the problem is the huge costs that no win, no fee cases impose. However, as others have said, defendants are not always rich and powerful newspapers—they are also scientists, non-governmental organisations, campaigners, academics and on occasion, it seems, my hon. Friend the Member for Worthing West (Sir Peter Bottomley). It is important that when we discuss balance—this has been a theme of our conversations and debates so far—we recognise what else is going on. We should recall that clause 1 says that defendants will not be subject to actions for defamation, whatever their means, unless the claimant can demonstrate that he or she has suffered serious harm. That is important in this context. It is also important to recognise that we intend to make procedural changes—this relates very much to the remarks by my hon. Friend the Member for Worthing West—to try to reduce the costs that are paid by both sides, or either side, in the course of defamation actions. We believe that considerable progress can be made in that regard.

The CFA changes that we intend to make will apply to all areas of civil litigation as set out in the Legal Aid, Sentencing and Punishment of Offenders Act, and will do so from April 2013, apart from, as my hon. Friend reminded us, in mesothelioma and insolvency cases. The Government believe that any further exceptions to the CFA reforms are unnecessary. Our CFA reforms will ensure that meritorious claims can still be brought, but at more proportionate cost. However, I share the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. Nothing in our proposals should prevent this where a case is a good one.

As the hon. Member for Newcastle-under-Lyme (Paul Farrelly) said, there is a degree of cross-party consensus on this. In March 2010, the then Labour Justice Minister, Lord Bach, said:

“There is a substantial body of opinion that 100 per cent recoverable success fees should not continue in defamation cases.”—[Official Report, House of Lords, 25 March 2010; Vol. 718, c. 1156.]

That was on the back of a consultation that said that

“immediate steps are needed in respect of defamation proceedings”.

It was the Labour Government’s policy to reduce the impact of success fees in defamation and privacy cases.

The Bill and the procedural reforms that we intend to take forward with it are about reducing the complexity and therefore the expense involved in defamation cases. In order for those aims to be achieved, on 27 March 2012 Lord McNally gave a commitment in the other place that we will look at the rules on costs protection for defamation and privacy proceedings. That is very much in accordance with what my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) said. We will look at the rules for costs protection for defamation and privacy proceedings before the defamation reforms come into effect. I repeat that commitment here today. There is clearly more work to do, and I know that my noble Friend will be keen to consider the matter further.

In view of those remarks, I hope that the hon. Member for Stoke-on-Trent South (Robert Flello) will, on reflection, feel able to withdraw new clause 2.

[Robert Flello]

The hon. and learned Member for Harborough (Mr Garnier) suggested that the Defamation Act 1999 was a denial of justice. If he feels that way, he must be incredibly upset about what happened under the Legal Aid, Sentencing and Punishment of Offenders Act, which really is a denial of justice. He, like many others, said that the Minister will take that point on board. I will return to what the Minister has said in a moment.

As many Members have said, it is a pity that what was promised is not in the Bill. My hon. Friend and neighbour the Member for Newcastle-under-Lyme (Paul Farrelly) referred to my right hon. Friend the Member for Blackburn (Mr Straw) being subject to a cross-party ambush. I suspect that after Monday night the Minister will have a lot of sympathy with what happened to my right hon. Friend. My hon. Friend and neighbour said that responsible journalists are made grubby by the scurrilous ones, and that we cannot have this licence to libel.

The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) understands the problem, because he had a CFA for his claim against News International. If he was concerned about the financial implications of taking a case without CFA, what about constituents who are in a far worse position? That goes to the crux of our concerns and is the reason for new clause 2.

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[Jeremy Wright]

Let me be clear about what I said: it has long been argued by newspaper editors that there is a chilling effect on freedom of speech and some of the things under discussion, and I think there is broad agreement throughout the House that there is a risk that some defamation actions could have that effect. The costs regime has an impact on that. I then went on to say that not every defendant is a newspaper, and certainly not a well-funded newspaper. That was the substance of my point.

[Robert Flello]

I appreciate the Minister’s clarification, but I think that the newspapers will always claim that there are chilling effects. On balance, this will hit the likes of the McCanns and the Dowlers—people whom we should really be making sure are not hit.

In conclusion, I will push the new clause to a vote, because it is on a matter of principle. We need to send a message that when a promise is made, we expect to see it fulfilled.

Question put, That the clause be read a Second time.

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[Sir Peter Bottomley]

I am grateful to the hon. Gentleman for his intervention and will end my remarks on this point. It is important that a case does not fall only when it gets to a hearing. At an early stage, a judge should have the responsibility and the opportunity to ask what it is about. If a claimant will not take the advice of a judge, the judge should have the opportunity to refer the case to a small claims court. Once that happens, the small claims court should be able to order a limit on the costs that can be claimed at the end of a case, with or without a conditional fee agreement or qualified costs shifting. We need to cap these things and have a way of laughing people out of court even before they can get a full hearing.

[Robert Flello]

Clause 4 is an important, central part of the Bill, but some commentators believe that, as drafted, it does not represent an effective public interest defence. Others, as we have heard, believe that it should either be amended or improved by new clause 4.

Members will notice that my copy of the Joint Committee’s report is well-thumbed, and I draw their attention to what it has to say about the matter. I am sure that the Minister has already read it, but it would be worth her while to look again at what it says about what was clause 2, on responsible publication. It is important and relates to some of this afternoon’s amendments and comments. It will also elaborate on the Bill and inform views as the Bill makes its way through Parliament.

Today’s has been a good debate, as was the one in Committee, and I begin with a few observations on new clause 4. It was tabled by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) but bears an uncanny resemblance to the new clause that I tabled in Committee.

[Simon Hughes]

Same parents.

[Robert Flello]

Indeed. As I was about to say, because we both know their provenance, we understand the reasons for that uncanny resemblance, so it would be hard for me not to support new clause 4, especially given that my new clause was withdrawn with the specific intention of fighting it another day.

You will be reassured, to know Madam Deputy Speaker, that I have no intention of rehearsing our discussion of clause 4. Instead, I invite the House to read in Hansard what was said. However, I was dissatisfied with the previous Minister’s assurances on the predecessor to new clause 4, and was not reassured that it encompassed Reynolds, as revised by Flood and Jameel. I hope, therefore, that the other place can pin down the Minister on this matter and get some better legislation out of this.

As I understood the observations of the right hon. Gentleman, new clause 4 is intended as an addition to the statutory version of Reynolds. The existing clause 4 defence would be available to publishers with deep enough pockets who did not wish to publish a clarification, contradiction or, where relevant, a correction. The new clause 4 defence would be available to publishers prepared to correct the record promptly and, if needs be, prominently, and to publish a right of reply promptly and prominently, avoiding the use of lawyers.

As Members on both sides of the House have said, in the internet age, a prompt and prominent clarification, contradiction or correction can be an adequate remedy for non-malicious public interest publication, particularly given that some readers might see an original posting but not a subsequent one. So publishing a correction straight away online is often a good way of doing it—perhaps we could call it a post-publication responsible publication. The Opposition are concerned that we end up with a clause 4 that does the job. As I said, I support the direction of travel in new clause 4, and look forward to hearing the Minister’s comments. I hope to hear something new, not what we heard in Committee, and something from which we can take reassurance.

On the amendments tabled by my hon. Friends the Members for Newcastle-under-Lyme (Paul Farrelly) and for Hayes and Harlington (John McDonnell), my constituency neighbour, my hon. Friend the Member for Newcastle-under-Lyme, pointed out that the Reynolds list was meant to be flexible, but that this had led to a catalogue of problems. I welcome his attempt to tidy up clause 4 while seeking to probe the Government’s thinking. It is important that the Minister gives us the reassurance and advice we seek.

My hon. Friend the Member for Hayes and Harlington outlined the NUJ’s understandable interest. It will have concerns that good journalism will suffer because of the behaviour of bad journalists and the unfair pressure placed on good journalists by editors and owners not as concerned about good journalistic standards as they are about profits and getting the sensational headlines to generate them. I see where he is going with his amendments, and I understand the positive intentions behind them. I suspect that much of clause 4 will need to be revisited following the conclusion of Lord Leveson’s work. It is almost a great pity that the Bill has proceeded so quickly through the House. If it had been delayed, perhaps by a few months, we could have incorporated conclusions and findings from the Leveson inquiry and the inquiry into privilege. It should all be looked at as a package, rather than taking defamation as a stand-alone issue. This is an important subject and the law has not been amended since 1996. All the party manifestos wanted the law amended, but the undue haste of trying to get the Bill through Parliament—specifically clause 4 —means that the amended Bill with its additional new clauses does not currently pass the test of good and effective potential legislation. In the spirit of trying to get a good result, I look forward to what the Minister has to say.

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Action against a person who was not the author, editor etc

[Robert Flello]

I beg to move amendment 8, page 8, line 26, leave out from ‘court’ to end of line 28 and insert—

‘(a) is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher; and

(b) there is a prima facia case that the statement complained of is defamatory; and

(c) is satisfied that such person did not know that the statement was defamatory until a claim to that effect was made and did not reasonably believe that there was a good defence to any action brought upon it.’.

In Committee I moved a similar amendment—I think it was amendment 16—which sought to weed out, at an early stage, unnecessary cases coming before the courts involving no defamation. Replying to the debate, the then Minister expressed concern about the requirement for a court to determine at an early stage whether a statement was indeed defamatory. I therefore withdrew the amendment in order to reconsider it. Amendment 8 recasts it, requiring simply that a prima facie case should exist. However, it also incorporates more of the concerns raised by the Booksellers Association which I raised in Committee on 26 June. That debate can be found at column 162 of Hansard, if the Minister wishes to grab her copy and look it up quickly. No, I thought that she would not.

The then Minister gave what I felt, and indeed the Booksellers Association felt, was an unsatisfactory response.

The points made by the Booksellers Association are as follows. First, although section 1 of the Defamation Act 1996 is available to booksellers as a defence, it is very much weaker than the common law defence of innocent dissemination which that section replaced. It has been suggested that section 1 was never intended to do what it has done, and that the problem was inadvertently caused by sloppy drafting. In Committee, the then Minister felt that there were differing views on the section and on whether it was weaker than the common law defence. If that is so, it would be helpful to know who feels that it is not weaker than the Booksellers Association and other observers believe it to be.

Secondly, under section 1 booksellers, and indeed other secondary publishers such as newsagents and distributors, lose that protection if they know, or have reason to believe, that a publication contains any defamatory statement. Under the previous defence of innocent dissemination, a defence would have existed if the bookseller had a reasonable belief that the alleged defamatory material was not libellous, having been assured by his or her own lawyers, or by lawyers for the author or publisher, that one or more of the statutory defences applied.

Thirdly, as a result of the elimination of the innocent dissemination defence, a technique known as the sending of “clogging letters” was adopted. A clogging letter was a letter sent by the claimant’s lawyers to a bookseller warning that unless a publication containing the alleged libel was immediately withdrawn from sale, proceedings would be started against the bookseller. The bookseller invariably had to remove the publication from his shelves, as he did not have the resources with which to defend himself against litigation without the availability of the innocent dissemination defence. The claimant therefore achieved the withdrawal of the publication whether or not he had a proper case, without having to issue any proceedings against the author or publisher or, indeed, the bookseller. That device has been used by a number of vexatious litigants.

Paragraph (c) of amendment 8 is intended to reinstate the defence of innocent dissemination for booksellers. As they have pointed out, if they cannot rely on other defences and are considered to be an easy target, and if clause 10 does not enable the publisher and the other parties to a publication to mount a challenge, a bookseller wants to be able to at least use other defences.

I do not want to detain the House. That is the crux of what I propose, and I look forward to what the Minister has to say.

[Sir Peter Bottomley]

I am grateful to the hon. Member for Stoke-on-Trent South (Robert Flello) for raising this subject. His amendment refers to there being

“a prima facia case that the statement complained of is defamatory”.

I think that is right. People ought to ask themselves whether there is a reasonable probability that the claim will be successful. In criminal cases, people are not brought to court unless there is a 50:50 chance or more of conviction.

We need to go further than the prima facia case, however. The court ought to hold that there is defamation, that it is actionable and that it is likely that a court case would end in success for the claimant. Too many cases are brought that will clearly not be successful when they come to a full hearing. That applies not only to booksellers—the category this amendment specifically addresses—but all the other types of case about which I have been concerned.

[Mrs Grant]

Amendment 8 would add two additional hurdles to overcome before a court had jurisdiction to hear a defamation claim against someone who was not a primary publisher. We do not consider this amendment to be appropriate. It would significantly limit the circumstances in which a court would have jurisdiction to hear an action against a person who was not the author, editor or publisher of a defamatory statement. To provide that an action against a secondary publisher can only be brought where it can be proved that the secondary publisher had knowledge that the statement was defamatory and that there was no defence would raise the bar for establishing jurisdiction to a very high level, and would tip the balance too far against the interests of the claimant. It could leave them with no means of restoring their reputation.

In addition, it would be very unusual to require a court to consider the substance of a case at the same time as determining whether to grant jurisdiction for the action to be brought. On that basis, I hope the hon. Member for Stoke-on-Trent South (Robert Flello) will agree to withdraw his amendment.

[Robert Flello]

I hear what the Minister says. However, I urge her to consider the amendment again, if I am not successful in the Division I shall now seek.

Question put, That the amendment be made.