Double trouble?

It takes two to litigate libel claims. Sarah Webb advocates taking an alternative approach

In the words of Marvin Gaye “It takes two” to love, to tango and, as we saw in the recent Isner and Mahut tennis match, to doggedly battle against each other for 11 hours. That performance on court was described as “epic”.

Spurious action

In contrast, the recent settlement of the claim by Matt Fiddes (bodyguard and close friend) of Michael Jackson against Channel 4 was described in the media recently as a “spurious libel action” and “obviously flawed from the outset”. Julian Bellamy, head of Channel 4, said that the case highlighted “the chilling effect exorbitant legal costs in CFAs (conditional fee agreements) —funded libel claims—have on broadcasting and freedom of expression. It is a damning indictment of the current libel system in the UK that the claimant has been allowed to tie up the court’s valuable time and the defendant’s resources for so long.”

No surprise then that some of the media used this case to portray once again the appalling costs of libel litigation and what they see as the horrors of CFAs.

Settlement

It is understood that this case settled when Channel 4 accepted that Mr Fiddes had not provided the story to the press for money. In turn, Mr Fiddes withdrew his allegations that the programme was faked.
Given the strength of what Mr Bellamy said outside court, it is strange that Channel 4 did not pursue their costs against Mr Fiddes.

Unanswered questions

It takes two to litigate. There are plenty of means by which a defendant who believes that a claimant has an unmeritorious claim can dispose of it. Mediation, Pt 36 offers and offer of amends are all very effective means. It is unclear from some of the press reports whether Channel 4 had previously acknowledged that Mr Fiddes had not provided the story to the press for money. If they had, then it seems strange that they should settle without recovering their costs. If they had not, then one wonders why they left it to the doors of the court.

If Channel 4’s failure to pursue Mr Fiddes for costs was because he did not have the money to pay, then all the more reason to wonder why they fought this matter for so long. CFA’s are also usually supported by insurance which will pay the defendant’s costs if the clamant loses, another reason why it is strange that Channel 4 did not pursue a costs order.

The escalation of costs in libel proceedings only happens if you have a stubborn claimant and stubborn defendant battling against each other. Defendants also often take preliminary points which are not determining of the action but do increase costs.

The media campaign encouraged by Lord Lester’s draft Bill to reform libel laws and limit CFAs in publication proceedings could have a serious impact on claimants’ ability to restore their reputation and access to justice. The emphasis on CFAs has always been on the activities of claimants and the assertion that they are bringing unmeritorious claims. However, aggressive litigating by defendants—particularly at an early stage when costs are low and it is still possible to settle the case before views become entrenched and costs take over—is something that claimant lawyers come across frequently.

Effective ADR

Alternative dispute resolution (ADR) procedures work well in most forms of litigation, but it is also necessary to ensure that libel proceedings do not lag behind. Claimants with a good case are often reluctant to go down the ADR route because defendants can use it as a means of squeezing out of the damages that they are entitled to. Our experience as a firm of using Sir Charles Gray as an arbitrator to provide an assessment of a case on paper has proved very effective, providing the claimant with a satisfactory level of damages, to the extent that the newspaper group against whom the claim was now seem rather reluctant to use the procedure again.

We are also involved in a group with other claimant lawyers, being driven by Alastair Brett, looking at early resolution options.

If claimant lawyers are not to be subject to unjustifiable attacks on defamation proceedings, then clearly they have to continue to explore the plausibility of ADR.

Defendant lawyers will need to play their part in this as well, and also recognise the true value of claims, and that there are circumstances where claimant lawyers will litigate aggressively to ensure that their clients recover the appropriate remedies.

Sarah Webb is head of commercial litigation at Russell Jones & Walker.
Website: www.rjw.co.uk 
 

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