Challenging the cost of defamation proceedings

Costs in defamation proceedings could be capped under proposed government reforms.

A Ministry of Justice (MoJ) consultation paper, Controlling Costs in Defamation Proceedings, published last week, proposes a raft of measures designed to tackle the high legal costs incurred in defamation and other publication-related proceedings.

Excessive costs sometimes force defendants to settle claims, and this then risks freedom of expression by encouraging a risk-averse approach to reporting.

The MoJ’s proposals include: limiting recoverable hourly rates; mandatory costs capping or consideration of costs capping; linking recoverability of after the event insurance premiums to notification to the other party and introducing a period of non-recoverability post-notification; and requiring the proportionality of total costs to be considered on cost assessments.
Jaron Lewis, partner in media law at Reynolds Porter Chamberlain LLP, says: “The costs in libel cases have been out of control for some time.
“The government’s proposals are very much a step in the right direction and are to be welcomed. But they do not go far enough in tackling the problems faced by the media, and in curbing the chilling effect that excessive legal fees has on freedom of expression.

“The courts need to be required to take proper control of the costs in media cases to ensure that the media does not shy away from covering truthful stories in the public interest for fear of having to meet the cost of a defamation claim.”