Lawyer warns means-testing must be set at appropriate level
Means-testing for proposed costs protection measures in defamation and privacy cases must be set at “an appropriate level”, a senior media lawyer has warned.
The Ministry of Justice proposed introducing qualified one-way costs shifting (QOCS) for defamation and invasion of privacy cases in September, in response to concerns raised by the Leveson Report that the fear of having to pay enormous costs puts people of modest means off suing the media.
The changes, due to come into effect from April 2014 alongside reforms to “no win no fee” defamation and privacy cases, would enable judges to impose a one-way costs order where it is clear one side would not otherwise be able to take part.
QOCS was introduced for personal injury cases in April.
Duncan Lamont, media law partner at Charles Russell, says: “If means testing is to be introduced, it’s important that it is set at an appropriate level; otherwise it may revert to a situation where only the very poor or the very wealthy can afford to bring claims.
“Although defendants may no longer need to concern themselves with the potential of increased costs liability under a conditional fee agreement or after the event insurance, they may still need to be mindful of their liability for the claimant’s costs, regardless of whether they win or lose.
“Therefore it’s particularly important to consider an early Pt 36 offer to settle in order to retain some protection on costs.”
The consultation, Costs Protection in Defamation and Privacy Claims, closes on 8 November.
