Summary: In the last few weeks it’s been hard to miss the news about the long-standing debate in Parliament over whether or not the second part of the Leveson inquiry should go ahead. But what’s been even harder is to understand what that debate means for press regulation, press freedom, and the rights of those who complain of defamation or intrusions into their privacy.
What’s Leveson 2 about?
The debate about whether to pursue Leveson 2, an inquiry this time into the relations between the press and the police, has been rumbling for months, since a consultation in January 2018, and the subsequent government announcement in March 2018 that it should not be pursued.
The message was that since 2012 the press has changed to the point where a second inquiry would be a costly white elephant, which wouldn’t have any impact on the way news really runs today online and via social media.
On Monday this week (21 May 2018) the Lords conceded and so the Data Protection Bill (the latest legislation into which attempts to shoehorn Leveson-related clauses had been made) will pass without those amendments.
This means that at least for the time being (pending a judicial review, permitted earlier this year following the government announcement in March 2018) there will be no second Leveson inquiry. Nor will legislation (s40 of the Crime and Courts Act 2013) be brought into force which would impose a litigation costs burden, win or lose a case, upon publisher defendants who have refused to sign up to Impress . (And crucially the attempt to judicially review that part of the government’s decision failed earlier this year.)
Where are we now?
So the latest attempt to impose a costs burden on defendant publishers, win or lose, seems to have failed, at least for the foreseeable future. Supporters of the s40 legislation have complained about the deleterious effect this failure has on individuals who suffer at the hands of the press, and may not have the financial means to seek redress through the courts.
For the press this may yet be a pyrrhic victory. Whilst s40 costs protection for individual claimants at the expense of publisher defendants may not be introduced, there are still numerous other mechanisms, new and old, designed to protect the interests of the individual with a complaint against a publisher and permit them to pursue that complaint.
Navigating which method fits the particular complaint -and the individual’s circumstances -may be a more difficult task, but with the right advice it is clear that claimants can insulate themselves from a significant part of the costs risk of pursuing defamation/ privacy.
- The quid pro quo of the failure to impose the new costs protection scheme is that, for the time being, CFA success fees and ATE premiums will still be recoverable from losing opponents in privacy and defamation claims. (Costs reforms in 2013 removed recoverability from most types of claim but it has always been understood that until a suitable replacement costs rule could be introduced for privacy and defamation, those claims would not be affected.) Where they have a good claim, individuals can thus insulate themselves from own and opponent costs risk as well as influence defendant behaviour, prompting earlier and better settlement opportunities.
- Where individuals choose to pursue litigation, the costs-budgeting regime introduced in 2013 arguably now helps rather than hinders them. Although, tellingly, a significant portion of the recent cases on disproportionate costs have been defamation and privacy matters, those cases have in fact helped to develop a strong line of case law which supports the recovery from losing opponents of all of the costs within a court-sanctioned budget, unless there is a good reason not to order it. Where claimants have been sensibly advised on litigation strategy and on costs forecasts, successful cases should lead both to damages awards and to good levels of costs recovery.
- The two press regulators – Impress, established by Royal Charter after Leveson’s final report in 2012, and IPSO, the independent regulator set up by the press in opposition to the Royal Charter scheme - both offer low costs arbitration schemes. Leaving aside the rights and wrong in relation to bodies established to regulate the press, both arbitration schemes are designed to keep costs minimal for individuals and require the publisher to meet the lion’s share of legal costs. Importantly, from 31 July 2018, IPSO’s voluntary low-cost arbitration scheme will become compulsory for its publisher members – now a substantial number of the key publishers and publications in the British press. Costs to individuals will be capped at £100, and damages at a maximum of £60,000, a level comparable with damages awarded by the courts for defamation, yet at a massively lower price. Where claimants are willing to try and resolve their issues in private (as arbitration proceedings are confidential) this is likely to become an attractive method of dispute resolution.
Reports in the papers this week suggest the press feels it has “won” a battle in putting off a second Leveson inquiry and in avoiding a “punitive” costs regime. But, reports fail to acknowledge that the individual claimant does in fact already have a fairly substantial arsenal when it comes to fighting press intrusion by shifting costs risk and burden on to the defendant publisher.