Defamation (Hansard, 17 May 1989)

§ Mr. Gary Waller (Keighley)

I beg to move, That leave be given to bring in a Bill to facilitate the bringing of proceedings for defamation. Some people are rich and some people are famous, and some people are both. If one is famous, more people are likely to sit up and take notice if one is unfairly maligned. But if one wishes to do something about retrieving one's good name, it is more important to be rich because libel and slander actions tend to be long drawn out and costly. One should not even think about starting such an action unless one can lay hands on £50,000 as a bare minimum.

Many people imagine that defamation cases invariably involve the media but my interest in the matter was originally aroused by that of my constituent John Munro who, in his time, has probably written to nearly every right hon. and hon. Member of the House. Mr. Munro claims that he was libelled in letters when he worked for Pendle council a dozen years ago. He subsequently took counsel's opinion and was advised that he had a better than even chance of convincing a jury that he was the victim of defamation. Our former colleague, Sir Leon Brittan QC, was also consulted and concluded that, in his opinion a jury would be likely to find, on the balance of probabilities that Mr. Munro's accuser was "guilty of malice".

But despite having a case, my constituent was never able to bring it because, as a result of the alleged libel, he was dismissed and has been permanently unemployed ever since. The fact that his unemployment has cost the taxpayer at least £150,000 in the intervening period suggests that making it easier for people without substantial means to come to court may not necessarily always result in an extra burden on the Exchequer.

My Defamation Bill is intended to ensure that the legal process is open to all as a means of righting a wrong when it affects a person's reputation and perhaps his ability to earn a living. Not being a lawyer, I tread on this ground, littered with pitfalls, with some trepidation. I have come to the conclusion that there is no single solution to the problem, so my measure incorporates several options which could be open to people in different circumstances.

Defamation is the only civil action for which legal aid is unavailable. While accepting that this can be unfair, successive Governments have argued that in these cases there are unique difficulties in establishing before a trial whether a plaintiff has a reasonable case and should therefore be granted financial assistance. The extra cost to the taxpayer resulting from a proliferation of expensive cases would be, it is said, insupportable.

I agree that it is more difficult to make an assessment than in, say, cases of personal injury. Nevertheless, it is not impossible. This Bill therefore makes legal aid available for defamation, limited in the first instance to seeking counsel's opinion. Only if that is favourable would further legal aid be granted. That was a recommendation, supported by the Bar Council and the Law Society, of the Faulks committee on defamation which reported in 1975 but which was never implemented.

Legal aid is not the solution for all potential litigants. For example, those above the legal aid limits would be excluded, even though their incomes were totally insufficient to support proceedings for defamation. One of the Government's Green Papers on the reform of the legal 336 profession raises the possibility of introducing contingency fees which exist in the United States. The prospect of no win, no fee, arrangements has not received an enthusiastic reception here, but the system could be particularly appropriate in some defamation cases, in that it could enable some cases to proceed without the bulk of the cost falling on the taxpayer. As the Green Paper suggests, contingency fee arrangements could be particularly helpful to small litigants who can be expected rarely to resort to the courts for the resolution of their disputes". I recognise that there are difficulties to be considered, but it seems to be an option for defamation cases which should be included in the Bill.

I also commend to the House, and incorporate in my Bill, the proposal of Mr. Justice Hoffman which would enable plaintiffs who are willing to confine their claim to an order for correction and damages of less than £5,000 to apply to have a decision reached by a judge on the basis of affidavit evidence without a jury. For many victims of the media, a correction published within a reasonable period and modest damages would be greatly preferable to the prospect of years of stress and uncertainty, with issues raised again long after the event.

I opposed the Right of Reply Bill as unworkable, too wide-ranging and as an unreasonable rein on press freedom. This proposal, on the other hand, provides a sensible solution to numerous cases of injustice. It also has obvious benefits for defendants who, under the present system, as Mr. Justice Hoffman points out, complain that however unmeritorious or trivial the claim, the costs of defending force them to make an offer to settle. This pressure, he states feeds upon itself and has been increased by recent large jury awards". Many people have been amazed not only by the scale of recent awards of libel damages, but by their apparent inconsistency. Uncertainty of this kind is not a good thing for plaintiffs, for defendants or for the interests of justice generally. So 1 propose to include in my Bill a provision, which does not currently exist, for judges to be able to direct juries on the appropriate price bracket they should consider. This suggestion has been endorsed by the distinguished libel lawyer Mr. Peter Carter-Ruck. Interestingly, a statement by Mr. Carter-Ruck was quoted in the Faulkes report, and it was valid in 1975. He said —this is indicative of the way in which things have changed— A number of newspapers of national importance to the community are fighting to maintain their slender margins of profit and for whom to fight a heavy libel action could be a crippling blow". Today the wheel has turned full circle. When considering whether to thrust their knives into a potential victim, some of the now profitable tabloids which care little for high standards of journalism make an assessment of his or her financial standing, which determines an ability to fight back. They may calculate that damages arising out of a likely libel action are outweighed by the extra circulation that they can hope to achieve. It used to be, "Print and be damned." It is now, "Print an extra million copies." That cannot be right and something should and must be done.

In response to concern about the right of reply and the protection of privacy, my hon. Friend the Minister of 337 State, Home Office, announced an imminent review of the press. If my Bill fails to proceed, the Government should adapt their objectives in the context of that review.

The interaction between the proposals that I have put forward must be discussed. As a package I believe that they overcome the problem of high additional costs falling on the taxpayer, and all its provisions would weed out petty cases of little merit. This measure is timely because of concern about media abuses and the debate about the future of the legal profession.

The present system is a lottery, but it has a high entry charge, which most people cannot afford to pay. Good luck to Elton John, Koo Stark, Jeffrey Archer and George Michael, who are among those who have won well-publicised defamation cases or achieved large settlements. We need, however, a new system to replace the outdated Defamation Act 1952—one which recognises that a poor man's good name is just as worthy of protection as that of his wealthier neighbour. That is what my Bill is about.