§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Brandreth.]
7.12 pm§ Mr. Peter Bottomley (Eltham)I am grateful to my hon. Friend the Parliamentary Secretary for attending the debate on behalf of the Lord Chancellor's Department. I note the presence, among others, of my hon. and learned Friend the Member for Harborough (Mr. Garnier), who I am sure will be able to help me if I go wrong.
Live pure, speak true, right wrong".Those are some of the words used by Charles Kinglsey's pupil John Martineau, and they apply as well to journalists and Members of Parliament as to lawyers and others.We need to respect the law and the role of newspapers and journalists. I know that libel does not apply only to words published by journalists, for which editors take responsibility. The press has a responsibility to make available to all what is known to a few.
There is much in common among lawyers, journalists and Members of Parliament. We each have to take up causes that may be unpopular, and make judgments that may turn out to be wrong. We have to take up unpopular causes for unpopular people, and be prepared to suffer for it. An independent judiciary and legal system, the press and the freedom of Back-Bench Members to raise issues in the Chamber are important parts of democracy.
I do not want to make the debate one on the hourly rates of solicitors or barristers, or give much attention to the pay of journalists or the earnings of star columnists. I want to discover whether we can help, not only through the law but by changing the culture, to reduce the number of times that people make allegations of libel, by removing many of the causes. I do not expect that we can remove them all, but we can reduce their number.
The debate is also about resolving claims of libel, and reducing the impact of cheque books on justice. To find an example of cheque books in justice, we may consider the reasons that newspapers gave for not having pursued Anthony Blunt, the Bank of Credit and Commerce International or Robert Maxwell. If my right hon. and noble Friend Margaret Thatcher had not named Blunt as a spy in the Chamber, thus gaining privilege, he could have sued anybody who wrote about him in a newspaper or book.
Subject to the guidance of my hon. and learned Friend the Member for Harborough, we may assume that libel is saying something that is untrue and damaging about someone that is not protected by privilege. The BCCI case involved a most corrupt bank being defended from exposure because newspapers did not dare print what they thought they knew, because BCCI used the law and plenty of other people's money to impose its will on others.
For many of the final years of Robert Maxwell's life, he kept out of court by using the legal process and threatening to make that process too expensive for other people. Most people cannot do that. I must declare an interest, in that I have been involved in a small number of libel cases with the media. I do not claim any merit or advertise any vices and I do not want to go into my cases that have gone to the High Court.
558 I accept the advice in this week's UK Press Gazette that people who want to make a claim against editors should go to court. That referred to freelance journalists who were not paid. If a journalist who has not been paid £200, £50 or £7.50 is advised to go to court if he has a legitimate claim, someone who thinks that they have been wronged by a libel should be able to do the same.
The problem is with what newspapers decide to print, what they do with complaints and what happens after that. I would like proprietors, editors and journalists to print, as does the BBC, their guidance to themselves. What standards do they themselves want to uphold? I am not talking about the codes of the National Union of Journalists or the Press Complaints Commission, but about the standards by which each paper wishes to be judged. Each newspaper should, as do some local newspapers, say to people, "If you have a complaint, let us know, and if we think you are right, we will put it right."
When I was a junior Minister, one of the things in which I took the greatest pride was answering a parliamentary question with two sentences that fitted into one line of one column of Hansard—"I am sorry. I made a mistake." That is not frightfully difficult to say, but it can get a lot people out of an awful lot of trouble.
I have an example. I rang up a journalist about an unimportant story that appeared in a newspaper a couple of days ago. I asked him whether he had checked the story. He said that he had, and I asked him with whom he had checked it. He said that he wanted to protect his sources. I said, "I am not asking who gave you the story in the first place, but who you checked it with?"
He admitted that he had not checked it, and started to make a bit of a fuss. He said that the story had an unimpeachable source that he had always relied on, and that if it turned out to be a duff story, he would never trust that person again. He did not say in the newspaper next day that he was sorry that he had not checked it and had made a mistake, but went on with his own flannel. That is one reason why people do not bother to take things up with the press. On important issues, how such complaints are treated can matter.
We all know that we must be prepared do risky things. If we are accused—and I do not mean only MPs but members of the public, too—of things can stop us from doing the work to which we have dedicated our lives, there needs to be some redress.
Editors should declare, "When something has been written that is plainly wrong, or so ambiguous that it is wrong in some of its meanings, we are prepared to make it plain on the day of publication, or as soon as we are told that there is a complaint. If we accept that the complaint is right in part, we shall make an announcement to the Press Association, and we shall put it right in our next publication."
There should be no need to wait a week for a Sunday newspaper, or to wait three or four days for a daily. if it turns out that something has been said that is plainly wrong, editors should say so, and admit that it does not meet their standards and apologise. Most people would accept that, even after serious defamation had occurred. If there were also a minor cash settlement, that would be nice, but instant acknowledgment that something was either seriously ambiguous or plain wrong would greatly reduce the fuss, bother, stress and strain.
559 I should have acknowledged earlier that, in my experience, most lawyers, when consulted on such cases, try to reach a settlement as fast as possible. Lawyers do not set out to run cases on, whether they are consulted by newspapers or by individuals who may want to initiate a case against a newspaper or an individual.
There will always be threats to press freedom. As I have said in the House, the press need to have the right to be wrong. They should not always be able to prove something in court. Nevertheless, they should be able to decide when it is right to say something that they cannot prove but believe to be in the public interest, or their commercial interest, to say.
In an article in the Sunday Times on 18 June 1995, in an article headed "Method in the madness of the great libel lottery", Andrew Neil wrote:
Such are the competitive pressures—and the financial rewards for scooping the opposition—that editors would more often be inclined to publish and take the risk of having to pay the libel cost, which would be factored into the calculation.We should not hide the fact that running a newspaper is a great commercial enterprise. I do not want to take away from newspapers either that calculation or what they consider to be their duty, in which I support them, to alert the public to potential dangers from crooks and other types of wrongdoing. There will be times when newspapers feel that they must settle although they believe that they have been right—and there have been examples that have shown them to be right.My prejudice is to try to avoid laws that apply specifically to journalists or to newspapers. The law should apply generally. One may sometimes want to give a newspaper a public interest defence, but one should not try to introduce a "corrupt practices for journalists" Bill that does not apply to private detectives or commercial concerns, or a "right to privacy" Bill that applies only to what journalists do and not to what private detectives do, or a "right to reply" Bill that applies specifically to journalists—although I am slightly dubious about my interpretation of part of the Defamation Bill in another place, which may appear to take from judges a power that was probably implicit in the draft Bill. One should not impose on newspapers the duty of balance that is applied to broadcasters.
I do not say that journalists and editors should not have to face criticism. We have unlimited privilege in the Chamber. Members of Parliament are limited in what they say and do by the opinion of those around them—social pressure, exposure, argument, criticism, debate—rather than by Mr. Deputy Speaker putting his hand up and saying, "You are not allowed to say that, because it is illegal." Editors are like Back Benchers, but obviously with greater access to the media.
There is room for argument, debate and criticism. We need to ask whether broadcasters should consider more often what the press do. I am not saying that most of what the press do or say is wrong. Considering that a newspaper may contain 700,000 words in a day or a week, it is surprising how few facts newspapers get wrong. I find it surprising how seldom they make unfair comment in a general sense, let alone unfair comment in a legal sense.
There are times, however, when newspapers slip into bad habits. They must make judgments.
Let me take some examples that did not go to law. I was once the subject of allegations by broadcasters and the press that I was involved in drug smuggling. I thought 560 that that was laughable, but they did not at the time. It was only when Private Eye obtained the information that it turned out that a hoaxer had got half the British press staking out a motel in Basingstoke for a week or two, waiting for me to come along with the money to swap for the drugs.
More recently, there was a time when some of the media had seriously considered that there was a story that I had accepted free flights in America from a commercial concern, and I had to say that the only time I remembered accepting a free flight was in Richard Branson's helicopter getting away from Silverstone when there was a traffic jam after the British grand prix.
Stories can grow up and develop a momentum of their own. In 1989, a fair part of the press had become involved in swallowing a story about me that, if they had bothered to check, they would have known to be untrue.
In general, people should not sue, and we should continue to emphasise that, but costs are a factor. Having acknowledged that the press may be intimidated by BCCI or Robert Maxwell, one must consider the impact that their resources can have on other people. If a newspaper group budgets to spend £200,000 or £1 million a year in legal costs and damages in libel cases, or if it has taken out libel insurance above a certain level, does that create a lack of balance?
Does that not start to deal with the present tendency to ask why, if personal injury compensation is at a certain level, someone's reputation is worth more or less? The answer is that most people are able to sue on personal injury and are not confronted with the probability of incurring the massive costs of the insurance company or the person defending the claim.
In libel cases, even if the plaintiff wins, wounded pride or some other feeling—assuming that excessive damages are not awarded by the jury—may lead to an appeal, which would reach the Court of Appeal a year later. If that succeeds—it may be on the judge's summing-up or some other issue—the plaintiff must go to the High Court again, with not the slightest prospect of obtaining anything extra, and the possibility of having to carry the costs for others.
When the House considers the Defamation Bill, we should try to discover whether there is some way to cap the costs of a successful private plaintiff, even if, on a point of law, for some reason a defendant wants to go off and establish some other precedent.
The last subject that I shall mention is slightly beside the main subject of the debate. That is what I call printmail.
At the moment, if someone thought that they knew something about me, and came to me and said, "Unless you give me £20,000 I shall tell a newspaper," I could take that person to the police, and they would probably be charged with blackmail; and, regardless of whether they were convicted, I would retain my anonymity.
However, suppose that a person cuts out the middle stage and answers the type of advertisement that one reads in some newspapers saying, "If you have any information about a Member of Parliament, please ring 0171–782" and so on, that person cuts out the blackmail stage and proceeds straight to publication. If the journalists pay £20,000, rather than the victim paying £20,000, the position is different. I have no answer to that, but it needs open debate. I say to the Minister and to the House, we should try to find out what is going on.
561 I recommend to the newspaper proprietors or the Press Complaints Commission or one of the media studies units in universities, before the Defamation Bill reaches the House, to try to conduct a study—I hope that the newspaper proprietors and editors will help—to discover how many complaints they receive in a specified time, how many are resolved, how many go to court, and how much they spend on libel insurance.
Libel is usually avoidable. If newspapers adopt a system of instantly putting right things that are wrong, or clearing up ambiguities that should not have got through the editorial process, the costs to newspapers will fall, the number of times that people have their reputation damaged will drop, and newspapers will be left free to say what they like that is true or privileged or a matter of fair comment, whether in a popular or a legal sense.
§ Mr. Edward Garnier (Harborough)I am grateful for the opportunity to speak in the debate. I am a practitioner in defamation at the Bar, and therefore have an interest in the subject under discussion.
I congratulate my hon. Friend the Member for Eltham (Mr. Bottomley) on introducing the debate, which has been most valuable. He has come up with a number of interesting and thoughtful ideas, which I hope will be developed when we debate the Defamation Bill when it arrives from another place. There are good things about the Bill—but a number of things need careful attention. I am sure that the Bill is getting that attention in the other place, but I hope that, when it comes into this place, we will be able to make further improvements to it.
I corroborate what my hon. Friend has said about what most libel complainants want. In my 20 years' experience at the Bar, I have found that most people do not want huge damages in a year's time or in two years' time—they want a speedy apology and correction, preferably in the next day's paper. My hon. Friend is quite right to draw hon. Members' attention to the fact that people do not necessarily want money but a quick solution.
I draw hon. Members's attention to an anomaly: newspaper defendants, predominantly large corporations, have a tremendous advantage over private litigants. Hon. Members know that legal aid is not available for defamation cases—nor should it be, as the Government spend quite enough money on legal aid on other matters. The costs and the damages that newspapers pay are allowable against corporation tax, which gives them an inbuilt financial advantage over private litigants. However, a number of private litigants are supported by trade associations, trade unions and other such organisations. There is not always an imbalance. Trade unions do not have the same tax advantages as newspapers.
The cost of libel actions is exaggerated by newspapers because they want to discourage people from bringing libel actions against them. I refer to the libel case in which my hon. Friend was most successful before Christmas, and I congratulate him on that result.
After a high-profile case, newspapers like to say that the cost of the action was X, but they add on lots of noughts. By and large, the figures are highly inaccurate— 562 they are plucked out of the air—and designed to deter people from bringing libel complaints against big corporations. That ought to be looked at. Greater accuracy by newspapers—not only in what they print in the first place, but in the way in which they report the size of costs in actions—should be encouraged.
§ Mr. Peter BottomleyThe main coverage of the result of my case contained the spurious accusation that someone who is now working in central office is the person that I had taken the action against. It seems to me that cases run for a week, the newspapers ignore them, and then print inaccuracies. That strikes me as rather odd.
§ Mr. GarnierA lot of things are odd about libel actions—and that is obviously one of them. My hon. Friend was successful in his case, and greater currency should be given to his success and to the repair of his reputation as a consequence.
As I was saying, costs in libel actions are no greater than they would be in any big High Court litigation, such as a personal injury action. However, the difference is that legal aid does not cover defamation law, but insurance companies or legal aid cover most personal injury actions. The public or the individual are not made aware of the cost of litigation, but it has to be paid for one way or the other.
I have already mentioned the Defamation Bill—which is currently before the other House—but now is not the time to discuss it in detail. However, under the summary jurisdiction of the Bill, there is a proposed limit of £10,000 for damages when the judge alone hears a case in particular circumstances. I believe that, to most newspapers, £10,000 is petty cash. Perhaps we should consider increasing that figure to something more significant. I appreciate that damages are there to compensate and not to punish, but they must be of such a size that the newspaper is compensating—and knows that it is compensating—and not simply adjusting its petty cash book.
I am grateful to have had the opportunity to participate in the debate. I trust that the Parliamentary Secretary will have listened carefully to what my hon. Friend and I have said, and will bear it in mind when we deal with the Defamation Bill.
§ The Parliamentary Secretary, Lord Chancellor's Department (Mr. Jonathan Evans)I congratulate my hon. Friend the Member for Eltham (Mr. Bottomley) on securing a debate on what I believe to be an important subject. I am particularly grateful to him for his timing, because earlier this month the Government introduced a Bill that brings forward reforms to defamation law and procedure that are designed to meet some of the concerns that he has expressed.
I am grateful to my hon. Friend for the balanced and well-argued way in which he dealt with the issues he raised. I also express my gratitude to my hon. and learned Friend the Member for Harborough (Mr. Garnier), whose views have to be seen within the context of his great personal expertise and reputation in defamation law.
It is widely believed that the costs of defamation proceedings are disproportionately high. Despite many attempts over the years to put things right, there is an 563 undoubted need to make further improvements in all civil proceedings, especially in proceedings for defamation. It must be significant that, when the outcome of a libel claim is reported, the estimated cost to the parties is almost always featured as prominently as—if not more prominently than—the result of the case.
My hon. and learned Friend the Member for Harborough gave us an insight into why that might be so. Even allowing for that, where a claim has succeeded, the amount of costs which it is estimated the loser will have to pay not infrequently exceeds the amount of damages that were awarded against him. In other words, the loser's financial position may be precarious simply as a result of the expense of the proceedings.
§ Mr. Denis MacShane (Rotherham)As a former journalist who has been both a defendant and a litigant in libel cases, I welcome the Defamation Bill, which is long overdue. Geoffrey Robertson QC wrote a book some 10 years ago along the lines of the ideas that the Government are putting forward. With all due respect to the hon. and learned Member for Harborough (Mr. Garnier), I lost the profits on one book because the publisher left me to defend a libel case that I thought was worth defending.
My right hon. Friend the Member for Chesterfield (Mr. Benn) urged me not to defend the case, and I thought that he was being quite pusillanimous, but he proved to be right. Another case, in which I was the defendant, dragged on for five years. I was being protected by a trade union, a point that the hon. and learned Member for Harborough made. It went on for five years, we got to the court, we blinked, and each side was left with about £20,000 in costs.
§ Mr. Deputy Speaker (Sir Geoffrey Lofthouse)Order. I thought that the hon. Gentleman was making an intervention—it is a long intervention.
§ Mr. EvansI was aware that my hon. Friends the learned Member for Harborough and the Member for Eltham were speaking from personal experience. Although I had noted that the hon. Member for Rotherham (Mr. MacShane) was present for the debate, I was unaware of his personal experience in this area. As I develop my response, the hon. Gentleman will be able to see that the Government are proposing in the Defamation Bill some measures that will be, in my judgment, helpful. Perhaps if the hon. Gentleman contains himself for a moment, I will be able to outline those measures.
In the context of the cost of proceedings, we are talking not only about rich, large companies which can absorb expenses, but, as the hon. Member for Rotherham has said, about ordinary people who can face ruin as a result of court costs. There must be times when people who have been defamed—perhaps very seriously—choose not to take any steps to restore their reputations, because they are not willing to run the risk of losing not just the case, but everything they have. That is clearly wrong.
The Government examined the current issues and complaints relating to the law of defamation and found that there were many justified criticisms—particularly concerning the way in which the law of defamation operates in practice. There has been a series of reforming measures, the first of which was to give the Court of Appeal power to substitute its own award when it considers that an amount awarded by a jury is either excessive or inadequate.
564 Before that power was conferred, the court's powers of review were inadequate. If the jury awarded an unreasonable amount, the court could set aside that award, but it could not substitute a reasonable sum unless both parties were content for the court to do so. It could also order a retrial, but we have heard during the debate that that is particularly unhelpful: if the first trial is expensive, it is clear that a second trial would be doubly so.
The existence, and the court's exercise, of that power goes much further than eliminating the cost of an unnecessary second trial when an appeal is allowed. Its effect will be that fewer cases go to appeal. Judges directing juries refer to awards which have been approved or made in earlier cases by the Court of Appeal. A corpus of such awards will provide guidance, which should enable judges to help juries by indicating what level of award might be in proportion to the wrong inflicted by the libel or slander. More of those cases are now coming forward.
Another justified criticism was that the rules and practice for pleadings in defamation cases are unnecessarily complex, adding to the difficulty and the cost of preparing and conducting litigation. Therefore, the Lord Chancellor invited the Supreme Court procedure committee to review the rules relating to pleadings in actions for libel and slander, with a view to proposing changes for the purpose of reducing the complexity of the procedure without having an adverse effect on the interests of justice. The committee established a working group under the chairmanship of Lord Justice Neill, and its report and recommendations were published in 1991.
Some of those recommendations have already been implemented through changes in the rules of court, and others are included in the Defamation Bill. This evening, I shall refer to two changes which are designed to provide swift and less costly disposal of defamation claims.
In those cases where the defendant concedes that he has published a defamatory statement which is not true, he will be able to offer to make amends for the wrong that has been done to the plaintiff. If the offer is accepted, there will be no need for a trial. The parties will negotiate the exact form which the amends should take and, if they cannot agree on the details, they may apply to the judge. He will assess what money compensation, if any, should be paid and settle the terms of a suitable correction and apology by the defendant.
The judge will assess the compensation using the same principles as assessment of damages for defamation, taking account of the other steps which the defendant has taken—or will take—to make amends, as well as any aggravating features. There will be no fixed upper limit on the amount that can be awarded.
As we heard during the debate, the court will also have powers of summary disposal similar to those which are available already in all civil claims other than defamation. However, in defamation cases, the court will always consider at an early stage whether the case is suitable for summary disposal. The judge will consider whether the claim has any realistic prospect of success and, if it has not, he may dismiss it. He will consider whether any defence has been put forward that has a realistic prospect of success. If not—and there is no other special reason why there should be a trial—he may grant summary relief if he considers that the relief which he has power to grant will compensate the plaintiff adequately for the wrong suffered.
565 The plaintiff can ask the judge to grant summary relief. That relief may include damages of up to £10,000, as my hon. and learned Friend the Member for Harborough said, but no more. Again, the parties may negotiate a suitable correction and apology which the defendant will publish, but, if they cannot do so, the judge will order publication of an approved summary of his judgment.
The problem of excessive and disproportionate legal costs is not limited to defamation proceedings. The Lord Chancellor's Department is well aware that such costs can apply across a wide range of civil litigation. Against that background, Lord Woolf is presently undertaking a review of civil justice. He has advanced a raft of new proposals in order to ensure that there is swifter access to 566 justice in future. That will be of assistance not only in the area which is the focus of the debate this evening, but across a wide range of civil justice, as I have said.
Finally, I am very grateful to my hon. Friend the Member for Eltham for bringing this important issue before the House. The Defamation Bill is presently in the other place, and, after consideration, it will come to the House. My hon. Friend has drawn attention, at an early stage and at an appropriate time in view of the fact that the Bill was published only a month or so ago, to the important issues which the House must consider in due course when the legislation comes before it. In that regard, I am deeply grateful to him.
§ Question put and agreed to.
§ Adjourned accordingly at fifteen minutes to Eight o'clock.