HL Deb 13 January 1992 vol 534 cc10-2

3.6 p.m.

Lord Lloyd of Hampstead

asked Her Majesty's Government:

What are their plans for the reform of the law of defamation.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, the Government have kept the law of defamation under review. In February 1990, in answer to a Question from my noble friend Lord Campbell of Alloway, I announced two reforms; namely, an enlargement of the Court of Appeal's power to substitute its own award of damages and the recent provision enabling a plaintiff to apply to a judge for approval of a proposed statement before accepting a payment in. I also announced my intention to invite the Supreme Court Procedure Committee to examine the rules and practice and to propose reforms, and I shall make an announcement about its recommendation in due course. Following two consultations, which I then likewise announced, I have made clear the Government's intention to provide for the defence of innocent dissemination to be made available to printers; but I have concluded that the death of a party, or potential party, should continue to extinguish a cause of action.

Lord Lloyd of Hampstead

My Lords, I am most grateful to the noble and learned Lord for his informative reply to my Question. However, does he agree that the value of the Neill Report—the excellent report that has been produced under the chairmanship of Lord Justice Neill—is substantially diminished by the fact that two crucial matters—namely, legal aid and the use of trial by jury—were excluded from the terms of reference? Does he agree that one of the features of defamation which adds overwhelmingly to the lengthening of those procedures and the increase in costs is the existence of a jury? Does he not think that the time has come to consider seriously whether the jury should be dispensed with in that type of proceeding as it has been dispensed with for some 50 years in all other types of civil proceedings?

The Lord Chancellor

My Lords, those two matters were excluded from the report that I requested from Lord Justice Neill because I did not consider that they were suitable for the type of work that he was to do. I should like to join with the noble Lord in saying how grateful I am for the excellent report that Lord Justice Neill and his group have prepared and which I am presently studying.

As regards jury trials, I have not been able to detect a sufficient consensus for doing away with jury trials in that type of proceedings. As the noble Lord will know, a recommendation generally along those lines was made by the Faulks Committee in 1975, but it has not been implemented. We have introduced a much wider power for the Court of Appeal to substitute its own award for that of the jury. I believe that that may well help to provide guidelines to juries in that area. As regards legal aid, no government have so far thought it wise to introduce legal aid in defamation proceedings, and I remain of that view.

Lord Renfrew of Kaimsthorn

My Lords, does the noble and learned Lord agree that one of the most disquieting practices in recent years has been the threat of action to intimidate booksellers and other distributors? He may be aware that when I tried a year or more ago to purchase the biography by Tom Bower of the late Robert Maxwell, I was told by a private bookseller that they were not able to stock it, not because they had been sued or even directly threatened with an action, but because the possibility had been mooted. Does he agree that there is a real need to restrict pre-emptive actions against distributors in that way?

The Lord Chancellor

My Lords, I agree that this is a difficult area. On the other hand, I believe that it is a matter best left to the court to decide on individual applications. The court will know the circumstances and will know what is required in the interests of justice.

Lord Irvine of Lairg

My Lords, in line with a principal recommendation of the Neill Committee, would the noble and learned Lord consider a short Bill conferring a quick and cheap remedy on victims of libel in cases where newspapers are willing to publish a prompt correction and apology and are also willing to pay damages to be assessed by a judge in streamlined procedures?

The Lord Chancellor

My Lords, that is one of the extremely valuable recommendations of the committee chaired by Lord Justice Neill. Certainly it is one that attracts me very much. I shall announce a final decision upon the matter in due course.

Lord Campbell of Alloway

My Lords, in view of the want of consensus as to whether there should be the abolition of trial by jury, can my noble and learned friend say whether the Court of Appeal has yet, or may soon have, sufficient power to substitute its own award for that of a jury, and make all requisite consequential directions to save costs?

The Lord Chancellor

My Lords, that is the power that was conferred under the Courts and Legal Services Act. I believe that would be a valuable addition to the Court of Appeal's powers, and it would greatly help in dealing with the present situation so long as we have jury trials in those proceedings.

Lord Donaldson of Kingsbridge

My Lords, I did not fully understand the noble and learned Lord's reference to the threat of a writ. I do not see how the court can have anything to do with the threat of a writ. It does not reach the court. I did not understand the answer. Would he expatiate upon it?

The Lord Chancellor

My Lords, my answer was directed to the situation in which the court may grant an injunction. The bookseller to whom my noble friend referred was anticipating the possibility that such an injunction might be taken. I believe that the matter of interim injunctions is best left to the court. I cannot think of a very obvious type of alteration to the present law in this area which would still enable justice to be done between the parties. I hope that that is a fuller explanation of what I had in mind in answering my noble friend.

Lord Richard

My Lords, the noble and learned Lord said that he would bring forward recommendations in due course. I am not so naive as to ask him when is "in due course", but can he tell us whether it is at least visible? Can we expect the recommendations within the reasonably foreseeable future?

The Lord Chancellor

My Lords, I would answer yes to that question.