Libel: Pressure to change unfair conditional fee regime

Press and pressure groups are lobbying for changes to the rules governing the 'no win no fee' regime - otherwise known as 'conditional fee agreements' under which lawyers take on a case - typically libel or privacy - on the basis that if they lose the client pays no fee (against which the lawyers take out insurance) but if they win then they are entitled to an uplift (of up to 100%) on what would be their normal fee. This cost is passed on to the losing party. The media have complained that this puts unjust pressure on them to settle claims that they might otherwise have fought.

The idea behind no win no fee or CFA agreements is laudible - it stemmed from personal injury cases and was designed to provide those who otherwise could not afford it - but had a legitimate claim - access to justice to seek compensation for the harm they had suffered. It made for, ususally, win-win situations whereby a someone who had a legitimate and supportable claim who would not normaly have access to the legal systlem or process could pursue a claim with minimal risk while the lawyer willing to take the risk of inputting their time and expertise would be compensated for taking on such risk by virtue of the enhanced level of fee they would stand to get if they won the case.

A recent example of where a Conditional Fee Arrangement was used against the press is the Naomi Campbell v Mirror case.
More comment here:
A punishing victory
No win No fee faces Stone test


McCanns v Express - endgame

It was never a question of 'if' the McCanns would sue the Express but more a question of 'when'. With the time limit for bringing defamation claims ticking and the paper showing now sign of restraint in its quest to alternate its front pages with headlines about the McCanns with its tired but enduring attempt at using Diana's image to feed its dwindling circulation, the Express has belatedly but rightly been brought to book.

While there have been calls for heads to roll at the paper or to boycott it and its affiliated titles, the damage has been done. Its editorial stance and content have long overstepped the frontiers of ridicule and to the extent they endure on the newspaper landscape are no more taken seriously than their stories are well researched or founded. The £550,000 payout to the McCanns is high at an objective level but represents a damage limitation settlement. Had the Express risked a trial and sought to defend the 100 or so articles that could be construed as being defamatory about the McCanns then it is likely a jury would have awarded a significantly higher sum.

What this sorry episode highlights - other than the sad fact that there seems to be little progress in what is coming up to a year on in the quest to find Madeleine McCann - is that the quest for copy and content has overtaken journalistic values and ethics when it comes to stories that sell. We debate the issue of trust in journalism and seek to defend the right to free speech but there is a disconnect between ideals that should underpin the role of journalism in the democratic process and to inform the public and the commercial realities of consumer led and content driven businesses being pulled by material that sells rather than pushing material that informs and seeks to elicit the truth and find out what lies beyond and beneath the headlines. The case also highlights the fact that if you want to be able to force the press to act over its excesses then litigation - for those who can afford it - is how to get results while self regulation remains a fall-back option for those who may be content with a mere apology buried deep in a paper with little leverage to elicit anything more than this.

More comment on the McCanns v Express:
Press still needs proper safeguards
Paying the price of speculation
Express Newspapers forced to apologise to McCann family


Does the internet make contempt laws unworkable?

Has the internet made the law of contempt unworkable?

This is discussed in an interesting article published in today's Times that highlights the difficulty of policing contempt laws in an online environment.

The law of contempt of court is there to protect the administration of justice in the broader sense and individual proceedings and those involved in those proceedings at a specific level. The 1981 Contempt of Court Act sets out statutory contempt law, whereby the publication of material in relation to 'active' proceedings (for criminal purposes this kicks in when someone is arrested) that creates a substantial risk of prejudice to the proceedings in question or those involved in such proceedings will amount to contempt of court. Under the Act this applies irrespective of intent. This is known as strict liability contempt. In addition to statutory contempt under the 1981 Contempt of Court Act there is common law contempt - this is wider in scope and relates to the publication of material that could substantially prejudice or undermine proceedings but such proceedings do not need to be 'active'. In other words if one publishes something that could undermine a future case or those involved in it that could amount to common law contempt. The key distinction between this and statutory contempt is that common law contempt requires proof of intent.

Mediabeak would argue that the key challenge for contempt law does not lie in the material or its availability online - it is accepted that policing online material across jurisdictions is a near impossible task - but lies with our faith in the jury system. Contempt law is there to protect the jury in particular and others involved in proceedings beyond that from bias. If we can't shield juries from the online environment when they sit on a case, can we trust them to be objective? We have to accept the fact that today's juries are news savvy and have access to the internet. Its unrealistic to assume they live or can for the purposes of a trial operate in a bubble. So the real question becomes one of whether the law can adapt to juries' increased access to information and still engage when information turns to bias, or whether, if we can't trust juries with the additional information they may be able to obtain, they are still the best method for trying cases. If we can't trust juries we should change the system.

More analysis on the issue of contempt:
Contempt of Court in the dock


Why the McCanns should sue the Express

Its ten months since the disappearance of Madeleine McCann in Portugal last May. Ten months that have seen very few new facts or evidence emerge to explain what happened to Madeleine. Ten months that have seen the McCann’s paraded and parade themselves across the media in their quest to find, or discover what became of, their daughter. What little is known about the investigations of the Portuguese judicial police has cast more doubt than light on the case and the only public movement on the part of detective agency Metodo3 (hired by the McCanns to find their daughter) has been to upgrade their office space in Barcelona. The public has provided a series of ‘sightings’ ranging from bundles on jet skis near Praia de Luz itself to Spain, Greece, Malta, Morocco, Belgium, France and even Dorset in the UK.

The lack of hard facts and substantive information about the case has done little to diminish its newsworthiness. The hunt for a missing girl turned into the story of her parent’s emotional journey through guilt at having left her in harm’s way to the ongoing quest for absolution and an answer to their prayers to find her. Having engaged the media to support their search the McCann’s couldn’t expect to be shielded from its spotlight. Early empathy from headlines such as the Sun’s ‘We share your pain’, was replaced by ‘Kate left kids alone 3 hours a night’ and although a German reporter, during a press conference in Berlin, attracted outrage for suggesting the McCanns were involved in the abduction, the focus ultimately turned on the parents. What followed was some of the wildest speculation witnessed in recent criminal investigations. Never has so little fact produced so many headlines.

Whatever the public think of the McCanns, whatever conjecture conspiracy theorists place on the media campaign to find Madeleine, there is no excuse for journalism that manufactures fact out of fiction.

Full article and analysis coming up on MediaGuardian.co.uk ...

McCann lawyers warn Express Group