In the Media

Libel law analysis

PUBLISHED December 7, 2009

With Mr Justice Eady defending the current state of libel law, its reform is likely to be complex, controversial and some way off.
In the past few days the leading libel judge, Mr Justice Eady, has robustly defended the current state of libel law while the minister of justice, Jack Straw, has suggested some changes are imminent. Their comments came after Index on Censorship and English PEN issued 10 proposals for libel reform, some of which seem likely to be picked up by the culture select committee, which is soon to report on the state of libel law.

Amid such noise, how much is likely to change? Straw suggested there may be early changes to the recovery of legal costs, a significant recurring criticism of the current libel law. Claimant lawyers are not only recovering their own normal costs, but also, under a conditional fee agreement, a 100% uplift (ie double their normal fee) as well as the cost of the insurance premiums to protect the claimant in the event of failure.

The whole question of costs recovery in civil proceedings is under review by the court of the appeal judge Lord Justice Jackson, who is due to publish his recommendations in January. In May, he stated before the culture select committee that the current system of conditional fee agreements and recovery of insurance premiums meant that the entire costs of such cases were being borne by defendant media organisations. It seems likely that he will recommend changes and also that Straw will accept them in quick order.

In respect of the broader criticisms of libel law, however, matters are more complex. Although it is often said that the English courts are a popular destination for libel tourists, Eady suggested in his speech last week that there was not much evidence to support this, pointing out that there have been just four libel jury trials this year and last and that "none of these could be categorised as 'libel tourism'".

The Index on Censorship proposals were thoughtful and interesting but raised as many questions as they answered. Proposals such as the reversal of the burden of proof ? so that claimants would have to prove the allegations made against them were false rather than, as now, defendants proving them true ? may cause concern. Eady said that this would mean that a person accused of serious wrongdoing would ? for the purposes of a libel action ? be assumed guilty unless they could show otherwise, which some may consider offensive to basic principles.

So beyond the important issue of the recovery of libel costs, it appears that further reform to libel law is likely to be complex, controversial and some way off.

Dan Tench is a litigation partner at Olswang