Leveson: Impact on Libel, Privacy cases and costs

November 30th, 2012

The executive summary of Leveson LJ's Report makes very interesting reading. Aside from the recommendations on the creation of a new body underpinned by statute, Lord Justice Leveson went on to deal with how membership might impact on the laws of defamation privacy, data protection and breach of confidence. We may see the defamation bill (going through Parliament presently) be amended in light of some of his recommendations. He says in the Executive summary:


I now turn to the very difficult question of participation and underline that it is almost

universally accepted that all major newspapers should be covered by a new regulatory regime.

I have had to address the question of how that can be achieved. By far the best option would

be for all publishers to choose to sign up to a satisfactory self-regulatory regime and, in order

to persuade them to do so, convincing incentives are required. The incentives proposed by

Lord Black could be adopted but I am not satisfied that they would be sufficient or, in some

cases (such as the proposal to limit press cards to members of the body) even desirable.


The need for incentives, however, coupled with the equally important imperative of providing

an improved route to justice for individuals, has led me to recommend the provision of an

arbitration service that is recognised and could be taken into account by the courts as an

essential component of the system, not (as suggested by Lord Black) simply something that

could be added at a later date. The service could be administered comparatively easily within

the regulator and be staffed by retired judges or senior lawyers with specialist knowledge of

media law whose fee would be met by the publisher but who would resolve disputes on an

inquisitorial model, striking out unmeritorious claims and quickly resolving the others.


Such a system (if recognised by the court) would then make it possible to provide an incentive

in relation to the costs of civil litigation. The normal rule is that the loser pays the legal costs

incurred by the winner but costs recovered are never all the costs incurred and litigation is

expensive not only for the loser but frequently for the winner as well. If, by declining to be

a part of a regulatory system, a publisher has deprived a claimant of access to a quick, fair,

low cost arbitration of the type I have proposed, the Civil Procedure Rules (governing civil

litigation) could permit the court to deprive that publisher of its costs of litigation in privacy,

defamation and other media cases, even if it had been successful.21 After all, its success could

have been achieved far more cheaply for everyone.


Similarly, if a newspaper publisher who chose not to subscribe to the regulatory body was

found to have infringed the civil law rights of a claimant, it could be considered to have

shown wilful disregard of standards and thereby potentially lead to a claim for exemplary

damages (which I recommend should be extended to these types of case).22 I believe that

these proposals in relation to costs should provide a powerful incentive for all publishers to

want to be a part of such a self-regulatory system.23


I recommend that the Civil Procedure Rules should be amended to require the court, when considering the

appropriate order for costs at the conclusion of proceedings, to take into account the availability of an arbitral system

set up by an independent regulator itself recognised by law.


As well as a change in the law to permit the award of exemplary damages in defamation, breach of privacy, breach of

confidence and other media torts, I also recommend that the Civil Justice Council consider an increase in the level of

damages in privacy, breach of confidence and data protection cases: see Part J Chapter 3 Section 5


So that the significance of this proposal is understood, in the absence of a provision of an alternative mechanism

for dispute resolution, available through an independent regulator without cost to the complainant, together with an

adjustment to the CPR to require or permit the court to take account of the availability of cost free arbitration as an

alternative to court proceedings when considering orders for costs at the conclusion of proceedings, I recommend that

qualified one way costs shifting be introduced for defamation, privacy, breach of confidence and similar media related

litigation as proposed by Lord Justice Jackson: see Part J Chapter 3 Section 6.