Defamation Bill gains Royal Assent – but costs provisions remain unresolved

Hayter: without resolution on this, the risk of substantial costs remains

The Defamation Bill received Royal Assent yesterday despite disappointment and criticism that the issue of legal costs has not yet been resolved.

Last week the Civil Justice Council (CJC) published its report on costs protection in defamation and privacy cases – recommending a form of qualified one-way costs shifting (QOCS) – and justice minister Lord McNally said in the House of Lords on Wednesday there will now be a consultation.

He said the QOCS regime for personal injury will require “a number of adaptations”. He explained: “We are now considering the CJC report, and as your Lordships will appreciate this is quite a complex area. While the report does not represent a blueprint of the new rules to be applied, it does set out the issues that need to be addressed, and makes recommendations on how to address them.

“It will be for the Civil Procedure Rules Committee to make the rules on costs protection in due course, once the government have set out the way forward. My officials will work with the committee on this.

“I am conscious that the CJC has not consulted on this issue, and I believe that we need to consult before we finalise the proposals. Our aim is therefore to work with the rules committee in drafting appropriate rules, perhaps with alternatives, on which we can consult more widely over the summer…

“Depending on the outcome of that consultation, we then aim to implement a costs protection regime later in the year.”

Labour peer Baroness Hayter, the former chair of the Legal Services Consumer Panel who has been heavily involved in the legislation, said she had hoped to have seen agreement on the costs regime by this stage.

“There was clearly a lot of disagreement within the [CJC] working group, and there is no clear answer in the report as to how, in the absence of CFAs following LASPO, most people will be able to either start or defend a defamation claim. Without resolution on this, the risk of substantial costs remains, which more or less makes either the taking or the defending of an action open only to the super-rich, as the government have acknowledged.”

Later that day in the House of Commons – as the bill finished its ‘ping pong’ stage between the two chambers – Labour MP Robert Flello said it was “strange” that no progress had been made on costs.

“Indeed, we are left in a wholly unsatisfactory place. The last-minute announcement of a consultation on costs over the summer shows how sloppily this government have treated parts of the Defamation Bill.

“The mess in respect of defamation, Leveson and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 means in future people in a similar position to the Dowlers, Simon Singh and Peter Wilmshurst who will fight defamation cases will probably be in a worse position on costs than they would have been had the government not got their hands on this legislation.

“Despite the promises that were made during the passage of the LASPO Act, costs is a major issue, and it should have been dealt with properly before this bill returned to the chamber.”

The legislation provides for:

  • Protection for scientists and academics publishing in peer-reviewed journals;
  • Protection for those who are publishing material which they reasonably believe is in the public interest;
  • A requirement for companies and individuals to show serious harm to establish a claim;
  • A single publication rule to prevent repeated claims against a person about the same material;
  • A tighter test before claims involving those with little connection to England and Wales can be brought before our courts, addressing libel tourism; and
  • A new process enabling website operators to help people complaining about online statements to resolve this direct with the poster of the material.



30 March 2021

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