The government needs to introduce qualified one-way costs-shifting (QOCS) for media litigation if the proposed new press regulator does not set up an arbitral alternative to the courts, Lord Justice Leveson recommended today.
He said that without this, the end of recoverability will put access to justice – particularly in privacy cases – “in real jeopardy, turning the clock back to the time when, in reality, only the very wealthy could pursue claims such as these”.
This was despite the 10% increase in general damages, because the low level of awards for breach of privacy means it will have little effect. Further, while defamation claims are in large part about neutralising the slander or libel in public, in privacy claims the damage has been done.
“A modest increase in damages (themselves usually modest) will provide little encouragement to a claimant otherwise anxious to seek what might be entirely justifiable redress,” the judge said.
A new press regulatory body is at the heart of Leveson LJ’s recommendations, and he said it should set up an arbitral process through which people could bring civil claims against publishers at no cost to themselves.
Noting that the government has decided not to implement Lord Justice Jackson’s recommendation that QOCS be extended to media cases, he said that if an arbitral process is not created, “I have no doubt that the requirements of access to justice for all should prevail and that the proposals of Jackson LJ should be accepted” for defamation, privacy, breach of confidence and similar media-related litigation.
In the event the arbitral process is created, Leveson LJ said the costs system should be used to discourage either claimant or defendant from going to court instead, suggesting sanctions inspired by the Halsey ruling on failure to mediate. This would mean it would be “strongly arguable” that a claimant who failed to use the system would be deprived of any costs, even if successful.
He went further in the case of defendant publishers to say that not only could they be deprived of costs, but they could also be ordered to meet the costs of the unsuccessful claimant.
Leveson LJ acknowledged that recoverability drove the press to settle cases because “the cost of losing was entirely out of proportion to the issue at stake”, but said that ending it without QOCS will mean “the economics of litigation move against those who would otherwise challenge the press in favour of the press”.
More generally the judge called for the Civil Justice Council review the damages available in media litigation, and said exemplary damages should be available as well.