The Jackson reforms could inhibit access to justice for defamation and privacy claimants and so a Civil Justice Council (CJC) working group looking at costs protection for them needs to find a solution, MPs and peers said today.
CJC member John Pickering, the chief executive of Irwin Mitchell, is to head the working group, which should meet for the first time next week, Litigation Futures can reveal.
The government had rejected Lord Justice Jackson’s recommendation that it introduce qualified one-way costs-shifting (QOCS) for defamation and privacy, although Lord Justice Leveson said  in his report last month that this should be taken forward if the new press regulator does not set up a cost-free arbitral process for claimants.
During the second reading of the Defamation Bill in October, justice minister Lord McNally agreed to ask the CJC to look at the issue afresh.
In a report on the Bill published today, Parliament’s joint committee on human rights said it was concerned that the changes in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) “may inhibit access to justice for those claimants and defendants who are middle-income, but not eligible for legal aid. We are particularly concerned that the reforms in the LASPO Act 2012 do not tackle this issue, as the [rules] on CFAs may prevent claimants and defendants of modest means from accessing the courts, a particularly pertinent concern when the action is one of defamation.
“We note the government’s ongoing efforts to address this particular issue, and welcome its ongoing consideration of the ‘costs protection’ issue. We remind the government that a solution to the difficulty faced by ‘middle income, not eligible for legal aid’ claimants and defendants is necessary if defamation reform is to be effective in practice, so that all persons, regardless of financial means, can access justice in defamation proceedings.”
The working group’s terms of reference are to identify whether there are meritorious actions for defamation and privacy, which could not properly be brought or defended without some form of costs protection, and if so to advise in which types of cases (or stages of cases) it should apply; and what options for costs protection might be considered, with their advantages and disadvantages. It has to report by the end of March.
The committee’s report is muddled in places – it appears to believe that the LASPO changes are already in force and that legal aid is available for defamation, while it does not contemplate claimants paying for after-the-event insurance out of their damages.