Warby: New defamation regime risks “front-loading of costs”

Warby J: costs budgeting the pre-eminent issue

The new regime created by the Defamation Act 2013, and the prevalence of early judicial decisions, could lead to the “front-loading of costs”, the judge in charge of the media and communications list has warned.

Mr Justice Warby said orders for preliminary trials by judges must be “really appropriate” and fit the particular case.

In a speech to the annual conference of the US-based Media Law Resource Centre in London, he said the “virtual abolition” of jury trials in defamation cases under the 2013 Act had “many advantages”, including the possibility of early judicial decisions on key issues.

He said the recent Court of Appeal ruling in Lachaux would “disabuse some” of the notion that the complex question of serious harm was suitable for early judicial resolution in “all or most defamation cases”.

However, he said early trials of specific issues had a “real and important future” in libel cases.

“Orders for suitably framed trials of issues can save much time and expense. Nobody doubts, for instance, that the early resolution of meaning as an issue of fact remains a very useful feature of the modern procedural regime.

“I believe that in appropriate cases it will be right to resolve other, related issues at an early stage.”

Warby J said costs budgeting was the “procedural issue of pre-eminent importance” for respondents to a consultation he carried out earlier this year with law firms, barristers’ chambers, newspaper groups and a handful of specialist individual lawyers.

The judge said the “particular worries that animated respondents” would emerge at a court users’ meeting in November.

“For me, there are two main concerns. One of these was highlighted [in a speech by Chief Justice Allsop of the Federal Court of Australia]. He noted the particularly bitter irony, where case management undertaken to curb costs results in adding to them. That is a real risk attendant on the process of creating and then agreeing or disputing costs budgets.

“The other concern is that costs budgeting takes place relatively late in the process – too late, if the costs of some early resolution measures are to be controlled.

“If I am right about the continued relevance of preliminary issues, there is a risk that cases will reach a relatively prompt resolution in court without any judicial cost control beforehand.”

Warby J said that some respondents to the consultation called for the introduction of “a kind of judicial triage”, with each case being reviewed by a specialist judge at the time of filing, or shortly afterwards, to determine case management measures.

“In principle one can see the attraction, though it would be a marked departure from the norm, and has fairly obvious and potentially problematic resource implications. We live in times of austerity, with recent shortfalls in judicial recruitment.”

Warby J said there were two main risks in the advance of case management or what some described as “managerial justice”.

He explained: “There is the risk of elevating procedural aims, such as speed, over the requirements of substantial justice. The over-valuation of fair process as compared to just outcomes is something we see in many contexts in our everyday lives.

“It probably results from the fact that processes are easier to prescribe, implement, and evaluate. I do hope that the English legal system will continue to avoid this.

“The second risk is that attempts to manage cases actively end up being counter-productive.”


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