Press concerns over the huge success fees charged by lawyers in libel and privacy cases fought against publishers in Conditional Fee Agreement cases has helped prompt a government review of the entire system.
The Ministry of Justice has announced it is to put CFAs under scrutiny with a review by three legal academics into what aspects of CFAs in defamation and privacy as well as employment and personal injury may need changing.
The review complements another Government consultation into success fees in libel and privacy, which is due to result in a report this month.
Justice Minister Bridget Prentice said: ‘No win, no fee arrangements are vital in helping to give the public a voice in courts. However, we are aware of growing concerns that they may not always be operating in the interests of access to justice.”
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Professor Richard Moorhead, deputy head of Cardiff School of Law, is leading the review along with Professor Paul Fenn of Nottingham University Business School and Professor Neil Rickman from the University of Surrey.
Moorhead told Press Gazette: ‘The kinds of concerns raised by the press are the sort of thing the Ministry would want us to be collecting, they are very much part of the picture.
‘Libel, defamation and privacy are a specific concern we are looking to address. Whether or not we feel we will be able to address it depends on whether we can access the right kind of data and information.
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‘It’s a very technical job that will hopefully lead to a substantial piece of work.”
Press Gazette has been highlighting industry concerns about CFAs in its Fair Play on CFA campaign over recent months.
At the Press Gazette Media Law conference last Wednesday a group of journalists and media lawyers voted overwhelmingly in favour of reforming the system after a debate involving leading lawyers on both sides of the debate (see page 10).
Media CFAs work by enabling lawyers to take cases on a no win, no fee basis and then charging the losing side up to double. The result has been fees in libel cases which do not even end up in court often running into hundreds of thousands of pounds for publishers.
Moorhead said his team would be hoping to speak to Press Gazette readers as well as publishers, lawyers and campaigners about the current situation before reporting back to the MoJ in three months’ time.
The ministry will then decide whether to commission a consultation or further study into CFAs, which could have lasting policy implications.
Jaron Lewis, from Reynolds Porter Chamberlain, has helped organise opposition to CFAs which has involved nearly every major broadcaster and newspaper publisher.
He said: ‘It has to be welcomed. But the concern would be that they hold back on the other consultation and that it would delay further reform. The Ministry of Justice needs to be taking steps now.”.
Lewis said that the most effective outcome would be for success fees to be scrapped altogether in libel cases.
He added: ‘In Ireland they don’t have success fees but lots of people do work on a no-win, no-fee basis. People get access to justice, there’s never been a problem – in fact they have a healthy number of libel claims.”
Bob Satchwell, director of the Society of Editors, which has been lobbying for CFA reform, said: ‘We understand the idea of opening up justice in defamation and libel for people who haven’t the means to do it. But they have been used by rich people and some lawyers are hiking the charges.
‘There are media organisations that are settling cases rather than fighting simply on cost grounds.”
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