In a landslide vote, delegates at the Media Law Conference agreed that the benefit Conditional Fee Arrangements provide in terms of access to justice in media law cases does not outweigh the gag on freedom of expression.
Kicking off the debate and speaking in favour of the current CFA regime was David Price from David Price Solicitors and Advocates, who said that the argument CFAs gagged freedom of expression suggested that newspapers made a decision on whether to run an article based on the cost of a potential legal threat, and called for evidence of this to be put forward.
Under CFAs, or no-win no fee, libel lawyers charge the losing side double. Fees for lawyers often end up being hundreds of thousands more than the damages paid.
Price said: ‘The situations where people get sued under CFAs are not the situations where people made careful decisions about whether to publish something. Most of the time if you’ve made a careful decision and taken legal advice, you’re not going to get sued.’
Price also said the Reynolds’ Defence gave a ‘serious amount of power
to the media’providing it reports responsibly.
Media lawyer Tony Jaffa, from Foot Anstey, who advises local newspapers on media law, argued that the gagging effect was ‘much more serious and widespread’in the regional press.
He said: ‘The regional press always looks at the potential costs ahead of the legal issues; they do not publish contentious stories unless they are very sure. You may say that is right and they shouldn’t do that, but there are some issues when they should.”
Jaffa’s complaints about the current CFA system lay in three areas – the success fee, the after the event insurance, and the ‘extremely high’legal fees.
Agreeing with Price that CFAs provide access to justice was Adam Tudor of legal firm Carter Ruck, who contested Jaffa’s claim that regional editors take the gagging affect of CFAs very seriously.
He said: ‘I treat what newspaper editors say about CFAs with even more scepticism than I treat what the police say about wanting 90 days to detain people without trial.’
Tudor said he had yet to see any evidence that newspapers were ‘on their knees’and not running stories because of the fear of CFAs, and added that in 1998, before CFAs were introduced, 379 libel and slander writs were issued in England and Wales, but in 2006 the figure was 213.
Speaking with Jaffa against the CFA regime was Richard Lumb, principal solicitor at Cost Advocates – a niche corporate solicitors practice, which specialises in cost law.
Lumb, also a deputy district judge, backed up Jaffa’s claim that CFAs were having a ‘chilling effect’and said he was surprised at claims it was an illusion.
He asked if the argument for CFAs was ‘a genuine desire to preserve a system that offers access to justice, or is it preservation of a goose that lays the golden egg”, referring to uplifted fees through CFAs.