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Tom Watson MP

West Bromwich East MP Tom Watson explains why he helped to block long awaited reform to Britain's libel laws yesterday - despite being forced to fight a potentially costly court battle against The Sun recently. The government wanted to introduce a statutory instrument reducing lawyers success fees from 100% to 10%, making it less attractive to pursue speculative cases through the courts, but Watson refused to be "voting fodder" by backing the proposal.

Libel reform campaigners, anxious for progress, understandably pressing for great change, do a disservice to the campaign if they focus their ire on the people who rejected the ill-conceived proposals, hurriedly presented yesterday in Committee Room 12 of the House of Commons.

Briefly, let me make the case for the libel reform I want to see.

1.End libel tourism.

2. I want the burden of proof rule to be reversed for big corporations who bully writers, creators and scientists.

3. I would like to see a change to statute of limitations and the multiple publications rule that’s not fit for purpose in the digital age.

4. I’d like to see a defence of “responsible journalism” defined in law.

5. And I’d like the law of “criminal libel” to be junked in Scotland as it was South of the border last year.

I came to these conclusions, having heard evidence to the Culture, Media and Sport Select Committee for our inquiry ‘Press Standards, Privacy and Libel’.

The reforms listed above will genuinely support free expression, so cherished by the new communities of interest brought together by the Internet age. It is these bold measures that should form the basis of wholesale reform of libel laws in the UK.
Yesterday’s proposals would not achieve any of the above.

They would, as Lord Thomas observed, possibly benefit large media companies who are lobbying hard for all political parties to endorse the measures before an election, but would not provide adequate protection to the little guy, who ends up in the libel courts alone against giant corporations with money and clout.

Don’t get me wrong. I understand the “chilling effect” argument. There is no doubt it needs addressing but it’s not the only issue that has to be considered when developing reforms. I know there are a number of prominent journalists on the left, Nick Cohen being one, who feel very strongly about this particular issue. That’s understandable.

But I had to consider a wider range of arguments yesterday; access to justice being one of them. Success fees do need reducing, of that there is no doubt; but the Ministry of Justice did not make a convincing case for them dropping to 10%.

In making our decision, we also had to consider the recommendation of the Lord Justice Jackson Report (900 plus pages). The Jackson report is important because the aim of his recommendations is to reduce the costs of civil litigation whilst preserving access to justice and a fair balance between both parties in a case.

The proposal yesterday – to limit the success fee from 100% to 10% was an arbitrary figure that, in my view, failed the test of the Jackson proposals. It could significantly reduce the chances of people receiving justice and that’s something I didn’t want to be part of.

The House of Lords Statutory Instruments Merits Committee had grave reservations about the proposal, drawing it to the special attention of the House of Lords “on the grounds that it may imperfectly achieve its objective.”
I think it important you see the detailed extracts of the committee’s report. They had a great influence on my decision yesterday:

11. The Ministry of Justice (MoJ) has laid this instrument under section 58 of the Courts and Legal Services Act 1990 along with an Explanatory Memorandum (EM) an Impact Assessment (IA). It is noted that, as with the Damages-Based Agreement Regulations 2010 reported on above, this Order has twice been withdrawn and relaid, in order to correct drafting defects.

12. This Order amends arrangements for “no win, no fee” agreements that relate to defamation cases including malicious falsehood and breach of confidence cases that involve material that has been published. This type of Conditional Fee Agreement (CFA) has been available for some years as an alternative to paying a legal representative by hourly fee according to the work done. In defamation CFAs the lawyer has, until now, been awarded double his costs if the case is won (i.e. a 100% success fee) but received no payment from the client if the case is lost.

The underlying principle is that the successes offset the failures with the objective of improving access to justice for the client, particularly the poorer ones who might otherwise not be able to defend their reputation as legal aid is not normally available for defamation proceedings.

13. The Ministry of Justice say that there is evidence that the costs are bearing unfairly on the losing party and that more than half the defamation cases that are pursued are won, i.e. the lawyers are benefiting disproportionately from the current arrangements. So as an interim measure, pending the consideration of Lord Justice Jackson’s wider review into Civil Litigation Costs, the Department is proposing to reduce the success fee to 10%. The Order was preceded by a short consultation exercise (from 19 January to 16 February 2010).

14. The Committee asked the Ministry why the Impact Assessment they provided only considered the one option and did not compare the costs and benefits of intermediate levels of success fee at say 25% or 50%. They responded (see Appendix 2) that general consultations had been going on since 2007, previous attempts had been made to construct a phased scheme but consensus could not be achieved.

They argued that the majority of the respondents to the consultation exercise, even those who were against the reduction to 10%, conceded that the status quo was not sustainable and that change was necessary. A number of representations have been sent to the Committee questioning the basis for and timing of this change (see Appendix 2).

Several respondents make reference to the “Theobalds Park Plus agreement” an example of which is attached to the Carter Ruck submission, which illustrates that other arrangements, staggering the fee uplift according to the amount of work done, are already in voluntary operation.

15. Some respondents queried the Department’s use of figures on cases provided by the Media Lawyers’ Association to Lord Justice Jackson’s review; but said that the truncated consultation period had prevented further analysis of data. While accepting a need for change, most challenge the 10% figure as disproportionate.

The conclusions of both Lord Justice Jackson and the Commons’ Culture Media and Sport Committee on this issue are mixed[note 2], and we were not convinced that there was a strong basis for choosing a 10% uplift over any other figure. In their response MOJ acknowledged that they do not have comprehensive statistics and were seeking additional data through the consultation exercise – it therefore seems difficult to justify the curtailment of the consultation period to 4 weeks.

16. Some responses query the reason for taking this interim proposal through when it is not consistent with the proposals made in Lord Justice Jackson’s report, which suggests that the costs as well as the benefits of a “no win, no fee” CFAs should be borne by the client rather than by the unsuccessful defendant. MOJ state that Lord Justice Jackson’s proposal will need extensive consultation with the industry and primary legislation. In their view the proposed cut to 10% provides a way forward in the interim.

17. The policy objective is to reduce legal costs, and to reduce the risk of disproportionate costs having the effect of unjustifiably restricting freedom of expression for the media and other publishers. The Order aims to do this by reducing the 100% uplift that is widely considered a disproportionate sanction on the unsuccessful defendant.

Paragraphs 3.9-16 of the Impact Assessment set out the pros and cons of reducing the sanction, in the light of which the House may wish to consider whether a 10% uplift swings the pendulum too far the other way, reducing poorer clients’ ability to challenge misleading published information.

We regret that insufficient time has been allowed to produce a solution based on more robust evidence or on which there is broad agreement, and that might seem more likely to achieve the policy objective without the potential side effects discussed in the correspondence.

I understand that many friends who share concerns over controversial measures contained within the Digital Economy Bill are also anxious to see major libel reform. Yet the same reasons I’m opposing the controversial measures in the Digital Economy Bill apply here – rushed legislation; a failure to adequately consult and a poor evidential base to justify the reduction to 10%.

To be honest with you, after nearly 10 years in Parliament I’m pretty hardened to the view that the “act in haste, repent at leisure” maxim applies to almost all law making. And after two resignations, a handful of media storms and a few votes cast whilst holding my nose and gritting my teeth, I wasn’t going to allow myself to be voting fodder for a cobbled together motion without seeing the evidence.

And I’m not the only parliamentarian who feels this way.

Here’s what prominent supporter of libel reform Lord Thomas of Gresford said in the House of Lords debate:

The Liberal Democrats have been, and are, at the forefront of the campaign for a reform of the law and procedures relating to defamation. The crippling costs associated with libel cases in the United Kingdom-which are said in one study to be 140 times higher than in some mainland European countries-are a prime example of where reform is needed…

The solution that the Government have hit upon is utterly unthinking. It is not the recommendation of the Culture, Media and Sport Select Committee.

He went on to say of the proposals:

It makes it impossible for the ordinary citizen to protect his reputation or defend himself against unmeritorious claims. That uplift-the cap of 10 per cent-really takes us back to the old days, when legal aid was not available in defamation cases and the libel courts were the playground of the rich or the extremely poor, who had nothing to lose by bringing actions of that sort.

And Lord Marlesford of the Conservatives made his concerns known when he said:

it is pretty appalling to consider such orders in three weeks when the normal procedure is to have three months to consider them. What possible reason is there to do so? Given how complicated these issues are and the fact that these great experts do not yet fully agree on the correct solution, how wise it is of my noble friend Lord Henley have made it clear that the Conservative Party has not yet made up its mind what the right solution is.


Professor Brian Cox lashed out on Twitter when he heard the decision. I understand his concern. As a scientist he will want his profession receiving adequate protection from big corporations who try to silence legitimate academic criticism. I would ask him and others who share his concerns to consider the specific effect of the proposals
discussed yesterday.

An example of a case which would probably not have been taken by a reputable libel lawyer on a CFA with a maximum recoverable success fee of 10% was the case for Danish professor, Henrik Thomsen, who was sued for defamation in London by 3 companies in the multi-billion dollar GE Healthcare group. The claim against him was in respect of a talk he gave to 30-40 people at a conference in Oxford, and an article published in his name in a specialist magazine published to about 1,000 healthcare professionals in England.

The case concerned one of GE’s products, Omniscan (a contrast agent injected to obtain enhanced images with MRI scans)
which has been linked with a very rare, but horrible disease, and is the subject of major litigation in the US.

Temporary Measures

The case has been made that the measures are temporary, pending wider reforms later in the year. I’m sorry to say that I’ve been around long enough in Parliament to know how temporary measures can become a permanent feature of British democracy.

31 years ago, in the last months of the Labour government, the Barnett Formula was introduced as a temporary measure to allocate public expenditure in Scotland and Wales. We’re still using it today. If you’re going to change the law, it is better to craft proposals based on sound evidence and thorough debate, than on a punt that you might have it right.

Carter Ruck

A number of people have tweeted and emailed today, libelously suggesting I am on the payroll of Carter Ruck. Luckily for them, irony is something you get used to in my profession. And in politics, you have to take the rough with the smooth.
But personal experience of the current CFA arrangements has helped my understanding of how the system works. I don’t expect sympathy for my family’s personal circumstances but I think they merit some explanation, but not today. Soon though.


Yesterday’s proposals did not provide an impact assessment that properly examined the alternatives. Grave doubts were raised by prominent members of the House of Lords. The Ministry of Justice failed to guarantee that people wouldn’t be denied access to justice.

The proposals carried the risk of being counter productive to science writers who require proper protection from big corporations. There wasn’t adequate consultation and the government’s own guidelines were breached.

Temporary measures of this sort have a habit of becoming permanent. On nearly every conceivable level, the proposals were flawed. I had no choice but to oppose.



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