COSTS IN CASES AGAINST PUBLISHERS: CONSULTATION
On 1 November 2016 the Government announced the opening of a consultation in relation to legal costs in publishing cases, including libel, slander, breach of confidence, misuse of private information, malicious falsehood and harassment – Consultation on the Leveson Inquiry and its Implementation.
Section 40 of the Crime and Courts Act 2013 and Part 2 of the Leveson Inquiry provides that a member of a recognised self-regulator that loses a relevant media case in court will not have to pay the winning side’s costs.
However a publisher that is not a member of such a scheme has to pay both sides’ costs, even if the publisher wins the case.
Thus a publisher who joins a recognised self-regulator scheme operates in a costs free environment in court, whereas a publisher that is not a member of such a scheme has to pay all of the costs in any event.
This proposal is based on the fact that recognised self-regulators have to have a low cost arbitration scheme that replaces the need for court action.
Section 40 has never been brought into force.
A self-regulator has now been approved and on 11 October 2016 the House of Lords voted to amend the Investigatory Powers Bill so as to implement Section 40 but that amendment was defeated in the House in Commons on 1 November 2016.
The consultation seeks views on four options:-
- to keep Section 40 “actively under review”;
- to commence Section 40 in full;
- to repeal Section 40 on the ground that the incentive to join a self-regulator is no longer required;
- to commence Section 40 in part, so that it would protect members of a recognised self-regulator, that is in effect those signed up to the approved regulator – IMPRESS, but not to implement the section which punishes a non-member by ordering them to pay both sides’ costs in any event.
The text of Section 40 of the Crime and Courts Act 2013 reads:-
“40. Awards of costs
(1)This section applies where—
- a relevant claim is made against a person (“the defendant”),
- the defendant was a relevant publisher at the material time, and
- the claim is related to the publication of news-related material.
(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—
- the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or
- it is just and equitable in all the circumstances of the case to award costs against the defendant.
(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—
- the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or
- it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.
(4)The Secretary of State must take steps to put in place arrangements for protecting the position in costs of parties to relevant claims who have entered into agreements under section 58 of the Courts and Legal Services Act 1990.
(5)This section is not to be read as limiting any power to make rules of court.
(6)This section does not apply until such time as a body is first recognised as an approved regulator.
The consultation ends on 10 January 2017.