ECHR: Law of Libel

Lord Clinton-Davis asked Her Majesty's Government:
What is their response regarding the law of libel to the decision of the European Court of Human Rights of 15 February in the case brought by Ms Helen Steel and Mr David Morris.

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, this was an exceptional case which did result in unfairness. We need to consider the judgment carefully and, if necessary, to learn lessons. We accept the court's judgment on legal aid. The law was changed in the Access to Justice Act 1999 and funding can now be made available in defamation cases in exceptional circumstances. The judgment refers also to the need for the defendants' means to be taken into account in assessing damages. Given the usual principles of English law on compensation, which the libel damages in this case were, we are giving further consideration to the implications of this most unusual case.

Lord Goodhart: My Lords —

Lord Clinton-Davis: My Lords, I believe that I am entitled to ask a supplementary question.

Although I appreciate that the Government must have time to consider the implications of that important judgment, when can we expect a definitive statement from them on the issue? Secondly, although I appreciate the circumstances to which my noble and learned friend the Lord Chancellor alluded concerning the 1999 Act, will he also ensure that the House will be told if any extension of legal aid to defamation is made? In my view, it is not enough that that should be done only in extraordinary circumstances.

Lord Falconer of Thoroton: My Lords, perhaps I may deal with the second part of the question first. On the basis of the judgment in the case, we do not intend to extend legal aid generally to defamation cases. As my noble friend rightly points out, Section 6(8)(b) of the Access to Justice Act 1999 allows funding in defamation cases in exceptional circumstances. That was introduced only after the McDonald's libel case to which the European court judgment refers. We think that that deals with the problem identified in the McDonald's case. I pay tribute to my noble friend Lord Clinton-Davis because he was instrumental in including Section 6(8)(b) in the Bill, with the foresight for which he is famous.

As the first part of the question, I cannot tell when we will complete our consideration of the judgment, but it will be as soon as possible. This litigation has now been going on since 1990=97for 15 years. The events in respect of which the litigation relates occurred in the mid-1980s=9720 years ago. That makes Jarndyce v Jarndyce look like a fast-track case.

Lord Goodhart: My Lords, will the Government initiate a wider review of the whole question of the libel laws of this country? England has some of the most draconian libel laws in the world, which is why it has become a preferred forum for litigants from all over the world, even though publication may have been very limited in this country. Would it not have been better if McDonald's had started from the beginning by realising that its case had very little hope of success?

Lord Falconer of Thoroton: My Lords, in relation to an overall review of the libel laws, our first step is to consider the effect of this judgment. I do not commit myself to an overall review of the libel laws, but I commit myself to a review of the effect of this judgment. In the light of that, we will then consider the overall position of the libel laws. As for who won and who lost in this case, McDonald's won in the English courts and received =A340,000 damages. It lost in the European Court of Human Rights. The estimated costs that it spent in winning that =A340,000 was =A310 million. Draw your own conclusions as to whether it improved or deteriorated its reputation by doing that.

Lord Borrie: My Lords, would my noble and learned friend care to say whether the phrase "exceptional circumstances" may set rather too high a hurdle for obtaining legal aid, because of the need for equality of arms between two sides in the case and for the court to receive adequate advice from both sides to reach the right result? Would he comment?

Lord Falconer of Thoroton: My Lords, the principle on which we operate in relation to legal aid for defamation is that we do not think that in the normal case legal aid should be available, because the legal aid budget is stretched. In the area of civil legal aid, we believe that matters such as social exclusion, housing, debt problems and family problems come before financing defamation actions. I therefore think that the term "exceptional" is right; the barrier should be high before defamation proceedings are given money. I entirely agree with my noble friend: in those exceptional cases, one is seeking to achieve equality of arms between the big battalions and the little person who is trying to fight a libel action.

Lord Thomas of Gresford: My Lords, is it right that years of court time should be wasted by a large corporation with access to millions of pounds for advertising and so on to bring defamation proceedings against individuals without any resources? Cannot the libel laws be reconsidered in that regard?

Lord Falconer of Thoroton: My Lords, the question is put in an impossible way. A company is entitled to have its reputation protected, like anyone else. Plainly, what went wrong is that a case lasting 313 days in court over two and a half years, the whole proceedings lasting for 10 years, could not possibly produce a just result.




 
 
 
 
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