Discussion about British libel law has been brought back to the fore in the last couple of days with Jack Straw proposing that success fees should be reduced in libel cases from 100 to 10%. The news, which comes with the BBC/Trafigura case still fresh in mind, will be welcomed as a step in the right direction, but arguably still falls short of effecting real change and redressing a balance in the law many journalists feel has become increasingly tilted in favour of the claimant.
Financially, a reduction to success fees will have a negligible impact for those who are sued and lose at trial. There are still the damages losing defendants have to pay, as well as the cost of theirs and their opponent’s legal representation, both of which are often far greater than the damages. And with the law placing the burden of proof on the defendant, it doesn’t change the fact that libel law is a game stacked in the claimant’s favour, and one most news organisations are insufficiently bankrolled to play.
What a cut to success fees is likely to entail, though, is an end to no-win no-fee legal representation for libel cases.
As a Law Society spokeswoman told The Telegraph: “Reducing maximum success fees to 10 per cent would be tantamount to abolishing conditional fees and would thus leave people who have been libelled with no effective access to justice.”
Whether or not the end of no-win no-fee representation would lead to a lack of “justice” is debatable, but what is clear is that the Carter Rucks of this world and their large, rich clients, are unlikely to be slowed down by a reduction to success fees. The cost of their legal fees alone are more than an adequate deterrent against waging defamation war without all but the most water-tight defence.