Defamation Bill [HL]

My Lords, it has been a great privilege to listen to this debate. It is also a great privilege sometimes to come towards the end of the speakers, because what one was going to say has already been said so much better by those who have preceded one. It was a particular privilege in this case because of the two extraordinarily good maiden speeches that we have heard. I also regard this as a privilege because of my appreciation of the achievements of the noble Lord, Lord Lester, in placing this Bill before the House. He is an outstanding parliamentary reformer of the law in areas where reform needs to take place. Sometimes he also tries to do it in the courts, but they are not quite as welcoming of it as we have been in this House today. In the courts, our primary task is not to reform the law but to apply the law, although in the senior courts we can, at the same time, often make an important contribution to improving the law. Indeed, we have tried to do that in the area of defamation covered by the Bill. However, it is a particularly difficult task to improve the law in that area because of the conflict between the two fundamental rights involved, as already referred to by other speakers. It is therefore an area of the law where opportunities have to be taken by the legislature to ensure that the balance between the rights of the individual and the public interest in freedom of speech are kept properly in balance. In my view, the noble Lord, Lord Lester, is right in his general thrust of trying to move the law modestly more in favour of defendants, and the time has now come when that is needed. However, if I may say so, he has shown his skill as a law reformer by doing it in a way which retains a very considerable degree of flexibility, so that if the circumstances of an individual case require a different approach, enough discretion is left to the court to enable it to reach a just result in that case. I therefore hope that this House will do what it appears to be doing—that is, almost unanimously support the Bill and ensure that it at least receives the Second Reading that is needed. In concluding his speech, the noble Lord, Lord Lester, said that there was a need for a different approach to the Bill compared with the norm, and I hope that that will come about in the future. The Government of the day should see it as their responsibility to take over the area of the law which the Bill seeks to reform and ensure that the process of reform is as constructive as possible. That is particularly important because in due course the Government will have to come to a conclusion about the reforms that have been recommended by Lord Justice Jackson as a result of his review into costs in civil proceedings. I emphasise costs because their impact in defamation litigation has, correctly, been emphasised again and again during the speeches that we have heard today. In that regard, I take the view that the Bill makes a contribution towards the question of costs and the problems that they create. However, it makes only a modest contribution and other action is needed in relation to costs because, in the long-term interests of litigation in the defamation field in this jurisdiction, that will be more important than the reforms which are proposed. However, the reforms are in themselves desirable because they introduce greater certainty. That is very important in the resolution of disputes in any area of the law, but particularly in the definitions that have to exist in the law of defamation. The other aspect of the law that the Bill does not deal with is procedure, except with regard to one very important area, which is trials taking place before a jury. Historically, the law of defamation has always made special rules for defamation proceedings which are out of accord with the general movement of and developments in civil procedure. The use of juries in civil procedure is a special recognition of the fact that it was thought that this area of the law dealt with a matter of such importance to the public and the individual that a jury could bring its common-sense approach to litigation to bear on the outcome. That matter was referred to by the noble Lord, Lord Triesman, whose speech I listened to with particular interest and concern. There is no doubt that the presence of a jury is a great safeguard to the individual who comes before the court. Therefore, it is with great hesitation that Parliament should take action which would reduce the use of juries. The Bill takes a moderate course. It does not say that there should not be a jury in the future, but it brings this area of practice into line with other areas of civil procedure by saying that there should be no presumption of the use of a jury. That will mean that there must be a special reason for using a jury, as in other areas of civil practice. We should interfere with that area only with great caution for the reason that I have explained. It is now time to take that action. One of the reasons why the law’s reputation has been so sullied is the expense and complexity of defamation trials. The fact that there is a jury means that it is more difficult, if not impossible, to take some of the courses that are now automatic before the civil courts in disposing litigation as economically and effectively as possible. The fact that there is a jury makes the outcome less predictable and it is more difficult to advise those conducting the proceedings. Juries go for the merits and are not so influenced by the law as a judge who is trying the case alone. Furthermore, it is more difficult for the advisers to understand precisely how the jury will deal with matters which both sides are aware they can use to try to score "jury points". The scale of the damages is not easy to ascertain, so it is more difficult to settle the case than it would be if it was coming before a judge alone. All those factors increase the length, and therefore the expense, of the jury trial in defamation proceedings. That has such untoward consequences that I suggest that that part of the noble Lord's Bill should be warmly welcomed. It is said that what is at stake is the chilling effect on editors, publishers and others who wish to exercise the right of free speech, which we hold in such esteem in this country. That is right, but why does it have such a chilling effect? First, because of the time that defamation proceedings can take and, secondly, because of the costs of those proceedings. If the costs of the proceedings can be kept in proportion, the consequences to those who wish to bring proceedings and to those who wish to defend proceedings would not be as horrendous as we have heard today. The real solutions to the problems in defamation litigation are those which the Bill does not touch. The issue is how to control the cost of litigation in this area. The way to control it is strong judicial management. That is critical. The noble Lord, Lord Hunt—who has great experience as a litigation lawyer and, I was pleased to hear, as a qualified mediator—focused on the question of mediation. I have no doubt that he is right to say that mediation should play a greater part than it does today in avoiding cases going before the courts when there is no need for that. However, if proceedings are being brought not for the purpose of achieving what a party thinks are his just deserts or just rights but to frustrate others from doing what they should be entitled to do, such as to publish articles or to make comments in the public domain about developments of which they disapprove, mediation cannot be effective. Furthermore, mediation cannot be effective if the costs of the proceedings are unduly weighed in favour of one party or the other. What has undoubtedly happened in this area is that the costs are so high that possible defendants feel that they cannot take the risk of proceedings, because they will have such a damaging impact on them. They do not take the action of publishing the article which would give rise to the threat of defamation proceedings. The law has moved a considerable way in preventing that happening when it should not, but it has not moved far enough. It should be possible to take the steps that the Bill proposed by the noble Lord, Lord Lester, seeks to take to make the playing field fairer for both those who wish to bring proceedings and those who wish to defend them. Both should be able to do that without regarding it as an impossible task.