My Lords, Amendment 51C would disapply the LASPO Act in relation to defamation proceedings and Amendment 51D would apply one-way costs shifting to defamation proceedings. Both the amendments are probing amendments. I have some sympathy with the Minister in being prodded on this issue again. He may have thought that he had seen it off with his letter of 10 December and the assurances that he has repeatedly given us, but I am afraid that I shall invite him to discuss again costs in relation to defamation.
As noble Lords will be aware, and as I think the Minister is acutely aware, this issue was addressed during the passage of the LASPO Bill, when calls were made to disapply it in relation to defamation and privacy proceedings. Assurances were given by the Minister that this would be addressed in the Defamation Bill. I do not seek to keep him specifically to that assurance, because I suppose that, on one view, a substantial amount of water has passed under the bridge since that debate and many other things are going on. Whatever intention other noble Lords may have in the debate that will ensue on this, I have no intention of transgressing into the debate about the
Leveson recommendations and their consideration in tri-party talks; I have managed until now not to mention “Leveson” anywhere in your Lordships’ House, and I had intended to keep it that way.
Throughout the passage of this Bill, we have had further assurances that something will be done to address the cost of defamation proceedings, and the Government recently gave a commitment that LASPO would not apply to defamation until they had resolved the situation in relation to costs. That stay of execution, as it were, is very welcome. Our amendments are, however, designed to elicit further information from the Government as to the timing of these proposals and what they will consist of, to the extent that the Minister is in a position to share that information with me.
I want to make one very specific point to the Minister which I hope he will address when he responds. I have before me his letter of 10 December 2012, which was very welcome and very helpful in covering a number of issues before the Committee convened to consider this Bill in detail. Under the heading “Cost Protection in Defamation and Privacy cases” it sets out that,
“the Government is keen to provide some form of cost protection so as not unduly to damage the interests of impecunious parties. The Government has asked the Civil Justice Council (an independent advisory body, chaired by the Master of the Rolls) to advise on this by the end of March 2013”.
So I realise that we will have to be patient until the end of March 2013 to see what the council under the chairmanship of the Master of the Rolls advises. In order to instruct those deliberations, we have the benefit of annexe A to the letter, which sets out the terms of reference of the Civil Justice Council’s remit.
I am limited in my understanding of all of this, never having practised in this jurisdiction, but I understand that cost protection is designed to protect a party from the liability to pay the other side’s costs if their case fails. If my case fails, cost protection is designed to protect me from the liability to pay costs, or to reduce my liability. That addresses half of the problem. The serious part of the problem is how does one deal with the impecunious client who does not have the ability to institute proceedings in the first place if LASPO and the Jackson reforms are applied to defamation? How does one encourage lawyers to take on cases on some form of contingency basis, in the light of the application of LASPO and the Jackson reforms? The Government may believe that that is dealt with through the cost protection order process, but I am not satisfied that it is. Will the Minister address that issue? I beg to move.