My Lords, perhaps I can be very naughty and thank the House for its support on that Division.
The intention behind Amendment 3, which I move on behalf of my noble friend Lord Browne of Ladyton and myself, sets out a vital procedure—the ability of a court to strike out an action for defamation. This power is vital. Everything that the Bill seeks to achieve has been about reducing costs—which have completely distorted the law on defamation—by facilitating early resolution, as the Minister said in response to an earlier amendment. If the key issues can be decided early on—which the virtual ending of jury trials enables—then lawyers’ time is diminished and costs are brought down.
The costs in these cases, as we have heard, are such that they put the use of the law to protect reputation beyond the reach of all but the richest. The only
others who have been able to make use of this law are those who have used no-win no-fee cases to do so—arrangements which are shortly to be ended. This law has been beyond the reach of most people. Virtually no defendant can contest a case, or claimants bring one, as they risk being crippled not just by their own legal costs but also by those of the other side. I heard just today of a case involving one day in court which cost £40,000 on each side.
So costs are vital, as is early resolution. Up against a rich newspaper, no one without sizeable means can consider taking on a case. With a multimillionaire, an oligarch or a company even threatening an action, journalists, papers, NGOs or Which? will be reluctant to publish anything, no matter how true, that is going to tie them up in legal and financial nightmares.
The amendment is about the last part of the jigsaw. Having enabled early decision of most issues by clarity of the law and the reduction of the use of juries, we now need active case management and the clear authority of the court to strike out before trial actions that fail the test of serious harm based on a falsehood, or where other jurisdiction is more appropriate.
That clear ability of a court to strike out an action is what we want written into the Bill. It would allow either side to apply for this strike-out or for the judge to start the process. At one level, the amendment would write into the Bill what in effect exists in the Civil Procedure Rules but which will not be evident to the ordinary member of the public, be they a potential claimant or a defendant. Non-lawyers do not even know of the existence of the Civil Procedure Rules, much less what they say.
The Bill has aimed to provide for a lay person—an author or the defamed—a clear statement of what the law on defamation is, without recourse to a lawyer or a legal textbook. Our description of the power of a court to stop an action is clear. It would show to the claimant that unless they could show serious harm to their reputation, and a tort—that it was wrongful—then they should proceed no further. It would indicate to the defendant that they could go to the court and ask for such a strike-out when it was obvious to them either that the claimant had no relevant reputation here or that any such reputation had not been caused serious damage. This is clarity; it would add to the Bill a power that is already there, and it would be a signal that we want early case management so that as many of these issues as possible can be dealt with and, where appropriate, struck out. I beg to move.