Superinjunctions at the Frontline: Heated debate on libel cost controls

By Jasper Jackson

The threat to freedom of speech from costly libel cases and the "chilling" fear of legal action could be alleviated by reforming the system to deal with smaller cases faster and cap the maximum costs lawyers can charge.

That was at least one agreement in an otherwise combative debate amongst the panel and audience. If you missed the event, you can watch the whole thing here:


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Event chair Clive Coleman – presenter of BBC Radio 4’s Law in Action programme – described a tumultuous year in UK libel. He said the rise of super-injunctions such as those taken out by multinational oil trader Trafigura highlighted the courts’ power to silence public commentary.

However, the recent success of high-profile libel defences, coupled with commitments from the major political parties to review libel law, prompted him to ask whether it had been “a good six months for the free press”.

Guardian investigations editor David Leigh offered a cautious response, saying recent successes only helped to limit increasing encroachment on freedom of speech. Even social media’s role in undermining the Trafigura injunction was merely an “attempt to hold the line”, he said.

Nigel Tait, partner at notorious law fim Carter Ruck, which represented Trafigura, said it had been a “stimulating 12 months” in libel law. He rejected the need for changes to libel legislation, agreeing that that "costs" are behind the “chilling” affect on freedom of speech. He came out in support of a libel tribunal to deal with more minor cases, arguing lawyers could not be expected to shoulder an increased workload.

I’m in favour of a two-tier system. For the really important cases…I could see why you’d have a proper high court judge and possibly a jury. But I don’t think you need the Rolls Royce service for bloggers, what’s written on the internet.

Media law expert and Reynolds Porter Chamberlain partner David Hooper said that the key to lower libel costs in much of Europe was the “swift result” reached in most cases. He said:

[Claimants] may often get results they don’t deserve. But the key thing is that they are cheap. What people really want is a quick decision by the best person available and that’s really what a tribunal would do.

Simon Singh insisted that public opinion, much of it voiced over social media, is helping defence against a defamation writ from the British Chiropractic Association, which he refered to as "two years of hell".

Tait argued that a severe cut in lawyers’ success fees, which in no-win-no-fee "conditional fee arrangment" cases often double costs for defendants, risked removing the incentive to take on difficult cases.

Leigh closed the debate on a cautionary note for journalists, saying that the press was also responsible for problems surrounding libel in the UK:

Unless we put the newspaper house in order it is very difficult to move the debate on libel reform further forward. covered the evening and you can read its coverage here and here.