Carter-Ruck defends 1849 libel rule against reform campaigners

16 November 2009 | By Catrin Griffiths

That lunchtime was the launch of a ­campaign on libel reform by Index on Censorship and English Pen. Given that Carter-Ruck had been the subject of media ­opprobrium over its work seeking a super-injunction on the Trafigura case, Tait and Martin’s appearance was, as Index on ­Censorship’s Jo Glanville says, “brave”.

“Well, we were invited,” counters Tait. “Though it was a bit like putting your head in the lion’s den.”

The personal relations may be civilised, but the debate around the issue of libel reform is anything but cordial. Over the past year newspaper groups, publishers and human rights ­campaigners have been calling for reform of the English system, which they argue has created a pernicious market for libel tourism whereby claimants with virtually no ­connection with England are bringing cases in London.

As might be expected, the campaign has the explicit backing of senior ­newspaper lawyers such as Harvey Kass of Associated Newspapers, Alastair Brett of The Times and Gill Phillips of The Guardian, along with prominent media lawyers such as Finers Stephens ­Innocent partner Mark Stephens.

Ranged against them are the big guns of claimant lawyers. Schillings senior partner Keith Schilling declined to ­comment for this article, but Carter-Ruck’s Tait is outspoken. “We have a vicious, ­aggressive press here,” he says. “It’s all great - until someone writes something false about you. As a general point almost every reform in this area of the law over the last 20 years has driven up costs and created work for lawyers. The exception to this is the Offer of Amends defence, which in my view has proved a resounding success.”

The campaigners are seeking 10 basic reforms to libel law and practice in this country (see column). The recommendations include the argument that the Duke of Brunswick rule (based on an 1849 case, which holds that multiple publications of the same story means multiple libels) should be abolished and instead a single publication rule be ­introduced, as in the US. In the US this rule means there is only one act of ­publication, which is when a story first appears, and only one locus of action - the place of publication. Four years ago the Department for Constitutional Affairs (now the Ministry of Justice) said it was looking into reviewing that law, but nothing has yet happened.

“This is a law that is so out of date that it didn’t just miss the internet ­revolution but the first revolution in mass ­communication,” argues Index on ­Censorship’s Glanville. “It’s ridiculous that every hit on a [web] story ­constitutes a fresh libel. There’s a groundswell and a desire for change.”

Tait counters: “There are good ­reasons why it should be preserved, with some minor adjustments. We know of cases where a damaging libel hasn’t come to a client’s attention for over a year since first publication, or where the ­defendant behind the first publication was not worth suing.”

However, Tait softens his stance ­slightly on other points made by the ­campaigners. Index on Censorship argues that London has become an ­international libel tribunal and that no case should be heard in this jurisdiction unless at least 10 per cent of the copies of the relevant ­publication have been ­circulated there. “Many countries in the world do not offer fair trials, particularly for opponents of the regime,” Tait replies. “I do, however, think it would be sensible for Parliament to look carefully at libel tourism given the frequent ­criticisms that are being made.”

Similarly he agrees with Index on Censorship’s charge that there are few viable alternatives to a full trial. “I think the idea of libel tribunals for some cases, particularly involving the internet, is a good one,” he says. “I doubt, however, that the Government would be prepared to fund the cost.”

Index on Censorship and English Pen’s recommendations - and Carter Ruck’s responses:

1. In libel, the defendant is guilty until proven innocent

We recommend: Require the claimant to demonstrate damage and falsity

Tait: It is very difficult  (and costly) to prove a negative. It makes sense that the burden of proof should be on the defamer. It is also proposed that a claimant should have to  prove damage but in the vast majority of cases this is impossible. Such a reform would amount to a licence to defame.

2. English libel law is more about making money than saving a reputation

We recommend: Cap damages at £10,000

Tait: Libel damages are  often quite substantial because of the way that the defendant has conducted the case. If libel damages were capped at £10,000 there would be no suitable sanction for  libel, for misbehaviour or for a failure to apologise. In most media cases compensation would be completely inadequate if it were capped at this level. I have no doubt that such a cap would encourage the publication of false stories for profit reasons.  

3. The definition of ‘publication’ defies common sense

We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule

Tait: The Government are currently looking at the single publication rule. However, there are good reasons why it should be preserved with some minor adjustments. We know of many cases where a damaging libel has not come to a client’s attention for over a year since first publication or where the defendant behind the first  publication was not worth suing.

4. London has become an international libel tribunal

We recommend: No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here

Tait: The suggestion that  libel has become an international libel  tribunal is a gross exaggeration. Many countries in the world do not offer fair trials, particularly for opponents of the regime.  A reasoned decision of a British Court still commands respect. I do however think that it would be sensible for Parliament to look carefully at libel tourism given the frequent criticisms that are being made.  

5. There are few viable alternatives to a full trial

We recommend: Establish a libel tribunal as a low-cost forum for hearings

Tait: Libel cases are too expensive and I think the idea of libel tribunals for some cases, particularly involving the internet is a good one. I doubt however that the Government would be prepared to fund the cost.

6. There is no robust public interest defence in libel law

We recommend: Strengthen the public interest defence

Tait: The Court already takes into account restrictions on a  journalist to take the steps that may be required of a responsible journalist. However, the idea that journalists and others should be allowed to publish statements which they believe to be true and in the public interest is all very well, until the statement  turns out to  be false. It is not in the public interest for false and damaging statements to go uncorrected, no matter what the journalist believed at  the  time.

7. Comment is not free

We recommend: Expand the definition of fair comment

Tait: Although unpopular with certain sections of the press, Mr Justice Eady has actually clarified and strengthened the defence of fair  comment on a case by case basis.  English law recognises that comment is free, but facts are sacred.

8. The potential cost of defending a libel action is prohibitive

We recommend: Cap base costs and make success fees and ‘After the Event’ (ATE) insurance premiums non-recoverable

Tait: I do agree that the potential cost of defending a libel action is in many cases prohibitive.  Carter-Ruck recommended that costs budgeting should be introduced into this area of  law, as it  has been from 1 October, and in common with most other lawyers, we back firm case management to keep control of costs and to maintain a  level  playing field between the parties.

9. The law does not reflect the arrival of the internet

We recommend: Exempt interactive online services and interactive chat from liability

Tait: I would very much welcome a debate on how our laws could be amended to reflect the arrival  of the internet but the damage caused by an anonymous posting in some cases should not be underestimated.    

10. Not everything deserves a reputation

We recommend: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood

Tait: It  makes no sense to me that a large British company, which is damaged by a  libel and might  have to lay off employees as a result, should not be allowed to sue for compensation or clear its name.