Ian Hislop: defamation process is 'about fees and not justice'

The editor of Private Eye has denounced the current libel law process as being about lawyers' fees rather than justice.
Ian Hislop's accusations come as it was revealed that Peter Carter-Ruck and Partners offered a part 36 offer of settlement to the satirical magazine before the recent Condliffe trial. While not an unusual step in itself, the settlement offer was remarkable in that neither damages nor an apology was sought. The firm merely requested that its legal fees, at the time totalling £250,000, should be paid. Private Eye refused the offer.
Hislop told The Lawyer: "Libel is supposed to be about the client reputation. The costs are supposed to be the secondary part of the process, not the whole process. Justice is of no interest to anyone. Lawyers' money is the only issue."
The case centred around an article printed nine years ago accusing Cornwall-based accountant John Stuart Con-dliffe of overcharging clients.
Davenport Lyons partner Kevin Bays, who has represented Private Eye for 15 years, in which time the magazine had never won a trial, said that the offer of settlement was very strange. "I've never seen before [an offer where] someone wanted no damages or apology, but just wanted their costs paid," he commented.
As revealed by The Lawyer last week, Condliffe had negotiated a conditional fee agreement (CFA) in August with his representatives, which could have allowed up to 100 per cent uplift on fees. Peter Carter-Ruck and Partners informed Private Eye before going to court that if its client won the case, the total bill payable by the magazine would be around £1.75m, including its success fees. In fact, the case ended with Condliffe agreeing to pay £100,000 towards Private Eye's costs.
Hislop believes that CFAs in libel trials are unfair to defendants who already carry the burden of proof. Had Private Eye lost the case, there would have been a strong possibility that the magazine would have folded.
In an ultimate catch-22 situation, Hislop said he was informed by a partner at Peter Carter-Ruck and Partners - Cameron Doley, who acted for Condliffe - that if Private Eye won, his client would be immediately declared bankrupt; thus Private Eye would end up paying its own costs.
"It's incredibly unfair to the defendant," said Hislop. "The financial interests of the solicitors and barristers are tied up with the client, not with justice, and the system makes people complicit to this."
Condliffe was not insured to pay costs in the event of a defeat. Alisdair Pepper, media litigation partner at Peter Carter-Ruck and Partners, speculates that this may have been because post-event insurance for libel cases can be very expensive at the moment.
"The market has hardened against post-event insurance, particularly in libel cases," stated Pepper.
However, Hislop believes that CFAs should not be allowed in libel cases. "Why should he be allowed to gamble while the defendant is not?" he said. "The judge asked whether he was insured and Condliffe said no. If [he] won, they won, if they lost then we lost too."
Pepper was not able to comment on the amount of uplift applied in this case, but said: "CFAs are Government-regulated, and the agreement that we had would fit fairly and squarely within the regulations. They're designed to increase access to justice, and in terms of this firm's scheme, that's exactly what it does. It's enabled us to help people who would not otherwise have had access to justice."
Hislop admitted that there were times before the trial when he considered settling with Condliffe. He said: "There were moments beforehand when Peter Carter-Ruck and Partners were saying, 'You've had it if you don't fork out', and I didn't terribly want to be the one who bankrupted the magazine."