Review of the year 2003: Making the libel bar take sides

Lawyers for the major newspapers put the wind up the libel bar with their proposal to stop barristers they instruct from acting against them.

The Lawyer revealed in October that in-house lawyers from three of the four major tabloid groups and one broadsheet were proposing that barristers who act for them regularly should not act against them for several months after a case. Some were even suggesting that the libel bar should be split along claimant and defendant lines. Associated Newspapers and Northern & Shell were among those understood to have supported the idea.

The news sent libel barristers – already surviving on slim media pickings – into a flap. Several wrote strongly-worded letters to The Lawyer in defence of the current system.

In a co-written letter, One Brick Court head of chambers Richard Rampton QC and 5 Raymond Buildings heads of chambers Desmond Browne QC and Adrienne Page QC said the scheme could lead to newspapers preventing the best barristers from acting against them.
“The purpose of the cab-rank rule is to ensure that everyone is entitled to their full choice of the bar,” they wrote.

But Associated Newspapers legal director Harvey Kass defended the idea, saying: “Clients shouldn’t feel inhibited when taking advice from counsel. Barristers we work with constantly profile the opposition when advising us. It can’t be right for insights gained in advising us to be used against us.”

The fracas shone a rare light on the function of
the cab-rank rule and the issue of conflicts at the bar.
In his 3 November Leader column, deputy editor Matheu Swallow cast the dispute as a battle of principles – the cab-rank rule on one hand, with conflicts on the other.

Swallow said:“The cab-rank principle is definitely worth fighting for. However, in its current form it doesn’t sit altogether comfortably with the rules – and the sentiment – on conflicts and client confidentiality.”