The ban on legal aid for defendants in libel cases needs to be overturned after McLibel

Eleven years ago I got a telephone call from Doughty Street Chambers human rights lawyer Keir Starmer, who told me about the McLibel case. I found what Starmer told me very troubling and agreed with colleagues to work with him on a pro bono basis to give intermittent advice and assistance to Helen Steel and David Morris, who were defending themselves against the might of McDonald’s corporate and legal muscle. It turned into the longest trial. Ever.

Steel and Morris had failed in what was then the commission of the European Court of Human Rights in relation to the lack of legal aid for libel.

The rationale for having no legal aid for libel has always struck me as being anomalous and inappropriate, particularly where defendants are concerned. Defendants do not choose to be sued, but they do choose to defend themselves, and an inequality of arms between claimant and defendant can lead to a capitulation and a false vindication. Indeed, a false vindication occurred in the McLibel case. It is little known that McDonald’s began by suing six individuals, four of whom capitulated and apologised for things published in the leaflet, which was later found by Mr Justice Roger Bell (as he then was) to have been defended properly by Steel and Morris as being true.

This offends against notions of justice and fair play and was only exposed because Steel and Morris refused to be browbeaten into submission.

It now seems inevitable that the Government will have to change the law relating to legal aid and libel.

The origins of the ban on legal aid for libel are revealed in the 1948 parliamentary debates over the Legal Aid Act, when concerns that public funds would be used on “frivolous, over-the-garden-fence defamations” were voiced. Nobody would differ from that view, but this of course was in an era before the Legal Services Commission had introduced the ‘merits’ test, which weeds out all frivolous cases.

In light of this European decision there is, in my view, no need for legal aid to be granted for claimants now that we have a no win, no fee scheme. Any reasonable case will not only attract one (or more) of the claimant lawyers who specialise in this kind of arrangement, but also be enabled by adverse costs insurance. Interestingly, it is virtually impossible to get a lawyer to take a defendant case on a no win, no fee basis, and to do so is pretty reckless, as adverse costs insurance is just not available. The insurance companies clearly know something about which way our libel law tilts.

The European Court of Human Rights (ECHR) has indicated that it is of the view that English libel law is overcomplicated and hidebound with technicality. That view must be correct. The web of technicality being spun by the libel bar around defamation cases increasingly assures those practitioners that their cosy cartel of law-making is so inaccessible to non-specialists that it is a practical impossibility to access by the litigant-in-person.

The exhortation from the ECHR to simplify UK libel law is, according to the Lord Chancellor, being “studied closely” by the UK Government – and well it might. For too long sources as diverse as Lord Denning, the Faulks Committee report (1975) and the Neil Committee (1991) have had their suggestions for reform of libel law ignored. It is well nigh time, particularly with the advent of new media and the internet, for the Law Commission to build on 2002’s scoping ‘Defamation and the Internet’ report. It needs to look again at libel and inject some measure of procedural sanity and reform into our laws so as to strike the right balance between free speech and a person’s right to a reputation.

Mark Stephens, head of media and human rights, Finers Stephens Innocent