The Leader Column

There are all sorts of fun and games in the defamation world at the moment. Schilling & Lom loses Mark Thomson and gets ready to sign up Martin Cruddace from The Mirror. Swepstone Walsh comes to a sticky end. And most spectacularly, Peter Carter-Ruck and Partners gets stung when Condliffe •Private Eye – the case it handled on a conditional fee basis – collapses.
Most editors would have trouble repressing that twinge of Schadenfreude at the predicament of Peter Carter-Ruck and Partners, which has become shorthand for the vengeful claimant. The firm has been demonised by Private Eye over the years, but nevertheless has a lot of friends among opposing lawyers. (One can only conclude that the defamation circuit is a strangely small and convivial world.)
Still, most defendant solicitors punched the air on the news of Private Eye's victory. The current system leaves everyone unsatisfied, with the costs of libel cases often grossly outweighing the damages. Some of this is inevitable; libel actions are jury-driven and semantics cannot be established early on in the process. And yet the fast-track system – designed to combat this unutterably cumbersome process – has not been widely adopted. As one newspaper lawyer says in exasperation: “Because people think you get huge awards, they often feel that the £10,000 limit is not enough.”
It's hard to generalise about Condliffe, though; not only was it an old-fashioned sort of libel case (ie a non-celebrity claimant), but there was no jury. But it does open up yet another debate on conditional-fee agreements (CFAs). Claimant lawyers may talk about access to justice, but one wonders whether CFAs are actually appropriate in defamation, where the burden of proof is on the defendant right from the start. Ian Hislop, with customary rhetorical flourish, talks of justice, and his arguments about CFAs in libel cases are certainly compelling (although let's not forget that Condliffe went on to a conditional fee basis relatively late in the day). By any measure, it is a lot harder to do a deal with the claimant when you have to factor in lawyers' costs as part of the base equation.
Publishers are often subjected to the old claimant bullying-via-settlement trick. It's a tribute to Private Eye and Kevin Bays of Davenport Lyons that they held their nerve on this one. This time, we have no bananas.