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Despite claims to the contrary, CFAs did not help free speech in BCA v Singh

February 28, 2011

Lord Jackson’s Review of Civil Litigation Costs was published in January 2010 . It applied to legal costs across the board, which obviously included costs in libel cases.

Recently, there was an open consultation. However, I did not make a submission to the consultation on the Jackson Review, which closed on Monday 14th February, because I had been focusing on preparing for the draft defamation bill (which will be published before the end of March).

However, having just read the submission made by Media Standards Trust to the Jackson Review consultation, I did want to correct one point relating to my own case.

As background, you should know that the Media Standards Trust submission argues that the current CFA system has played an important role in providing access to justice in many libel cases. While I accept that CFAs are important, I believe that the beneficial role of CFAs is exaggerated and that the chilling effect of CFAs is understated. I also feel that the 100% success fee is unnecessary and damaging to free speech.

Personally, the most worrying aspect of the Media Standards Trust submission is that it names me in a list of people described as “…some of those who successfully sought protection for freedom of speech through a CFA.” The report states:

Simon Singh – the author was sued (unsuccessfully) by the British Chiropractic Association over criticisms he made about scientific claims made by the BCA in 2008. He too was able to fight his case thanks to a CFA.

In fact, CFAs offered me very little support, and potentially had a very negative impact on my freedom of speech. The reality is that I was threatened with libel in May 2008, but I did not receive an offer of a CFA until February 2009. At this stage, only one out of three members of my legal team was on a CFA. In other words, I had already run up enormous legal bills before the prospect of a CFA became a reality, and thereafter it applied only to a fraction of my costs.

A second member of my legal team adopted a CFA arrangement towards the end of 2010, but by this stage I had already had to bear a massive financial burden.

On the other hand, the British Chiropractic Association (BCA), the organization suing me for libel, adopted a CFA arrangement with its legal team at a very early stage. This had a terrifying impact on me, because I faced the possibility of having to pay double the BCA’s costs if I lost the case. Thinking back to that time, the existence of a CFA for the claimant came very close to forcing me to back down. The BCA’s CFA came very close to ending my willingness to defend my right to free speech.

I hope that this helps to clarify the situation regarding my own case and my very partial CFA. This explanation should dispel any notion that CFAs were a boon to free speech in the case of BCA v Singh.

Moreover, the Media Standards Trust submission includes a reference to Hardeep Singh, who was sued for libel by his Holiness Sant Baba Jeet Singh ji Maharaj. The submission claims: “Singh pursued his case thanks to a CFA.” However, having spoken to Hardeep, my understanding is that the offer of a CFA came only at a late stage, and that he had already run up legal bills of about £100,000 prior to the CFA. Hence, the CFA clearly did not allow him to pursue the case, but rather it was Hardeep’s own determination and resilience that enabled him to stand up for what he believes to be true. He took a major financial risk, and it is not clear how much of his money he will ever recoup.

It is quite possible that many other examples that claim to show that CFAs support free speech are not as they seem.

For a more detailed explanation of my views on CFAs, please read my previous blog on this subject. I should stress that my overall view is not to abandon CFAs or make them unworkable, but to reduce the success fee to 25%. I believe this would retain access to justice, while driving down costs and the chilling effect of CFAs.

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3 Comments
  1. johanges permalink

    Second paragraph:s/did not made a submission/did not make a submission/–jPS The twitter login doesn’t appear to work.

  2. David Allen Green permalink

    This is completely correct.

  3. Nigel Smith permalink

    Simon is correct in that most litigants run up enormous legal costs long before they obtain a CFA. This is primarily due to the problem that:a) Legal costs are artificially inflated, especially in libel cases; and;b) Lawyers can be reluctant to offer CFAs in libel claims unless their client stands a very good chance of success;b) There is no official system to resolve defamation disputes before they run up such large bills.I know that Simon had to shoulder an enormous financial burden to defend his case and the last time I spoke to him, he indicated that he had still not been compensated by the BCA. The trouble is that even though Judges award costs to the winner, they rarely award ALL of the costs, so even though you may be victorious, you still have to pay a huge price to protect your rights.CFAs accentuate the risk that a litigant is taking in continuing their legal battle and even if they believe that they are correct, the litigant knows that they will eventually have to pay something and it might be a considerable sum. Justice can be a lottery because Judges are fallible and quite often they leap to the wrong conclusion (as both Simon and myself experienced) and this leads to expensive appeals to correct the mistakes. CFAs do help where the litigant is unable to pay their costs, but they are frequently used for their chilling effect to force an opponent to back down or risk an enormous financial cost if they lose. Without CFAs, many would simply be unable to bring or defend a claim, so we cannot do without them. Strasbourg and Lord Justice Jackson has suggested that the uplift has to be fair. However, if the uplift is too low, then CFAs may not be offered and that would deny access to justice.The heart of the problem is not that CFAs help or hinder free speech, it is that the costs of libel claims are far too high and there is no official system enabling the litigant to resolve their dispute before financially crippling costs are incurred. Pre-action mediation might help resolve the majority of cases before a claim is issued. Even if it is issued, mediation (with the force of full costs if you don’t) might help the sides resolve the case before the legal bills are unmanageable or a CFA becomes necessary. However the legal profession would be against this on the grounds that they would lose the ability to levy their enormous fees.There is also the problem of litigants who are defamed by bloggers who used anonymity to protect themselves from being sued. The claimants in these cases are forced to incur massive legal bills just to find out who is attacking them. Even if they do discover the true identity of the Defendant(s), it is very unlikely that the matter can be resolved by mediation because the costs may already be higher than the Defendant could reasonably pay.CFA’s do not help Defendants defend their case any more than they help Claimants prosecute their claim. Fiddling around with the success fee will merely alter the number of CFAs that are offered and possibly deny access to justice. If you believe that Libel Reform is needed, to protect free speech, then you must also protect the rights of the people who have also been unfairly attacked and defamed. Article 10 (free speech) is equally as important as Article 8 (protection of reputation) and Article 6 (access to justice).What we need is a way of resolving defamation disputes that take costs out of the equation. I believe that mediation is the answer, not fiddling around with the CFA uplift. CFAs could not be used as weapons if the costs were not so exorbitant.A successful litigant should not be penalised by having to pay disallowed costs. Similarly, a Defendant that refuses to acknowledge their error, or the risk of costs if they continue, should be forced to pay in full. Mediation of disputes could enable both sides to resolve matters at an early stage. However, if one side is intransigent and they lose, then they ought to pay in full for the costs they force their opponent to bear.

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