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Lord Lester of Herne Hill: My Lords, I am extremely grateful to the noble and learned Lord for giving way. I wonder whether he is aware that Sir Brian Neill seems to have changed his mind. In the second Goodman lecture, which he gave in 1995, as a result of the Derbyshire case, he said,
Lord Ackner: My Lords, I am most grateful to my noble friend. I have not seen that lecture, but if Lord Justice Neill has changed his mind I certainly have not changed mine. I find the reasoning that he provided wholly persuasive and thoroughly sensible as it reflected my own view even before I came to read it.
The only other matter to which I need draw attention is one on which the Minister may wish to reply. It concerns the Rehabilitation of Offenders Act 1974. That restricts what may be made public about a person's spent conviction or convictions. Although such restrictions do not apply to prevent a defendant from relying on any defence of justification, fair comment or of absolute or qualified privilege, they do restrict the matters that he or she may be permitted to establish in support of the damage aspect. The Bill makes no reference to it, but it would seem that Section 8(3) of the 1974 Act will have to be amended to allow evidence to be called of misconduct or reputation which relates to a spent conviction or convictions. Accordingly, a provision disapplying Section 8 of the 1974 Act in places falling within Clause 11 of the Bill may be the appropriate solution. With those comments I merely add that otherwise I commend the Bill.
Lord Bethell: My Lords, it is very seldom that your Lordships' House fails to come up to expectations and this afternoon is no exception. We have listened to a number of extremely germane and interesting contributions to this Second Reading debate, the majority of them from advocates or judges, but also one from a member of a libel jury. I hope noble Lords may find it interesting if for a few moments I say something from the point of view of the litigant, having myself been involved in three libel actions, twice as the plaintiff and once as the defendant.
I should point out at the outset that all three experiences were extremely disagreeable. They were bad. I am not sure which is worse. Perhaps one should say, in the words of Joseph Stalin in another context, "Both are worse". It is a traumatic experience to be involved in a libel action unless, of course, one is a member of the legal profession acting in a professional capacity. That is why I welcome the Bill before your Lordships' House, because it does something to try to simplify the proceedings that make the life of the defendant and the plaintiff so very difficult for a number of months or even years that the case is in operation.
Under the present system, one is forced to use a sledgehammer to crack a nut. Much will be done to put that right under Clauses 2, 4 and 8. A plaintiff endeavouring to get to a certain destination--I mean, the clearing of his name--finds that the only vehicle that will take him there is the Rolls-Royce of the English law on defamation. I believe that he would usually prefer a humbler and less expensive vehicle to get him to the same destination, although I must point out to the noble
I should like to mention first the case in which I was clearly at fault when unintentionally I libelled the trade union leader, Mr. Alan Sapper, on the radio. Having done that and having ascertained that I was mistaken, I was of the view to apologise immediately. Those were my instincts, but I was advised by legal advisers that it would be an unwise thing to do because to apologise immediately might give ammunition to an opponent who was already threatening legal proceedings and who might be angry. I am happy to say that in the end the matter was disposed of reasonably amicably by the paying of a small amount into court which the plaintiff accepted. There was no guarantee that he would accept and we could have found ourselves on a collision course of mutual assured destruction which is so often, sadly, the role of both plaintiff and defendant in libel actions.
Had Clauses 2 and 4 of this Bill been in effect when that occurrence took place, I would immediately have made amends and I believe that it would have been possible to settle the matter within a few days. In the event, it dragged on for many months and cost a large sum of money--not in the amount paid into court, but in legal expenses.
A number of comments have been made about the perils that lie before a plaintiff in a libel action, most notably by the noble and learned Lord, Lord Hoffmann, whose maiden speech I also found extremely interesting, and to whom I believe many people in public life and outside will be grateful in the future for his contribution and his suggestion for simplifying libel proceedings by the establishment of a "fast track", an idea which I support most warmly.
I return to the problem of someone who is seriously libelled, as I was in 1970. One is then between a rock and a hard place in that the world outside which only dimly understands such a problem will immediately say, "If there is no truth in this allegation against Mr. X, why is he not taking legal action?" The reason may well be that the funds are not there. As was pointed out to me at the time, the test of who has the more money in the bank is often more important than who has the stronger case. The defendants in that case made it quite clear that they would do everything possible to invoke the delays of the law and to up the costs as much as possible in the hope that the money, the time or the patience would run out. That is not a difficult thing to achieve when the plaintiff is under great pressure in the sort of circumstances that I have described.
Another point that has not been made this afternoon is that while a plaintiff is fighting his case, the defendant will see it as his right--indeed, his duty--to do everything he can to besmirch the plaintiff's reputation. If he can succeed in that, he may very well win his case. Under the
I can think of many cases where that has happened. One, of course, was the famous case that dragged on for many years, if not decades, of the Czech pilot of the plane in which Prime Minister Sikorski of Poland was killed in 1943. The pilot was accused of crashing his own plane to kill a passenger on board, a manifestly absurd allegation, but it took very many years before anything was done to exonerate the pilot.
There is a case, the merits of which I shall not go into, which is being fought at the moment of an American journalist, originating in Yugoslavia, who is suing Time magazine over allegations made about him which resulted in the loss of his job as a journalist. Again, the rich corporation which is the defendant in the matter has made it clear that it will do everything it possibly can to take the matter to the highest court in the land, or indeed beyond, to ensure that the plaintiff runs out of money, and does not pursue it. That is Russian roulette or high-stakes poker, and the private citizen is in a weak position when he tries to protect his own reputation.
We must face the fact that only a few people at present have the chance to bring a case of libel, and to see it through to the bitter end. It usually is a bitter end. One does not have to go into the merits of the case of my noble friend Lord Aldington to see the grave effects that it had on him, even though he won hands down and his reputation was cleared. He did not, of course, get back his money. He won his reputation but not his money.
Many people never recover emotionally or professionally from having been libelled. I therefore welcome the fast-track approach put forward in the Bill. My only question which I hope my noble friend the Minister may be able to address is: what will be the cost? Will it be possible to estimate the cost that can be put at the door of a plaintiff who voluntarily goes to this fast-track solution? Since the costs of the fast track are expected to be reasonable, there might be a case for granting legal aid for a plaintiff in such a situation. One of the criteria for granting legal aid should be that the plaintiff has no alternative but to go to law. It is not so much the merits or the strength of the case but the fact that the plaintiff has to go to the courts if he is ever again to have a reputation, to find employment or to recover. Such a plaintiff may be in a position similar to a piano player who loses a finger or a footballer who breaks a leg. The effect of a serious libel can be devastating.
In conclusion, I agree with all those who have said that a public interest defence to a libel allegation would not be appropriate in this Bill. I hope that the Government will resist it. The American analogy has been put forward by lobbyists and by the newspaper industry. I would prefer to move in the Continental
Lord Simon of Glaisdale: My Lords, perhaps in the gap I may raise one point of which I hope the noble Lord has been given notice. It relates to gagging writs. They are generally felt, and especially recently, to shut out information which if it had been published would have precluded a great deal of loss and scandal. I suggest that we might learn something from the jurisprudence relating to patents.
Formerly, a powerful corporation owning valuable patents would readily issue a writ for infringement in the hope of frightening off a rival, newly-registered patent. That was felt to create such wrong that the law was changed and it is now actionable to issue such a writ without reasonable cause. Unless reasonable cause is shown, damages may accrue to the person against whom the patent infringement risk is issued. Might we not consider that in the context of gagging writs of defamation?
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, I am grateful to all those noble and often learned Lords who have spoken in support of the Bill. I must begin by reiterating the remarks made by my noble and learned friend the Lord Chancellor thanking the noble and learned Lord, Lord Hoffmann, Lord Justice Neill and the other members of the working group for the immensely valuable work that they have done in enabling us to bring forward the Bill now to make substantial improvements to the law of defamation in the United Kingdom. We have had two maiden speeches today. In its own way, each has been an ornament to this debate.
The improvements to the law of defamation which we are bringing forward have been subject to full consultation at different stages in their development. I wish to mention in particular the most recent consultation; my noble and learned friend the Lord Chancellor invited views on the detail of the drafting and on the clarity of structure and presentation. As we had hoped, the response was both enthusiastic and constructive, enabling us to resolve some minor doubts and difficulties which might otherwise have arisen.
Like most law reform Bills, this Bill is not party-politically contentious. But as we have heard today, even law reform Bills may contain provisions which are contentious at a technical level. I should like to deal with some of the points which have been raised during the debate and I shall do that in the order in which they appear in the Bill as drafted. I shall then deal with other points that I have not covered specifically.
The noble Lord, Lord Lester, asked about the application of the provisions to Internet service providers. In the notes accompanying the draft Bill, published for consultation in July 1995, we invited views as to whether it would be helpful to introduce legislation clarifying any doubts as to when and where publication has taken place when computer networks are used. Those who responded were strongly in favour of legislation and several offered detailed models. However, it would not be right to attempt legislation without full consideration and consultation on all policy issues arising in the context both of defamation law and diverse other areas of law relevant to the use of those networks.
The noble Lord, Lord Williams, gave examples of plaintiffs who had good reason for deferring the commencement of an action. The court will have discretion in all the circumstances so that such plaintiffs may be better off than under the existing law.
The noble Lord, Lord Lester, raised a point which had been drawn to his attention by the noble Earl, Lord Mar and Kellie, about the scope of Clause 7. If the noble Lord refers to Clause 18, he will discover that it is specifically excluded from application in Scotland. I hope that that answers that question.
There was a considerable amount of debate about what I might describe as "the noble and learned Lord, Lord Hoffmann's baby"--the summary procedures. I should be interested to know what other useful ideas have been conceived at the dinner table of the late Lord Rothschild. It seems particularly apposite that it is at the birth of his own "baby" that the noble and learned Lord makes his maiden speech. Indeed, I am mightily impressed by the noble and learned Lord. It had never crossed my mind to turn from the Dispatch Box to the noble and learned Lord, Lord Ackner, when he interrupted me, and to look at him with a mien of pity and incredulity.
As regards the recommendations against summary procedures made by the Neill Committee, we believe that the provisions as revised in the Bill overcome the general criticisms of the summary procedures as originally drawn. We have consulted Lord Justice Neill and members of his working group. We believe that he is content that his concerns have been met.
As has been said, those provisions have been welcomed warmly by many people who have experience of libel litigation, including judges with very great experience of trying the claims, both with and without juries. We believe that they fulfil a very real need and will be exceptionally beneficial for those people whose reputations have come under attack and
Plaintiffs in defamation cases frequently say that all they really wanted was swift vindication and a prompt public recognition that they had been wronged. That will now be possible. When the court decides that the claim is suitable for such summary disposal, the whole procedure will be much quicker and cheaper than an ordinary trial. Where it is not appropriate, the parties will be made to define and clarify the issues between them much sooner than they do at present and that must all be for the good.
Reference was made by a number of speakers to damages and the Faulks Committee's recommendation that the role of the jury in assessment of damages should be reduced. The Law Commission is examining that matter and the remedy of damages and has recently issued a consultation paper on non-pecuniary loss. It has considered the Faulks recommendation but the commission's provisional view--and I emphasise the word "provisional"--was that it was not workable.
After dealing with the question of damages in general, we then moved into the jury room with the distinguished maiden speech of the noble Lord, Lord Grantley. As I listened to the noble Lord's speech, it occurred to me that he was managing to reach those parts of the judicial process that both lawyers and Members of your Lordships' House do not normally manage to reach. It was particularly interesting to have that insight from the other side of the veil.