“The costs themselves are the chill” - SLAPPS and the case for a Media and Communications Public Participation Court

A fair and accessible justice system, and an active and inquiring media, lie at the heart of our democracy. Ensuring that every citizen has recourse to  civil litigation, where appropriate, is part of a just society.

But if you were sued for something you said or wrote, would you bet your house on your defence succeeding? That is in effect what the law requires of investigative journalists, seeking to expose corruption, terrorism funding, or the activities of kleptocrats. No wonder, then, that journalists of the calibre of Tom Burgis, author of ‘Kleptopia: How dirty money is conquering the world’ and Catherine Belton, author of ‘Putin’s People: How the KGB Took Back Russia and Then Took on the West’ are complaining. Yes, there are substantive defences at their disposal. But the sheer scale of the cost they are at risk of paying, in prosecuting those defences to trial is intimidating many journalists, academics and NGOs and stifling much serious public interest journalism. This is of especial importance in the fight against corruption and terrorism funding, where fearless reporting often exposes information which is in the public interest to expose. It is simply unacceptable that proving a book, article or documentary is defensible as a publication on a matter of public interest should cost anyone £1m, or even half that figure. Whatever the merits of the different defamation cases against Belton and Burgis, the media must be free to examine the rich and powerful without fearing the chilling effect of prohibitively expensive legal action.

Much has been said about whether these defamation actions were “strategic” or “lawfare”, brought not to vindicate reputation, but to harass and intimidate the publishers into withdrawing the books from sale. But any reform which has as its focus a “judicial trek through the quagmire of mixed motives”, as one judge memorably put it, so as to justify so harsh a judgment as ascribing to the claimant a motive other than that which they are publicly asserting, will be of little practical value. Where a claimant has an apparently proper cause of action, it is only in the clearest and most obvious case that it would be appropriate to prevent them from taking it to trial, by striking out the proceedings at an early stage. It is telling that no defendant in any of the recent high profile SLAPP cases sought to strike out the claims under the existing Wallis v Valentine [2002] EWCA Civ 1034 jurisdiction. That applies where the claimant misuses the court’s process, conducting the proceedings “not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation” (a definition of a SLAPP which can hardly be bettered). Nor did they apply to strike out the claim under the “serious harm” threshold introduced by section 1 of the Defamation Act 2013.

That said, it is evident from the debate over SLAPPs that urgent reform is needed to curb the inhibitions on “public participation” and, in particular, the ability of journalists, academics, campaigners and citizens generally to participate in the discussions and debate which shape the public life of our society.

Firstly, as Burgis pithily put it in his evidence to the Foreign Affairs Committee “The costs themselves are the chill—[they] are the weapon”. The rule that a defendant must pay the claimant’s costs if their defence fails represents the most pressing issue. Its operation deters journalists, academics and NGOs from publishing on matters of public concern, by the very considerable financial risks involved. Our democracy is the poorer for it. Promoting access to justice, and discouraging SLAPPs, go hand in hand.

Secondly, unfair psychological and financial pressure is being brought to bear by suing journalists personally. This is aggravated by the making of groundless accusations of bad faith (or “malice”) against them.

Thirdly, social media has made us all publishers in the eyes of the law. People who are not professional media publishers are exposed to defamation actions in a new and unprecedented way. Increasingly, complaints are made about what someone has said online. Those who wish either to bring or to defend themselves against defamation proceedings - and who are not married to Premiership footballers - are left trying to persuade specialist lawyers to represent them, either pro bono (for free) or under discounted rates.

Is the IPEC a model for reform?

Intellectual property (“IP”) is a field where, similar to defamation, inequality of arms means that there is a real prospect of a better funded opponent being able to bring unfair financial pressure to bear.

The Chancery Division’s answer has been to develop The Intellectual Property Enterprise Court (“IPEC”), which provides a highly streamlined procedure for intellectual property cases. Small and medium enterprises and individuals, or larger enterprises with smaller matters, can use it to resolve their IP disputes. IPEC’s purpose is to improve access to justice through lowering the costs of litigation, increasing the certainty of costs exposure and speeding up resolution of claims.

To achieve this, cases in the IPEC are subject to a truncated procedure and are robustly managed by specialist IP judges. Costs orders are made which are proportionate to the nature of the dispute and subject to an overall cap of no more than £50,000. Litigants might regard the inability to recover their costs above the cap as a disadvantage, since few cases are so simple that a party’s own legal costs can be kept to the recoverable limit. But the popularity of IPEC demonstrates that this is often countered by the fact that the risk on costs is known and limited.

There is a limit on the value of a claim in the IPEC of £500,000 but, as in defamation cases, claimants in IP cases are typically more interested in non-pecuniary remedies, such as injunctions and order to disseminate the court’s judgment.

The factors which determine the suitability (or otherwise) of the IPEC as a venue for an IP dispute include: the means of the parties; the complexity of the claim; the nature of the evidence; the impact of IPEC's strict controls on disclosure and cross-examination on conflicting factual evidence; the value of the claim and whether the trial can be dealt with in no more than two or three days. In deciding whether a case is suitable for the IPEC, the court will take into account whether there is a risk of a better funded opponent being able to bring unfair financial pressure to bear, should the case be heard outside the IPEC.

Advantages of the IPEC model

If the government and judiciary were to develop a similar capped cost list within the Media and Communications List (MACL), it would offer the following advantages:

• A party with limited financial resources (whether a defendant facing a very wealthy claimant or a claimant facing a large, profitable publisher) would be able to rely on their means, the low value of the claim and its modest complexity to persuade a court that it was appropriate for the simplified procedure available in that list. This would give them the certainty of a fixed maximum amount they would have to pay, if unsuccessful. For example, a claim against an MP in respect of a letter to their party chairman, raising concerns about the background of a potential donor, where the merits of a defence of qualified privilege at common law were strong, would be an obvious candidate for the capped cost list.  
• It would deter wealthy claimants from suing individual journalists, with the tactical aim of intimidating the individual. The fact that the defendant, or one of the defendants, was an individual would be a factor the court could take into account in determining whether the case was suitable for the capped cost list.
• Although it is sometimes suggested that fixed recoverable costs favour defendants at the expense of claimants, it is generally just as much in a claimant’s interests to control the costs that they might have to pay. Access to justice would be enhanced if claimants were able to contemplate proceedings with an informed assessment of the likely costs, rather than avoid them altogether due to a fear of an uncertain, but most likely very high,  liability.
• Improving access to justice for “ordinary” people would also have a salutary effect on those publishing anonymously, in order to avoid being sued.
• Like IPEC, the MACL capped costs list could have a small claims track, to allow for an even cheaper regime for very simple cases in which the compensation sought is no more than £10,000.

Cost capping orders for publications on a matter of public interest

As Belton and Burgis attest, the utility of the public interest defences developed to recognise a special form of privilege for the dissemination to the public of information on a topic of real public interest or concern is illusory if the risk of an enormous costs bill is too great. Defences such as publication on a matter of public interest under s4 of the Defamation Act 2013, court reporting privileges, or the new defence of a fair and accurate summary of a peer-reviewed article in an academic or scientific journal under s6 of the Defamation Act 2013, are of little practical use if they are too expensive to run.

This gives rise to the question whether the costs of defending these “public interest” publications should operate differently from costs elsewhere in the High Court. Does the public interest in those publications mean that those who publish them should be protected from the normal risks associated with civil litigation?

In other areas of law, cost capping orders are used where there is a principled need to protect the litigant against oppressive adverse costs orders. In judicial review cases, cost capping can take a number of forms, though usually there is a flexible cap for each side’s liability.

In recommending that a default cap should be extended to all judicial review claims in 2017, Sir Rupert Jackson drew an analogy between the availability of judicial review and importance of a free press: “the ready availability of judicial review proceedings in which public bodies are held to account for their actions and decisions, is a vital part of our democracy. Both judicial review and a free press are, in their different ways, bulwarks against the misuse of power”. This would suggest that both mechanisms for holding power to account should be similarly protected.

Any extension of fixed costs would have to coincide with a modification to the existing Civil Procedure Rules (CPR) processes to ensure a fair balance between the demands of the courts as to what is reasonably required to pursue a case to trial, against a set of staged capped costs.

The public interest defences do lend themselves to a separate and streamlined procedure as save in unusual circumstances the focus is narrow. The question of what qualifies as a matter of public interest is well-understood, and as Nicklin J stated in Hijazi v Yaxley-Lennon [2020] EWHC 3058, “unlikely to require protracted investigation”. There is likely to be substantial cross-examination of the defendant’s witnesses, particularly in respect of a s.4 defence. But, as Nicklin J recently observed in Harcombe v Associated Newspapers Ltd [2022] EWHC 543 “experience tends to show that many s.4 defences are tried in a couple of days. There are likely to be relatively few witnesses. The issues to be resolved would mean that it is very unlikely that the Claimants would have to give evidence. Save in unusual circumstances, in most cases a claimant is unlikely to have any relevant evidence to give in relation to a s.4 defence.”

Introducing a streamlined procedure for the determination of these defences would also strengthen their practical use. Too often journalists are subject to rigorous cross-examination in respect of decisions made under a tight deadline over 2 or 3 years earlier, adding to the uncertainty.

Cost budgeting in media claims has been in place now for nearly a decade, but is failing to deliver effective control over the costs of these defences. The evidence of Burgis and Belton suggests that the time has come to introduce a policy-driven figure for the resolution of these defences, so as to promote both their utility and access to justice for individuals and small and medium-sized publishers, who may otherwise be unable to litigate them. Capped costs at each stage would need to be set at realistic levels, so as not to have a severe effect on access to justice for claimants (although some adverse effect is the price of a free press), and be optional for defendants (so a defendant can decide to seek to recover all of their cost, but will be exposed to full costs risk if they are unsuccessful). Under the existing regime, litigants at least know that, if successful, they will recover their reasonable and proportionate legal spend back from the losing party. In a fixed costs regime, the sums recoverable will amount to no more than a contribution towards the reasonable and proportionate costs, with the result that shortfalls in expenditure will arise.

Fixed recoverable costs in media cases

In September 2021 the Government confirmed that it will implement Sir Rupert Jackson’s proposal to expand fixed recoverable costs to a new intermediate category of claims where the claim is for damages of no higher than £100,000; the trial will not last longer than three days; and where the case can be justly and proportionately managed under an expedited procedure.

Sir Rupert considered that “wider factors involved in the proceedings, such as reputation or public importance” could make the case inappropriate for allocation as an intermediate case, but notably media and communications claims were not included in the list of claims the Government confirmed will be excluded from the fixed recoverable cost regime.

While this has left open the possibility that lower value, simpler MACL cases could be subject to a fixed recoverable costs regime, media and communications claims form a vast and inhomogeneous class, ill-suited to a grid of fixed costs. This is but one of the reasons why the specific problem of access to justice in media and communications claims calls for a bespoke solution.

The confluence of shrinking newspaper budgets, the emergence of a global class of oligarchs and kleptocrats, and social media making publishers of us all, means that claims in respect of publication of information - via the media or online - is the area where the civil justice system is failing most conspicuously to meet the needs of the public. Perhaps the government and judiciary should look to IPEC and a ‘Media and Communications Public Participation Court’ as a model to reflect the right balance between the conflicting interests in play.