As a media defence lawyer, I spend a lot of my time advising clients who wish to publish contentious material – typically articles, books or podcasts that contain damaging allegations. The client generally believes the allegations are true or at least supported by sufficient evidence to make publication in the public interest, both of which are defences to libel.
Of all the advice I give pre-publication, it is explaining the costs of defending a libel claim that is the most sobering for the media. Regardless of how rigorously a story has been investigated or its importance to public debate, understanding how ruinously expensive fighting media litigation is can make the most battle-hardened journalist pause for thought. Punches are pulled and important stories are “spiked” altogether. Sometimes this is right, but often it is a public disservice. It stifles legitimate debate.
With the benefit of hindsight, it is clear there should have been more public scrutiny of the increasing prevalence of Russian oligarchs in British public life, the rumours swirling around Jimmy Savile and the corners being cut in the construction industry prior to the Grenfell Tower disaster, to take three salient examples.
Litigating in our media courts is now unaffordable for all but the wealthiest. While no two claims are alike, it usually costs more than £1m to take a defamation claim to trial and often considerably more. The process is drawn out, complex and obtuse, often involving several procedural hearings before trial that are each expensive to fight. The rule that the winner gets their legal costs from the loser means that fighting a claim to trial ends up exposing each side to a costs bill of well over £2m.
A case I defended to trial last year found that the claimant had concocted evidence to mislead the court, but that has not stopped the claimant seeking more than £3m in costs in relation to defences abandoned after my client ran out of money. A dishonest claimant can bankrupt an honest defendant just by bringing litigation, irrespective of the outcome.
The cost barrier to accessing our media courts leaves ordinary people helpless when their reputation comes under attack. A client has recently informed me she feels unable to take action over a website registered in her name, maliciously and anonymously, which has killed off her online business. When our media courts are effectively out of reach to normal people, trolling carries very little risk.
Even dealing with bogus claims costs life-changing sums. So it is the extraordinarily high costs of media litigation that are so damaging for public debate in this country and internationally. When the British media struggle to afford the cost of accessing our courts there is little prospect of NGOs, freelance journalists or the victims of online smears being able to do so.
Debate over abusive lawsuits, often referred to as Slapps – which stands for strategic litigation against public participation – reached a new pitch when claims were brought by Russian oligarchs against the British journalists Catherine Belton and Eliot Higgins. The claimants were either sanctioned at the time or have since been. The invasion of Ukraine and subsequent backlash against Russia spurred the government into action, and thanks to reforms in the Economic Crime and Corporate Transparency Act 2023, it should now be easier to strike out or obtain cost protection against bogus or abusive claims – but only when the dispute concerns alleged economic crimes. Statements from both the government and Labour suggest political support for a wider anti-Slapp law in a similar vein.
However, without tackling the heart of the issue – the exorbitant costs of media litigation – our system will always be open to misuse by those with the deepest pockets. As a result, what we read and debate will be disproportionately influenced by what the media can afford to publish.
The challenge of reducing the costs of media litigation is significant but far from novel. The legal system has tackled similar challenges of litigation becoming far too expensive, forcing a rethink in order to protect the wider public interest. Learning from these examples is an obvious and low risk way to make media litigation more affordable and accessible.
The Intellectual Property Enterprise Court (Ipec) provides a streamlined and cost-capped process for simpler intellectual property claims worth less than £500,000. Once a case is allocated to the court, the successful party can recover no more than £50,000 from the losing party, which means smaller businesses accused of trademark infringement can defend themselves without fear of insolvency. The barrister Sarah Palin last year called for the introduction of a “media and communications public participation court” inspired by Ipec. It is an idea worth exploring further.
Similarly, the English employment tribunal system resolves complex and fact-sensitive disputes for a fraction of the cost of high court media litigation. While far from perfect, the tribunal system has been built to allow former employees without an income to access it while also not burdening business with ruinous legal costs. The system is built with public policy considerations at its core.
If these courts have found ways of improving access to justice and reducing costs, our media courts must do the same. Government should seize on the momentum around the issue of Slapps and develop processes which allow media disputes to be resolved proportionately. It is structural change of this sort that is needed to improve public debate in British life.
Rupert Cowper-Coles is a partner at RPC and an expert in defamation, data protection and privacy law
