UK Media Calls For End To CFAs For Libel Cases

by Robin Pilgrim, LawAndTax-News.com, London

30 September 2003

Responding to the UK government's consultation on conditional fee agreements (CFAs), media representatives have argued that the 'no win, no fee' agreements are often abused in libel cases, and are beginning to pose a significant threat to investigative journalism and press freedom.

In a report on the subject, the Guardian revealed that although a cap on damages payouts introduced by former Lord Chancellor, Lord Mackay presented a temporary solution to the media's woes, the disproportionate costs which can be charged by lawyers working under CFAs are proving to be crippling for the defendants in libel cases.

CFAs were created in 1990 to fill the space left by legal aid, and were extended to apply to libel cases. As this type of litigation is more risky, lawyers in such cases are permitted to charge a 'success fee' on top of their costs.

Initially, this was capped at 25% of any damages awarded, but following government legislation enacted in 2000, success fees can be up to 100% of costs, and are payable (in addition to costs) by the defendant, placing an increasingly large burden on the shoulders of newspapers and other media.

In addition to the disproportionate size of the success fees charged in libel cases, it has been suggested that CFAs are being entered into by complainants well able to afford to pay a lawyer, and that legal professionals are charging unnnecessarily high costs, reasoning that the deep-pocketed newspapers will be paying them rather than the client.

According to the Guardian:

"The third and most worrying implication for newspapers under the agreement is what is becoming known as the 'ransom factor': the fear that the potential size of costs may persuade the press into settling on a case which should be fought."

Speaking to the newspaper, head of legal affairs at the Trinity Mirror news publishing firm, Marcus Partington condemned the action of celebrities such as radio DJ, Sara Cox and supermodel, Naomi Campbell, both of whom launched high profile privacy suits against UK newspapers using CFAs.

"CFAs were intended by the Government to give access to justice. Listen to the words: access to justice. These cases are being brought by individuals who clearly have the means to pay their own way, and for them and their lawyers to use CFAs is disgraceful," he concluded.

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