The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • SIR CHARLES GRAY (sworn).

  • Thank you, Sir Charles. Your full name, please.

  • Charles Anthony St John Gray.

  • You have provided us with two submissions. The main one we're going to be working from today is dated 7 June 2012. You've signed and dated it. Is this your formal evidence to the Inquiry?

  • You wrote to Lord Justice Leveson on 3 February 2012, and we have that letter as well. I'm not quite sure whether it's on our Lextranet system but I'm not going to be inhibited by that.

  • For the avoidance of all doubt, Sir Charles and I have known each other for a very long time. We appeared jointly together in the House of Lords, and we were colleagues on the bench together until he decided that he'd had enough.

  • In terms of your career, Sir Charles, you were at the bar for 30 years. Your practice was increasingly in media law. You were involved in a number of extremely high profile cases as a barrister, including the Crossman diaries case, which I think was in the mid-1970s.

  • Yes, a very long time ago.

  • The Spycatcher case which went to the House of Lords, Aldington v Tolstoy which was the Lords and then I think Europe, and as a High Court judge, where you served for ten years between 1998 and 2008, you tried a number of high profile cases, including the well-known case of Irving v Penguin Books?

  • In this court, I think.

  • Now having retired as a High Court judge, you are involved in a number of areas, but in particular arbitration, mediation and adjudication.

    You're here to tell us about a company called Early Resolution, how that works, what's its objectives are, and how it can operate as an alternative to litigation.

    Can you tell us, please, in your own words how the company was set up.

  • Yes. There was a group formed, I think, by Alastair Brett, who was then the legal manager of the Times and the Sunday Times. There were several members of what you might call the media bar who were all very concerned about the way costs seemed to be going up inexorably, and we got together and formed what was called a procedure group, the Early Resolution procedure group, and it had members such as Andrew Caldecott, Robert Clinton, senior partner of a firm that did this sort of work a lot, Adrian Page and many others. The objective was, as I said in my witness statement or submission, to really achieve a system of fair, rapid and cost-effective resolution of media disputes.

    The way in which we've done that -- it may be it's fairly familiar territory, I don't know -- but what happens is that there is a panel of experts. They're either silks or some retired judges. They preside over -- arbitrations is perhaps not quite the right word, but hearings, at which a claimant who wants to go down that route can hopefully achieve in a cost-effective, rapid and relatively informal way either the vindication he wants or, if appropriate, compensation, and I think it works quite well.

  • The scheme as it operates at the moment depends on the agreement of both parties; is that right?

  • That's one of the problems.

  • We'll come to how those problems might be circumvented. But in terms of the benefit of the scheme, you make it clear that there are certain media disputes, if I can so describe the work you do, that lend themselves very readily to the scheme because of the type of issue which is at stake. Maybe there are other more limited classes of disputes which don't lend themselves so well. Could you help us please, for those of us who are not aware of the bread and butter of media law, how this operates?

  • Certainly. This may be a bit surprising, perhaps, but the meaning of what is complained of by the claimant is often at the very heart of the dispute. The newspaper will say "We published something that was really anodyne", the claimant will vigorously deny that and say "No, this is highly defamatory of me". So you get two rival contentions as to the meaning of the words, and the basic advantage, as I see it, of the system Early Resolution is now running is that it enables the silk who is on the panel or the retired judge who is on the panel to adjudicate on meaning, whether the claimant is right or whether the defendant is right, or whether some intermediate meaning may be the right one, at a very early stage.

    Once you have got that determined, so many other things are unlocked. The newspaper knows exactly what it has to prove, if it's pleading justification, for example. The claimant knows the difficulties for him if the lower meaning is found to be the right one, and he may realise that he's he going to find it difficult to prevent the newspaper proving that that meaning is true.

    So everyone knows where they stand at an early stage, and the fact is that it's not only meaning that the ER panels can deal with; they can deal with other questions, they sound a little arcane, but whether the words are statements of fact or whether they are comment or honest opinion.

    That sounds a fairly clear and obvious distinction. It's not so obvious and so clear in practice. But again --

  • Don't worry about that, Sir Charles. Having spent many months in this Inquiry, debating the difference between fact and opinion and comment is clearly at the heart of many disputes.

  • It is, it is. Once you get that decided, you know which defence is going to be the one the newspaper, effectively, has to run.

    So in all these various ways, you cut to the -- cut to the chase in a way, and you rapidly find that cases will resolve themselves.

  • What sort of case in your view is not so well suited for this system?

  • It's not going to be terribly easy, although I think we would be more than happy to try it if the parties felt it appropriate for example to deal with a long factual dispute which might arise if there was a plea of justification. That would involve a lot of witnesses, possibly a lengthy hearing, and it might not really be the suitable kind of thing for one of our panels to deal with.

  • What about privacy issues?

  • Very suitable, I would think. I would suggest. Because most of the people -- most of the experts on the panel will have considerable experience of privacy litigation, and they will be able to recognise very rapidly whether there is an invasion or a misuse of private information.

    It's a relatively straightforward question. I'm not suggesting the answer is always straightforward, but it's one that can be arrived at by a sensible person, assisted if necessary -- and this applies in defamation and privacy -- by lay assessors. I have done one, only one. I sat with two assessors to decide a meaning issue two or three years ago. It worked extremely well because after all the judge, if it's in court, is supposed to be determining the meaning, not according to his own view of the meaning, but according to what ordinary people, ordinary readers would make of the newspaper article if it's a newspaper article.

    So to have lay assessors giving their lay view of what a particular article means is a very good idea, and it worked well with me.

  • Thank you. So under the system as presently constituted, as you explained in the letter you wrote back in February, the costs of going to this voluntary arbitration are borne by the publisher; is that right?

  • Yes. I think that wouldn't necessarily be so in every case because sometimes one might get a foolish application being made by somebody who had no merits at all. Then I think we would reserve the right. But it would be a very unusual case. Normally the media defendant will be bearing the whole cost, which it has to be said are not that great because it's a day for most of these hearings. Half a day for some of them. If it's a meaning dispute, it's very quick.

  • To be clear, in this arbitration system there's nothing to prevent the parties having lawyers to represent their case, but there's nothing which requires it; is that right?

  • Are you able to help us, how often, what percentage of the time, are there lawyers approximately?

  • I think more often than not. In fact I would say in the vast majority of cases. Of course it depends on the issue, and it may be that the claimant will want to come and argue his case because he feels he doesn't need a lawyer, in which case all the better.

  • Before we look at your proposal, which is an Article 6 compliant mandatory system, could you outline, please, from your perspective -- it's paragraph 6.3 of your main June submission -- the present state of litigation involving the media? You have touched on the issue of costs, but there are other problems I think you identify in that system which you wish to outline for us.

  • Well, I must underline costs. They are horrific, and of course they're aggravated by conditional fee agreements, which are still, I think, possible up to 100 per cent, although there's legislation in the course of being passed to reduce it to 25 per cent, I think.

    Also the actual court costs are quite considerable. I believe I'm right in saying it costs GBP1,500 to issue a claim form now, which is a fairly astonishing figure.

    The other problems that surround litigating, I think, are these.

    First of all, you tend to have -- and this is very often a device adopted by defendants -- prolonged and often rather unfruitful interlocutory jousting. That just adds to the costs and although one doesn't really have juries dealing with these cases any more, the power of judges to get things moving is, as I think we all know and understand, a bit limited. However hard you try, somehow these things do last longer than they really should.

  • If defendants, if their strategy is, as you say, to have prolonged interlocutory arguments, one consequence of that is there is a war of attrition whereby claimants lose. We have heard though from a number on the other side that the effect of a 100 per cent CFA regime is that newspapers often had to settle cases which they would otherwise have wanted to fight because the risks of losing, even in not particularly high risk, were just too great. Is that something you would emphasise?

  • And the costs are fabulously high.

  • They really are. I mean, if you multiply whatever the going hourly rate is, and I wouldn't even presume to know now, by 2, and have a three-week trial, you are going to be in a stratosphere which no sensible newspaper is really going to want to contemplate.

  • Where costs utterly overwhelm the amount that could ever legitimately be considered to be at stake.

  • Of course. Because damages, as my Lord will know very well, have been reduced by various decisions in the courts. So costs are often a far greater factor than the top bracket award of damages which might be available.

  • Your statement also refers to the decline in investigative journalism.

  • What do you analyse to be the fundamental causes of that decline?

  • Well, I think it's the mainly the risk that newspapers are at, that they will get it wrong in some way or be found by the tribunal to get it wrong in some way, which might result in a major award of damages.

    I think the other problem that the press are facing at the moment is a very sharp downturn in advertising revenue, so that funds are a bit scarce.

    I think it's an enormous pity, the change that's taken place, because one remembers maybe 30 years ago, whatever it is, the number of really good investigative stories that used to appear in the press. The thalidomide story is one. Spycatcher. All these kind of cases, where the press were running great risks of the rather lesser costs than they would nowadays run, but they were running those kind of stories, which is, as I have always understood it, the essential role of the press.

    Nowadays one tends to get celebrity stories and things like that instead, and that's a shame, obviously.

  • Before we look at the features of your proposed scheme, I think you want to explain for us why ER should be the answer to the current problems. This is paragraph 7.2 of your submission.

  • Can I invite you, please, to outline that for us.

  • Yes. The first thing that I think I ought to stress is that the role that ER plays, if it's going to play a role in the future, is all after publication. The reason I stress that is that that means that there can't be really any sensible objection on the grounds that we're going to be interfering in any way with the freedom of the press which we entirely support and endorse.

    If the regulatory system which ER is proposing were to come into effect, it would only come into effect after the publication has taken place. So there's no risk of anyone saying, look, I wouldn't have published that story, or rather I would have published that story if I hadn't thought that there was going to be trouble as a result of it.

    So that's one example.

  • It might be said that because the regime is so oppressive, we can't publish stories that we otherwise would publish. That's not particularly for ER, but generally for regulatory regimes.

  • Yes, that could be said. But, I mean, better a regulatory regime that operates post publication than a regulatory machine that comes into play at some earlier stage, pre-publication.

  • Apart from that factor, there are other positive aspects of the scheme that fulfils the criteria of effectiveness, fairness, objectivity, independence and costs. Is that right?

  • Can we please look at the features of the --

  • Just before you do, are there any other advantages to a scheme -- and one could talk about ER, but actually one can expand it a little bit to some form of arbitral mechanism.

  • Which perhaps we'll come on to discuss when you discuss ER.

  • What are the other advantages of some sort of mechanism?

  • Well, mostly I suppose cost saving. Enormously cheaper than going to court in the present circumstances. You'll achieve in a day, I think this is fair to say, with a competent silk who knows his way about, what might take several days for a jury certainly, and even for a judge who is less versed in that -- if I may dare respectfully say so, in that field.

  • They don't give me cases to try at first instance any more, Sir Charles. You don't need to be polite.

  • Of course I wasn't referring to your Lordship.

    The other advantages are these, I think. The hearings do take place in private. That will invariably suit, I think, both claimant and defendant. If the claimant wins, he can publish it as he wishes, or the result of it as he wishes.

    Very often the whole exercise is done on paper without any need for any oral hearing at all.

    The decision is invariably arrived at within days or certainly within weeks. If it's just a meaning issue it's usually a matter of days. Whereas at present the position is that very often you'll have to wait for the full trail before you get a decision on meaning. That's not always the case as it once was.

    And it is worth noting, I think I'm right in saying, that a number of editors, including the editors of the Financial Times, the Guardian, the Independent and the Daily Telegraph, have all expressed their support for the sort of arbitral scheme that ER would be.

  • You wanted to ask about the features.

  • The features of the scheme. Paragraph 6.4.

  • First of all, so we understand the derivation of its power, we're talking about, say, a scheme which is underpinned by statute?

  • Is that correctly understood?

  • Can I explain the reason for that, because that's provoked a certain amount of resistance, I think, on the part of some people.

  • Sorry, now we are moving away from what ER actually is?

  • We just have to be clear. Yes.

  • It's a mandatory scheme. It's got to be mandatory, it's got to be compulsory, and I say that really for this reason. It's only if you have a compulsion for every person who wants to bring a defamation action or an action for an invasion of privacy to go to ER, or to whichever arbitration body it may be, that you can ensure that the system of having a reasonably inexpensive resolution of disputes can be achieved.

    If either party can simply say, no, I don't want to play ball with that, that really defeats the whole object of the exercise.

  • And that can work both ways, because it may be a newspaper that feels "I can bash this claimant into submission, make it go away". But equally, it could be an extremely wealthy claimant that feels "I can so overwhelm the defendant newspaper with the risk of costs that they will have to go away".

  • Your Lordship is entirely right. It's as likely to be the one as the other. I mean, wealthy claimants do bully defendants into submission. Sometimes wealthy defendants can bully claimants into submission as well. So it is a real problem, that.

    The other advantage, I think, is perhaps equality of arms, because once you are in front of the arbitral panel, rich claimants and defendants are almost by definition in the same position. There's no inequality which can be exploited by the richer of the two.

    It's another way of expressing, I think, the point that your Lordship just put to me.

  • It's a slightly different point, because one of the things that I have been thinking about, and raised with a number of people, is that actually if your arbitral system is our normal mechanism for resolution of disputes, then there could be inequality because one side could bring along the most fashionable silk in the area, and the other may not be able to afford such representation; which is why I have toyed with the idea of an inquisitorial type mechanism that permits the arbitrator, or whatever you want to call him, to control precisely what's going on, and thereby demonstrate that it isn't necessary to bring the most --

  • Well, I quite understand the point, but I think that the system that ER is advocating really meets that problem by the form of the tribunal who is going to be making the decision.

    It is an experienced silk who knows his way around the media world. I just don't think, however fashionable the silk who appears for one side or another may be, he's going to be able to achieve very much in the way that your Lordship is rightly suggesting.

  • It's not for me to sell the services of one silk as opposed to another.

  • Can I just say something that I ought to say, which is that we don't anticipate there's any problem with Article 6. I think it is Article 6 compliant, the proposed scheme, because we're not ruling out the possibility of an appeal on some point of law against the decision that the tribunal or any other tribunal might have arrived at.

  • And the tribunal wouldn't be able to order injunctive relief.

  • All pre-publication issues, therefore, are left for the High Court?

  • And as you also explain in paragraph 6.4 of your submission there, there are certain types of claim which would exceptionally still need to be dealt with through the court system.

  • Yes, it wouldn't just be interlocutory injunctions. The parties, I suppose, could agree to some form of order being made by an arbitrator, but I think in practice if a final injunction is sought. But that would follow as a matter of course, wouldn't it, if the arbitration resulted in a win for the claimant, he's almost entirely assured of getting an injunction in his favour. Conversely, no injunction could be applied for if the finding was against him. It's an obvious point.

  • The exceptional type of case which is not suitable for this system where there would still be ability to go to the High Court -- this is setting aside the case of where injunctive relief is being sought. In paragraph 6.4 of your submission you refer to cases which involve more recondite issues such as issuing letters of request, service of subpoenas, et cetera?

  • I didn't realise you were referring to those kind of applications that sometimes have to be made, and have to be made to the court. But they're all interlocutory. They're not involving the final decision, which could presumably go back to the tribunal.

  • What about a case which may involve such an important point of principle or engage the public interest in such a way that almost as a matter of public interest you would want it tried, like the case you tried of Irving v Penguin Books. Would that be appropriately resolved in this submission if one of the parties didn't want that to happen?

  • Well, I would be very reluctant -- I think that is the exceptional case. I don't mean that particular case, but there will be some kind of cases like that. You could I suppose get over the problem of retaining an arbitral panel to deal with those kind of cases if it were to be public. But there are some where you do need -- and they would be probably very lengthy. The Irving case lasted about ten weeks, from recollection.

    I think you're right. They would have to go really to a judge.

  • But that doesn't prevent you having a compulsory system. It merely permits an application within the compulsory system to say this doesn't work. Please transfer us or authorise us to do it differently.

  • And the ER system on its statutory base, save for the inability to grant injunctive relief, would it otherwise have exactly the same powers in relation to awards and quantum of damages as the High Court has at the moment?

  • Can I ask you, please, to compare and contrast this system, which I know you think operates successfully in another realm altogether, namely the adjudication system in the construction industry.

  • Yes. There are obviously considerable differences between defamation or privacy cases on the one hand and construction cases. But I think there is a lot that can be learned from what happens. Your Lordship probably knows this already. There was a paper written -- this is the origin of it. It's the only reason I mention it -- by Sir Michael Latham, back in 1994, which was called "Constructing the team".

    That resulted, to cut things fairly short, in the enactment of an Act called the Housing Grants Construction and Regeneration Act 1976, which in effect has the result that every dispute involving the construction industry -- there are some exceptions, I'll mention them in a moment -- is dealt with not in the courts expensively and rather slowly, sometimes, but by an adjudication.

    We wondered -- it was actually suggested by Lord Justice Jackson that such a scheme might work in the defamation field, and I've had discussions with Alastair Brett, firstly with the present head of the TCC, Mr Justice Akenhead, and also with Julian Holloway, who was a solicitor with great experience of construction law and practice, and we were rather encouraged by those discussions.

    What operates in the construction scheme at the moment is a statutory and mandatory scheme for all parties to construction contracts and the exceptions are contracts involving residential property and certain oil and gas contracts. Those are all dealt with by arbitration or adjudication.

    What happens is that if one party to the dispute says, well, I want to go to adjudication, he applies to the adjudicating nomination board. The adjudicator is then appointed. He can rule on any issue which arises. There's no judge or statutory body involved. The adjudicator can appoint his own experts.

    This scheme is also Article 6 compliant, so it's believed, because either party may apply to the TCC, the Technical Construction Court, and there's a section in the Act which makes that possible. And when an application is made to court, which it hardly ever is, we understand, it can be heard very quickly because the judges have been free from dealing with a lot of these construction contracts for the very reason that they've gone to adjudication.

    It's widely regarded, so we are led to believe, as a huge success. Subcontractors get paid on time and so on and so forth.

  • There may or may not be cultural differences between the construction industry and the press as currently constituted.

  • I don't think that's likely to be an issue.

  • No, because it's mandatory.

  • But it's not irrelevant to note -- and I'm grateful to you for pointing it out -- that the Joint Committee on Privacy and Injunctions in its report of March of this year advocated an increased role for regulating and arbitrating and mediating privacy disputes with the advantage that it would reduce the burden on the court system.

  • We know that the press in general -- I don't think it's an exaggeration to put it this high -- are hostile to any form of statutory scheme. Do you feel that there's any justification for their fear?

  • Well, I don't. And really for the reason I have already given, I can't see any problem, so far as the freedom of the press is concerned, by the setting up of whatever body it may be, which is only going to come into play after the publication complained of has taken place.

    It seems to me to follow as night follows day that there can't be any question of anyone's -- any freedom of the press issue arising, if all we're concerned with is dealing with the problem that's already arisen in the publication, if it is a problem.

  • It's always possible to enshrine or entrench quasi constitutional rights such as freedom of the press within an enabling statute?

  • Yes. I think my Lord has already suggested that there is the Constitutional Reform Act 2005, which expressly in terms safeguards the independence of the judiciary. Maybe that's necessary, and maybe it would be a good thing to do in the present case as well. I don't know.

  • That doesn't itself impact on free speech. One of the points that was made, I think, by Lord Hunt was well, yes, there is that statute, but then this minister abused it by saying what she wanted to say, and that minister abused it by saying what he wanted to say, and --

  • What can be done about it?

  • But it's a question of identifying the independence. Then it's a matter for everybody else to say this is the independence that you've got to recognise, and therefore, although you had free speech rights, they have got to be exercised within the law. Namely to uphold the independence in that case of the judiciary, in this case of free speech.

  • Yes. I think it's easier with free speech in a way than it is with -- because it's such a clear cut thing. You don't interfere pre-publication with what is going to be published. You might occasionally if there's an interlocutory injunction. But interlocutory injunctions don't get granted when the defendant says he's going to justify it.

  • I would like at some stage to ask you about that because I have got a wrinkle on all that, but I'll find an appropriate moment.

  • If the system is free of charge for complainants and going to be so effective, people will say you will get a whole host of vexatious claims. How would we deal with those?

  • That is a potential one. I don't think it's likely to happen. I just don't see that -- there is a sort of floodgates point taken sometimes, but I don't see where the flood is going to come from. There was a limited number of -- even arguable claims, I would have thought, on any day of newspapers getting published.

    But supposing it were to develop into a problem, it's relatively easy to solve, I think, because you can have either some sort of filter system, this would involve an appropriate person, whether one of the panel of experts that we already have or someone else, saying that this is hopeless, and as it were striking out the claim. Alternatively, and I think this is really a better way of dealing with it, to have the reserve power to make an order for costs against anyone who brings a claim which is manifestly a hopeless and speculative one.

    So I think it can be controlled in one or other or both of those ways.

  • As we see, employment tribunals, I think, have such a power exceptionally.

  • I didn't know that. But that's encouraging.

  • Can we understand, Sir Charles, how this system would work in the context of any reformed regulatory system as a whole? We look first of all at Lord Black's proposal, which, as you know, is a contractual proposal. He had as a shaded box or possibility within his proposal what he called an arbitral arm, which he understood would require statutory underpinning. That arbitral arm looks rather like the sort of system you are proposing.

    Or we could have some sort of statutory system or system underpinned by statute where there's the main regulator which carries out traditional regulatory functions and then an arbitral arm which again would be you, as it were.

    How do you see yourself working with or co-existing with either the two hypothetical models I have put forward?

  • Well, I think we're clearly of the view that it's got to be a mandatory system, it's going to be compulsory, and the only way you can really compel is by a statute.

    We say no. We are unequivocal about that. I think I'm right in saying -- I only read rather short passages from not the evidence given I think earlier this week by Lord Black, but the evidence of Lord Hunt, and I think he conceded as I understand it that there was an urgent need for a more effective system of redress for members of the public who can't afford to take their case through the courts.

    He endorsed, again, as I understood his evidence, a much tougher and I think he even contemplated a compulsory system, of bringing parties together in the hope of reaching a full and final settlement of the claims. That's pretty close to what we're advocating.

  • I think even in the self-regulatory model, which is primarily contract based, its proponents recognise that the arbitral arm would have to be statutorily underpinned because of Article 6?

  • Again, I think Lord Hunt said that in terms.

  • It might turn out that it did need statutory backing.

  • Would your system, in your view, happily co-exist with either a primarily self-regulatory model, or a model with the new regulator, whatever you want to call it, having a statutory underpinning?

  • I think it wouldn't co-exist at all, would it, because of the compulsory nature of what the statutory scheme would be. I mean, that can't co-exist with a voluntary scheme. If everybody has to go to ER, or whichever other organisation it may be, how can that coexist with a voluntary? I think that's the short answer, isn't it?

  • Well, it would be somewhat anomalous that if the main regulatory structure were voluntary, that you were nonetheless forcing people to bring their disputes to a mandatory arbitral system, but --

  • Well, you could put that the other way as well, couldn't you, and say if you have got a mandatory system, you can't have people setting up a voluntary scheme in parallel. I mean, I think they are mutually exclusive, unless I'm missing the point.

  • So it follows from that that you would be favouring, when one is looking at the regulatory system more generally, some sort of mandatory statutory underpinning for such a system, of which ER, which may have a new name under this system, is equally a mandatory component?

  • Is your question addressing only post publication regulation?

  • Yes, I think then I entirely agree. Pre-publication is a different matter altogether, and it's no part of my brief to be at all critical of the PCC. But I know that the joint committee on privacy and injunctions was highly critical in a number of respects of the way in which the PCC unfortunately has been operating, as I'm sure you already appreciate.

  • Yes. I think it's your view that the PCC, even in a reform state, is not an answer to the current problems of the culture, practice and ethics of the press; is that so?

  • Well, that was the view. There was another committee, if you remember, on -- it was just a House of Commons committee, as I recollect. And that also took the view, having heard a lot of evidence about it, that that was not something that the PCC was really the right body for dealing with.

    But that in a sense is rather outside the role that I feel able to play. I mean, I don't know what the solution to that is. My Lord will have to wrestle with that, I suppose.

  • In section 9 of your statement, you do elaborate your proposal for a media regulator which has statutory underpinning?

  • You have already explained to me why really as a matter of principle you would favour that. But you've also taken time to comment on the proposal from the Media Standards Authority, which we can see in paragraphs 9.5 and 9.7. There's no 9.6, but don't worry about that.

  • Sorry, I've just noticed.

  • It's a form -- on our understanding of co-regulation, we can see from those two paragraphs that you're not immediately attracted by it. Could you elaborate why, Sir Charles?

  • Well, we have got the same objectives. I suppose the only reason that I am a little critical of the MSA is that it's dependent on media organisations being persuaded by a system of incentives to join it, whereas the adjudication system proposed by ER and by the MSA is statute based. Only the participants who join the MSA and submit to its jurisdiction will be in a position to stay libel actions started in the High Court, and have them compulsorily transferred to adjudication. Does that answer the question?

  • It may feed into the wider question. If one were to have an objection as a matter of principle to a compulsory regime, in your view are there a form of practical incentives, sticks and carrots, which could bring people into a compulsory system and therefore achieve the same outcome? I think it's implicit here that you don't think there are?

  • I don't think there are. I don't conceive of a way in which you can, as it were, coerce people in a voluntary manner to join a scheme. I think it's really got to be compulsory, and I don't myself see any sensible objection to that because it's, as I say, not interfering with the freedom of expression that we all rightly cherish.

  • I have been asked to ask you this. How effective has ER been since it was set up?

  • It's not been as effective as we hoped, and can I try and explain why that is?

    We thought that, for example -- everybody talks about the nationals. The regionals are just as important, I think, to the whole of the dispute with which his Lordship is concerned.

    The regional newspapers were hugely enthusiastic when we launched the ER scheme. But they met with opposition by claimants. What's the basis for that opposition? I don't quite understand what the basis can be, because it must be in the interests of most claimants to go down the ER route, or whatever other route.

  • I wonder whether it might be different if and when CFA is changed.

  • That may be one -- if I may say so, I entirely agree.

    It may be that the role of some advisers -- I don't want to be critical of everybody, but it may be that advice along the lines that your Lordship has just indicated is being given to claimants, that it's in both the claimants' interest and in the legal advisers' interests that they should operate on a CFA, and --

  • But you could articulate it slightly differently, couldn't you, in a way that doesn't carry any pejorative undertone? Because you could say, well, you can use this system which would be free, but of course I'm not free, and therefore you will have to pay for me out of whatever ultimately you recover. Alternatively, you can use what is actually the courts of the country. It will take rather longer, but you will be protected from any potential risk as to costs because, with the benefit of a CFA and after the event insurance, there won't even be the chance of you having to pay me.

  • That's a more attractive way of putting what I was trying to suggest.

  • There was an element of cupidity in my expression of it, and not in your Lordship's. So can I adopt your Lordship's version.

  • Is that what you were referring to when you said that's the problem in answer to the question Early Resolution requires the agreement of both parties?

  • So it's not been the press.

  • No. It hasn't. And I think the press stand to gain in some ways more than the claimants.

    But I really don't entirely understand why people haven't taken up. It may be that it's new, which it is. That may be part of the reason. But we're puzzled.

  • Well, it may be that if one adds some arbitral arm to a system that covers the far more wide-ranging issues that I've got to address, then there will be rather more work to do. Do I gather that you and those with whom you have been associated in ER could see a place for themselves helping to adjudicate in issues along these lines?

  • Absolutely. If I haven't made it clear, which I fear I haven't, often it will be meaning which is the key thing.

  • Suppose you take a case where there was an argument about meaning, and it's decided by the silk, assisted or not by lay assessors, that the claimant's right or the defendant's right, whichever it may be, that's the moment where both the claimant and the defendant might say this is a frightfully good way of actually disposing of every issue that's going to arise. We have got meaning out of the way. There's going to be a plea of justification or a plea of privilege, and every time it's open to the parties to say would you be prepared to --

  • I hadn't appreciated that.

  • I should have made it clear that that is on offer, because after all you can always by consent go to arbitration, can't you, and that's really what it would amount to.

    We would hope, eventually, if the thing were to take off, as it were, that more and more people would see the sense from the costs point of view and from every other point of view in getting every meaning out of the way -- every issue out of the way and having damages awarded by the experienced silk or whoever it might be.

  • I have one other thing to raise with you, and that's to just really ask for the benefit of your experience in relation to pre-publication issues.

    You'll be aware, or you may or may not be aware -- depending on how much you have followed of what I've been concerned with -- that one of the issues that has addressed a number of people, particularly, of course, Mr Moseley, is the whole question of pre-publication notification.

    I understand very clearly why, as a matter of principle, requiring pre-publication notification could cause enormous damage to free expression, although editors have said that as a matter of routine they always will, but they want to preserve the right not to.

    I recognise the strength of both arguments. Mr Moseley makes the point, why on earth wouldn't you stop somebody cutting off a leg wrongly when you can't put the leg back with damages or anything else. It's there forever.

    His own evidence about his own experience is a very powerful enunciation --

  • -- of the problem.

    On the other hand, the press say, entirely legitimately, well, if we've got to pre-notify, then, first of all, the wealthy will injunct us, and so suddenly we're bogged down. We will lose the element of our scoop that we've put money into, that we have researched, and alternatively, we won't be able to find a villain who will deliberately make himself scarce so that our story is emasculated in that way.

    What I would like your view on, based upon your experience in the field, is whether there isn't room for saying to a newspaper: you don't have to pre-notify if you think that it will be inimical to your interests to do so, but rather than -- if I borrow somebody else's phrase -- mark your own homework, if you think you have got a good case not to pre-notify, there is nothing to stop you going to somebody who wouldn't otherwise be involved -- one could take -- I'm not talking about Early Resolution, but somebody in your position.

  • I know what your Lordship means.

  • To say, look, this is our story. This is why we don't want to pre-notify; what do you think? And that person could look at it, and assuming the facts were right, because that would be the premise of the view, say, no, I think this is a very good case for not pre-notifying that.

  • In which event, of course, there wouldn't be pre-notification, and if there was a challenge, that the newspaper would then be able to use the fact that they had taken the responsible step of getting a second opinion on the issue to mitigate potentially exemplary or aggravated damages.

    I'm not trying to punish anybody for not doing it, but I'm trying to underline the risk of publishing without notification.

    Alternatively, if you choose not to ask, or to ignore the advice, you're entitled to do that. You might be right, and the judge at the end of the day may say that was perfectly legitimate, and there's nothing wrong with that. But if the judge took the view that, no, actually the advice you received was right, or you should have gone for advice, then I can take that into account as a matter of aggravation.

    Now, using all your experience, recognising on my part that the advice you're about to give me is worth exactly what I'm paying for it, which I say before anybody asks is nothing, I would be very interested for your view.

  • Yes. I have no hesitation in saying I'm not enthusiastic about what your Lordship has just put to me. The reason I think is really a very simple one. There cannot be any -- this is my sort of humble experience. There can never be any justification for compelling, even in the very skillful and indirect way that I think your Lordship is putting to me -- there can never be any justification for interfering before publication in any way at all with the freedom of the press and the right of the newspaper to run the risk of having a massive award of damages against it.

  • But I wasn't trying to interfere with it.

  • Your Lordship -- I'm sorry.

  • Let me just articulate why.

  • It would be advisory only. It doesn't in any sense prevent a newspaper from publishing precisely what it wants to publish. But the concern that I have is to cope with --

  • Yes, I know. What happened in the Moseley case.

  • -- what happened in the Moseley case, and one could take a different case. I'm not personalising to Mr Moseley.

  • No, he just gives evidence very articulately. I have heard him do so.

  • About that issue. I'm trying to find a way. Maybe you should say in every single case, if you don't pre-notify when you could, that's a reason potentially for a court to consider aggravated damages.

  • Publish and be damned.

  • Publish and be damned. But then I'm trying to find a way for the newspaper to get some protection.

    So far from seeking to limit the freedom of speech, I'm actually trying in some way to support it.

  • Yes. I do understand that.

  • Now it may not work and that's why I'm keen on -- your evisceral reaction is itself extremely important.

  • But I just have a feeling that if you even have the informal mechanism that your Lordship, I think, is proposing -- mechanism is not even the right word, the informal sort of understanding -- I think if you put that to a newspaper editor, and said, well, what's wrong with -- your Lordship may have done this, I don't know -- he would immediately say, no, I don't think that is really something I could possibly agree to, or want to happen.

    I think I would agree with the newspaper editor who reacted in that way, although I understand where your Lordship is coming from in making that suggestion. I just think that one has got to give them utter freedom to behave as badly as they like, knowing as one does that damages aren't an adequate remedy very often at all, however large.

  • But that's the point. So is there an answer to Mr Moseley's point, or is there just no answer?

  • I fear there's no answer, even though I'm saying that in the context of a privacy case, where I think the arguments are even stronger than in a defamation case.

  • It's actually privacy that I'm thinking of. Much more so, because in libel, where damages -- it seems to me there's rather more scope in libel than in privacy.

  • Is your Lordship thinking of exemplary damages and whether they're going to be available in privacy cases? That's a potential problem.

    Leaving that aside, I just think it's a line I wouldn't want to cross in any way. I suppose it's partly because I was brought up I suppose so long ago with that being the cardinal principle, that you had no interference, and one went traipsing in to see the judge in chambers, and if the defendant says I'm going to justify, that was it.

  • Yes. Well, I've been in that position myself.

  • And I recognise it. I'm just struggling to deal with what, on the face of it, appears to be a potentially terrible injustice that is irremediable.

  • Yes. And especially in privacy cases. Because --

  • Because by definition, this is not libellous.

  • Yes, and the damages are relatively low, and I think it's an insoluble problem, myself, and I fear that -- I wouldn't want to encourage your Lordship, if I may put it that way, to --

  • Not only you're not encouraging me, you are discouraging me, and you're not suggesting anything in its place.

  • I didn't know your Lordship was going to ask me about this.

  • If something occurs to me that might be a solution --

  • If something occurs to you, I would be very, very interested to hear it.

  • How can I communicate?

  • By all means, if you would just write me a letter, I would be very grateful.

  • I'll certainly do that. I'm sorry not to be able to express agreement with --

  • -- what is a new proposal to me.

  • I wanted your experienced view because I know that, as you explained, you spent 30 years doing this sort of work, and I'm very conscious, and I'm constantly reminded, even if I'm not conscious of it, of the fact that this isn't my area and I am interfering with it --

  • It's much better -- if I may say so, it's much better your Lordship comes from outside the area.

  • Well, thank you very much indeed.

  • And thank you for the assistance you have provided. We will have a break.

  • (A short break)

  • The final witness for today is Mr David Thomas. His statements are at tabs 87 and 21.