There have been a number of developments in media regulation since the government decided, earlier this year, to abandon long-promised plans to resume the Leveson Inquiry into press misconduct (Leveson Part 2): see our earlier post, Press regulation: the end of the road for Leveson reforms.
First, the decision itself was the subject of judicial review proceedings which the High Court has dismissed; second, the government has responded to an earlier consultation about changes to legislation affecting costs of defamation which it now aims to bring into force; third, a new multimedia resource has been launched for those wishing to research the original Leveson Inquiry.
Court decides Leveson 2 reversal not unlawful
A claim by victims of press intrusion, for judicial review of the government’s decision on 1 March 2018 not to proceed with the second part of the Leveson inquiry into press misconduct, has failed.
In reaching the decision complained of, the government rejected the recommendation of Sir Brian Leveson himself that Part 2 of the Inquiry should proceed, in accordance with the ‘legitimate expectation’ of the phone-hacking victims and others. As we commented at the time:
Sir Brian’s own reference (a very carefully chosen and judicious one, no doubt) to there being a ‘legitimate expectation’ of the inquiry being resumed might be interpreted in some quarters as flagging up a possible ground for a claim for judicial review.
That was indeed the basis of the claim for judicial review in R (Jefferies & ors) v Secretary of State for the Home Department [2018] EWHC 3239 (Admin). The claimants, Christopher Jefferies, Dr Gerry and Kate McCann, and Jacqui Hames, had all participated in Part 1 of the Inquiry, but the evidence they gave was limited by the fact that there were pending criminal proceedings, the conclusion of which would permit the continuation of the inquiry in Part 2, when it was expected that they would give fuller evidence. The legitimate expectation on which they relied was a promise, said to have been made by David Cameron, as the Prime Minister who had set up the inquiry in the first place, at a private meeting with the campaign group Hacked Off on 21 November 2012. It was the failure of the successor government of Prime Minister Theresa May, in 2018, to take that promise into account in considering whether or not to continue the Leveson Inquiry, that was said to invalidate the decision complained of.
In public or administrative law, a legitimate expectation is a clear, unambiguous and unqualified assurance, understood by those to whom it is given, that a particular course of action will be taken or a particular procedure will be followed. It is not essential that any person to whom the promise is made should have relied upon it to their detriment, but it certainly helps. Bitter disappointment is not enough, however.
In this case, the court said, the circumstances were not such as to give rise to a legitimate expectation. It was a private meeting, intended to enable the participants to exchange views frankly, and conducted on the basis that “what is said in this room stays in this room”. The concept of legitimate expectation was rooted in the principles of fairness, in the public law sense, and it would not be fair for a statement made in such circumstances to be permitted to ground a claim for judicial review. For these and other reasons, the court dismissed the claim.
A press release from Hacked Off suggests we may not have heard the last of this: Victims vow to fight on after Leveson Part Two judicial review finds in favour of government
Costs provisions in LASPO
Section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which prevented a winning lawyer’s success fee in civil proceedings being recovered from the losing party, was not initially brought into effect in relation to media claims such as defamation and privacy cases pending the outcome of the Leveson Inquiry. Section 44 was part of a scheme in the 2013 Act to reform the operation of ‘no win no fee’ conditional fee agreements (CFAs) mainly in relation to personal injury cases. At the time, the government planned a more bespoke arrangement in relation to costs for media claims.
Now that the Leveson Inquiry has been discontinued, the government has announced that it plans to bring section 44 into force in relation to media cases as well. However, after the event (ATE) insurance premiums would remain recoverable for these cases. In a written ministerial statement, Lord Chancellor David Gauke explained:
This approach — of abolishing recoverability of the conditional fee agreement success fee, but retaining it for the after the event insurance premium — will protect access to justice, since parties with good cases can still benefit from recoverable after the event insurance in respect of adverse costs; after the event insurance discourages weaker cases as these are unlikely to be insured. This provision will come into force for new cases on 6 April 2019.
The new arrangements are also designed to comply with the decision of the European Court of Human Rights in in MGN v United Kingdom (2011) 53 EHRR 5. In the MGN case (which arose out of a famous breach of confidence claim by the model Naomi Campbell against the Mirror), the court concluded that the obligation for the losing newspaper defendant to pay a 100% ‘success fee’ to the claimant was disproportionate, and that the conditional fee agreements regime was in breach of the publisher’s rights to freedom of expression under Article 10 of the European Convention on Human Rights.
The Government has explained all this in ‘Costs protection in defamation and privacy claims: the Government’s proposals’, its (somewhat belated) response to a 2013 consultation, which had heard concerns that success fee recovery could have a chilling effect on investigative journalism.
The result is to put the costs regime affecting media claims against the press very much back in the favour of the publishers, in complete contrast to the position as it would have been if the government had implemented the recommendations of the Leveson Report and implemented section 40 of the of the Crime and Courts Act 2013. As explained in our earlier post, that would have protected publishers against the costs of unsuccessful claims only if they were regulated by an approved independent regulator (which most of them aren’t). But when the government put the brakes on Leveson Part 2 they also announced that they would repeal section 40.
New Leveson Inquiry resource
Finally, for anyone interested in researching the first part of the Leveson Inquiry, the Journalism Department at Kingston University, in a project led by Professor Brian Cathcart, have launched Discover Leveson.
Two years in the making, Discover Leveson is a new, fully searchable and freshly curated online public archive, ensuring that any reader, from the professional to the casual, can now tap into this rich resource easily and even enjoyably. In this way, the efforts of the Inquiry and of those who gave evidence will not be wasted, and there is a greater chance that its primary mission – learning lessons for the future regulation of journalism – will be fulfilled.
Although the original Leveson Inquiry website has been preserved by the National Archives, it was “structured according to a logic that made sense for a live inquiry” and was no longer suited to ongoing research. The material on Discover Leveson has been organised around themes including Law, Regulation, Journalism and society, Ethics and abuses, and the Police. All the witnesses are listed and you can both watch their live testimony and read their evidence.
An example of the much better way the new site works is that you can find and view the video recording of the session featuring a particular witness, and see their written testimony, all from the same page. On the archived official site, they are stored separately (though linked) and you need to know which session they appeared in before you can find, somewhere in the midst of it, that particular half-day’s video recording. (It’s not even clear that those video recordings are still accessible, though you can read the transcript.) Moreover, the video recording on Discover Leveson is linked to a scrolling display of the full transcript underneath. The pages are also clearly laid out and well designed. In short, the site more than lives up to the promise that it can be used “easily and even enjoyably”.
Featured image by Erica Minton on Flickr (Creative Commons licence – thanks!)