There was a ritual confrontation between two closely related but different species of legal beast this morning in the House of Commons. The arena was Committee Room 8, and the ringmaster was John Whittingdale, Conservative MP and chairman of the Culture Media and Sport Committee.

The High Court – especially Mr Justice Eady – was busy last year with a string of high profile libel and privacy cases which, while filling many pages of newsprint, both grown-up and tabloid, showed up a few weaknesses (or strengths, depending on who you’re batting for) in the current state of British media law. The committee, sensitive to public disquiet over these unresolved legal anomalies, announced last November that they would be holding an Inquiry into Press Standards, Privacy and Libel.

Perhaps they want to show us that they’re not a bit scared of Mr Dacre or either of the Messrs Murdoch and they will jolly well ask a few awkward questions, (even if they know their pusillanimous colleagues in the House are far too frightened ever to make law that might upset the media titans.)  Today they held their first oral evidence session, and a surprising amount of ground was covered in just 2 ¼ hours.

First in were the boys who bat for the Media.

It seems Alan Rusbridger’s mega-whinge in yesterday’s Guardian about the costs his paper have been asked to cough up after Tesco won a libel claim against the paper provided an early theme for today’s session.

The Guardian were taken to court because they made a mistake in reporting exactly how Tesco’s had been avoiding payment of corporation tax. Private Eye have subsequently established how it was being done (though I won’t Burden you with the details now.) See: http://www.guardian.co.uk/business/2008/may/31/tesco.supermarkets

The Guardian have admitted that they got it wrong (and Rusbridger indulges in a quite shameless grovel, comfortable in the knowledge that the Eye have to some extent vindicated their original idea) and a settlement was reached out of court. It’s not known how much, but an informed guess today was £10k. Not much, but the paper now have to find £800,000 for the claimants’ costs, including, £354,000 – for having the fairly uncomplicated tax scheme explained to them! (I mean… tirez l’autre! as a French cynic might exclaim).

I’m going to own up to some bias here – the Guardian is my most regular read (although I vary my diet a little) and I’ve grown quite fond of their cuddly self-righteousness. Tesco, I detest.

What the lads who act for the papers were telling the committee was that most claimants’ solicitors were now acting with conditional fee arrangements (CFAs), which carry a 100% surcharge when the defeated libeller is ordered to pay a claimant’s costs – doubling the already very high rates that they charge (up to £650 per hour, it was claimed). If the claimant loses, he pays nothing, so there is an element of risk for the law firms that do it. On the other hand, they don’t take on cases on this basis which they think they will lose.

Given that CFA’s were made legal in order that the less than rich would have access to libel courts, it was felt that those high-profile claimants who could afford the risk themselves were using CFAs and ramping up costs, and thus the penalties that miscreant newspapers might incur.

It could be argued that this might teach the papers to get their facts right, and stop invading privacy for the sake of a splash to sell more copies.

And generally the bigger libel and privacy breach claims are brought against the mass-market tabloids.

Marcus Partington, who appeared as Chairman of the Media Lawyers association is also head legal honcho at Trinity Mirror, so he knows about high profile claims.

‘While we recognize and support the aims of CFAs to provide access to justice for those who could not afford it, the problem is that the system of CFAs with 100 per cent success fees has long been exploited by lawyers for the benefit of themselves,’ Partington told the Press Gazette in an interview about restricting CFAs. ‘That exploitation has been most noticeable in cases where lawyers for wealthy claimants, such as Naomi Campbell, Sharon Stone and Ashley Cole – who have always been able to obtain access to justice – have been able to ‘double their money’ because of the CFA system. Allowing rich lawyers for rich people to get even richer is about as far from providing ‘access to justice’ as it is possible to imagine, and it is hard to work out why the Government permits this to continue. It is not in the public interest.’

I don’t suppose he’ll be saying that if he ever goes over to the other side and starts acting for claimants. (And it has been known for media lawyers to cross the floor, as it were. Indeed, some even straddle it.)

Cost capping and means testing were put forward as options for keeping CFA’s and resultant costs within reason, and Roman Polanski (and other ‘libel tourists’) bringing actions against American publications in British courts was deplored (well, sort of – it was also conceded that in this recession it wasn’t such a bad thing to keep the business coming to London.)

The claimants’ players came in for their innings, and Mark Thomson, leading scorer at Carter-Ruck opened the batting. He explained that his firm didn’t charge anything like £650 an hour and even with a CFA in place didn’t apply the success premium if a case was settled within 14 days.

That’s nice of them, though I don’t suppose it happens that fast that often.

The claimants’ men, with impressive unselfishness, suggested that papers should be required to give their victims prior notice of proposed damaging stories, allowing them a chance to have them injuncted – unselfish because their own earning potential is higher if the libel is let out, the damage is done and the claimant goes to court.

On the other hand, the chances of a British parliament ever imposing that disadvantage on Murdoch’s News of the World are slim. Unless Max Mosley’s proposed action in the European Court of Human Rights against the British government to concede this right to the public is successful.

Inevitably the question of the Press Complaints Commission and its precise function cropped up. The room divided predictably. The papers’ men thought it did a great job, and was all that was required to keep the press in order.

Most of the claimants’ men thought it was useless. But one had spotted Tim Toulmin PCC Director in the room, and had a few encouraging words for him.

However, Jonathan Coad of Swan Turton had a specific example of the ineffectiveness of the PCC.

The Daily Star, which, bizarrely, is still classified as a newspaper, last September ran a front page splash:

PEACHES: SPEND NIGHT WITH ME FOR £5K

‘Glamour girl Peaches Geldof is bagging thousands of pounds a night from people desperate for her company, we can reveal.’

And on page 5, alongside shots of Peaches modelling some underwear, is a scanty story about her charging appearance fees.

The headline was blatantly and mischievously misleading readers into thinking that Peaches was some kind of prostitute.

Not surprisingly, she was upset and instructed Swan Turton who lodged her complaint with the PCC.

The paper conceded that their headline had been misleading, and agreed to print an apology.

This duly appeared five months later, last Saturday, 21st February – a tiny insertion on page 2, which, as Coad pointed out, occupied a space that was 2.5% of the size of the original splash and inner page.

This, he felt, was because the PCC is firmly on the side of the newspapers it was supposed to regulate and corrections favour the paper rather than a complainant or the general public.

For my views on the PCC see my blog post, ‘Bollocks to you, too, Sir Christopher’, January 14th.

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