One wasted expense over which publishers have little control is the cost of by litigants in person bringing spurious legal claims against publishers who are then tied up in expensive legal proceedings, seemingly without any restraint by the courts.
There is no doubt that some individuals have had genuine grievances against some publishers, as evidenced by large pay-outs for damages.
However, it is no exaggeration to say that a large number of publishers we represent are subject to meritless claims by individuals who run up huge costs, quite unnecessarily and often without restraint.
These claims, usually brought in defamation or privacy, are made in spite of the fact that the article complained of is protected by privilege, or patently does bear the defamatory meaning alleged, or is simply misconceived or procedurally impossible.
To give a recent example, a man convicted and imprisoned for fraud brought a claim against the publisher of the newspaper which had published a report of his conviction. That claim was struck out.
Then another prisoner, coincidentally resident at the same prison as the first claimant, brought another claim about the same article. He was not named in the article but claimed a spurious connection with the first claim, so the publisher was obliged once again to go through the court process to have that claim struck out.
A third claimant then brought another claim, based on the same spurious connection to the first claimant. Once again, the publisher had to go through the expense and aggravation of asking the court to strike out that claim as well.
Even when keeping costs to a minimum, this wasteful abuse of process costs the publisher thousands of pounds. In civil procedure, the losing party normally pays the winning parties costs. Unfortunately, the litigant in person, usually does not pay the publisher’s costs because he has no funds, even when ordered by the court to do so. Litigants in person often do not have to pay any Court fees, which often just means that the courtroom door is opened wide to meritless claims.
The courts are understandably very conscious of the right of every individual to a fair trial and will go to great lengths to ensure the litigant in person is heard in court. However, this is often once again at the expense of the publisher.
Lawyers are always aware that the Courts always ensure that the parties in a dispute are on an equal footing, and that the litigant in person is not disadvantaged by his lack of familiarity with the court’s process.
However, arguably the current balance is sometimes weighted too much in favour of the individual claimant at the expense of a publisher who could by no means be characterised as Goliath to his David.
Recently the Queen’s Bench Division of the High Court, which deals with most defamation claims, announced that Mr Justice Warby has been designated as the judge in charge of claims in the media and communications field. He has been consulting practitioners in the field about procedural issues that affect them.
Naturally, representatives of publishers have made submissions to this consultation, asking that the courts to deal with spurious claims at the earliest opportunity – after the claim has been issued and before the publisher is forced to embark on the costs and time-consuming process of getting the claim struck out as entirely without merit. After all, the Courts already have the power to deal with meritless claims by reading the documents and making decisions right at the outset to stop these kinds of claims, rather than insisting that a hearing is held so that the parties have to appear and argue their cases.
An even more proportionate approach would be for claims that litigants in person want to bring, to be vetted right at the outset, and only if they have merit would they be allowed to be issued and served on a publisher. That said, such an approach carries implications for access to justice, let alone the financial consequences.
Nevertheless, it is to be hoped that the Mr Justice Warby has a sympathetic ear because quite simply – something has to be done!