Privacy and Injunctions - Evidence - Parliament

Professional Negligence Lawyers’ Association—Written evidence
However what if there was a reason for the Press and Media all to omit to publish news
which was unarguably newsworthy?
This does appear to have arisen recently in relation to the following legislation:
a. The Defamation Bill;
b. The Legal Aid Sentencing and Punishment of Offenders Bill – notably sections 43
and 45 concerning ‘no win no fee’ funding of civil litigation costs.
Other issues which may affect all the Press and Media businesses would include the
proposals of this Committee and issues surrounding any reform of the regulatory framework
for the Press and Media.
Therefore it is possible to conceive of ‘extreme situations’ where the Press and Media as
businesses are not only likely to omit to publish news which may affect large numbers of
their readers and viewers, but also they may well be legally bound to do so.
An extreme situation would arise if there is proposed to be a change or reform which might
harm readers and/or viewers but where the change or reform would substantially benefit the
Press and Media as a whole.
Civil Litigation Costs Reforms
Within this background the Committee have asked for evidence at point (2) l on the
sufficiency of damages as a remedy, whether punitive financial penalties would be an effective
remedy and indeed whether or not they would deter disproportionate breaches. There is
further reference at n. to aggravated damages. Injunctions themselves are a remedy within
civil litigation.
Therefore the proposed Government reforms in sections 43 and 45 of the Legal Aid
Sentencing and Punishment of Offenders Bill (currently in the Committee Stage in the House
of Lords) are highly relevant to the evidence being sought within this Committee.
The impact of these reforms would be to make it impossible for many victims of publications
which break the law by Press or Media businesses – whether by way of privacy, defamation
or otherwise – to fund civil litigation for damages and/or injunctions.
Clearly any company which provides publications by way of press articles or broadcasting
must have regard to its own financial welfare. Directors are legally bound to act in the best
interests of their companies by way of the Companies Act 2006:
Section 172 Duty to promote the success of the company
(1)A director of a company must act in the way he considers, in good faith, would be most likely to
promote the success of the company for the benefit of its members as a whole..
Therefore there is a fundamental conflict of interest for the directors of such companies in
an extreme situation if there is legislation which is clearly ‘news’ but if published could lead
to a lack of ‘success’ in the financial performance of the business.
In relation to civil litigation costs the current position is that a claimant can obtain funding by
way of ‘no win no fee’ a Conditional Fee Agreement whereby a solicitor can offer not to be
paid at all if the case is lost but if successful can charge their usual base costs plus a ‘success
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