Privacy and Injunctions - Evidence - Parliament

Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice, and Rt
Hon Jeremy Hunt MP, Secretary of State for Culture, Olympics, Media and Sport—Oral
evidence (QQ 1021–1069)
Q1068 Mr Bradshaw: Ken Clarke said earlier that the Government were
including measures in their legal aid reforms that would protect the right of the little person
to continue to protect his or her privacy using the law. That contradicts evidence we have
heard from other people, so either now or in writing it would be helpful if you could outline
exactly how you propose to do that. The argument made to us is that the existing law is
stacked against the little person and it is set to get worse as a result of the no win, no fee
system being reformed and the legal aid changes. The second question is: do you think there
is a case for prior notification? Max Mosley made a very strong case in his evidence that
privacy is unique, in the sense that once you have lost it, you have lost it. It is not like
defamation. What do you think of the idea that there should be a requirement for prior
notification?
Mr Clarke: I will write to you to clarify it. I talked about qualified transfer of cost. I
think that at the moment the Legal Aid, Sentencing and Punishment of Offenders Bill
confines that to personal injury cases. We want to extend it to a wider field. If the small
person is the plaintiff, the main remedy is to bring an action under no win, no fee. In theory,
you do not need any money at all if you get a lawyer to take it on. If he thinks you will get a
remedy he will recover his costs from the other side. We are taking steps to make that less
punitive on defendants, because at the moment many of them, including newspapers,
complain that the cost of defending totally speculative actions, which are often gold digging,
is quite prohibitive. You have to start thinking of settling things before you incur the risk, so
that is clear. But under the old basis of no win, no fee, I still think you can bring litigation
and it means that you are not required to spend anything. The lawyer takes the risk. If he
thinks your chances of success are so good, he will recover his costs from the other side.
You may have to pay some of the costs out of your own damages when you recover them,
but normally in these areas damages are not the first thing a person suing for privacy is
thinking about. Otherwise, you are saying that you are still damaged when it has been
printed. That is why we have injunctions. I am against the idea that you do not have any
injunctions. Super-injunctions were a very difficult problem, but someone whose privacy or
reputation is being destroyed in a major way wants to stop it happening at all, if possible. As
long as you can satisfy all the hurdles required to get an injunction and stop it, that is fine,
but there should be big hurdles.
The problem arises where the big man is the plaintiff and the little man is the
defendant. I mentioned Sir Robert Maxwell, who must have been judged a fit and proper
person to own a newspaper, but who died with 150 writs for defamation outstanding against
people who had the temerity to suggest that his proceedings were not always as
straightforward as they should be, and no doubt he silenced the lot of them, as was his
practice.
Chair: Mr Bradshaw’s and also Max Mosley’s point is that to get an injunction you
have to know the story is coming.
Q1069 Mr Bradshaw: Therefore, you need prior notification.
Mr Clarke: Yes. He lost that, did he not? Should there be a right of notification in
every case? Max Mosley’s case established that at the moment there is no right in law to do
that. Parliament could consider that if it wanted to, but it would be a tremendous burden to
impose on investigative journalists if they always had to trail what they are doing. There is
investigative journalism and investigative journalism, but in the case of financial malpractice
686