Privacy and Injunctions - Evidence - Parliament

David Price QC, Gavin Millar QC, Gillian Phillips, solicitor, Director of Editorial Legal
Services ,The Guardian, and Reynolds Porter Chamberlain—Oral evidence (QQ 33–64)
A minute ago you asked for some figures. You will probably get more reliable figures
from the witnesses who follow us because they act for claimants and generally we do not,
with the exception of David, who does some claimant work. Based on experience,
obviously the cost of getting an injunction will vary from case to case, but I think it would be
a minimum of £15,000 to £25,000, and it could be a lot more depending on the degree of
opposition to the injunction. As to taking a privacy case to trial, I can give you the example
of the Rio Ferdinand case in which the costs of the newspaper, for which I acted, were about
£160,000 and the claimant’s costs were about £270,000 or £280,000. I may stand to be
corrected on that, but those are the kinds of figures we are talking about. As to where
privacy stands in relation to other kinds of litigation, it is more expensive than personal
injury but less expensive than commercial litigation and other forms of litigation.
Gavin Millar: I agree with everything everybody else has said. There is a category of
privacy case where the person qualifies for legal aid and can apply for injunction. Those
cases do happen. I acted for a claimant in that position against the BBC and obtained an
injunction to stop or alter a television programme. As in all areas of the law, there is a gap
between the few entitled to legal aid and those who can litigate without worrying about the
cost.
Q829 Lord Boateng: That is a gap into which most people fall.
Gavin Millar: Yes, and they need a conditional fee agreement. David is absolutely
right about that. It may not be very attractive to the lawyer, and there is a very small group
of people who can bring these privacy cases. There will not be one on the high street. They
cannot run off to David Price’s office in Fleet Street and get to the point of asking him to do
it on a CFA. What is interesting about cases where people are on legal aid, which I as well
as colleagues in my chambers have done, is that they tend to be—I do not suggest this is in
any way improper, or that their human rights should not be respected as much as anybody
else’s—criminals, prisoners and people involved in family litigation who happen to have
lawyers on the job with the benefit of legal aid in some other area of their lives, and who get
them to the point where they can think about bringing a privacy injunction against a tabloid
for something being written about them. There is a big gap in the middle as far as concerns
the people who do or can bring these injunction applications.
Q830 Lord Gold: Following on from the issue about cost and access to this area,
should we move towards making the court the place of last resort? Should we look to
encourage some sort of mediation, by which I mean something a little more than a
go-between, rather evaluative mediation, where perhaps with a beefed-up PCC, claimants
and newspapers are required to get into a dialogue at a very early stage? There will still be a
need for legal representation but the costs could be very much lower. There would be a
team of experts who know the area and the issues extremely well and who would seek to
persuade or encourage the two parties to reach an accommodation. They would always
have the opportunity to go to court if they cannot agree, but the idea would be to try to
give access to those people who cannot go to lawyers and cannot afford it. It would also
perhaps deal with Mr Price’s point about balance, because I suspect that if there were
experts in this field who were part and parcel of the process, we might well find that the
pendulum would swing back to the sort of balance he has in mind. Is that a good idea?
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