Are libel costs 150 times greater in England and Wales?

I had a twitter exchange with Nick Cohen, the Observer columnist, today after he tweeted that:

Leveson [is] dodging issue of why libel costs in Britain a 150x European average. Why not just cut lawyers’ fees?

I queried the figure as dubious and pointed out the study was deeply flawed. Nick retorted, reasonably enough, that he preferred Oxford (who published the study) to libel lawyers (who he assumed did not produce the study) but has asked me to substantiate my concerns about the Study.

Readers can find it here.

The central claim, which I have seen recycled a number of times in debates about libel costs, is taken from the report’s executive summary. I highlight it in bold:

The comparative element of the study analysed data collected from various jurisdictions across Europe via a questionnaire, which included specific questions about two factual scenarios.

The data showed that even in non-CFA cases (where there is no success fee or insurance) England and Wales was up to four times more expensive than the next most costly jurisdiction, Ireland. Ireland was close to ten times more expensive than Italy, the third most expensive jurisdiction. If the figure for average costs across the jurisdictions is calculated without including the figures from England and Wales and Ireland, England and Wales is seen to be around 140 times more costly than the average. The data also showed that common law jurisdictions are by far the more expensive jurisdictions in which to conduct defamation proceedings. This was exacerbated by the use of CFAs.

Based on the collected data the study was able to identify costs factors, unique to the common law tradition, which partially explain (although they do not justify) the comparatively high costs in England and Wales. Although the collected data did not enable the study to pinpoint the precise underlying reasons for these costs increases in numeric, proportionate and interrelated values, it did give strong suggestions as to why England and Wales is the most expensive jurisdiction.

The headline figure of 140 times greater than average is dubious in a number of respects:

1. It is based on questionnaire responses to two cases.
2. Those responses were received from twelve countries. One lawyer or firm of lawyers estimated the costs of those two cases in their own countries.
3. Averages are thus calculated on tiny numbers on two hand picked cases.
4. The two case studies are based on real cases but we do not know how those cases were chosen and in particular how typical they are.
5. The cases appear to have been selected by a firm of solicitors who represents defendants in media cases. One of the solicitors in that firm has actively engaged in lobbying for defendant media interests.
6. The questionnaire was designed by this same firm of solicitors with input from the researchers.
7. The answer to those questionnaires was, for England and Wales, given by that same firm of solicitors. They author one of the chapters.
8. This is a study where a lobbyist designs, answers and then authors parts of a research report on an area in which they have taken a keen policy interest.

It is worth also noting that the study was commissioned by Associated Newspapers.

Whatever the circumstantial concerns about this research, the most important thing is that the key figure is based only on 12 estimates of costs on 2 cases. It is a tiny, flimsy basis upon which to be calculating averages and then generalising comparisons between England and Wales and the rest of Europe.

That of course does not mean the figure is wrong; it may be right, but a more serious critical and objective approach to data collection and analysis would be needed to get even close to an accurate figure. Nor is the research without interest: on this evidence a lawyer in France thinks French courts can do in hours what our lot take days over. And I do not disagree with Nick Cohen’s overall point, it must be better for there to be a cheaper system (I’d opt for an Ombudsman and cut lawyers out completely). But as a serious, quantitative comparative study of costs it is deeply flawed in design and execution. If one was to rely on these kinds of estimates, cases had to be selected in greater numbers, with a semblance of balance in that selection, and data collected from a range of lawyers with a range of perspectives.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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8 Responses to Are libel costs 150 times greater in England and Wales?

  1. “I suspect few lawyers with cross-border experience would be surprised to read that English litigation is likely to be a great deal more expensive than anywhere else in Europe. This has long been so. But… a hundred and forty times the European average? Other studies have suggested England is only twice to ten times as expensive as other jurisdictions. A quick scan of this rather naïve study suggests that the difference may not be as great as here claimed. Like is not clearly being compared with like. It is far from clear that the researchers, who are post-graduate students with no apparent practical knowledge of litigation anywhere, were aware of this. The English proceedings are taken to be at top-level, in the High Court in London, with a city firm, fashionable silk, and so on; while the German proceedings (supposedly the cheapest in Europe) are, reading between the lines, pretty obviously a small claim in a local court. In this way, claimant costs (i.e. agent and client expenses) for a notionally-identical claim are brought out at an astronomic £1.5m for the English claimant (without CFA) for a two or three-week trial, against a mere €750 for the German claimant for a half-hour trial. Little serious attempt is made to bring out whether these differences in costs are characteristic of the different national jurisdictions, or merely of litigation choices by lawyers. It is visible that the English proceedings are assumed to be conducted without the slightest regard for expense. This may be a characteristic of English High Court litigation, but it can hardly be assumed to be universal in England.”

    See http://www.jonathanmitchell.info/2009/02/20/english-litigation-140-times-more-costly-than-the-european-average/ .

  2. Nick Armstrong says:

    Do not let these (good) points about the Oxford study deter you from reading Nick Cohen’s book, which is extremely powerful

  3. jtownend says:

    Richard, it’s interesting to read your critique of the study, which I’ve found useful in the absence of much accessible data in this area. Would some of your concerns be met by balancing it with hypothetical quotes from a solicitor firm which deals mainly with claimant work? Or would you avoid hypothetical scenarios altogether? Are there examples of other research on legal costs that could be replicated in a media law context? How could the comparative concerns that Jonathan Mitchell raises be addressed? Those questions are directed at anyone who has any thoughts on this!

    I ask because I’m interested in finding ways of researching media law in practice. I’m in the midst of interviewing in-house and external media lawyers in England and Wales for my own doctoral research, based at City University’s Centre for Law, Justice and Journalism to try and build up a better picture of legal processes in newsrooms. I am speaking to solicitors and barristers, who deal with both claimant and defendant work, as well as journalists. While interested in defamation/privacy in other jurisdictions, I am confining my analysis to E&W. While I am not directly researching costs, they are, of course, extremely relevant and I’d welcome any data on offer. It is, however, difficult enough to keep track of claims that do make it to the High Court (let alone legal complaints). I should emphasis that my objective is social study, rather than legal analysis.

    General views and observations are easy to come by, but I am struggling to pin down the data and would welcome suggestions for accessing information about the number of claims, complaints and costs to media organisations and claimants during the past five year period (ps. I write with the caveat that I’m also a “postgraduate student” and originally from a journalism/social science rather than legal background …)

    • Richard Moorhead says:

      More case studies, chosen in a more objective manner, and given to a range of respondents would be better. I wrote a paper on how to research this with Fenn and Rickman. Should be ref’ed on my cardiff.ac.uk web page. Happy to discuss by email.

  4. jtownend says:

    Thank you, I’ll drop you a line and look up the paper.

    Also, I meant to comment on your suggestion for a cheaper system and an Ombudsman, something I think warrants more attention. A number of regulatory proposals were put forward at yesterday’s University of Westminster’s ‘After Phone Hacking’ conference, including Max Mosley’s. He wants to see a press tribunal dealing with privacy cases, funded by media organisations. That would certainly bring with it more disputes (if more people were able to access it), but he claims that “Given compulsory prior notification, and the power, when necessary, to prevent publication, such a tribunal could resolve almost all privacy issues effectively and at minimal cost to both parties” (see his Leveson witness statement). If I understood him right, such a system could extend to non-media org cases too (ie. social media cases between ordinary people) (see the last part of his CNN article here: http://articles.cnn.com/2012-02-27/opinion/opinion_opinion-max-mosley-newspaper-regulation_1_uk-phone-hacking-scandal-clive-goodman-glenn-mulcaire/2?_s=PM:OPINION) That really would change the media law/regulation scene …

  5. Pingback: A dearth of data about defamation cases in England & Wales | Media law and ethics

  6. Pingback: A dearth of data about defamation cases in England and Wales – Judith Townend « Inforrm's Blog

  7. Pingback: The Justice Gap » Blog Archive » Leveson and access to justice

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