Leveson Inquiry

It should be open any subscriber to a recognised regulatory body to rely on the fact of such membership and on the opportunity it provides for the claimant to use a fair, fast and inexpensive arbitration service. It could request the court to encourage the use of that system of arbitration and, equally, to have regard to the availability of the arbitration system when considering claims for costs incurred by a claimant who could have used the arbitration service. On the issue of costs, it should equally be open to a claimant to rely on failure by a newspaper to subscribe to the regulator thereby depriving him or her of access to a fair, fast and inexpensive arbitration service. Where that is the case, in the exercise of its discretion, the court could take the view that, even where the defendant is successful, absent unreasonable or vexatious conduct on the part of the claimant, it would be inappropriate for the claimant to be expected to pay the costs incurred in defending the action.

The Inquiry asked the government to adjust court costs rules to encourage recognised arbitration. In May 2024, section 50(2) of the Media Act 2024, enacted by Parliament, provided that "Section 40 (awards of costs) is omitted" (Media Act 2024, section 50, May 2024). In March 2018, Matt Hancock, Secretary of State for Digital, Culture, Media and Sport, stated that the government decided not to commence Section 40 of the Crime and Courts Act 2013 and would seek repeal, with the department confirming it would find a legislative vehicle to repeal the provision without commencing it first (Matt Hancock response, Mar 2018; Department for Digital, Culture, Media and Sport, Mar 2018; Matt Hancock, Mar 2018; Department for Digital, Culture, Media and Sport, Mar 2018). In March 2013, David Cameron, Prime Minister, had stated that costs rules in civil claims against publishers would be changed to incentivise joining a regulator (David Cameron, Mar 2013).

The role of recognition body, that is to say, to recognise and certify that any particular body satisfies (and, on review, continues to satisfy) the requirements set out in law should fall on Ofcom. A less attractive alternative (on the basis that any individual will not have the requisite authority or experience and will only be occasionally be required to fulfil these functions) is for the appointment of an independent Recognition Commissioner supported by officials at Ofcom.

The Inquiry recommended that Ofcom or an independent commissioner serve as press recognition body. In March 2013, Prime Minister David Cameron rejected appointing the regulator, explaining that he had "grave misgivings" about giving the task to an already powerful body and opted to establish a recognition body through a royal charter instead (David Cameron response, Mar 2013; David Cameron, Mar 2013). The alternative of an independent Recognition Commissioner supported by its officials was not mentioned in the statement (David Cameron response, Mar 2013; David Cameron, Mar 2013).

In passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press.

The Inquiry recommended placing a statutory duty on ministers to uphold press freedom. In March 2013, Prime Minister David Cameron stated that statutory regulation to create a recognition body was not necessary and would instead be achieved through a royal charter (David Cameron response, Mar 2013; David Cameron, Mar 2013). An explicit legal duty to uphold and protect press freedom is not mentioned in the sources (David Cameron response, Mar 2013; David Cameron, Mar 2013).

The Civil Procedure Rules should be amended to require the court, when considering the appropriate order for costs at the conclusion of proceedings, to take into account the availability of an arbitral system set up by an independent regulator itself recognised by law. The purpose of this recommendation is to provide an important incentive for every publisher to join the new system and encourage those who complain that their rights have been infringed to use it as a speedy, effective and comparatively inexpensive method of resolving disputes.

The Inquiry recommended amending civil court costs rules to incentivise joining a recognised regulator. In May 2024, Parliament enacted the Media Act 2024, which omitted section 40 of the Crime and Courts Act 2013 on awards of costs (Media Act 2024, section 50, May 2024). In February 2024, Julia Lopez, Minister of State at the Department for Culture, Media and Sport, stated that the government was not proposing to instruct the Civil Procedure Rule Committee to amend rules of court to support section 40, aligning with its commitment to repeal it (Julia Lopez, Feb 2024).

In the absence of the provision of an approved mechanism for dispute resolution, available through an independent regulator without cost to the complainant, together with an adjustment to the Civil Procedure Rules to require or permit the court take account of the availability of cost free arbitration as an alternative to court proceedings, qualified one way costs shifting should be introduced for defamation, privacy, breach of confidence and similar media related litigation as proposed by Lord Justice Jackson.

The Inquiry recommended introducing qualified one-way costs shifting for media litigation without approved arbitration. In November 2018, the Ministry of Justice stated that the Government did not believe introducing a bespoke costs protection regime was "the right way forward" (Ministry of Justice, Nov 2018; Ministry of Justice, Nov 2018). Previously, in March 2018, Matt Hancock, Secretary of State for Digital, Culture, Media and Sport, announced a decision not to commence Section 40 of the Crime and Courts Act 2013 (Matt Hancock response, Mar 2018). In April 2013, Jeremy Wright, Parliamentary Under-Secretary of State for Justice, stated that the Government was considering advice received from the Civil Justice Council (Jeremy Wright, Apr 2013).