Partner Gideon Benaim comments in The Times on the attempt to introduce measures curbing the powers of those purportedly ‘bringing nefarious lawsuits against journalists to stifle free speech’.

Gideon's comments follow news that government ministers voiced their concern over the growing engagement in "lawfare" by individuals seeking to intimidate journalists and publications and stymie freedom of expression within the press.

Gideon commented: “Undoubtedly the legal process is expensive, but sufficient checks and balances arguably already exist to protect the parties. These include summary judgement, the early determination of meaning [of an article], costs budgeting, the intervention of the courts throughout the process to ensure fair play, and ultimately, control over costs awards at each stage including at the end of a case.

It should be remembered that many media defendants and their allies campaigned and succeeded in making it much more difficult to obtain funding arrangements like no-win-no-fee agreements from lawyers, thereby shutting out claimants who might not otherwise be able to afford to bring a legal claim, presumably one of their key objectives, but also defendants who themselves face litigation but would struggle otherwise to defend a claim. Make of that what you will: an own goal perhaps? Now a similar collective is trying to stop those who can afford to litigate from doing so as well.

Whilst there will always be a few examples that can be held up as evidence of perceived unfair tactics or behaviour, there is a real danger that attempting to restrict access to justice on the basis of a person’s wealth, their perceived dirty-hands, or what one side believes are ulterior motives for bringing the litigation in the first place, cannot and will not lead to a good outcome; and would in any event be contrary to guaranteeing access to justice.

Whilst it’s only natural to be sympathetic to those individual defendants who struggle with the financial risks, in most cases mainstream publishers are wealthier than the claimants who pursue them. Importantly though, the financial risks are greatest to publishers only if a court determines after due process that what was published was indeed unlawful. However, in such a scenario it would have been demonstrated on the balance of probabilities that it was right for a claimant to have pursued their case in the first place. 

I believe that we should be extremely cautious before embarking down a route that denies access to justice or makes it overly burdensome for people or companies to seek to protect and enforce their legal rights.”