Whilst mediation and other forms of Alternative Dispute Resolution are by no means new to media law, they are now certain to become the rule rather than the exception. In this regard, the Joint Committee on the Draft Defamation Bill has recently proposed that ADR become the norm as opposed to one of many ways to deal with a claim. For instance, prior to the issuing of a Claim and after the initial exchange of letters, it is proposed that it be compulsory for there be a mediation or early neutral evaluation of a claim with the Judge being able to order this if it does take not take place.
The pressure to decrease costs, complexity and longevity of media claims is aptly demonstrated with the recent establishment of two schemes : -
1. Early Resolution
http://www.earlyresolution.co.uk/
Early Resolution (ER), of which Hamlins LLP is an associate member, was founded in 2011 by Alastair Brett, former legal director at the Times, and Sir Charles Gray, former High Court Judge and media law barrister. ER’s aims are to enable access to justice for all and to decrease costs in libel, described as a "rich man's tort". In our view, both of these are required to ensure the right balance between the competing rights of privacy and reputation and freedom of expression.
ER provides arbitration services in addition to mediation and early neutral evaluation of claims. Parties are encouraged to enter into a binding, voluntary agreement as early as possible in a libel dispute to deal with issues such as what the words complained of in a publication actually mean and whether the words are "fact" or “comment“. Both of these issues may otherwise not be dealt with until Trial over a year from the date of a Claim and often after significant sums have been expended by the parties.
2. News International Compensation Scheme
http://www.newsint.co.uk/compensationscheme/
In the wake of the collapse of the closure of the News of the World after the damaging revelation of widespread phone hacking culminating in the story of the murdered Milly Dowler’s phone being hacked following her disappearance, a number of months later News International has established a compensation scheme as a route for individuals to seek damages and other remedies. Whilst plainly a vehicle to reduce News International’s exposure to legal costs, the scheme has a number of benefits for individuals who think they may have been a “victim”. If an applicant successfully joins the scheme, then they submit to a binding arbitration agreement with arbitrators, including Sir Charles Gray, considering the documents and evidence submitted to make an appropriate award. A major benefit of the scheme is that – whatever the outcome (following a successful application to be part of it) – the applicant’s reasonable costs will be paid (which would not be case if the dispute litigated with the claimant being at risk of paying News International), including potentially the cost of making an Application to the Court for disclosure of relevant documents in the police’s control. The Scheme also provides for early disclosure of documents in News International’s possession (albeit this is likely to be limited) and confidentiality, in appropriate circumstances. A major disadvantage is the extremely limited ability to appeal any decision.
Conclusion
Alternative dispute resolution (ADR) should be embraced as a way to resolve what may otherwise be lengthy and costly disputes. However, it is not always appropriate so the extent to which it should be compulsory is questionable particularly given the stated desire to decrease costs. Further, in terms of phone hacking, there is no appropriate Court precedent for damages awards in such circumstances and this will need to be established by the Courts.
For further information please contact Chris Hucthings on 0207 355 6104 or e-mail: chutchings@hamlins.co.uk or Callum Galbraith on 0207 355 6033 or e-mail: cgalbraith@hamlins.co.uk