Clause 93 - Award of costs against third parties
Courts Bill [Lords]
3:00 pm
Mr Norman Lamb (North Norfolk, Liberal Democrat)
I strongly support the basis of the clause. It is right that there be a basis for recovery of costs against third parties, but there is always a danger of creating bad law when there is a sense of injustice about a particular case or a group of cases that leads to precipitate action by Governments. The Dangerous Dogs Act 1991 is always rolled out as a classic example, but there are many other examples of legislation that was designed to attack a particular mischief, but that ended up with inadequate safeguards, or not achieving the objective that it was designed to achieve.
I am acutely conscious that one of the motivations for the provision is the case involving the Leeds United footballers. There was a widespread view that the loss of that trial and the enormous costs to the public purse were an outrage and that the press, which was responsible for it, should have been required to pay the costs lost, quite apart from the damage to the process of justice that was experienced in that case.
I suspect that there is not enormous sympathy for the press barons among the public at large, but it is important in a democracy that safeguards are in place to protect the rights to fair reporting of criminal trials, which we all want. The danger is that, without
adequate safeguards, with these provisions, one could end up with newspapers and other parts of the media feeling constrained with regard to reporting fairly on trials because of the possible consequences.
I wish to deal with some of the specific points that have been raised. I have also received the briefing from the Fleet Street Lawyers Society, and it makes important points that need to be considered and debated. One point is about whether the provisions comply with European convention on human rights rules on rights to freedom of expression and open justice. I would appreciate a response on that from the Minister. The briefing states that there is a danger that the provisions will fall foul of the convention. There is a lack of certainty about the way in which they could be applied.
The FSLS also refers to the Contempt of Court Act 1981, where there is a specific provision that the leave of the Attorney-General must be obtained before a power can be exercised under that Act. There is no comparable provision here. Why not?
The absolute importance of notification and the opportunity to be heard before a ruling is made is an essential element of natural justice. One of the amendments of the hon. Member for Surrey Heath provides for that and I support the case for it.
Finally, there is the question of the interpretation of ''serious misconduct''. That does not involve anything that is illegal or unlawful, because there is no definition of what we mean by ''serious misconduct''. There must be certainty in law for law to be good. We have to be clear about what that phrase means. Another amendment of the hon. Member for Surrey Heath would at least provide a basic definition of what we are talking about here. It also combines wilfulness with seriousness in the description of the misconduct.
These are serious points, and it is important that the Minister fully responds to the concerns that have been raised. There must be adequate safeguards to ensure that there is fair reporting of criminal trials.