Many hoops in legal aid's new libel circus

Published on Thursday 6 September 2007 00:54

IT HAS often been said that libel cases are the domain of the rich. Libel litigation is a costly business and even when the prospects of success are high, it is always wise to countenance the client on what will happen if it all goes wrong.

For obvious reasons legal aid has not been made available for defamation actions. The fear has been an avalanche of trivial cases eating up the public purse - the sort of "he called me a **** in the pub last night and I want to sue him" mentality that should be kept in the barroom and away from the courtroom.

But all that has now changed with the introduction of the grandly titled Civil Legal Aid For Defamation Or Verbal Injury Proceedings (Scotland) Direction 2007. Or has it?

The direction came about as a result of the European Court's decision in the McDonald's libel case. There, the European Court held that there was inequality of arms between the defenders, Steel and Morris, and the McDonald's food chain. The failure to grant Steel and Morris legal aid had breached their right to a fair trial.

In England, legal aid is still not available but a practice has developed in the form of Conditional Fee Arrangements (CFA). The purpose of CFAs is three-fold. First, to allow a client representation, where it would not previously be available. Second, not to trouble the public purse and, third, to make lawyers wealthy.

The way that the CFA works is that it allows the solicitors pursuing the case, if successful, to double their costs, which will be recoverable from the defender. At London prices, that works out at more than 800 per hour. That's quite an incentive to take on a case. It's also quite an incentive not to push for the introduction of legal aid.

Before the direction came into force, the problem facing the Scottish Executive was that though there was provision within the legislation to allow for legal aid to be granted, the Scottish Legal Aid Board had no remit to grant it until the Scottish ministers gave it the authority to do so. That, in essence, meant that there was a blanket ban on the grant of legal aid, which arguably would be incompatible with the European Convention on Human Rights.

What the Executive needed to do was allow for legal aid to be granted with a discretion to refuse it. That way, rather than falling foul of the convention automatically for failing to provide legal aid, it would only be open for an applicant to judicially review the board's decision to refuse to grant it. Since any decision would be based on the board's discretion, it will always be an uphill struggle.

So where does this leave our would-be litigant? Well, the directions state that there has to be something exceptional about the person or the case and that degree of exceptionality should be the same as or approximately the same as the facts found in the McDonald's case.

So not much of an uphill struggle then. All you have to do to get legal aid is to be involved in the longest-running libel action in UK history, against a billion-dollar organisation, acting as a defender to protect freedom of expression.

Somehow, I don't think the Legal Aid Board is going to be too taxed in exercising its discretion. It does pose the question, however, as to whether there is any point enacting legislation which really serves no purpose whatsoever.