By Elliot Adams
Standard Anti-Libel Lawsuit Disclaimer: For legal reasons, everything I say in the following post is a lie, a fictionalisation or possibly a freeform poem. Rubbing in whatever magical creams and rhino horn extracts I happen to mention in the next few paragraphs absolutely does have the amazing curative powers its manufacturers claim. ‘Homoeopathic medicine’ is legitimate and water does have a memory that can store the value of extracts boiled in it – and yet it has ‘forgotten’ all the faeces that’s been in it. No one has ever done or said what I claim they have, and no one is what I have said they are – not even myself. Also the yeti is real.
It’s sad to say it, but the preceding disclaimer was not entirely in jest. The Wilmshurst case, which has become a solid touchstone for our backwards Libel laws has – as is traditional in such cases – protected quacks and stifled debate. NHS cardiologist Peter Wilmshurst is being sued by US medical devices corporation NMT over his comments made at an academic conference about the conduct and results of the MIST trial in which Wilmshurst was the lead investigator until problems arose with the safety of the tests – in two seperate proceedures the devices embolised into the patient’s heart.
At this point it’s important to recognise that he really was in the right making his comments. The results of the MIST trial were negative. The trial aimed to determine if the device permanently prevented migraines. A sample of 147 migraine sufferers took part, 73 had a fake operation with nothing implanted and 74 had NMT’s device implanted. Of these participants 6 people stopped suffering from migraine, 3 from each group. In scientific, mathematical and journalistic circles this is termed ‘making fuck-all difference’.
But such cases are common as Essex these days, so the real interest here lies in how this tiff is being funded. The Wilmshurst case would seem to be giving a rarely seen positive light to the use of Conditional Fee Agreements in libel cases.
CFAs were a labour brainchild and allow claimant lawyers to charge double to the losing side in order to compensate for the risk of failure in pursuing their claim. This is similar to the processes behind those often advertised ‘no-win, no-fee’ services which sue your friends, family or employers for your inability to carry out simple tasks without knackering yourself.
This isn’t of itself a problem, but when they’re used in libel cases, journalists are risking a loss in the millions if they take a libel case to trial and similarly ludicrous figures if they don’t settle almost immediately anyway. So even if a publication is clearly in the right they will have to settle because the high cost of potentially losing is a figurative gun to their head – or to their bank balances anyway.
In fact even if a publication wins in court, they will almost certainly lose financially because the claimant will rarely be able to pay the publications own legal costs.
Dr Wilmshurst, for example, has already paid a hundred thousand of his very own pounds in his defense. NMT have been ordered to put twice that amount in a UK bank account in case they lose at trial, or the case will be killed. But the company’s current financial situation is such that this is unlikely to happen. So even if Wilmshurst wins or the libel case is struck off, he may never get his hundred grand back. But the point is that, had Dr Wilmshurst’s Lawyer not taken on the case with a CFA, these demands wouldn’t have been made of NMT and he would’ve had barely any chance to defend his reputation at all.
The tory-judas coalition will be putting its Libel Reform Bill out to consultation next summer, so I think that perhaps cases like Wilmshurst’s should remind us that CFAs aren’t the heart of the problem. Certainly, libel costs currently present serious problems, but it is the harshness of current libel laws and the underlying cost that is problematic. The adjustments to those costs by CFAs can exacerbate these issues, but elliminating CFAs is not a solution and would create a funding vacuum where only the extremely wealthy can afford to defend their – deserved or undeserved – reputations.