Despite claims to the contrary, CFAs did not help free speech in BCA v Singh

Lord Jackson’s Review of Civil Litigation Costs was published in January 2010 . It applied to legal costs across the board, which obviously included costs in libel cases.

Recently, there was an open consultation. However, I did not make a submission to the consultation on the Jackson Review, which closed on Monday 14th February, because I had been focusing on preparing for the draft defamation bill (which will be published before the end of March).

However, having just read the submission made by Media Standards Trust to the Jackson Review consultation, I did want to correct one point relating to my own case.

As background, you should know that the Media Standards Trust submission argues that the current CFA system has played an important role in providing access to justice in many libel cases. While I accept that CFAs are important, I believe that the beneficial role of CFAs is exaggerated and that the chilling effect of CFAs is understated. I also feel that the 100% success fee is unnecessary and damaging to free speech.

Personally, the most worrying aspect of the Media Standards Trust submission is that it names me in a list of people described as “…some of those who successfully sought protection for freedom of speech through a CFA.” The report states:

Simon Singh – the author was sued (unsuccessfully) by the British Chiropractic Association over criticisms he made about scientific claims made by the BCA in 2008. He too was able to fight his case thanks to a CFA.

In fact, CFAs offered me very little support, and potentially had a very negative impact on my freedom of speech. The reality is that I was threatened with libel in May 2008, but I did not receive an offer of a CFA until February 2009. At this stage, only one out of three members of my legal team was on a CFA. In other words, I had already run up enormous legal bills before the prospect of a CFA became a reality, and thereafter it applied only to a fraction of my costs.

A second member of my legal team adopted a CFA arrangement towards the end of 2010, but by this stage I had already had to bear a massive financial burden.

On the other hand, the British Chiropractic Association (BCA), the organization suing me for libel, adopted a CFA arrangement with its legal team at a very early stage. This had a terrifying impact on me, because I faced the possibility of having to pay double the BCA’s costs if I lost the case. Thinking back to that time, the existence of a CFA for the claimant came very close to forcing me to back down. The BCA’s CFA came very close to ending my willingness to defend my right to free speech.

I hope that this helps to clarify the situation regarding my own case and my very partial CFA. This explanation should dispel any notion that CFAs were a boon to free speech in the case of BCA v Singh.

Moreover, the Media Standards Trust submission includes a reference to Hardeep Singh, who was sued for libel by his Holiness Sant Baba Jeet Singh ji Maharaj. The submission claims: “Singh pursued his case thanks to a CFA.” However, having spoken to Hardeep, my understanding is that the offer of a CFA came only at a late stage, and that he had already run up legal bills of about £100,000 prior to the CFA. Hence, the CFA clearly did not allow him to pursue the case, but rather it was Hardeep’s own determination and resilience that enabled him to stand up for what he believes to be true. He took a major financial risk, and it is not clear how much of his money he will ever recoup.

It is quite possible that many other examples that claim to show that CFAs support free speech are not as they seem.

For a more detailed explanation of my views on CFAs, please read my previous blog on this subject. I should stress that my overall view is not to abandon CFAs or make them unworkable, but to reduce the success fee to 25%. I believe this would retain access to justice, while driving down costs and the chilling effect of CFAs.

Originally posted on slsingh’s posterous