The Fourth Estate and Access to Justice: Defendant Corporations and Group Litigation

THE FOURTH ESTATE AND ACCESS TO JUSTICE: DEFENDANT CORPORATIONS AND GROUP LITIGATION LAURENCE C. T. GEORGE INSTITUTE OF ADVANCED LEGAL STUDIES SCHOOL OF ADVANCED STUDY UNIVERSITY OF LONDON PHD Chapter 1 DECLARATION I hereby certify that the work presented in this thesis is my own. …………………………………………………… Laurence C. T. George Chapter 1 ABSTRACT The thesis examines the activation and use of all forms of media in association with group litigation in England as a weapon in the armoury of claimant lawyers. The thesis assesses the impact that this may have on the corporate defendant to discover whether it may force them towards a settlement they may not otherwise have made or on terms or at a time when they may not otherwise have made it. It then questions whether such impact may amount to a denial or limitation of a right of access to justice. Unusually, this thesis looks at the issue of access to justice from a defendant corporation’s perspective and not from the perspective of an impecunious or disadvantaged claimant. It describes how quickly and effectively the public can be affected by information from the media and thus at how powerful a weapon media activation can be in terms of negative impact on the reputation of a defendant. In order to be able to examine relevant questions of regulation and ethics, it looks at the current environment in which claimant lawyers work and at changes and developments that have affected the legal profession and its regulation. It also discusses changes regarding legal costs, legal aid and litigation funding, all of which have affected the approach to group litigation, its availability to claimants and its commercial viability for claimant lawyers. The media are a tremendous force in our society and the more recent advent of social media has the possibility of affecting large numbers of targeted individuals. Media can clearly be used within the legal sphere as a means of obtaining justice as occurred in the Thalidomide case when a group of parents, unsophisticated in the use of the law and with very limited resources were met by the unequal force of a large corporation and had only the press to speak out for them. However, the media can also be misused and there is a danger that lawyers can be involved strategically in such misuse of the media, unfairly making unproven suggestions, sometimes without any proof or even physical possibility of proof, in order to even out the imbalance between the parties. The imbalance of power for claimants before the courts needs to be addressed, but the imbalance of power in the media can be taken advantage of sometimes in an unfair and unethical way by claimant lawyers. This thesis deals with the latter issue, how lawyers' misuse of the media can be carried out in an unethical way. Whilst little attention has been paid in the literature to rights of access to justice for corporations, items of relevance to the research issue and literature on related and connected topics were reviewed. Absent research that specifically analysed or discussed the impact of media activation on defendant corporations in group litigation cases, answering the research questions required direct information from legal professionals involved in the practice of group litigation. Chapter 1 Interviews were conducted with practitioners involved in multi-party litigation on both the claimant and the defence side. As a possible check on the views of the protagonists, some useful interviews were also conducted with journalists and some with PR professionals and one with a retired judge. The research was conducted as qualitative research using aspects of grounded theory. Semi-structured interviews were conducted using a Topic Guide. A summary of results was set out in a Data Analysis Matrix which is appended to the thesis. Aspects of grounded theory used in the research included theoretical sampling, coding and theoretical saturation. The conclusions were that media is being activated by claimant lawyers in group litigation and that such activation has an impact on corporate defendants in influencing their decisions regarding settlement. The absolute extent of that influence was not quantifiable but it is a major factor in decision making regarding settlement. Whilst the impact of activated media cannot be said to amount to an absolute denial of a right of access to justice it can be said to amount to a significant limitation on a right of access to justice and as something which could, for a corporate defendant, make actually using a right of access to justice counter- productive. The research demonstrates that an extra-judicial process is being routinely used and exploited by claimant lawyers alongside or prior to the judicial process. All the claimant lawyers who commented, considered this to be a legitimate course of action; some because they felt the odds were stacked against claimants, some because they simply saw it as an inevitable part of the process, as indeed did some of the defence lawyers. This is considered a concern because it is a deliberate and unfair exertion of pressure outside a judicial process (therefore outside the framework of rules of procedure designed to make the judicial process fair and evenly balanced). Second, it is a process conducted by lawyers who see it at the lowest as an adjunct to the judicial process and at the highest as a replacement for it. Serious ethical issues are therefore raised, which it is concluded, the current outcomes focussed regulatory environment is not equipped to deal with. The conclusion is that this activation of media ought to be a clear breach of well- defined rules of professional conduct. Such rules would not necessarily need to prevent publicity regarding such cases and should be designed to prevent prejudice to the Article 10 rights of lawyers, litigants and interest parties; however, such rules should be designed to prevent the gratuitous repetition of sensational headline grabbing, unproven allegations and especially the publication of such allegations as apparent statements of fact. To that extent such regulation would need to address issues of content of statements and releases via all forms of media. Chapter 1 QUOTATIONS "…that a press conference is an adjunct to litigation ... is frankly disturbing" Timothy Dutton QC "A clear case of media over merit" PR Professional (Legally qualified) "It doesn't have to be your fault to be your problem" In-House Counsel “Journalists and lawyers are often rivals for the mantle of protector of the public interest” Richard Abel Chapter 1 TABLE OF CONTENTS Declaration .....................................................................................2 Abstract .........................................................................................3 Quotations ......................................................................................5 CHAPTER 1 Introduction .................................................................... 11 Section 1 - General Introduction........................................................ 11 Litigation - Media Interest and Interest in Media.................................. 11 Introduction to Media Activation..................................................... 14 Unproven Allegations and Rush to Judgement ..................................... 15 The Al Sweady Case.................................................................... 17 Pre-Trial Publicity...................................................................... 20 Media Activation and GLOs – Considerations ....................................... 22 Section 2 – Background................................................................... 22 Media and the Judicial Process....................................................... 22 Articles 6 and 10 ECHR ................................................................ 24 Media Interest in Litigation ........................................................... 36 Group Litigation/Collective Actions ................................................. 37 England – GLOs.......................................................................... 39 England - Non-GLO Multi-Party Actions ............................................. 40 USA and Australia....................................................................... 40 New Zealand ............................................................................ 41 Section 3 - The Changing Climate in the Legal Profession and the English Legal System ...................................................................................... 43 The Introduction of Litigation Funding/No win No fee ........................... 43 Section 4 - Funding of Litigation and changes following LASPO.................... 46 Funding Options in English civil Litigation.......................................... 46 Self-funding ............................................................................. 47 Legal Aid................................................................................. 47 Legal Aid and multi-party litigation ................................................. 49 Insurance ................................................................................ 51 1. ATE insurance....................................................................................................................51 2. BTE insurance....................................................................................................................52 Claims Aggregation....................................................................

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