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Costs no longer following the event? Section 40 of the Crime and Courts Act 2013

The Secretary of State for Culture, Media and Sport this week recently addressed the Society of Editors on the freedom of the press. Amongst other things touched upon were the costs-shifting provisions of the Crime and Courts Act 2013.

For those unfamiliar, the offending provision is section 40, which applies to cases where a relevant claim (libel, slander, breach of confidence, misuse of private information, malicious falsehood, and harassment) is made against a relevant publisher which relates to the publication of news-related material. If that relevant publisher is not a member of an approved regulator when the claim is commenced and it would be reasonable for the defendant to be a member, the Court must award costs against the defendant unless (1) the issues raised could not have been resolved by using an arbitration scheme of the regulator had the defendant been a member or (2) it is just and equitable in all the circumstances to make a different order.

That is of course a radical departure from the usual rule that costs follow the event and amounts to nothing more than an incentive to publishers to join an approved regulator following the recommendations of the Leveson Inquiry. That is the stick. The carrot is to be found in section 40(2) whereby if the defendant is a member of such a regulator at claim’s commencement (or if the defendant was not able to join for reasons beyond its control, or if it would have been unreasonable for the defendant to be a member) the Court must not award costs against the defendant unless satisfied that the issues raised could not have been resolved by the regulator’s arbitration scheme, or it is just and equitable in all the circumstances to award costs against the defendant.

The section has yet to come into force. The Secretary of State’s intervention concerns when it might be brought into force. He stated that he is ‘not convinced the time is right’ for its introduction but that he ‘will want to examine the matter further in the coming weeks before taking any decision’. Watch this space.

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