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Legal actions will delay Section 40 costs decision

17 January 2017

Media Lawyer

The Government's decision on whether to bring into force provisions which could mean newspapers which have failed to sign up with a "recognised" regulator being forced to pay all the costs in defamation and privacy actions, even if they win, is likely to be delayed for months by legal actions.

Government lawyers yesterday filed papers at the High Court defending its decision to launched a consultation on whether to bring the costs provisions - in section 40 of the Crime and Courts Act 2013 - into force as well as whether to go ahead with Part Two of the Leveson Inquiry.

The Department for Culture, Media and Sport (DCMS) and the Home Office are contesting the application for judicial review of the consultation decision brought by two individuals and a website.

The application is being made by former police officer and Crimewatch presenter Jacqui Hames, an un-named victim of phone-hacking, and online news publisher Byline Media.

DCMS officials said Culture Secretary Karen Bradley, whose department is currently sifting through a total of 140,000 responses to the consultation, would delay any decision on bringing section 40 into force until the end of the judicial review process.

But that might not be the end of the story - because of a separate challenge launched by the News Media Association (NMA) which represents the interests of the national, regional and local press and magazine industry, has also launched an application for judicial review - of the decision by the Press Recognition Panel (PRP) to accept Impress as a press regulator.

Should that challenge succeed and the PRP's decision be overturned, the implementation of section 40, were it to take place, would arguably become irrelevant, at least in the short term, because the absence of a recognised regulator would mean courts could not implement the costs provisions against newspapers which had failed to sign up to one.

The NMA filed its papers for its judicial review application at the High Court on January 12, serving them on both the PRP and Impress at the same time.

The PRP said it would fight the action. Chairman Dr David Wolfe QC said: "The PRP received a pre-action protocol letter from the NMA prior to Christmas and responded to that on December 21, 2016.

"In that letter, we make clear that the PRP board is content with the robust decision it has made after allowing all parties three opportunities to provide the PRP with information they wanted us to consider.

"We have now received the NMA's application for Judicial Review. The points made by the NMA in the JR are those which it made in its previous submissions to PRP and in the pre-action letter, to which the PRP has responded to. We will be responding to the Judicial Review application in due course."

The NMA claims that the PRP made serious and fundamental legal errors in deciding to recognise Impress.

The application for Judicial Review follows legal advice received from the NMA's Solicitors, RPC, and its counsel, Lord Pannick QC and Iain Steele, who will represent the NMA at the Court hearing.

In the pre-action letter, the NMA told the PRP that the Impress scheme of regulation fell short of the recognition criteria detailed in the Royal Charter on the Press in a number of material respects which were not capable of cure.

Among the issues the letter highlighted was the source of Impress's funding, which it described as "a matter of grave concern".

Most of Impress's funding comes from former motoring racing boss Max Mosley.

Other areas highlighted included Impress's lack of a standards code - at present is says it is using the Editors' Code of Practice overseen by Ipso, the Independent Press Standards Organisation.

The letter said on the Code issue that the Editors' Code "is not the responsibility of Impress and Impress has no copyright in the Code".

Impress has consulted on its own draft standards code but has not yet adopted one, the letter said, adding: "It is unlawful for the PRP to approve a regulator without assessing the standards code against which it is to regulate its members."

Most of the national, regional and local press have signed up to Ipso, the industry-funded Independent Press Standards Organisation.

No major publishers has signed up with Impress, which currently lists 30 regulated publications on its website - most of them hyperlocal websites. The total in the Impress list includes printed editions of some website publications.

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