Defamation CFAs

The Law Commission in a scoping study on conditional fee agreements in defamation proceedings found that the existence of a CFA causes difficulties for defendants and acts as a strong deterrent against both continuing publication and defending a case on its merits. Submissions to the Law Commission pointed out that a successful defendant was unlikely to receive any costs when a CFA was in place while an unsuccessful defendant would have to pay the claimant’s costs plus the after-the-event insurance premium and the claimant lawyer’s success fees. The study also found that the CPR have stamped out the practice of routine letters before action (‘gagging letters’), and the commencement of proceedings (‘gagging writs’), with the sole intention of stifling further comment or debate. The Law Commission concluded that no further work into this area was necessary.