Lawyers’ hourly rates in libel cases should be capped so that the cost of defending a libel action does not inhibit free speech or give the wealthier of the two parties an unfair advantage, the Libel Reform Campaign urges in a report published today.

The report blames the high cost of defamation cases partly on courts ‘routinely’ allowing lawyers ‘to recover hourly rates that exceed the guidelines laid down by the Advisory Committee on Civil Costs (ACCC)’.

Conditional fee agreements - upon which the government is legislating and which can more than double the losing party’s costs so that they exceed the damages awarded - are also responsible for putting defamation proceedings beyond the reach of all but the most wealthy, it adds.

The authors of the report, free speech campaigners ­English PEN and Index on ­Censorship, want to see fewer libel cases come to court.

They recommend referring all cases to mediation, and cite practitioners who have achieved settlements in up to 100% of their cases in this way. They also propose the removal of the presumption of a jury in libel trials.

If either party refuses mediation, cases should be taken before a specially appointed judge for early neutral evaluation (ENE).

One judge is quoted as saying that ‘ENE almost never fails, with settlements being reached within weeks of the process taking place’.

Stricter costs sanctions should also be introduced to stop ACCC guideline hourly rates being routinely exceeded. According to the report, the guideline rate last year was £409 per hour and yet one firm charged £650 per hour.

The report also recommends giving judges a ‘mandate to use tighter case management tools’ so that cases are dealt with ‘in ways which are proportionate’.

Finally, the report notes that in current defamation law, the alleged defamatory statement is taken to have a single meaning - even though the statement may be open to interpretation. To save court time, the report suggests hearings to determine the meaning of the alleged defamatory statement, but only if ‘the presumption that there will be a jury in defamation proceedings (is first) removed’.

See The Alternative Libel Project: Preliminary Report by English PEN and Index on Censorship.