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Publishers are turning down titles they would previously have published because of increasing numbers of highly expensive "no win, no fee" legal claims. The development, particularly strong over the past 18 months, poses a serious risk to free speech, according to English PEN.
"No win, no fee" services, more formally known as conditional fee agreements (CFAs), mean litigants run no financial risk if they bring a case. However, lawyers can charge double fees, meaning the penalties for publishers are extremely high should they lose a case. For small publishers with scant financial resources the risks can be prohibitive.
Publisher John Blake said he has been forced to hire an in-house lawyer for the first time because of the recent increase in legal claims. "The problem is that lawyers have less work because of the recession—there is less conveyancing and business acquisition—so they are looking for things to do," he said.
"There are some pretty disreputable people out there and there are some who will go through new books specifically to look for potential claims." He added that his brief to his lawyer was "to fight ferociously and not settle", but he added that he now "wouldn't have the nerve" to publish books he was previously able to do, such as the memoir 50 Dead Men Walking by secret agent Martin McGartland.
"We all suffer because we are becoming more of a closed society and know less about what's going on," Blake said.
Jonathan Heawood, director of English PEN, said the problem was widespread. "It's very clear to us after talking to numerous publishers, authors, journalists and bloggers that CFAs have a chilling impact on free speech in this country," he said. "Many publishers would rather settle out of court for £20,000–£30,000 than risk facing a £500,000 legal bill as the result of losing a libel trial and being awarded the claimant's costs, with the 100% uplift that some law firms impose."
Coupled with the burden of proof in UK libel law being weighted against the defendant, this was making publishers "extremely cautious" about taking on otherwise viable titles, Heawood added. "The real victims here are authors and readers, who are missing out on important non-fiction stories about global finance and corruption in high places as a result of these legal failings."
A pilot scheme launched by justice secretary Jack Straw to impose budgets on libel cases as a move to cut excessive costs became effective this week (1st October). However, the new move does not address the issue of no win, no fee agreements.