For Whom Libel Tolls

Earlier this month, tiresome controversialist and noted shitehawk Katie Hopkins lost a court case. It was a libel case brought against her by the food-blogger-turned-author, Jack Monroe. You probably heard something about it.

The judge presiding over the case ruled that Hopkins was guilty of defaming Monroe and ordered her to pay £24,000 in damages for two tweets in which she:
– Mistakenly implied that Monroe was a big fan of desecrating war memorials (confusing Monroe for fellow activist and writer Laurie Penny, who, technically, is merely ambivalent about the desecration of war memorials)
– Called Monroe “social anthrax”

£24,000 is a pretty hefty price for two bad tweets (it’s roughly £100 per character) but it doesn’t end there.

The judge also compelled Hopkins to pony up for the costs. Consequently, she will also be on the hook for whatever the lawyers on both sides have agreed is reasonable to charge their clients for their services, as well as whatever costs the court has incurred. Justice Warby ordered that she pay £107,000 of that upfront (‘on account’) but estimates put the total figure that Hopkins will eventually have to fork out around the £300,000 mark.

And while there’s probably some stimulating and nourishing conversation to be had here – arguing the toss about the merits of this particular case and what it all means for the future of free speech and the necessity of robust debate and so forth – there’s one question that continually goes unanswered in cases like these.

Namely: what the fuck did they spend £300,000 on?

The Letters

a.k.a Pre-Action Costs

When you wish to initiate defamation proceedings, first you have your lawyers send a letter. This letter will inform the individual that you have taken issue with (in this case, ignominious blowhard Katie Hopkins) of your displeasure.

Generally, this initial correspondence follows a fairly fixed template. The claimant’s lawyers set out what the problem is, and will then offer some suggestion as to how the defendant (in this case, famed dickhead Katie Hopkins) can remedy the situation without anyone having to resort to full legal proceedings.

These letters are relatively easy for lawyers to fire off. They don’t involve a huge amount of research or deep-cut case citation and, thanks to the specificity of the law, a lot of the wording involved can be recited by rote. Still, they do take some time though – and lawyers’ time is not the cheapest stuff to buy.

Depending on the prestige of the legal firm you choose to hire, a single letter (what with all the necessary conference with the client required) can cost anywhere between £250 and £750 to send. That might seem like a lot for one piece of correspondence, but if it gets the job done and the matter gets solved privately, then that’s the end of it. The whole thing sorted for less than a grand.

However, that isn’t always guaranteed. If the recipient of the letter (in this case, preeminent gasbag Katie Hopkins) decides that they want to make a huge, hairy deal out of the whole thing, they can hire their own lawyer to respond.

Immediately a second letter will more than double the costs, as not only will that letter have to be paid for, a further response from the claimants will almost certainly be forthcoming.

Usually, it’s in everyone’s best interests to settle the matter before it escalates beyond a point of no return because, what with all the back and forth, you can easily find that £15,000 worth of work has gone into the whole thing before a case is even issued – and that’s where the real big bucks start to swill around.

Compiling The Case

a.k.a. Pre-Trial Preparation

Once you’ve found yourself with no other option than to proceed with full legal action, you now need to hire the legal team to build your case.

If you’re a private and relatively unknown citizen living in Peterborough, say, or Kidderminster, or Chorley, or Keighley, then Her Majesty’s Government suggests that you should expect to pay around £200 an hour for a trained solicitor with a decent amount of experience.

If you’re a nominally public figure (in this case, infamous loudmouth Katie Hopkins) and you choose to hire some of London’s most prestigious legal minds to fight your case, then congratulations! You’ve already more than doubled your costs.

Government guidelines suggest that for firms who operate in the City of London you are looking at coughing up £409 per hour for solicitors and legal executives with eight or more years of experience (experts you can’t really afford to scrimp on if your libel case is making national headlines). That’s not a legal upper limit though and certain partners of certain firms won’t hesitate to charge you more.

You will spend a fair amount of time liaising with your top guy during case management conferences, and they will be work hard before your trial taking witness statements, compiling expert reports, attending to all of the necessary disclosure. They won’t be the only person working on it though. You’ll probably have at least one top-level legal exec leading the case along with another, more junior solicitor – as well as having a paralegal on hand to take care of some of the cheaper but nonetheless necessary tasks.

You’ve now got two other people on board who – according to the same government guidelines – are able to charge anywhere from £138 to £296 an hour for their services. They won’t shadow every single hour your lead lawyer will do, but they won’t just be twiddling their thumbs either. They’ll be assisting (to some degree) in most elements of the case.

So how much time would go into preparing a case of this size?

From initial tweets (May 2015) to final ruling (March 2017), Monroe v Hopkins spanned roughly 92 weeks.

Naturally the work involved would occur in fits and starts over that time. There’ll be a big flurry of activity at the start, a relatively slow but steady section in the middle while the case is built, with everything building up exponentially as the hearing approaches.

However, to run some easy numbers and get a sense of what this all means in nickels and dimes:

If an average of just one hour a week was spent on the case over that time (and assuming, extremely conservatively, that each hour is split evenly between cheaper paralegal/junior solicitor fees and expensive senior partner fees) the client’s bill would be about £23,650.

That alone is close to the average Briton’s annual earnings, but 90 hours is not nearly enough time to compile everything needed for a case like this. Also, there’s no way that the juniors and paralegals will spend anything like as much time on the case as the top-tier professional – who often will file two or three times the number of billable hours.

More likely, you’re going to be paying closer to 120 hours: 80 of which will be charged at ~£400ph, and 40 of which will be ~£200ph.

So that’s £40,000 to your law firm of choice before you step foot in court. As each side will have similar costs involved, that makes a total of £80,000 at this point.

Added to the costs incurred with the letter writing, we’re starting to nudge the £100,000 mark already and we haven’t even considered who is going to represent you on the day itself.

The lawyers who will act as your counsel – your barristers – will need to be drafted in at various points pre-trial to get themselves up to speed with the ins and outs of your case. These people do not become experts in their field without some serious experience, so their time is extremely valuable too.

But let’s deal with them in their natural habitat. Court.

Taking It To Trial

a.k.a. Your Day(s) In Court

Barristers’ time – much like solicitors’ – is valued by the experience and qualifications they possess, and the geographical area in which they work. If you’re trying to fight a libel case in Ludlow, you’ll likely be able to get a guy to throw on a wig and defend your honour in court for a hell of a lot less then if you’re trying to do it in London.

And if the case you end up paying for is one that took place in right in the heart of London’s glamorous Royal Courts of Justice (like notorious bletherskite Katie Hopkins), guess what? You’ll be paying top whack for them too.

Again, you won’t expect to see much change out of £400 an hour for an experienced barrister, and – certainly for a significant case that’s making all the papers – you’re probably going to want more than one of them on your bench.

Bringing your whole team out on a day trip to court is probably going to cost you somewhere in the region of £15,000-£20,000 per day. If your trial lasts three days (as the case of illustrious mouthbreather Katie Hopkins did) then that will put you back anywhere between £45,000 – £60,000.

You’ll have to double that amount, of course – there’s going to be a bill for each side – so you’re looking, more or less, at another £100,000.

Added to the £100,000 racked up pre-trial, that’s now cleared £200,000 in combined lawyers’ fees without much fuss. And we’re still not out of the woods.

Settlement

a.k.a. Sorting The Bill

Once you’ve said your piece, and a judge has taken the time to mull it all over and pass down a ruling, we can then start to separate the two parties into winners and losers.

In an extremely simple scenario, the judge declares that the loser (in this case, celebrated shitheel Katie Hopkins) pays damages and both sides’ costs.

However, things are rarely so simple – especially when it’s citizens (rather than companies) who take up cases like this.

Because the costs involved in full-blown contested court cases are beyond the pay grade of most individuals, these sorts of situations tend to involve a CFA: a Conditional Fee Arrangement (more commonly known as No-Win-No-Fee).

CFAs were all the rage a while back, but they are much rarer these days (mainly because the government did away with them a few years ago after they were deemed to put too much of a burden on defendants). Nowadays they only really crop up in media cases – defamation cases like this, or some of the recent phone-hacking ones.

The benefit for a lawyer who takes up a case on a CFA basis is that, if they win, they can charge up to twice their normal fee (to compensate themselves for the risk that they took). This is known as a ‘success fee’ – and the person who pays it is, usually, the loser.

If, on the other hand, the lawyer loses then they don’t get paid – so you can only realistically expect your lawyer to agree to a CFA if they are pretty much certain you’re going to win.

What was peculiar about Monroe v Hopkins is that both parties were so convinced they’d win, both of them managed to strike up a CFA with their respective lawyers.

This made the whole case – in broad, rather unsubtle terms – a double-or-nothing bet for the lawyers. They either win and add a 100% success fee to their invoice; or they lose and they do all of that extremely expensive work for nothing.

It doesn’t quite work that way for the clients involved though.

While the loser (in this case, professional arsehole Katie Hopkins) doesn’t have to pay her own lawyers a fee, the court has compelled her to pay Jack Monroe’s lawyers’ fees – which can now be doubled thanks to the success fee clause of the CFA. So Hopkins still has to put her hand in her pocket for 2x a regular lawyers’ fees.

Essentially, it doesn’t really make a huge difference to the bottom line of the entire case (the CFA merely doubles the cost of one side, while eliminating the cost of the other; leaving you with, on balance, a similar figure to that of both sides’ costs combined under a regular arrangement).

But the CFA does do something very tricksy to the whole set-up…

Further Adventures In Costing

This estimated £300,000 will be no breeze to pay, even for a mercenary rentagob like Katie Hopkins. It would have been a heavy enough cost to bear on its own, but in December of last year Hopkins was also found to have maligned a Muslim family in print – making false allegations about a connection to terrorist organisations – forcing her employers, the Daily Mail, to fork out £150,000 in damages.

That instance didn’t personally put Hopkins out of pocket. That particular suit was taken out against the Mail, so Hopkins’ reputation (such as it is) was the only thing to have taken a hit.

However, as the defamatory slights she made about Jack Monroe took place on her personal Twitter account, Hopkins is personally culpable this time. She can’t count on any of her employers to back her up, which means no delving into the company coffers for a bailout here. It’s her own assets on the line.

And whereas £300,000 is a hit that most national newspapers can readily absorb, for the individual columnist with a mortgage and kids and a steady stream of clutchable pearls to pay for, it’s a potentially ruinous sum.

Naturally then, a person in this position is going to want to appeal. An appeal will cost more, raising the potential stakes up another notch, but it does give the appellant a chance to either reduce their liabilities, or to have the ruling overturned entirely so that they can attempt to stump their opponent with the bill instead.

But if that fails, and the ruling is upheld – what then? What if this potentially ruinous sum leads to bankruptcy?

Humiliating though that would no doubt be for the loser, it creates some unwelcome problems for the victor too. Not just philosophical ones either. Financial ones.

(This bit is all a little fussy, so we’ll go through it slowly.)

Because of the nature of the conditional fee arrangement, the loser’s lawyers don’t need paying. They forfeited their fee from the start, so they are now out of the picture. We can forget about them.

The winner’s lawyers do need paying though and the judge has ruled that the loser needs to pay them. However, if the loser goes bankrupt and becomes unable to pay the winner’s lawyers fee, the winner’s lawyers (who, again, are entitled to as much as double their normal fee as per the conditional fee arrangement) have no choice but to turn to the other party to reclaim their costs.

That other party? The winner.

Their own client.

So although they may have won and inflicted a devastating blow to their opponent, there are certain circumstances under which the winner may still end up having to pay for the whole thing.

Moreover, because of the nature of conditional fee arrangements, they could have to pay twice what they would have paid had they paid under a non-CFA deal.

(This, in large part, is why individuals are rarely advised to sue other individuals, and instead only launch action against companies and corporations who can more readily suck up the huge costs involved in a contested case.)

Confusing? Yeah. It is. All of law is. And this is just the extremely broad stokes. We haven’t even started to tell you anything about After The Event insurance and how that can prove to be just as poisoned a chalice if the fates conspire against you (another time, maybe…)

So is there any way to escape this sort of these costs? Simply, yes. Don’t contest this sort of ridiculous bullshit in court.

Hopkins could have sorted this whole thing out for the tiniest fraction of the eventual bill if she wasn’t such an obstinate arsehole the entire time. The trouble is, in priding herself as a fearlessly opinionated firebrand – a woman who will say the unsayable – she painted herself into a pretty difficult corner. Her particular personal brand practically dictated that she tackle this situation head on but, given that it all could have been sorted for the sake of an apology and a meagre donation to charity, cooler heads should have prevailed.

We understand better than most the temptation to take these types of threats on (we talk about our own experience at fighting a case like this elsewhere) but the £300,000 lessons here are stark and simple:

• Own up to your mistakes.
• Show some humility whenever you fuck up.
• And if you do still insist on calling people names, make sure – like we did – that they are 100% accurate…