Following the revelations of the phone hacking scandal, in 2011 the Coalition Government established an independent inquiry chaired by Lord Justice Leveson. It was decided that, because of various police investigations and pending criminal proceedings, the inquiry would be held in two parts: Parts 1 and 2.
Part 1 reported in November 2012 and made a range of recommendations including the establishment of a new system of press self-regulation which would meet certain standards.
The Report proposed two incentives in order to ensure that the press would join an approved regulator: (1) that those joining an approved regulator would have protection from exemplary damages and (2) that those joining would benefit from a new presumption that they would not have to pay the other side’s costs even if they lost. (By contrast, those who did not join an approved regulator may have to pay the other side’s costs even if they win).
Parliament introduced both incentives through the Crime and Courts Act 2013. The damages provisions came into force in November 2015. The costs provisions, s40, are yet to be commenced by the Secretary of State. There are strongly held views in both directions on the question of whether to commence s40.
On 1 November 2016 the Government issued a consultation paper on the options regarding whether or not to commence s40 and whether or not Part 2 of the Leveson Inquiry (or an amended version of it) should take part. The Consultation closed on 10 January 2017.
In December 2016 the Claimants brought judicial review proceedings challenging the consultation paper as legally flawed on the grounds of lack of balance, material omissions and breach of legitimate expectation that Part 2 would be triggered following the criminal trials and/or that s40 would be commenced.
Following a hearing in the High Court of 21 March 2017, Mr Justice Lewis rejected the arguments and refused permission to apply for judicial review.
Samantha Broadfoot QC appeared for the Secretaries of State.
Nathalie Lieven QC has also been advising with Samantha.