The Fourth Estate and Access to Justice: Defendant Corporations and Group Litigation

The thesis examines the activation and use of all forms of media in association with group litigation in England as a weapon in the armoury of claimant lawyers. The thesis assesses the impact that this may have on the corporate defendant to discover whether it may force them towards a settlement they may not otherwise have made or on terms or at a time when they may not otherwise have made it. It then questions whether such impact may amount to a denial or limitation of a right of access to justice. Unusually, this thesis looks at the issue of access to justice from a defendant corporation’s perspective and not from the perspective of an impecunious or disadvantaged claimant. It describes how quickly and effectively the public can be affected by information from the media and thus at how powerful a weapon media activation can be in terms of negative impact on the reputation of a defendant. In order to be able to examine relevant questions of regulation and ethics, it looks at the current environment in which claimant lawyers work and at changes and developments that have affected the legal profession and its regulation. It also discusses changes regarding legal costs, legal aid and litigation funding, all of which have affected the approach to group litigation, its availability to claimants and its commercial viability for claimant lawyers. The media are a tremendous force in our society and the more recent advent of social media has the possibility of affecting large numbers of targeted individuals. Media can clearly be used within the legal sphere as a means of obtaining justice as occurred in the Thalidomide case when a group of parents, unsophisticated in the use of the law and with very limited resources were met by the unequal force of a large corporation and had only the press to speak out for them. However, the media can also be misused and there is a danger that lawyers can be involved strategically in such misuse of the media, unfairly making unproven suggestions, sometimes without any proof or even physical possibility of proof, in order to even out the imbalance between the parties. The imbalance of power for claimants before the courts needs to be addressed, but the imbalance of power in the media can be taken advantage of sometimes in an unfair and unethical way by claimant lawyers. This thesis deals with the latter issue, how lawyers' misuse of the media can be carried out in an unethical way. Whilst little attention has been paid in the literature to rights of access to justice for corporations, items of relevance to the research issue and literature on related and connected topics were reviewed. Absent research that specifically analysed or discussed the impact of media activation on defendant corporations in group litigation cases, answering the research questions required direct information from legal professionals involved in the practice of group litigation.