The Defamation Bill: So much for substance, what about procedure?
This article was first published in Solicitors Journal on 9 August 2011.
The draft Defamation Bill has been the subject of much comment – chiefly for its lack of boldness. It is possible that the recent seismic events concerning the print media will have an impact on both the timing and the substance of the new Bill.
However, buried deep in the Consultation Paper were serious questions about how we as practitioners will be litigating defamation matters in future. These related to the impact of the more substantive changes (e.g. the loss of the right to a jury trial), the need to improve access to justice, the speed/cost of defamation litigation and the powers of the court at the very beginning and very end of defamation proceedings. They have attracted little comment but are arguably more significant than the superficial changes proposed to the substantive law.
Defamation proceedings are often drawn out, expensive affairs. Reasonableness does not pervade and entrenched views can mean that claimants on CFAs and wealthy media group defendants can slug it out endlessly in situations where potential damages are, in the context of commercial disputes, trivial. On the other hand, claimants and defendants without deep pockets or insurance can find meritorious claims/defences defeated by a war of attrition. It is certainly time this was addressed by the courts.
The first procedural leap forward would be the active case management of defamation claims. Active case management was the subject of excited comment in 1998 when the all-new CPR were about to come in. Then it was envisaged that unmeritorious claims would be spotted early by the courts and struck out. Sadly, that rarely happened and, barring the odd heroic decision, rarely happens to this day. However, a process involving every new defamation claim in the High Court being scrutinised at an early stage could make a real difference. With jury trials set to become rarer why should a judge not make key rulings from the outset and invite the determination of preliminary issues such as whether the new “substantial harm” test is passed or whether the meaning is defamatory. Rulings on defences, such as whether a matter is in the public interest or whether qualified privilege applies, could crack cases at a very early stage, taking some of the attrition out of the process. Let us hope that the CPR and policy will be changed to achieve this.
One of the white elephants of defamation law (anachronistic and sexist laws on the unchastity of women aside) has been the rarely used summary disposal procedure set out in Sections 8 and 9 of the Defamation Act 1996. This process is akin to the CPR Part 24 summary judgment procedure but with specific relief available to a successful claimant (a declaration that a statement was false and defamatory, an order to publish a correction and apology, damages not exceeding – currently - £10,000, an injunction restraining further publication). The Government wants to understand why the process is not used. Its guess that the £10,000 limit on damages is a disincentive is probably right. We suggest the procedure is abandoned but with the court having similarly wide powers ancillary to any determination it might make under CPR Part 24 and with uncapped (or at least more generous) damages available.
A power currently available under the summary procedure that is not available more generally in defamation proceedings is for the court to order a suitable correction and apology to be published. The Government canvasses opinion on extending this power to defamation proceedings generally but tentatively concludes there is no need as the Press Complaints Commission, the press’s self-regulator, already has this power. The future of that body may be in the balance but that is not the point. Why should the courts not have the power to order publication of a correction and apology (or its judgment) in appropriate cases? Many claims are unmeritorious and rightly fail. However, when claims succeed then part of the vindication should include repair of the claimant’s reputation with equal prominence to the original damage.
Finally, a word on pre-action behaviour and alternative dispute resolution. The Consultation Paper refers to the possibility of changes in the Defamation Pre-Action Protocol and the possibility of a voluntary binding arbitration or mediation service to help parties determine preliminary issues (or presumably all issues). This could be a step too far. Other suggestions in the Consultation Paper have been aimed at reducing game-playing and encouraging early, relatively inexpensive resolution. The Government should be cautious in introducing new opportunities for practitioners to make the process stodgy and to reintroduce an element of attrition. Mediation schemes are welcome but they often seem to be accompanied by a threat of sanction by the court if not used and that threat is used as a weapon by practitioners seeking to delay/deter, as is extended pre-action correspondence. The Government should introduce a new streamlined procedure for getting defamation cases through the courts first. That done and its effectiveness assessed, Government can then consider whether a new ADR body will lead to further improvement.