Do I have to go to court to resolve my defamation claim?

It is not always necessary for a defamation claim to be settled via the courts. In fact, parties are actively encouraged to consider alternative forms of dispute resolute to resolve the case rather than automatically using litigation. The law in this area was updated in October 2019 following:

• A revision to Part 53 of the Civil Procedure Rules.
• The revised and new practice directions (7A, 53A and 53B).
• The new Pre-Action Protocol for Media and Communications Claims (replacing the Pre-Action Protocol for Defamation Claims).

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What are the benefits of this process?

By following the pre-action protocol, the parties will:

• Be able to make informed decisions on whether the case should proceed and if so how this should happen.
• Have the opportunity to settle the dispute without needing to go through the courts, or to reduce the number of issues that need to be dealt with via litigation.
• Reduce their costs and the time it takes to resolve the matter.
• Follow a more efficient process if the case does need to go through the courts.

What are the requirements for the Pre-Action Protocol for defamation claims?

All actions for defamation, whether they are for libel or slander, need to follow the pre-action protocol. The parties are expected to act reasonably so that costs are reflective of the nature and gravity of the case.

Letter of claim

The claimant starts proceedings by issuing a letter of claim. This needs to include the following details:

• Information about the claimant.
• The nature of the claim including the remedies sought.
• Information to show that England and Wales is the most relevant forum for the case.
• Funding arrangements.
• Details of the specific publication that had the statement.
• The statement that is the issue and if possible the date of publication.
• What the claimant states was implied by the statement.
• Which facts are inaccurate or unsupportable.
• What serious harm has been caused, or is likely to be caused, by the statement. For businesses this will need to included details on the serious financial loss that will be caused.
• For slander or malicious falsehoods, the special damage or pecuniary loss that has been caused.
• For malicious falsehoods, the details of the malice.
• How the claimant is identifiable from the statement.
• Any special facts that are relevant to the interpretation of the statement or particular damage caused.

Defendant’s Response to the letter of claim

The defendant needs to send a full response as soon as possible. If the defendant cannot do this within the timeframe set (usually 14 days) then they should state when they will respond.

The response needs to state:

• If the claim is accepted in whole or in part and the relevant remedies that they are prepared to offer.
• If the claim is rejected, then the reasons for this including any statutory exemption or relevant defence.
• If the response is for more information, the defendant needs to say what is needed and why.
• For defamation or malicious falsehoods claims, the defendant needs to state what they meant the statement to imply.
• If the claim is anonymous, the defendant needs to state if this is accepted.

Alternative Dispute Resolution

The parties are encouraged that the courts are the last resort and where possible the matter should be dealt with by alternative dispute resolution (ADR). There are various options available and the parties should decide which one suits them best:

• Negotiations between the parties, including without prejudice conversations.
• Mediation with an independent mediator to help resolve the issues.
• Early neutral evaluation, which involves a third party (such as an experienced lawyer) giving a decision in relation to the issues.
• Using a press regulator to help resolve issues about the content of a newspaper or magazine.
• Using an arbitration scheme provided by a press regulator.

The parties do not have to use ADR but the courts expect the parties to have considered it before starting court proceedings. If a party refuses to engage in ADR then the courts can impose additional costs if this is regarded as unreasonable.

Offers to settle

Claimants can agree to settle both before and after proceedings have been issued. With a defamation case, the parties can make an offer make amends under the Defamation act 2013, which would include a published apology or redaction statement and possibly the requirement to pay damaged and costs to the claimant.

Court

Where the issues are not resolved, the parties should review the issues to see what matters are still outstanding. If the matter then needs to proceed to court, the above process should hopefully narrow the issues to make the management of the case more efficient.

Under the new Practice Direction 7A allows claims to be brought in the High Court or County Court (depending the facts and complexity of the individual case), except for libel or slander claims, which can only be issued in the County Courts if the parties agree.

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