UK: The Decline Of English Libel Trials?

Last Updated: 29 February 2008
Article by Alasdair Pepper and Antonia Foster

Reading libel Judgments from the English courts provides information about developments in the law but does much less in terms of informing of trends and approaches being used by legal practitioners in the field. Court Judgments also state little about the vast majority of claims which are settled without contested hearings and often without court proceedings being commenced at all.

Over recent years the balance in England has undoubtedly shifted towards early settlement, with fewer large scale trials. There are a number of driving factors towards this:

Offer Of Amends Procedure

This is a statutory provision which permits a defendant, in receipt of a libel complaint, to accept responsibility for the publication and in effect to "own up" to its mistake. In making such an offer they commit to making a "suitable correction" and "sufficient apology" and to pay "such compensation (if any) and such costs, as may be agreed or determined". These provisions were designed to encourage the early resolution of complaints and, although they came into force in 2000, it is only over the last few years that they have been increasingly used by defendants to good effect to do just this. They not only reduce a defendant's exposure on costs but where the court is asked to determine compensation, which is done by a Judge alone, it will often award substantially reduced damages (sometimes by as much as 50%) to reflect the benefit of an early apology to the claimant and, in effect, reward a defendant for admitting its mistake and seeking to rectify it at an early stage.

Part 36 Procedure

This is a formal procedure under which both claimants and defendants can make a without prejudice offer to the other to settle an action. Routinely such an offer will include terms as to damages, an apology, costs and undertakings. If an offer is not accepted and the party that made the offer does better than the offer at trial, he may recover a higher scale of costs from the losing party and interest on damages and costs awarded to him. These offers are being increasingly used by both claimant and defendant lawyers to bring pressure to bear on the other party to settle. They are particularly effective in Offer of Amends cases because a tariff of likely awards of damages has and is being established from the cases that have received judicial determination.

Conditional Fee Agreements And After The Event Insurance

Libel litigation in England has traditionally been seen as a rich man's game, available only to those with significant assets, which they can afford to lose, and less often to the average man in the street. The inherent unfairness of this has been that, very often, a libellous article in a local newspaper is just as damaging to the reputation and livelihood of a sole-trader making a modest living, as a libellous article in a national newspaper might be to a wealthy businessman, but only one of them was likely to have the means to sue.

In recent years this balance has been redressed to some degree with claimants, in particular, taking advantage of the Conditional Fee Agreement (CFA) or "no win no fee" regime, as well as After the Event (ATE) insurance, the latter providing some protection against any order made against a party for their opponent's costs. Taken together CFAs and ATE have eased the financial exposure individual claimants might otherwise face and they are now commonplace in libel proceedings. They have served to level the playing field a little between a claimant with a good claim but modest means, and substantial publishers.

The advent of CFAs and ATE has led to trials where otherwise court action might have been impossible for the claimant. However, the very considerable majority of such cases are settled. One of the reasons for this is that if a CFA case is won at trial, the successful lawyers are likely to be entitled to a success fee of 100% of their normal professional charges recovered between the parties, and the ATE premiums can be very substantial. Therefore, losing to a CFA funded claimant is very expensive. However, the converse is also true. A losing lawyer on a CFA receives no payment. The consequence is that all involved are bound very carefully to consider and explore the options to settle and in this the Offer of Amends and Part 36 procedures have become very important.

Defence Of Responsible Journalism

Another reason for the decline in the number of trials is the uncertainty of the state of particular aspects of the law of defamation, and of the responsible journalism or "Reynolds" defence in particular. This defence, which takes its name from the case brought by Albert Reynolds, the former Irish premier, against the Sunday Times (Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (Reynolds)), provides protection to a defendant even where it has published allegations of a claimant, which subsequently prove to have been untrue, but where it can persuade the court that in all the circumstances publication was reasonable and responsible. The defence is based on the notion that there are certain circumstances in which the public interest dictates that an allegation should be protected regardless of whether or not it is true. The House of Lords was seen, in that case, to have widened the scope for reporting matters of public interest.

In Reynolds, Nicholls LJ laid down a list of 10 factors, not intended to be exhaustive, to be borne in mind when assessing whether a defendant had been responsible in its publication. These included matters such as the seriousness of the allegation, the steps taken to verify the information, the urgency of publication, the tone of the article and whether the allegation was put to the claimant prior to publication.

Since Reynolds, case law concerning these "10 factors" and the court's approach as to whether a defendant has or has not reported responsibly has grown. This has helped in assessing the merits of any particular claim. However, in October 2006 the House of Lords handed down its Judgment in Jameel v- Wall Street Journal Europe SPRL [2006] UKHL 44, in which it found for the defendant. This was greeted warmly by the media and some viewed it as the House of Lords' moving the "Reynolds" defence in favour of media defendants and in support of freedom of speech.

In the case, proceedings were brought against the newspaper over allegations of links to terrorism. From the outset the defendants never sought to argue that the allegations were true, merely that they had been published responsibly. The trial Judge, who had heard the case with a Jury, did not agree with the defendants that in the circumstances of that case the newspaper had done enough and nor did the Court of Appeal. However the House of Lords took a different view some three years' later and in so doing delivered their analysis, and indeed criticism, of the way in which the Reynolds defence had been operating. The House of Lords decided that the lower courts had been applying Lord Nicholl's criteria too rigidly and thereby subverting the initial intention of the defence. For example, the House of Lords concluded that the Court of Appeal was wrong to decide that the failure to put the allegations to the claimant prior to publication was fatal in the circumstances. This was notwithstanding the seriousness of the allegations - but this will not necessarily be the case in other circumstances.

The result is that the assessment of when defendants will or will not have done enough to satisfy the court that the article of which complaint has been made was, in all the circumstances, the product of "responsible journalism", has become more difficult. This provides a further inducement to claimants and defendants and their lawyers to settle claims if possible, rather than face the increased uncertainty and expense of a contested trial.

The Internet

Although the number of libel trials is diminishing there is less evidence that libel complaints are reducing in number. One area in which libel complaints are on the increase is those arising out of publications on the internet. Given the use of the internet in all aspects of our lives it is no wonder that claimants, including international claimants with reputations in England to protect, are increasingly looking to protect their reputation there too.

However, often with complaints about material on the internet, a claimant's primary objective is to have the offending material taken down and if this is done quickly, which it often is when English law is in play, then the complaint can be settled quickly. Thus to date, the increase in internet related complaints of libel has not resulted in an increase in libel trials, although a number of internet related trials have taken place.

Greater Pragmatism And Co-Operation Between Claimant And Defendant Lawyers Towards Resolving Disputes

Possibly claimant and defendant lawyers in the field have become more inclined on behalf of their clients to take pragmatic approaches to matters in dispute between clients and to look harder for possible means by which those differences might be resolved without litigation. Mediation and arbitration is on the increase and costs and other Protocols have been introduced by some firms to try to avoid satellite litigation over costs and other issues such as levels of success fees in CFA cases. This too may have resulted in fewer cases issued and, in turn, fewer trials.

Summary

Although the landscape is shifting and the number of trials reducing, libel practitioners in England seem to be as busy as ever, on behalf of both national and international clients, with reputations in England to protect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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