Expect more claims!
The number of defamation claims issued in 2018 in the Queen’s Bench Division (QBD) increased by 70% (from 156 to 265). That represents 6% of all the claims issued in the QBD, the highest proportion since 2005, and a remarkable market share for a specialist area of law. It is also worth noting that these tend to be fiercely litigated matters; by June 2019, 30 had reached the point of a judgment being reported. In an age where ADR is paramount, that suggests a very significant proportion of cases issued proceed to trial or summary judicial determination.
It had been thought that the introduction of the Defamation Act 2013, and specifically the test of ”serious harm” would stifle defamation claims. However, the Supreme Court decision in Lachaux v Independent Print Ltd clarified the threshold for the serious harm requirement as being less challenging for claimants than had been anticipated. Policyholders and their insurers will watch with interest the numbers for 2019 when they are released to see if the tide is turning back in favour of defendants. Our prediction is that it will not. A continuing steady rise is our forecast.
Reasons for the rise in cases?
Although the data is not there to show precisely what has created this increase, there are several telling factors.
First, it is impossible to ignore the impact of technology, particularly the internet and social media. Around the world it is estimated more than 1 million new internet users have come online every day since January 2018 and there are around 3.5 billion active social media users. Defamation claims issued in England & Wales increasingly concern statements from social media and websites rather than solely traditional print media; defamatory statements can now be published at the touch of a button and easily shared online to a significant readership.
Second, the impact of the QBD’s Media and Communications List, created in 2017. This took primary responsibility for defamation cases, and sought to introduce practical improvements for these types of cases. Its most significant effect was to streamline defamation proceedings and push for early resolution or determination. In practice, this has meant judges deciding on the central issue of the defamatory meaning of the words complained of far earlier in cases which often exposes the relative strengths and weaknesses of a case, and enables earlier resolution. That too reduces the risk for claimants who face a lower risk in terms of the amount of potential adverse costs awards.
Finally, the move away from jury trials. Section 11 of the Defamation Act 2013 states that a jury trial is not appropriate unless the court orders otherwise, meaning they have been the exception not the rule since 2014. Jury trials take longer which means claimants used to face a greater risk given the increased legal costs.
Recent cases of interest
Several judgments have been handed down in the last month alone involving prominent members of the business community, politicians and major press corporations and concerning topics as diverse as Brexit and alleged accusations of rape through to the publication of adverse credit reports. These decisions highlight some of the important aspects of this area of law.
Avoid legalistic interpretation
Saini J presided over a preliminary hearing on meaning in Banks v Cadwalladr, which saw the Leave.EU funder Arron Banks claiming against journalist Carol Cadwalladr. The case relates to two of her public talks and two of her tweets in which she made various statements linking his financing of the 2016 EU Referendum with the Russian government. The point of interest is Saini J’s caution against the overly legalistic interpretation of the meaning of the words complained of, emphasising that the ordinary reader would not minutely analyse interpretations like a libel lawyer. This is an important point for claims handlers to consider when carrying out an initial assessment of the potential range of meanings, initial strategy and prospects of success.
In Triaster Limited v Dun & Bradstreet Limited, Jay J determined as a preliminary issue that a credit report published by the defendant about the claimant identifying that its creditworthiness was poor was not defamatory because the meaning of the statement was factual. Triaster’s claim was dismissed.
In Turley v Unite the Union, the claimant Labour MP sued Unite for an article which the court found to have conveyed a seriously defamatory meaning about the claimant and which questioned her honesty and integrity. Of interest is the judge’s finding that the defendant’s conduct during the trial had seriously aggravated the harm to the claimant’s reputation and her distress. She was awarded damages of £75,000. At an early stage, defendants should consider taking down the alleged statements and issue an apology since refusing to do so and/or defending the statements to trial could amount to unreasonable conduct which can sound in an aggravated damages award as a punitive measure.
Assessing “meaning” is crucial
Finally, in Elphicke v Times Newspapers, the claimant former Conservative MP established that the thrust of two articles published by the Times was that there were reasonable grounds to suspect him of rape. Without taking an over-elaborate or unduly negative view, the crucial point to consider is what the “ordinary” reader would understand the content to mean.
Handling defamation claims
Unlike a professional indemnity or breach of contract claim where damages can rectify the wrong allegedly done to the claimant, the defamation claimant is most notably concerned with immediate repair to perceived reputational harm. Therefore, the tactics to deploy in a defamation claim are quite novel. They are not simply the ordinary assessment of what breach and/or loss has occurred, the factors for consideration, and the strategies to deploy, but are much more nuanced.
As more claims will undoubtedly be notified to, and fall for cover, under D&O and some professional indemnity policies, claims handlers would be well advised to take early steps including:
- identify limitation dates (defamation claims have a strict one year period)
- consider the extent of circulation
- consider the range of defamatory meanings
- quickly preserve online material.
And, perhaps most importantly, consider if an apology or offer of amends or another creative method would quickly diffuse the dispute. Even if it will not, that should at least put the defendant in the best possible position to appear before the judge to demonstrate it has acted reasonably.