There are some "stories" that the mainstream media simply cannot resist. That was the situation recently when footballer's wife Rebekah Vardy lost in a High Court libel action against footballer's wife Coleen Rooney - The Guardian 29 July 2022 - Rebekah Vardy loses ‘Wagatha Christie’ libel case against Coleen Rooney
One of the positive sides of a platform such as "Twitter" is that, from time to time, there are informative discussions about aspects of the law with some experienced lawyers offering their viewpoints. The Vardy v Rooney case resulted in exactly such a discussion. At the heart of the exchange was the serious "access to justice" question of whether defamation actions were beyond the financial means of the majority of the population.
Defamation:
"Defamation" is the collective word
for two torts (civil wrongs) in English law: Libel and Slander. The torts exist to enable protection of one of our most important assets - good reputation - something which can take years to gain but can easily be traduced by something said or published by, for example, a newspaper, a TV programme or even a statement on social media such as Twitter, Facebook etc.Some "overviews" of defamation can be found online - e.g. Libel and Slander -FAQs - (davidmagill.co.uk) BUT the major legal work on defamation is Gatley on Libel and Slander which, since May 2022, is in its 12th edition - New defamation textbook publications - 5RB Barristers.
Defamation is a complex area of law developed at common law but with a considerable overlay of statute law - (e.g. Defamation Act 1996, Defamation Act 2013). There are also complexities in the procedure surrounding such cases.
Litigation:
Those who consider that they have been "defamed" will naturally want some form of redress whether that be an apology, or damages, or perhaps an injunction to prevent further defamation taking place.
As with most aspects of the law, a defamation action is NOT something to be embarked on lightly and expert legal advice is crucial including advice about the risks, financial and otherwise, associated with such actions.
Whilst many forms of civil case are dealt with by the County Court, libel and slander cases are normally confined to the High Court - see County Courts Act 1984 (as amended by the Crime and Courts Act 2013) - see section 15 of the 1984 Act.
In the High Court, libel and slander cases appear in the Media and Communications List - see Civil Procedure Rules Part 53. It follows that cases will usually be heard at the High Court in London and, naturally, most (but by no means all) of the legal expertise in this area of law is also based in London.
There is an important Pre Action Protocol for Media and Communication Claims. The aims of the protocol include trying to settle the dispute without proceedings (or to reduce the issues in dispute) and to avoid unnecessary expense and control the costs of resolving the dispute.
A further issue is that "civil legal services" (e.g. legal advice, representation) or not funded in defamation cases by legal aid - Legal Aid, Sentencing and Punishment of Offenders Act 2012 Schedule 1 Part 2.
The importance to individuals of defamation actions:
The majority of defamation cases coming to public attention are of course those that attract the mainstream media - e.g. the action by Rebekah Vardy against Coleen Rooney - dubbed "Wagatha Christie".. The most recent judgment, by Mrs Justice Steyn, is reported at [2022] EWHC 2017 (QB).
Much has been written elsewhere about the case - e.g. Vardy 0 - 1 Rooney: Wagatha Christie solved at last - UK Human Rights Blog and 5RB Barristers Coleen Rooney succeeds in truth defence in Vardy v Rooney.
Some other recent cases include:
Arron Banks v Carole Cadwalladr [2022] EWHC 1417 (QB) Mrs Justice Steyn and the appeal at Banks v Cadwalladr (Rev1) [2023] EWCA Civ 219 (28 February 2023) (bailii.org)
Hijazi v Yaxley-Lennon [2021] EWHC 2008 (QB) Nicklin J - see Summary of the case
Goldsmith v Bissett-Powell [2022] EWHC 1591 (QB) Julian Knowles J - is a case where the claimant was unrepresented. The judgment is immensely detailed and extends to 178 paragraphs. The claimant lost. The case arose from some posts on a website about Steyning Parish Council.
The Hijazi case:
The Hijazi case was a libel action against Mr Yaxley-Lennon (aka Tommy Robinson). The case arose from an incident in a school playing field at Huddersfield, West Yorkshire. The High Court judgment sets out the facts in considerable detail. Yaxley-Lennon posted two videos about the incident.
The judge held that the natural and ordinary meaning of the first video was that - (1) the claimant had, as part of a gang, participated in a violent assault on a young girl which had caused her significant injuries, and (2) threatened to stab another child. The judge held the meaning of the second video was that the claimant had, as part of a gang, participated in a violent assault on a young girl which had caused her serious injuries.
Yaxley-Lennon argued that his statements were true. He failed. The consequences to the claimant were severe. He became a target of abuse which ultimately led to him and his family having to leave their home, and the claimant having to abandon his education.
Mr Justice Nicklin said that - "The most significant element of the damages award that I fix will be the need for vindication. This judgment – but more importantly – the award of damages will mark clearly that the Defendant has failed to demonstrate the truth of his allegations. The Defendant took on the burden of proving his allegations to be true. He has failed. In reality, and for the reasons I have explained, his evidence fell woefully short. He has, however, persisted with the serious allegations he originally made, and has even added to them during the proceedings. The Claimant has had to face them in the full glare and publicity of a High Court trial. It is my responsibility to make clear that the Defendant has failed in his defence of truth, to vindicate the Claimant and to award him a sum in damages that represents fair compensation. The sum I award is £100,000."
Access to justice:
Unless legal aid is available, funding of civil actions is very problematic. Access to Justice has been enabled by so-called "Conditional Free Agreements" (CFA) and "After the Event" insurance (ATE). A very comprehensive discussion of this is -
The article notes how, for new cases from 6 April 2019, success fees in media law cases were abolished. This makes it far less attractive for lawyers to handle such cases.
As the Brett Wilson article concludes - "The clear loser here is the party is the little man who has been wronged by the press. Success fees made CFA work viable for solicitors - balancing out the claims that did not get off the ground or failed. Even with a prima facie strong claim, a law firm takes a substantial risk when they act on a CFA. They are reliant on evidence coming up to proof. They are backing their client (typically a stranger) to be completely candid with them and to continue to provide instructions. Without the success fee, there is little attraction for good solicitors to act on CFA - when they can act on private cases and get paid for the work they do without gambling on numerous factors."
Reform?
Given the importance of individual reputation, it is fair to ask whether it is right that these cases are basically confined to the High Court. It is true that some defamation cases can be difficult but many difficult cases arise in other areas of law and are dealt with by the County Court or in the Tribunal Structure.
In 2011, a Parliamentary Report on what was then the Defamation Bill commented (para 87) - " ..... with some appropriate training, we see no reason why there could not be a county court judge designated to hear defamation cases in most major county court centres in the regions. The availability of county courts to hear defamation cases, particularly outside London, should increase accessibility for ordinary citizens and would, in many cases, reduce costs as well ...."
and see the article by barrister Jonathan Barnes at Counsel Magazine 10 July 2014 - Defamation County Court.
There certainly appears to be a good argument for some alternative to the High Court for many of these claims whether the alternative be to use the County Court or to create a specialist tribunal.
Goodbye to the jury?
The Senior Courts Act 1981 section 69 used to specify libel and slander as cases where a jury was required "unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury ..."
The Defamation Act 2013 section 11 removed this presumption in favour of jury trial for libel and slander cases. The result is that cases are now tried by judge alone unless the court otherwise orders. The 2013 Act is discussed at Defamation Act 2013 - A summary of the Act - Brett Wilson LLP
It appears that it is now almost impossible to get a jury for a defamation case - see the recent judgment in the Laurence Fox case where an application for a jury failed - Blake & Ors v Fox (Re Trial by Jury) [2022] EWHC 1124 (QB) (18 May 2022).
SLAPPS:
Strategic Lawsuits against Public Participation (or SLAPPS) have come into recent news. Defamation actions are capable of misuse by very wealthy individuals whose pockets are so deep that even the costs of High Court cases are like small change! Why not issue proceedings to shut down comment in the media especially if it prevents comment on matters of considerable interest to the public but which do not necessarily put the wealthy individual in a good light.
The government has recently said -
"Strategic Lawsuits Against Public Protection, or SLAPPs, are a growing threat to freedom of speech and a free press – fundamental liberties that are the lifeblood of our democracy.
Typically used by the super-rich, SLAPPs stifle legitimate reporting and debate. They are at their most pernicious before cases ever reach a courtroom, with seemingly endless legal letters that threaten our journalists, academics, and campaigners with sky-high costs and damages. "
The matter was debated in the House of Commons on 20 January 2022 - Lawfare and UK Court System - Hansard - UK Parliament
Further material may be seen at -
Strategic Lawsuits Against Public Participation (SLAPPs) - GOV.UK (www.gov.uk)
Strategic Lawsuits Against Public Participation (SLAPPs) - GOV.UK (www.gov.uk) - 65 pages in which it is stated - "The Government is clear that SLAPPs are a recognisable and pernicious form of litigation which seeks to silence, intimidate, and harass opponents."
Overall:
This is an interesting and important topic and many thanks to those who engaged on Twitter in what proved, at least for me, to be a very informative discussion.
The cases show the importance for individuals of being able to go to law to vindicate reputation which is, given modern methods of communication, so easily attacked by others.
High costs and difficulties of access to justice are serious problems and there is a strong case for reform.
Whilst the government is proposing reforms in relation to SLAPPS there is obstinacy on the part of Ministers to other much needed reforms to improve access to justice including legal aid which has been severely reduced in scope by legislation. Reforms to enable improved access to justice in defamation cases is not even on the horizon.
2 August 2022
Additional Note - Scotland and Northern Ireland:
Scotland enacted the Defamation and Malicious Publication (Scotland) Act 2021 (legislation.gov.uk) making important amendments to Scots Law on defamation.
For the position in Northern Ireland - see Defamation Law in Northern Ireland: 2021 in Review and the Road to Reform – Ciaran O’Shiel & Tim Carson – Inforrm's Blog
19 August 2022
‘Wagatha Christie’ costs could take years to determine | Scottish Legal News
4 October 2022:
Vardy to pay Rooney £800,000 now and cover 90% of her costs | News | Law Gazette
1 March 2023:
Banks -v- Cadwalladr - Courts and Tribunals Judiciary
21 May 2013:
21 May 2023:
Times apologises to Dinah Rose - by Joshua Rozenberg (substack.com) - The publishers of The Times and the newspaper’s legal editor Jonathan Ames have apologised to Dinah Rose KC for an article they published about her. They have agreed to pay her “substantial” damages and her legal costs.
21 May 2023:
Illustrating the value of engagement on Twitter, my attention was drawn to this article concerning ATE insurance (which I refer to in the post above). The Banks v Cadwalladr case was one where ATE insurance played an important part in providing Ms Cadwalladr with access to the courts. Cadwalladr wrote about Banks in her capacity as an independent (freelance) journalist.
ATE for Defendants in Defamation Cases (temple-legal.co.uk)
With thanks to barrister Barbara Rich who informed me of the article.
Lawyers seem to be reluctant to mention what I would call the bleeding obvious about high value defamation cases. This is that the legal process will be about a claim that ostensibly has a monetary value of, say £50,000, but where both parties can be prepared to spend millions of pounds in costs.
ReplyDeleteLitigation in such a situation will be often be financially ruinous even for the winner, so something else must be going on.
Of course, what both parties usually want will be something other than money - a forced apology or vindication - the day in court.
This does not fit into the framework of typical civil litigation, which is based on settling cases, which is why defamation provides such great entertainment for us all.