All aboard the libel train
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3 June 2014
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13 January 2014
Defamation cases seem to be on the increase in Northern Ireland, with a number of high-profile cases in the news recently. The latest came in a court action concluded only days before the General Election, where Robert McCartney QC, member of parliament for North Down, received an £80,000 settlement following an action against The Irish Times.
He claimed an article published in the paper may have damaged his electoral chances. He won the cash settlement and within days retained his seat.
McCartney's case was only one of a series of recent highly publicised courtroom clashes that have helped raise the profile of defamation in Northern Ireland.
The lawyer representing the MP thinks such cases may have helped bolster confidence in what is an uncertain area of law. "High-profile successful cases give people the courage to go on with their case," says Paul Tweed, a partner of Belfast firm Johnsons, which acted for McCartney. "But still, in my view, it is only the absolutes - the black and whites - that are getting into court, simply because of the financial considerations. No one will take a risk on anything that is less than 95 per cent certain."
The same rules apply in Northern Ireland as in London: because of the lack of legal aid, defamation is essentially for the rich. As Tweed puts it: "The major problem with defamation is that no matter how badly he is libelled, the common man doesn't have the money to risk taking a case to court."
This is not always the case though, says Tweed: "The cases we have brought to court have been very deserving cases. We have done a number for people - Lord Fitt, for example - who maybe do not have an awful lot of money, but have significant courage and enough collateral to take on the big newspapers."
There are certain peculiarities of the Northern Ireland experience that have led to a higher percentage of defamation cases than elsewhere. Unsurprisingly, the lower court costs play a major role. According to industry estimates, each day of a London-based libel action costs around £50,000. The Belfast equivalent is likely to cost less than half that.
The existence of some legal practitioners who are prepared at times to operate on a no-win-no-fee basis has also contributed to a growth in cases.
But despite general agreement that Northern Ireland has experienced a gradual increase in defamation actions over the past decade, the exceptionally marked increase in recent years may be due to an artificial leap in the figures.
Last year Belfast firm McKinty & Wright alone handled 17 separate libel actions, following claims by representatives of the then jailed paratrooper Lee Clegg that his Northern Ireland solicitors had been negligent in their handling of his original trial. His former legal team brought actions against The Daily Express, The Sunday Express, The Times and The Daily Telegraph for allegedly reprinting the claims.
And although the frameworks for defamation actions are broadly similar on either side of the Irish Sea, one anomaly in the Northern Ireland system does contribute to a higher proportion of such actions going to court. Whereas in England, payments to court can be made at any time throughout the proceedings, in Northern Ireland they can only be made at the very beginning of any action, and cannot be advanced after the case has been set down for trial.
Calls for reform have yet to be answered. Northern Ireland is keen not to over-emphasise reports of the area's defamation boom. Tweed and Owen Catchpole, a partner at McKinty & Wright, are generally regarded as being the most specialised legal advisers dealing with defamation in Northern Ireland, but neither concentrates solely on defamation cases; in fact this area accounts for less than 50 per cent of their workloads.
Defamation cases here have yet to become so common that they command the entire attention of even a single Belfast-based solicitor, and one further aspect of this form of litigation might ensure that it never does. For the solicitor, the heavy levels of correspondence that defamation cases tend to create make for a heavy workload compared to the average road traffic accident claim. It can also take a heavy toll on those pursuing the action.
Tweed says: "Defamation is a very stressful piece of litigation for any plaintiff. I have nothing but admiration for those plaintiffs who show the courage of their convictions."