Defending defamation

The Defamation Act came into force at the beginning of the year. Here Hardeep Singh asks two individuals who defended claims under the previous regime if anything has changed and what they might do differently.

The Government states the Defamation Act 2013, which came into force on 1 January, will give “clearer and better protection for people publically expressing their opinions”.

Justice minister Shailesh Vara said: “The introduction of these new measures will make it harder for wealthy people or companies to bully or silence those who may have fairly criticised them or their products.” The Libel Reform Campaign described the new law as “a new dawn.”

How the new rules fare in the real world and if the Act delivers what ministers promise remains to be seen.

Here freedom of speech campaigner Hardeep Singh speaks to cardiologist Dr. Peter Wilmshurst, known as the godfather of all medical whistleblowers,  and lawyer and anti-corruption activist Sarah Hermitage, who were both defendants of defamation claims pursued against them by wealthy litigants.

Wilmshurst was sued by NMT Medical, a US company manufacturing medical devices, in London over comments he made to the press questioning the findings of a clinical trial of one of their products. The four-year battle only ended when NMT went into liquidation in 2011.

Hermitage was sued by wealthy Tanzanian businessman Reginald Mengi, over comments on her blog and in two emails which, Mengi claimed to be false and defamatory of him. Mr Justice Bean threw out the case in 2012.

What aspects of the Defamation Act would be helpful given your experience?

Wilmshurst: “I guess that if, when I was sued, the law were as it is now, the thing that might have been most helpful for me would have been the need for NMT to show financial damage resulting from what I said.”

Hermitage: “I am not sure any. The Act and most media attention focuses on publications by academics and scientists and not people like me i.e. the normal man on the street.”

How effective will the Act be in tackling trivial claims?

Wilmshurst: “I am not sure whether the act will prevent trivial claims, although I hope it does. I think what determines whether someone can sue you is how much money they can throw at their lawyers to make your life difficult.”

Hermitage: “In my view, the new serious harm threshold will not necessarily deter the wealthy determined to sue.”

What issues remain for the ordinary person defending a claim?

Wilmshurst: “The big issue for ordinary people is costs and that was not addressed in the reforms. It may even get more difficult with the new caps proposed for conditional fee agreements.”

Hermitage: “Costs of course. Defending a Libel action is impossible for most and for many, results in the loss of their home and life savings which in turn impacts on their families.

“A normal person’s assets would not come close to the finance required to defend a libel trial. This is unfair. I was able to secure a defendant contingency fee agreement for representation by Carter Ruck consultant Andrew Stephenson and 5RB’s James Price and Jonathan Barnes but such agreements are rare and becoming more so.”

What one piece of advice would you give someone who faces a defamation claim?

Wilmshurst: “I would tell them how costly it is, even if they win, so they must decide for themselves whether they want to fight and are able to do so. For me, if faced with this again, I guess it would depend how important the issue was. If it were unimportant, it would be wise to back down. However, if there is an important moral principle or lives might be affected by backing down, I would fight it again.”

Hermitage: “This is a difficult question as all cases are different. I could not even advice compromise. Reginald Mengi stated his pre-action costs to be £298,000, whilst mine were £29,000, so compromise for me and many is simply not an option.

“Perhaps my advice would be, do what you have to do to secure a legal team that believes in you, acts and commits. Above all, if you are certain that what you have said is true, believe in yourself. It’s a tough road ahead.”

The Defamation Act

  • The Defamation Act 2013 contains a hurdle for claimants “the serious harm” test. Prior to this defendants had the full “burden of proof.” Businesses have to now show “serious financial loss.”
  • There is a single publication rule: especially helpful to online publishers, the limitation period for a claim is a year from first publication; no longer each time an article is downloaded, which made the possibility of action against online publishers indefinite.
  • The Act has a clause to tackle ‘libel tourism’, ensuring that England and Wales is the most appropriate jurisdiction to hear claims.
  • Peer reviewed scientific and academic journals (electronic or otherwise) have been extended the defence of privilege