David Allen Green, head of media, Preiskel & Co

Can new Act clean up libel law?

  • Print

Readers' comments (12)

  • "No longer can threatening letters be sent on the casual basis that the claimant does not need to show damage"

    Largely agree with the above article. However as far as I am aware there is nothing to stop solicitors from sending non compliant letters of claim and breaching the pre action protocol in most other respects. Many potential defendants will still be forced into settling for what are trivial claims (see Smith V ADVFN as a classic example) unless I have missed something. Remember, most libel lawyers are either not aware of or ignore their responsibilities to treat unrepresented third parties fairly as recent SRA Tribunal Decisions have shown.

    In addition the judiciary do need to better case manage libel cases. There is usually nothing wrong with the actual decisions (even under current law) but they take too long to reach. If the claim is a non starter, lets issue the judgement at the first hearing. Why we need to have hearings to determine meaning or whether words are fact or opinion, when for example, someone has been over - compensated already or a clear abuse of process for other reasons, I simply do not know. Inevitably, 15 hearings later the case is dismissed but why take so long?

    Anyway - agree with the above. The new bill is positive but it needs to be accompanied by better case management and better behaviour from libel lawyers.

    Unsuitable or offensive? Report this comment

  • Whilst not perfect the serious harm test would have prevented my case from running its course Mengi v Hermitage. However changes to CFA rules will cause great distress for some like myself who have no means to defend themselves. It does not address problems with jurisdiction such as Hardeep Singh's case where he is still owed court costs.

    Unsuitable or offensive? Report this comment

  • Whilst not perfect the serious harm test would have prevented my case from running its course Mengi v Hermitage. However changes to CFA rules will cause great distress for some like myself who have no means to defend themselves. It does not address problems with jurisdiction such as Hardeep Singh's case where he is still owed court costs.

    Unsuitable or offensive? Report this comment

  • I would be interested to hear the views of subscribers to this magazine of whether they believe it is ethical behaviour for a powerful city law firm to use the threat of libel proceedings as a strategy to 'chill' a former (dissatisfied) client into not publicising criticism of and their dissatisfaction of the law firms services?
    This is a situation which I have found myself. Not only did I pay the firm in question a substantial amount of money for a transaction which I (and other lawyers) believe was negligently undertaken I have received communications which I perceive as threatening if I make my account public.
    I am hopeful that the Defamation Act will provide some protection for individuals such as I and others who may find themselves in this thoroughly unjust situation.

    Unsuitable or offensive? Report this comment

  • In answer to the question about the threats, personally I think if you stay within certain boundaries you are protected by the law, old or new. That does not mean the solicitor concerned will not persist with the threats or not issue a claim. As the article above says the serious harm test may be helpful. However even if that did not apply, there are still numerous obstacles to bring a successful claim. I think you should be protected if you simply set out the facts of the case as you see them. I do not think you can be sued for expressing your own opinion or commentary because the reputation of the law firm will be determined by the facts and how it has behaved - rather than what you are saying about it. So as long as the facts are correct and honest (and you do not 'harass' them) I would have thought you would be O.K.

    I suggest you read this case - Smith V ADVFN. It is a really good judgement and is relevant in some way to nearly all recent libel cases. The judge talks in depth about the defences which apply - honest comment, justification, qualified privilege as well as other factors such as abuse of process, trivial claims, pre action action protocol breaches by solicitors (including threatening letters) and over-compensation. It is defamation in language everyone can understand.

    The other thing I forgot to say in my post above (12:23pm) about letters of claim is that many solicitors will continue to persist with threats even though the serious harm test will apply. A judge's interpretation of serious harm may be quite different to how a solicitor would view it. That is why solicitors will continue to threaten people with litigation which should never be brought or would ever succeed. There is a long list of libel cases where this has happened and the litigation has been described in some cases as 'hopeless' or 'vexatious'

    http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean

    As for the law firm, perhaps you should contact the Solicitors Regulation Authority. They have disciplined some law firms for issuing threatening letters. There are rules of conduct for solicitors.

    Unsuitable or offensive? Report this comment

  • Thank you, your response is very helpful. The irony is that I instructed this particular city law firm (for a property transaction) in the belief that in doing so my family's interests would be fully protected due to the fact that they are a sizeable and well established firm, advertising themselves as holding expertise in the area of specialism required. However it would appear to me that there is an inherent risk in making a choice on this basis. Should a client be dissatisfied with the service of a company of this size the law firm can wield its unequal weight to both deny liability for any (alleged) negligence and chill its former client into silence. It has been a horrendous experience and one which has changed my perspective of the fairness of consumer law for clients of lawyers and the culture in which the city law firms operate.

    Unsuitable or offensive? Report this comment

  • @ Anon 8 May 10:07 pm, you should take your complaint to the SRA, as advised by the previous poster. The SRA process won't be made public unless your complaint is upheld, and is free to you as the dissatisfied client. There is an exemption from defamation laws in relation to complaints to a professional regulator in these circumstances - the defence of qualified privilege would normally apply in such cases, unless the complaint was made as a malicious act.

    Unsuitable or offensive? Report this comment

  • Thank you – I probably will register a complaint with the SRA however in real terms this avenue offers scant consumer protection for individuals in this situation. The SRA doesn’t function to provide redress for dissatisfied former clients. It operates under ‘risked-based regulation’ i.e it collates information on law firms and if it judges that there is a substantial risk to the public may take some form of action against the law firm. It does not offer compensation (except in instances such as defrauding bankruptcy etc). It does not report back to individual complainants. In essence the SRA offers as much consumer protection for individual complainants as a cardboard umbrella.
    The only course of action open to any ordinary member of the public who finds themselves in this vulnerable situation is legal proceedings – about as fair as a terrier taking on a Rottweiler.
    I am now campaigning for reforms in consumer protection law and am asking for the legal profession to support this. Former private clients should be entitled to a free, independent hearing in cases of alleged negligence for a property or business transactions. I believe that this intervention would also benefit the legal profession. Surely if a firm genuinely believes that a former client is making a spurious clam then they would welcome a forum in which to present their side of the argument in a timely and cost effective manner?

    Unsuitable or offensive? Report this comment

  • 1. The SRA do have jurisdiction over solicitors making demands that are wrong as a matter of law. Sadly, that will always be a high hurdle.
    2. As a matter of professional practise it is prima facie misconduct to threaten a libel action to stop a complaint
    3. A determination of negligence can be pursued through all sorts of ADR and a complaint of poor service can be made to the SRA

    Unsuitable or offensive? Report this comment

  • Thanks - but what is a ADR?

    Unsuitable or offensive? Report this comment

  • Alternative dispute resolution - mediation, conciliation etc.

    Sounds like you should ask for details of the firm's pi insurers (cite the eu provision of services regs), write to their senior partner and then if that fails make a complaint to the Legal Ombudsman. If it's a large firm, you've probably just come across one rotten apple and the senior partner route may be worth a try to start with. The ombudsman does have the power to make financial awards up to a certain level.

    I agree with the poster above though, threatening a defamation action against you is not on and should be reported to the sra.

    Hope that helps.

    Unsuitable or offensive? Report this comment

  • Thank you, it’s kind of you and the other contributors above to offer advice.
    Sadly this situation has gone way beyond this. I took up my complaint with the firm in question at length when I discovered that the property I had bought had a legally defective title– initially they admitted that an error had been made at the time of purchase and agreed to remedy the matter. They told me that if I paid a further £1,000 (in addition to the £5,000 I had paid for the original instruction) it would be remedied. I paid the amount on this basis but the problem wasn’t resolved due to a serious oversight which had taken place at the time of purchase. The firm in question then stated that they were not responsible and that as far as they were concerned that was the end of the matter - I had exhausted their complaints procedure etc etc. They did not refund the £1,000.
    I complained to the Legal Ombudsman who stated that the issue did not fall within their remit as it was not a matter of ‘poor service’ but the more serious one of alleged negligence. ‘There may have been negligence but we are unable to comment on this.’

    I initiated proceedings naively believing that a £50,000 insurance policy would be sufficient to cover this – as a non-legally trained individual with no previous knowledge of litigation how was I to know otherwise? The insurance company’s panel lawyer should have known otherwise and arranged ATE at the onset but that is another story.

    I requested mediation during the run up to proceedings but it was refused. I discontinued proceedings 18 months into proceedings and a few weeks prior to the trial date because I had a breakdown due to the stress. I was exhausted emotionally and financially.

    I cannot claim that the firm in question was negligent because I have not proven such in court. I have been denied the opportunity to have my case heard and my grievance aired as I am too small to take on this giant of a city law firm and there is no regulatory body which oversees situations such as this.

    I am campaigning for changes in this and am asking the legal profession to support this. The vast majority of lawyers do provide an outcome which is satisfactory to their clients. Previous to this experience I have had no complaint of legal services provided by local solicitors in my home town - yes they are expensive, but they have provided the service I expected.

    To add to my sense of injustice I have received what, in my view, amounts to a threat of legal action should I publicise my experience.

    Unsuitable or offensive? Report this comment

  • Print