In response to widespread dissatisfaction with the current defamation law a working group was established under Lord
Justice Neill to investigate how to streamline the procedure. The committee's report has resulted in the Lord Chancellor's Department issuing a consultation paper that includes a draft Defamation Bill. The aim of the Bill is to introduce new rules to make libel cases faster and more economic.
The suggestions are:
A defence if the publisher makes an “offer of amends”;
A summary procedure if there is “no reasonable prospect of success”;
A one-year limitation period.
The new offer of an amends procedure is intended to improve on the existing, but little used, rules relating to innocent publication of a libel. Under existing procedure the defendant has to prove that there was no intention to publish defamatory matter and be prepared to offer a suitably worded correction and apology by way of amends.
Under the new rules the onus is shifted to the plaintiff who has to prove that the defendant knew the material was defamatory or was indifferent to the possibility of defaming the plaintiff. To invoke this the defendant would have to assert that the publication was made innocently and offer a suitable apology and retraction. If the judge is satisfied the defendant was not acting with knowledge, or recklessly, and the offer is acceptable, the plaintiff can still recover compensatory damages.
Unfortunately the rules also provide that if the offer is “defective” the defendant cannot advance any defence. From the defendant's point of view it will often be preferable to defend a claim with a view to settling later rather than taking the risk of making an offer of amends that is judged to be defective.
The new summary procedure looks more radical, giving the judge power, if needed, to give summary judgement against a party whose case has “no reasonable prospect of success”. Further, if the judge considers that the plaintiff has a strong case and the defence will not succeed, a modest award of damages can be made in the plaintiff's favour, up to a fixed ceiling. It is proposed that this should be £10,000.
The changes to the sub-judice rule and the practice of more intervention from the bench in the conduct of all interlocutory hearings in the jury list has already made inroads into the practice of gagging writs. Hopefully this will help kill them off for good.
The one-year limitation is an excellent new rule but is weakened by a long list of proposed exceptions. These include:
The plaintiff not being aware of relevant facts;
The plaintiff not knowing about the publication in time;
The plaintiff trying to avoid litigation by seeking an alternative remedy;
If the viability of the claim depends on the outcome of other pending proceedings.
In any circumstances where the plaintiff can prove there are reasonable grounds for delay then the limitation period will be extended. A court will take account of surrounding factors such as whether evidence may have deteriorated with time.
Once again the English legal system, in its effort to maintain the excellence of justice, seems set to overlook the consequences of introducing more rules.
The exceptions do not just weaken the effect of the rule but also add to delays by increasing the number of interlocutory applications. A strict one-year limitation without exceptions has worked well in most of the US and the Lord Chancellor's objectives of increasing speed and making libel litigation economic would be greatly enhanced if we adopted a strict one-year limitation period.
The most telling change in libel procedure was introduced quietly in February of this year by a practice direction issued by Justice Drake, the judge in charge of the jury list. He had the foresight to insist that the parties to a libel action may not agree to delay applying to the court for the matter to be set down for trial. The practice of agreeing to delay that all-important step has been eradicated at a stroke and will inevitably speed up all libel actions.
If the same rule were to be applied across all High Court actions it would have a similar effect but, ironically, because of the lack of judicial resources the system may not be able to cope.