The substantive law of defamation in Northern Ireland is, in all relevant respects identical to that in England and Wales.   The most important difference between the jurisdictions concerns funding.  The law in Northern Ireland does not permit the use of conditional fee arrangements or the recovery of after the event insurance premiums.  This means that the number of defamation actions has remained relatively low and cases are predominantly brought against newspapers and broadcasters.

In Northern Ireland Order 82 of the Rules of the Supreme Court sets down the procedure for libel or slander actions.  In the pleadings the Plaintiff must give particulars of the defamatory innuendo and where the defendant pleads justification he must plead the particulars of the words pleaded as true in substance and in fact.  Only where the defendant pleads honest comment or privilege the plaintiff must in his Reply to Defence give particulars of facts showing malice.

The substantive defences are set out in the Defamation Act (NI) 1955 sections 5 – 12, Defamation Act 1996 sections 1, 13 – 15 and the Law of Libel Amendment Act 1888 section 3.

Defamation actions are heard either in the County Courts, which are situated all over Northern Ireland, or the High Court, which is located in Belfast.  County Court defamation cases carry a monetary jurisdiction of £3,000 and any sum claimed above this would have to be progressed through the High Court.  Inevitably, legal costs are significantly higher where jurisdiction is attached to the High Court.

Currently judge and jury try a High Court defamation action unless an application for the mode of trial is brought before the Court on specific grounds, which warrant the trial to be heard by Judge alone.  The statutory provisions governing the appropriate mode of trial are set out at section 62 of the Judicature (Northern Ireland) Act 1978 as follows:

(1) Subject to subsection (2), an action or an issue of fact in an action in the High Court in which a claim is made in respect of –
(a)   libel
(b)   slander …
shall, if any party to the action so requests, be tried with a jury
(2) The court may, on the application of any party to an action referred to in subsection (1) order that the action or any issue of fact in the action shall be tried without a jury if it is of the opinion that such trial –
(a)  will substantially involve matters of account
(b)  will require any protracted examination of documents or accounts or any technical, scientific or local investigation which cannot conveniently be made with a jury
(c)  will be unduly prolonged or
(d)  is for any special reason (to be mentioned in the order) unsuitable to be tried with a jury.”

In the High Court Mr Justice Gillen has been allocated as the defamation Judge to case manage these actions by way of Court Reviews where appropriate which assists parties in progressing cases to trial without delay and dealing with any interlocutory or other matters cost effectively.

Pursuant to Order 82 of the Rules of the Supreme Court Rule 3A, the Judge can at any time after service of the statement of claim upon application from either party, determine whether or not the words complained of are capable of bearing a particular meaning to meanings attributed to them in the pleadings.

Where a defendant asserts a plea of justification he is not entitled to give evidence at the trial in mitigation of damages any circumstances under which the libel was published or as to the character of the plaintiff without the leave of the judge, unless 7 days before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.  It is commonplace however to plead within the defence mitigation pursuant to the principle of Burstein v. Times Newspapers ([2001] 1 WLR 579).

In the case of O’Rawe v. William Trimble Limited [2010] NIQB 124 the defendant pleaded justification and qualified privilege and that publication was in the public interest and the words constituted fair comment.  In addition to this it pleaded mitigation pursuant to the Burstein principle.  The Court held that in relation to the mitigation, a defendant seeking to reduce damages should not be restricted to adducing evidence, which is directly relevant to a plaintiff’s conduct or reputation.  The principle was held to have wider remit than this and the defendant in this action was permitted to adduce evidence of any facts or circumstances which might serve to illustrate an absence of malice which might otherwise aggravate the injury or for instance that he derived his information from a reliable source.

Despite most libel cases being resolved by way of out of Court settlements, this case commenced by trial by jury but ultimately, by agreement between the parties, involved the jury being discharged and the case proceeding by judge alone.  An award was given by the trial judge in the sum of £44,000 in favour of the plaintiff.

This case may also be indicative of the current trend that is present throughout the rest of the United Kingdom, namely a move away from jury trials in libel cases. The judgement has not yet been handed down in respect of the substantive trial but it has been suggested that the Court went a considerable distance in evaluating the appropriate level of particulars that are required when pleading justification and it is hoped the written judgement shall clarify the position in relation to how detailed pleadings shall be expected to be particularised in Northern Ireland defamation cases.

In general, the legal authoritative texts and jurisprudence of the UK Courts apply in Northern Ireland and for instance there has been an increase in the use of the Offer of Amends procedure pursuant to the Defamation Act 1996.

Lord Lester of Herne Hill QC’s Defamation Bill contained a provision extending its effect to Northern Ireland (section 20(1)).  The Government have announced their interest and consideration of libel law reform with their own draft Bill and it seems likely that this will also extend to Northern Ireland.

Olivia O’Kane is specialist media lawyer at Belfast solicitors Carson McDowell