As we noted in our recent round up of “Defamation Trials, Summary Determinations and Assessments” there were only four defamation trials in 2010 – with one still awaiting judgment. All these trials were by judge alone and none involved English media defendants. The number of defamation trials has been slowly declining for many years. There were, for example, at least 16 defamation trials in 1990 and 12 in 1991. The number of trials in recent years is set out in the Table below – the overall number of trials is shown in the first bar, the number of jury trials in the second and the number of trials with media defendants in the third.
The declining number of jury trials is particularly striking – this is the first year in living memory in which there have been no defamation jury trials. It seems unlikely that, with the exception of special wartime arrangements, that there has ever been a year without a such a trial. The great “set piece” defamation jury trials seem to be becoming increasingly rare.
It seems to us that there are number of reasons for the downward trend in the number of defamation trials in recent years.
First and, we suspect most importantly, there is the deterrent effect of increasing costs in libel cases which is a strong disincentive to both claimants and defendants to contest libel trials. The risk of huge costs liabilities means that both claimants and defendants settle libel actions which they might otherwise have wished to take to trial to vindicate their rights.
Second, there is the “offer of amends” procedure which has led to a substantial increase in the early settlement of defamation claims. The great advantage of this procedure for defendants is that it allows for the early admission of liability with, if the offer is accepted, a substantial “discount” on the damages payable (usually of the order of 50%) and, in the (now uncommon) event that settlement is not reached, assessment by a judge.
Third, there is perhaps an increasing willingness on the part of judges to dispose of bad claims (or bad defences) summarily.
In the absence of research it is impossible to know the relative importance of the various factors – and of others which may be relevant. We would be interested in our readers’ views on this topic.