On Thursday 6 October 2011 the “Alternative Libel Project” launched its “Preliminary Report on the problems created by current defamation procedure and recommendations for change.” The report recommended that defamation cases should be mediated, and if they are not, they should be the subject of an early neutral evaluation by a High Court Judge. The report was prepared by Index on Censorship and English PEN and was funded by the Nuffield Foundation.
The Preliminary Report also recommended that:
- judges must use stricter case management;
- litigants should be able to make a stand alone application to determine the meaning of the allegations in question; and
- a costs regime must be introduced to redress the inequality of arms between the parties.
Jonathan Heawood, Director of English PEN said
“Mediation has an extremely high success rate in libel actions. It allows both parties to get straight to the heart of their dispute and can result in a settlement which both parties are happy with, at a fraction of what the case might otherwise cost.”
John Kampfner, Chief Executive of Index on Censorship said
“Defamation procedure needs to change so the balance between freedom of expression and reputation is not affected by the relative resources of litigants but by the strength of their claims. The recommendations we have made will not only result in many more cases being resolved very early on, they will ensure that those cases that do go to trial in the High Court are dealt with more efficiently.”
The report was a preliminary one and Index on Censorship and English PEN invited views on their proposals before the 18 November 2011. To comment, please e-mail Helen Anthony at email@example.com.
Although mediation is, without doubt, a sensible way forward in defamation (as in other legal disputes) we have considerable doubts as to its practical effectiveness where (as in many defamation cases) both parties have entrenched positions. We will provide some more detailed comments on the report in a further post before the 18 November deadline.
In contrast to the very positive responses I received from leading Claimant solicitors to my proposal for early mediation in defamation cases, I only received one positive response to similar approaches I made to a number of the in house legal departments of the leading national newspapers, notwithstanding the obvious potential saving on legal costs. What does that tell you?
Johnsons Law Firm
London – Belfast – Dublin