There has been widespread media misreporting of a press release setting out research by legal publishers Sweet and Maxwell. According to this research “there were 71 defamation court cases in the 12 months up to 31 May 2012 – compared to 84 in the previous year.” This has led to headlines along the lines of “Drop in defamation cases may be due to Leveson inquiry” (the Guardian), “Defamation cases down due to Leveson and privacy laws” (The Lawyer). and “Defamation cases fall post Leveson” (the Financial Times). But this is all highly dubious. The figures do not show any “drop” in defamation cases actually brought or any “Leveson effect”.
Regular readers of this blog will recall the doubts we expressed about the usefulness of the Sweet & Maxwell research published this time last year – on that occasion the headline concerned the “doubling of online defamation cases” (largely attributable to various “Solicitors from Hell” cases). It is important to understand the nature of the research in question. The figures which they mention are based on Lawtel and Westlaw reports of court hearings and, it appears, statements in open court. There are some “classification” difficulties as Lawtel classifies a wide range of cases against the media as “defamation” even where that is not the cause of action relied on. But let us assume that the research is accurate. It nevertheless casts no light whatever on any “Leveson effect”.
Hearings typically take place many months after the issue of proceedings. In other words, the number of hearings in the year to 31 May 2012 is likely to reflect proceedings issued in 2011 or even earlier. Proceedings are usually issued some months after publication. This means that activity in the courts in the period covered by the figures is likely to reflect the position well before the Leveson Inquiry was established in July 2011.
In any event, the number of hearings is an unreliable indicator of the actual number of defamation cases being brought. Some cases will result in several interim hearings – for example, there have been four in the Ashcroft v Foley litigation. In other cases, there may be no hearings at all – if proceedings are issued and the case is then settled without a statement in open court. The figure for hearings goes up and down from year to and bears no clear relationship to the actual number of proceedings issued. It certainly has nothing whatever to do with the Leveson Inquiry.
The actual number of defamation cases brought (as opposed to hearings) is known with some certainty from the “Judicial Statistics” issued each year by the Ministry of Justice. The last full year for which statistics are available is 2011. In that year there were 165 issued defamation claims in London (where the large majority of claims are made) – as opposed to 158 in 2010 and 298 in 2009 (see our post here). In other words, there were slightly more claims in 2011 than in 2010 – but both years represented a substantial decline from 2009. In short, there is no statistical evidence for any “Leveson inspired” drop in the number of defamation cases.
The suggestion that the number of defamation cases has been influenced by the law of privacy is also misconceived. Over the period in question there has been a very substantial decline in the number of privacy cases – with only two media privacy injunctions (both unsuccessful) in the past 12 months. These injunction applications have had no effect whatever on the number of defamation cases heard or indeed issued.
Contrary to the press headlines the figures produced by Sweet and Maxwell cast no light whatever on the impact of Leveson Inquiry on media reporting or on the number defamation claims being brought. In contrast to the privacy position there appears, in fact, to have been no significant change in the number of defamation cases brought or heard since July 2011.