Judicial Statistics, Defamation Claims in 2020: A Libel Thaw? – Robert Sharp

The Royal Courts of Justice annual tables 2020 were published on 3 June 2021. They show that in the last calendar year, 152 defamation claims (libel and slander) were started in the High Court.

This figure is slightly higher than the figure of 147 cases reported by Inforrm in January. This is because the Ministry of Justice data bundles malicious falsehood claims into its ‘defamation’ figure, and there were five such cases in 2020.

The figure of 152 is noteworthy because it represents a sharp drop in claims. In 2019, 323 were initiated.

Does that mean that there was something unusual about 2020? Perhaps the pandemic scared off all the litigants? Certainly not. The long-term numbers reveal that the lower figure in 2020 was actually a reversion to the norm. RCJ statistics are available from 2009 and show that the average number of defamation cases started each year was around 164. It was the years 2018 and 2019 that were the anomaly.

What caused this two-year blip? The prime suspect must surely be the Lachaux cycle of judgments in which judicial interpretation of the ‘serious harm’ hurdle (Defamation Act 2013, s.1) oscillated between two opposing conceptions. In 2017, the Court of Appeal held that examining the ‘tendency’ of words complained of to cause harm was enough to meet the ‘serious’ test [2017] EWCA Civ 1334. This approach was overruled in 2019 when the Supreme Court said that the real-world impact of the publication should also be taken into account [2019] UKSC 27. In practice, this entrenches the idea that defamation is no longer actionable per se, and that in many cases a Claimant will have to include evidence of harm to their reputation when they bring a claim.

The claimant-friendly Court of Appeal judgment was handed down in September 2017, and the following year saw the highest number of defamation claims for a decade (265). This number was surpassed in the subsequent year. Then in September 2019 the defendant-friendly Supreme Court judgment was handed down. The number of defamation claims plummeted in the year that followed.

Logicians and fans of The West Wing will remind us that post hoc ergo propter hoc is a fallacy. There may be other reasons for the two-year surge in defamation claims. Some lawyers have suggested to me that some kinds of claim come into ‘fashion’ — there have been many claims brought over social media posts, for example, and the on-going political rows over antisemitism and transgender rights were the source of several disputes. However, the close alignment between the handing down of the two Lachaux judgments and the fluctuation in claims strongly suggests that one caused the other.

As explained in the January post, since September 2019 all defamation claims were required to be issued in the Media & Communications List. This means that rudimentary information about every such claim (such as the parties, their legal representation, hearing dates and in some case, the claim form) are available to view on the HM Courts & Tribunal Service CE-File portal. Those of us with an interest in the kind and frequency of media law cases being filed and fought can begin to analyse trends in more depth than was previously possible.

The detail of the 2020 claims challenges some of the received wisdom about the nature of defamation claims in England & Wales. The data presents several questions that free speech advocates in particular should address in our on-going campaigns.

The first such issue was raised on the Inforrm blog post in January: the fact that the number of claims brought against national newspapers was a relatively small proportion of the total. There were only 21 such claims in 2020, and 10 of those were brought against Associated Newspapers. However, it should be noted that the number of claims against all media (including news websites, international outlets, and the large regional publishers) totalled 43, which was 28% of all claims. Whether this figure is too high or too low is perhaps best left as a Rorschach test for the reader. But it nevertheless must be conceded that the ‘typical’ defendant named a libel claim is far more likely to be an ordinary individual, rather than a media outlet or a journalist.

The second revelation in the 2020 dataset is the drop in the number of cases where a branch of government is named as a defendant, compared to the (partial) figures available for the previous year. There were at least 30 such cases in 2019, but only 14 in all of 2020.

Derbyshire County Council v Times Newspapers Ltd [1993] UKHL 18 established that the government cannot sue for libel. However, emanations of the state, by virtue of their stature and authority, can cause great harm when they make defamatory statements about an individual. In some cases there may be a public law action available… but if there is not, suing in defamation may prove to be the best — or only — route to a remedy. Reform of the libel laws should not mean that individual citizens have less chance of redress when an arm of government makes a misleading statement about them. When the state defames, should an individual really have to wait for reputational damage to manifest itself before they can bring a claim? Such an unintended consequence should be a cause for concern.

A third noteworthy feature of the 2020 list is that only 21 of the claims feature a corporate claimant. From the partial list of claims available for 2019, we know that there were more corporate claimants that year (at least 33), when the Court of Appeal’s less onerous conception of Lachaux was still the law. The ‘serious harm’ test for corporations requires evidence of ‘serious financial loss’ so the evolving case law may well have put defamation beyond the reach of many corporate claimants.

As activists gear up to demand that the Westminster parliament and the European Union take action to discourage Strategic Lawsuits Against Public Participation (SLAPPs), it should be remembered that corporate claimants are becoming less common at the London High Court.

The publically available information on defamation claims can only take our understanding so far. Claims that proceed to trial and judgment are a fraction of the total initiated, and very few of the disputes listed on CE-File include the claim forms or particulars. There is no way of discerning between meritorious and unfounded claims.

Moreover, it has long been known that the libel ‘chill’ on free speech mainly operates outside the court system. Letters Before Action and informal complaints/threats can serve to discourage or censor publications that might well be permitted by a court, but there is no count of them in the judicial statistics.

This does not mean, however, that the state of defamation law is completely unknowable. The tip of the iceberg does bear some relation to what is submerged, and the flickering shadows on the wall of the cave do give us some clues about our wider reality. We can never make detailed conclusions about how the law affects the decision-making of the parties to a potential claim. But we can make some general statements about the overall picture.

Here’s one: the libel laws are a little less chilling.

Robert Sharp was the Head of Campaigns at English PEN from 2009-18, during which time he was one of the managers of the Libel Reform Campaign. He is now a freelance policy advisor and freedom of expression activist. www.robertsharp.co.uk