The Pre-Action Protocol for Defamation Claims aims to encourage exchange of information between parties at an early stage and to provide a clear framework within which parties to a claim in defamation can explore the early and appropriate resolution of that claim.
The Protocol applies to all claims for libel and slander. It sets out details of what a letter of claim for a defamation claim should contain. The letter of claim should be sent at the earliest reasonable opportunity since the limitation period for defamation claims is only one year.
What are the requirements of the Protocol?
The letter of claim should include:
- the name of the claimant;
- sufficient details to identify the publication or broadcast which contained the words complained of;
- the date of publication of the words complained of (where known);
- the words complained of (where possible, a copy of the publication or a transcript of the words complained of should be included with the letter of claim);
- details of any factual inaccuracies or unsupportable comment within the words complained of (the claimant is required to give a sufficient explanation to enable the defendant to understand why the words are inaccurate or unsupportable);
- any facts or matters which make the claimant identifiable from the words complained of (this will be necessary where the claimant is not named but the circumstances and facts identify who they are);
- details of any special facts relevant to the interpretation of the words complained of;
- details of any particular damage suffered by the claimant as a result of the defamation (for example, where the claimant has lost business as a consequence of the defamation);
- the nature of the remedies sought by the claimant.
Usually a claimant in a defamation case will seek the following remedies:
- damages (in some cases this may include aggravated and/or exemplary damages);
- an undertaking from the defendant that they will not make any further defamatory statements (if the defendant is not willing to provide such an undertaking, the claimant may seek an injunction from the court preventing the defendant from making any further defamatory statements);
- a correction, retraction and/or apology.
Meaning of words complained of
The Protocol encourages the claimant to identify the meaning(s) they attribute to the words complained of. This will include the natural and ordinary meaning of such words and, in some cases, any innuendo meaning.
Proportionality of costs
In formulating both the letter of claim and response and in taking any subsequent steps, the parties should act reasonably to keep costs proportionate to the nature and gravity of the case and the stage the complaint has reached.
Alternative dispute resolution
Before the letter of claim is formulated, the parties should consider whether some form of alternative dispute resolution (ADR) procedure would be more suitable than litigation, and if so, try to agree which form to adopt. The Protocol stresses that no party will be forced to mediate or partake in ADR, but it does state that both parties may be required by the court to provide evidence that alternative means of resolving their dispute were considered. Failure to do so may have costs consequences.
Date for acknowledging the letter of claim
The claimant should indicate when they expect the defendant to respond to the letter of claim. Normally this will be within 14 days.