The Pre-Action Protocol for Defamation claims sets certain standards which prospective parties to a defamation claim are expected to observe before court proceedings are issued. The Protocol encourages the parties to exchange information at an early stage and to consider using a form of alternative dispute resolution.
The Protocol applies to all defamation claims, that is, claims for slander and claims for libel.
What are the requirements of the Protocol?
The letter of claim
As time is of the essence in defamation claims (the claimant only has one year in which to bring his claim), the claimant is expected to notify the defendant of his claim at the earliest reasonable opportunity by sending to the defendant a letter of claim.
The Protocol specifies what information the letter of claim should contain.
The claimant should specify in the letter of claim when s/he expects the defendant to respond. Normally the claimant will give the defendant 14 days to respond.
The defendant’s response to the letter of claim
The defendant should provide a full response to the letter of claim as soon as reasonably possible. If the defendant believes s/he will be unable to respond within 14 days (or such shorter time limited as specified in the letter of claim), s/he should acknowledge receipt of the letter of claim and in doing so should specify the date by which s/he intends to respond.
The response should confirm whether or to what extent the claim is accepted, whether it is rejected or whether more information is required.
If the claim is accepted, whether in whole or in part, the defendant should state which remedies s/he is willing to offer.
If the claim is rejected, the defendant is required to explain the reasons why it is rejected. The defendant should also provide an indication of any facts on which s/he is likely to rely on in support of his/her defence.
If the defendant does not agree with the claimant as to the meaning(s) of the words complained of as set out in the letter of claim, s/he is encouraged to set out the meaning(s) he attributes to such words.
If the defendant requires more information, s/he should specify precisely what information is required and the reasons why.
Proportionality of costs
The Protocol expects the parties to act reasonably to keep costs proportionate to the nature and gravity of the case and the stage the complaint has reached.
Alternative dispute resolution
The Protocol expects the parties to consider alternative dispute resolution procedure as an alternative to court proceedings. The courts take the view that litigation should be a last resort and may require parties to provide evidence that alternative means of resolving their dispute were considered.
The Protocol sets out some of the options the parties may wish to consider for the purpose of resolving their dispute. These include discussion and negotiation, early neutral evaluation by an independent third party (for example, by a lawyer who is experienced in defamation claims), mediation and reference to the Press Complaints Commission.
However, the courts recognise that parties cannot and should not be forced to enter into any form of alternative dispute resolution procedure.
What happens if a party does not act in accordance with the Protocol?
The court has a very wide discretion when it comes to awarding costs. When determining costs the court will take into account the conduct of the parties including whether the parties have complied with the Protocol.
When considering whether a party has complied with the Protocol the court will be concerned about whether the parties have complied in substance and is unlikely to be concerned with minor or technical shortcomings. The court will also consider the proportionality of the steps taken compared to the size and importance of the matter, will take account of the urgency of the matter and will look at the effect of non-compliance on the other party.
A single minor breach by one party will not exempt the other party from following the Protocol.