Defamation law reform becoming ever more likely

 

With the Queen’s Speech approaching in early May, speculation has started on the new laws that it might contain. One area that is likely to receive attention is the reform of England’s ancient libel laws. Debate has raged for years on this subject with proponents of reform arguing that as it currently stands libel deeply damages free speech, whilst its defenders say that that it serves as a vital defence against false accusations.

Reforming agenda

In its response to consultation on the Defamation Bill in March this year, the Government confirmed its commitment to law reform and the Bill is widely expected to be in next year’s legislative programme. If it is passed, it will represent the most radical overhaul of libel law for centuries. Gone will be the right to a jury trial - future cases will be heard by a judge sitting alone. ‘Honest opinion’ will be a defence to a statement, rather than the current requirement of proving ‘fair comment.’ Claimants will also be expected to justify their claim from the outset by showing that they have suffered significant harm, so the trivial and vexatious actions will no longer plague the courts.

High costs

Significantly, it is unlikely that the Defamation Bill will deal directly with costs, in spite of the controversy surrounding the issue.  At present, the increasing availability of Conditional Fee Arrangements, in which almost all the costs are only paid on success, has in many cases reduced the claimants’ risk to only a couple of thousand pounds to get the action started.

However, when the costs are eventually paid at the end of a successful case they can easily reach six figures, often dwarfing the compensation actually awarded. It has been suggested that the risk of these high costs has had a ‘chilling effect’ on journalism, with media outlets being unwilling to risk publishing provocative statements even when it is in the public interest.

Other Reforms

The Government is, however, pursuing a general reform of legal costs in all civil litigation and has said that, despite its unique features, it does not believe that defamation law deserves to be treated differently to other areas. This is still under review however, and it would not be surprising for the final draft to include provisions extending the power for judges to cap costs or refuse to allow success fees to be added to costs awards.

The passage of the Bill will be watched carefully by defamation lawyers and litigants alike.

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