The need to get it right from the outset in defamation claims

Year Published: 2013

In any defamation action, it is crucial that the person bringing the claim must set out the defamatory meaning or meanings which he / she claims were borne by the words, or other publication which he / she complains of.

In the leading case of Lucas-Box v News Group Newspapers Ltd [1986] 1 W.L.R. 146, L.J. Ackner explained this in further detail stating that “where the meaning of the words complained of is not clear and explicit [the party bringing the action] must plead the meaning which he says the words bear.”

The purpose in doing so is that the defendant must understand the case they have to meet which will allow them to prepare a defence accordingly. Furthermore, it assists the trial judge in determining the meaning upon which they must rule, in deciding whether the words published are capable of being so understood.

In setting out the defamatory meaning, the claimant must set out his case as to the natural and ordinary meaning of the words, together with (where appropriate) any innuendo meaning (i.e. any meaning alleged to be conveyed to by reason of that person’s knowledge of facts extraneous to the words complained of).

However, pleading a meaning is not an easy exercise and yet it is crucial for a claimant’s case. There will frequently be room for disagreement or uncertainty as to precisely what meaning or meanings may reasonably be drawn from the words used.

During the course of legal proceedings, a defendant in a defamation case may make an application at any time, requiring the claimant to set out the defamatory meaning of the words complained of. Such a tactical step can be used as a very effective tool to add pressure to a claimant and promote a withdrawal of the claim.

As part of L.J. Jackson reforms to civil litigation in April 2013 it would appear that this important technical point has been recognised. In his final report following the review of civil litigation costs, L.J. Jackson considered the wider debate about the substantive law of libel and considered whether the law strikes the right balance between free speech and the protection of reputations. As part of his recommendations, he proposed that paragraph 3.3 of the Pre-action Protocol for Defamation should be amended to read as follows:

The claimant should identify in the letter of claim the meaning(s) he / she attributes to the words complained of”.

This has not yet been introduced, as the present wording under paragraph 3.3 of the Pre-action Protocol states that:

It is desirable for the claimant to identify in the letter of claim the meaning(s) he / she attributes to the words complained of.”

In summary, should a claim in defamation be contemplated, the claimant must be very precise and specific as to what, in their interpretation, the meaning of the words complained of were understood to mean. In my view, this follows the overall aim which L.J. Jackson sought to achieve in his review of the civil litigation costs reforms to promote access to justice at proportionate costs. A well advised defendant can scrutinise a claimant’s case from the very outset, in turn, promoting a settlement before court proceedings are issued, or avoiding excessive costs in having to defend an action. It will effectively ’weed out’ the non-meritorious claims from the outset and avoid any unwanted costs liability in an action.

If you would like any further information on any elements of dispute resolution please contact a member of the Dispute Resolution team on 0161 475 7676.

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