A method of reducing the cost and delays in civil cases was introduced in April 1999 under the name Civil Procedure Rules (CPR). The CPR gave rise to a substantial change in the handling of civil cases787, introducing a new culture into the civil justice system, where litigation is a last resort788.
A part of the CPR is the pre-action protocol. These were introduced to establish standards for parties preparing to bring personal injury claims to court. The aims of pre-action protocols are to improve communication between the two parties and if possible for the case to be resolved without being brought to court. The framework
provided by the pre-action protocol intends to enable parties involved in a defamation claim to explore an early and appropriate resolution of that claim789.
The protocol was developed and drafted by working parties compromising of lawyers from all fields of interest concerning defamation bringing a wealth of experience prior to its integration790.
An inherent advantage of the pre-action protocol is the turnaround of which the publishing of defamatory material can be corrected and any necessary apologies be made. It is advised in the protocol that the defendant’s response be made within 14 days so a quicker resolution can be achieved, compared to the one-year limitation period that is the usual timescale for defamation claims791. As time is of the essence during defamation disputes, the protocol can speed up the resolution procedure. This is an advantage to the claimant who will almost always want an immediate correction and/or an apology to restore their reputation792.
The protocol aims to set out a code of good practise, which parties should follow during defamation action. The code encourages early communication, the disclosure of sufficient information and the standards for the content of correspondence so an early resolution may be achieved. The code also sets out a timetable for the relevant exchanging of information relevant to the dispute793.
The importance of the protocol is emphasised in the CPR code. The extent of which each party follows the protocol both in practise and spirit will be considered in court, if the litigation reaches civil action794. In his foreword concerning the pre-action
protocol for Personal Injury Claims, Lord Irvine of Lairg identified the values of the pre-action protocol being devised:
‘The protocol aims to improve pre-action communication between the parties by establishing a timetable for the exchange of information relevant to the dispute and by setting standards for the content of correspondence. Compliance with the protocol will enable parties to make an informed judgement on the merits of their cases earlier than before as they will earlier access to the information they need. This will provide every opportunity for improved communications between the parties and is designed to lead to an increase in the number of pre-action settlements.’795
Section 3 of the pre-action protocol outlines what should be contained in the letter of claim. Section 3.1 states ‘the claimant should notify the defendant of his/her claim in writing at the earliest reasonable opportunity’796.
Section 3.2 specifically highlights what should be contained in the letter of claim. Included is the name of the claimant, details of the publication or broadcast, including the words complained of, date and where possible, a copy or transcript of the defamatory words and sufficient evidence that the words used were in fact inaccurate or unsupportable. This should be supported by an adequate explanation to enable the defendant to appreciate why the words were inaccurate or unsupportable. Where relevant, the words that make the claimant identifiable, in addition to what damage
has been caused from the words complained of. The claimant should also address a method of remedy so that the claim can be rectified797.
Sections 3.3 and 3.4 provide details for the defendant, which should be responded to within 14 days, unless a time limit has been specified in the letter of claim. The letter should include whether or not the claimant’s claim is accepted or if more information is required, then what information and why it is needed. If the claim has been accepted, the letter should include whether it has been wholly or partly accepted, in addition to what remedies the defendant is willing to offer798.
If the claim is rejected, an explanation why, in addition to significant details of any facts should be included in the response. The defendant should also include the facts and the defence they would likely rely on. It is desirable that the defendant includes what he/she attributes to the words complained of, in the response799.
Both parties should act reasonably to keep costs proportionate to the nature and gravity of the case, whilst considering what stage the complaint has reached. Clarke- Williams comments that ‘the success or otherwise of the pre-action protocol lies not in the hands of the lawyers but with the courts’800. The reasoning behind this theory is that if the courts penalise those who do not attempt to resolve issues using the pre- action protocol by issuing heavy cost, the protocol will gain the credibility and force needed. Such action would play an important role in changing the perception that defamation claims are exclusive to the rich, famous or foolhardy801.
The pre-action protocol is still in its infancy and little has yet to be discussed regarding the how it affects Internet based cases and the notice and takedown procedure. Objective ‘To investigate how effective defamation practice has been in its attempt for an early settlement when concerning defamation claims and the Internet’ considers these elements.
4.9 The Law Commission Reports
In 2002, the Law Commission undertook two separate studies regarding defamation. The studies were undertaken upon the request of the Lord Chancellor’s Department. The first of the two studies, ‘Aspects of Defamation Procedure: A Scoping Study’802 was published in May 2002. The study was carried out following The Lord Chancellor’s Department’s concerns of ‘gagging’ writs or letters in practise and to determine whether there is a problem of ‘tactical targeting’, where claimants routinely target secondary publishers who are less able to establish a defence803.
The term ‘gagging’ writ or letters can be defined as a party’s attempt to stifle further comment or debate with regards to published comments with the threat of libel action. Such actions are legitimate when the goal is to deter those from making further defamatory comments. However, it is seen as abuse when the aim is to prevent unwanted criticism or exposure804.
In the second report, ‘Defamation and the Internet: A Preliminary Investigation’805 the law commission were asked to provide preliminary advice to the Government on
whether current law is causing difficulties for online publishers, ISPs, their customers or others. Results of the study would determine whether there was a need for possible further work806. Both studies are discussed.