Top civil judge promises more early resolution of libel disputes post Defamation Act

The UK's most senior civil judge has said that new rules brought in at the start of this year will help reduce the cost of defending libel actions.

Lord Dyson said the rules will hel early resolution of libel disputes. The cost of defending libel actions at trial runs into the millions leading many to complain that this has led to a chilling effect on free speech.

The courts have the powers they need to ensure that defamation cases are resolved as early as possible – and are aware of the importance of using them, the Master of the Rolls declared yesterday.

While exercising those powers would not be appropriate in every case, it should be the aim wherever possible, said Lord Dyson, who is also head of civil justice.

His comments came in a statement in which he gave details of changes to the Civil Procedure Rules which come into effect with the provisions in the Defamation Act 2013, which came into force on 1 January

Parliament discussed changes in court procedures to help with the reforms and the policy underlying them when the Defamation Bill was making its way through the legislative process, Lord Dyson said.

The Civil Procedure Rule Committee (CPRC) had now made the rule changes – but as they were not "as extensive as members of Parliament may have anticipated", he was making his statement "to provide some clarification and reassurance to Parliament and others".

During the Bill's passage MPs and Peers with an interest in and experience of defamation proceedings had spoken of the desirability of early resolution processes – for example, to enable a judge to decide critical issues at the heart of a dispute at as early a stage as possible.

Lord Dyson said: "In addition to the new measures in the 2013 Act, there already exists a formidable array of powers which judges can use to achieve these goals."

Rule 3 of the Civil Procedure Rules gave a judge with a wide range of options to intervene in cases – for example by deciding the order of issues to be dealt with, requiring parties to attend hearings, and by dismissing or giving judgment on a claim after reaching a decision on a preliminary issue.

"Rule 3.4 gives the court the power to strike out a claim as an abuse of process or where there are no reasonable grounds for bringing the claim," Lord Dyson said.

Courts could also take into account whether parties complied with the specialist pre-action protocols in place for defamation cases – which also encouraged the use of ADR (Alternate Dispute Resolution), which speakers in Parliamentary debates were also keen to see emphasised.

Lord Dyson said the CPRC had considered and amended the rules, in the light of a report from a Sub-Committee whose membership included specialist judges and practitioners, and these would come into effect when the Act was brought into force.

"In particular, a change has been made to Rule 26.11 to reflect the removal by the Act of the presumption to trial by jury in defamation cases. This will have the effect of giving judges greater scope to achieve early resolution," Lord Dyson said.

"Previously some issues could not have been decided until a decision on whether there would be trial by jury had been taken."

The Government had also consulted on proposals for costs protection in defamation and privacy claims to ensure that people of modest means can bring and defend proceedings – proposals which were developed in consultation with the CPRC, which would be responsible for implementing any rule changes which followed the public consultation.

Lord Dyson said: "I am confident that the courts have the powers they need to ensure early resolution of defamation cases, and are fully aware of the importance of using these powers.

"The exercise of these powers will not be appropriate in every case, but it should be the aim wherever possible.

"Early resolution is desirable in defamation and privacy cases, as in other areas of litigation, to sort out disputes quickly and economically.

"It is particularly important in defamation cases, however, in view of the very high costs that can arise. 

"All of us – Parliament, Government, the Judiciary, the CPRC and everyone with an interest in this area of law – will want to see the effects of the Act and the new procedural framework on cases, and will expect to see earlier resolution of disputes than before."

Media organisations and reform campaigners have been stressing the need for early resolution of defamation cases, and reforms in the Defamation Act 2013 should help achieve that aim in some cases.

The Act abolishes the previous presumption that defamation cases should be heard by a jury, which means that judges should be able to reach early decisions on the meaning of a statement complained of by a claimant – which should help shorten the litigation, because the decision, depending on which way it goes, could encourage a claimant to drop a claim or a defendant to reach a settlement rather than fight a case.

The Act also introduces a requirement that a claimant must show that a statement he or she says is defamatory has caused or is likely to cause serious harm to his or her reputation, meaning that judges should find it easier to strike out trivial claims, again saving court time and costs.

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