Changes described in some quarters as a “damp squib”
Justice secretary, Ken Clarke has unveiled his draft Defamation Bill.
It includes a “public interest” defence, a requirement that claimants can demonstrate substantial harm before they can bring a claim, and an end to jury trials. It requires claimants from overseas to be able to “clearly” demonstrate that England and Wales is an appropriate forum, introduces a statutory defence of “honest opinion”, and includes a single publication rule, preventing repeat claims for online material.
Clarke says the high cost of fighting libel cases had “begun to have a chilling effect on scientific and academic debate and investigative journalism”.
However, Razi Mireskandari, head of media at Simons, Muirhead and Burton, says the draft Bill is a “damp squib”. “There’s nothing radical in there. It’s an attempt to put into statute what the courts are doing anyway. The main problem with libel is the need to balance the respective strength of the parties—it makes all the difference whether someone is a tabloid newspaper or a blogger, someone who’s not wealthy or a Russian oligarch.
It’s a thorny issue.
Mireskandari says the “real issue” is Lord Justice Jackson’s proposals to trim success fees to 25% and make ATE premiums and success fees irrecoverable.
“These reforms might work in the US where damages are much higher, but they’ll have a real impact on access to justice here.”
Robert Dougans, partner at Bryan Cave, said he was happy with the Bill overall.
“I had hoped for a stronger public interest defence but I was reconciled with the possibility that there wouldn’t be.
“I like the ‘substantial harm’ requirement as that will cut out attempts to bully people with libel threats. The courts have been tip-toeing towards that view but this Bill clarifies it.”
The consultation period for the Bill closes on 10 June. (See this issue pp 376-77). Read more @ newlawjournal.co.uk
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