PRE ACTION PROTOCOL IN DEFAMATION

Introduction

This protocol incorporates the concept of the overriding objective as provided by the Rules of the Court of Judicature at Order 1A before the commencement of any court proceedings.  In short it will deal with cases justly including so far as practicable –

• Ensuring that the parties are on an equal footing.

• Saving expense.

Moreover the cases will be dealt with proportionately bearing in mind –

• The amount of money involved.

• The importance of the case.

• The complexity of the issues.

• The financial position of each party.

• Ensuring that the case is dealt with expeditiously and fairly.

• Allotting to it an appropriate share of the Court’s resources by taking into account the need to allot resources to other cases.

Aims of the Protocol

• This protocol sets out a code of good practice which parties should follow when litigation is being considered.

• It encourages early communication of a claim.

• It aims to encourage both parties to disclose sufficient information to enable each to understand the other’s case and to promote the prospect of early resolution.
• It sets a timetable for the exchange of information relevant to the dispute.

• It sets standards for the content of correspondence.

• It identifies options which either party might adopt to encourage settlement of the claim.
• Should a claim proceed to litigation, the extent to which the protocol has been followed both in practice and in spirit by the parties will assist the Court in dealing with liability for costs and making other Orders.

• Letters of claim and responses sent pursuant to this protocol are not intended to have the same status as a pleading.

• It aims to keep the costs of resolving disputes subject to this protocol proportionate.

Letter of Claim

1.         The plaintiff should notify the defendant of his/her claim in writing at the earliest reasonable opportunity.

2.         The Letter of Claim should include the following information:

§ name of the plaintiff;

§ sufficient detail to identify the publication or broadcast which contained the words complained of;

§ the words complained of and, if known, the date of publication;

§ where possible, a copy or transcript of the words complained of should be enclosed;

§ factual inaccuracies or unsupportable comment within the words complained of;

§  a sufficient explanation to enable the defendant to appreciate why the words are inaccurate or unsupportable;

§ the nature of the remedies sought by the plaintiff.

Defendant’s response to Letter of Claim

3.         The defendant should provide a full response to the letter of claim as soon as reasonably possible.  If the defendant believes that he/she will be unable to respond within 14 days (or such short time limit as specified in the Letter of Claim), then he/she should specify the date by which he/she intends to respond but in any event the date should not be later than 28 days from receipt of the Letter of Claim.

4.         The Response should include the following:

• whether or to what extent the plaintiff’s claim is accepted or rejected;

• if the claim is accepted in whole or in part, the defendant should indicate which remedies it is willing to offer;

• if more information is required, the defendant should specify precisely what information is needed to enable the claim to be dealt with and why;

• if the claim is rejected, the defendant should explain the reasons why it is rejected including a sufficient indication of any facts on which the defendant is likely to rely in support of any substantive defence and, where appropriate, any meanings relied on.

Proportionality of Costs

5.         In formulating both the Letter of Claim and Response and in taking any subsequent steps, the parties should act reasonably to keep costs proportionate to the nature and gravity of the case and the stage the complaint has reached.

Alternative Dispute Resolution

6.         The parties should consider whether some form of alternative Dispute Resolution would be more suitable than litigation and if so, endeavour to agree which form to adopt.  Claims should not be issued prematurely when a settlement is still actively being explored.

7.         It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute.  However, summarised below are some of the options for resolving disputes without litigation:

• discussion and negotiation;

• early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of defamation or an individual experienced in the subject matter of the claim).

• mediation – a form of facilitated negotiation assisted by an independent neutral party.

• reference to the Press Complaints Commission (an independent body which deals with complaints from members of the public about the editorial content of newspapers and magazines) or the professional body of the defendant.

The Northern Ireland Law Society has information regarding qualified mediators.

8.         It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR but in a desire to resolve disputes in a cost effective and timely way it is actively encouraged.

Signed this 14th day of April 2011

The Hon. Mr Justice Gillen

Senior Queen’s Bench Judge