Defamation Pre-Action Protocol

The Defamation Pre-Action Protocol sets out specific standards for potential defamation claim parties to observe prior to court proceedings being issued. The aim of the protocol is for the parties to share information from initial stages in the hope of reaching an alternative solution to the dispute.

The following article explains Defamation Pre-Action Protocols, how they can work and the benefits of this course of action.

What is Defamation Pre-Action Protocol?

The Defamation Pre-Action Protocol refers to a code of practice that should be observed by the people involved in a dispute prior to court action being taken. The protocol serves to reach an alternative solution before litigation begins.

Defamation Pre-Action Protocol encourages both parties to share information and disclose specific details in order for all those concerned to gain an understanding of the other side and encourage the potential for an early resolution. If a resolution is not reached and litigation is required, the court will consider how far the Defamation Pre-Action Protocol was followed.

How does Defamation Pre-Action Protocol work?

In order for Defamation Pre-Action Protocol to have the potential of being successful, it is important that all parties follow the required processes properly. This includes the following steps:

Letter of Claim

The initial step is for the claimant to write to the defendant to outline their claim. This step should be taken as soon as possible, and the letter should provide thorough information regarding the claim details including:

• The claimant's name
• Details regarding the defamatory act which should include the publication in which the defamation was made
• The words used in the defamatory act
• The date of publication and a copy of the transcript that contains the words of defamation used
• A description of the nature of the resolution should be given in the letter
• Confirmation of how the claimant can be identifiable as the subject of the defamation

Response to the Letter of Claim

The defendant should respond to the letter of claim as swiftly as they can. A reasonable response time of 14 days is allowed, and if the defendant believes that they cannot provide their response in this time, they should contact the claimant's solicitor in order to confirm when their response can be expected and the reason for the delay.

The defendant's response should include the following:

• The level of acceptance of blame
• Whether any points of the claimant's letter need to be clarified or whether any further information is needed
• Whether the defendant accepts the claim fully or partly
• What remedies the defendant is prepared to offer
• If the defendant rejects the claim, they need to fully explain why and offer facts to support the rejection.
• The defendant should clarify the meaning of the words complained of by way of explaining their position thoroughly.

Proportionality

The Defamation Pre-Action Protocol stipulates that both the claimant and defendant are required to bear in mind proportionality when writing the letter of claim and response letter. Both parties must keep costs proportionate to the nature and severity of the case.

Alternative Dispute Resolution (ADR)

Under the Defamation Pre-Action Protocol, both parties should determine whether formal alternative dispute resolution (ADR) is a suitable source of action to reach a resolution to the case. In order for a court to review the case, it may be a requirement that ADR can be proven as having been considered before a hearing. Defamation Pre-Action Protocol outlines that litigation should be the final course of action for claims and as such, courts are not likely to be involved until such a time as all other alternatives have been exhausted. Alternative resolutions can include:

• Discussions and negotiations between the parties. Third party professionals may assist with this, such as a solicitor, who will independently assess and advise on a case.
• Mediation - Professional mediation services can be employed which will help to encourage open and calm negotiations between the parties.
• An investigation carried out by the Press Complaints Commission.