Today the Government has announced that it intends to reform the Defamation Act and take other steps to stop abusive legal practices. In particular the use of expensive lawsuits to inhibit free speech – so-called Strategic Lawsuits Against Public Participation (SLAPPS).
This is particularly relevant at the moment as it is alleged wealthy Russian oligarchs have used the high cost of litigation to stifle public criticism of their actions and past careers. Just by commencing a legal action on claimed defamations they can force the defending party to run up costs of thousands of pounds and the threat of pursuing it through the courts at even higher costs effectively bullies the defendants to concede defeat and withdraw. The current English legal system effectively allows the wealthy to defeat justice.
It is suggested that the “public interest” defence could be strengthened and a need to prove “actual malice” be introduced, although to my mind that would not solve the problem as it would just lead to more lengthy debate by lawyers. This would not be a simplification in essence.
SLAPPS are not new of course but may have become a growing industry for lawyers to feed on. For example, it was well known that fraudster Robert Maxwell used lawyers to intimidate reporters and suppress negative stories on his activities.
But the real problem is that such cases are always tried in the High Court. That means there is a complex pre-action protocol and discovery phase and when it gets into court, potentially several days of multiple QCs acting for both parties at enormous cost.
It not only makes defending against allegations of defamation exceedingly costly, particularly if the pursuing party uses delays, complications or repeated claims to increase the costs, but it also makes it prohibitive for someone to make a claim for defamation unless they are quite wealthy. The risk of losing a case when the other side have run up enormous legal costs puts off most people from pursuing such cases.
In summary libel cases are too expensive and can only be pursued or defended by the very wealthy even when the complaints might be quite trivial in nature. The whole system needs reform with minor cases being considered by more junior courts and a cap on costs being imposed early on.
Roger Lawson (Twitter: https://twitter.com/RogerWLawson )
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