CONTENTS
Acknowledgments;
Foreword;
Preface;
Table of Cases;
Table of Statutes;
Table of Statutory Instruments;
Table of Civil Procedure Rules;
Rules of the Supreme Court;
Summary of the Law and Procedure;
PART ONE: WHAT THE CLAIMANTMUST PROVE;
1 General;
2 The defamatory statement General The meaning of the words Is the meaning defamatory?
3 Publication;
The meaning of publication Responsibility for publication Different media Responsibility for republication Place and date of publication;
4 Identification Introduction Examples The legal principles Coincidental naming Lookalikes
Class libel Corporations;
5 Slander claims and special damage Distinction between libel and slander Slanders that do not require proof of special damage Commission of a criminal offence punishable by . imprisonment
Contagious diseases Imputations of unchastity to a woman Allegations likely to damage the claimant's reputation in relation to any office, profession, trade or business Special damage
The functions of judge and jury Vulgar abuse Proving the words;
6 Malicious falsehood Introduction Comparison with defamation What the claimant must prove
The false statement Malice Damage;
PART TWO; DEFENCES
7 General
8 Justification;
Introduction;
Relationship with other defences Burden and standard of proof The meaning that must be proved to be true "Higher" and "lower" meanings Repetition rule "Grounds to suspect" meanings "Grounds to investigate" meanings General and specific allegations Non-defamatory meanings Proving the sting
Section 5 of the Defamation Act 1952 The limits of section 5-separate and distinct allegations Effect on damages The functions of judge and jury;
9 Fair comment;
Introduction;
The defendant must overcome four hurdles in order to establish the defence Comment-the test
The comment must have a sufficient factual basis The comment must be objectively o'fair" Matters of public interest The functions of judge and jury;
l0 Privilege-general;
Introduction;
Absolute privilege;
Qualified privilege;
Relationship with other defences;
The functions of judge and jury;
11 Absolute privilege;
Introduction;
Statements made in the course of judicial or quasi-judicial proceedings Statements made in parliamentary proceedings and papers Reports of court proceedings Statements made by one officer of state to another in the course of duty Solicitor and client Miscellaneous statutory privileges General public interest privilege;
L2 Qualified privilege--duty and interest;
Introduction;
General principles Examples of privileged publications Seeking redress for grievances;
13 Qualified privilege-media publications on matters of public interest-Reynolds v Times Newspapers Ltd;
Introduction;
Reynolds v Times Newspapers Ltd-the case The 10 criteria to be taken into account Principles established in cases following Reynolds Cases following Reynolds Other post-Reynolds cases
Jameel v Wall Street Journal ( Europe ) Sprl Post-,Jameel cases Procedural and practical considerations Information from and disclosure by the defendant Malice The functions of judge and jury;
14 Qualified privilege-reports, copies and extracts protected by statute Schedule I of the Defamation Act 1996 Part One-no explanation or contradiction Part Two-subject to explanation or contradiction
Residual common law privilege Public concern and benefit The report-fair and accurate
Reasonable letter or statement by way of explanation or contradiction;
15 Secondary responsibility;
General;
The defence-section I of the 1996 Act The author, editor and publisher-primary responsibility
Not the author, editor or publisher-secondary responsibility Reasonable care and absence of knowledge or reason to believe The distinction between defamatory and libellous The effect of the Human Rights Act 1998;
16 Offer of amends;
General;
The offer Qualified offers Acceptance of the offer Non-acceptance The test for disqualification
Relationship with other defences Non-acceptance of a qualified offer Rejection Tactical considerations Joint liability;
17 Miscellaneous defences and prohibitions or restrictions on bringing a defamation claim
Limitation Consent to publication Abuse of process Accord and satisfaction-release Vulgar abuse
Prohibitions and restrictions on bringing a defamation claim Corporations Unincorporated associations The Crown and foreign states Members of Parliament Bankrupts ,Children ,Mental patients ,Spouses;
18 Malice;
The definition of malice;
The relevance of malice;
Malice and duty and interest qualified privilege;
Improper motives, Evidence of malice, Malice and Reynolds-based qualified privilege, Malice and report-based qualified privilege, Malice and fair comment, Joint liability, The functions of judge and jury;
PART THREE: REMBDIES;
19 General;
20 Damages;
Introduction;
Compensatory damages;
General damages;
Relevant factors in assessing the size of the award, Aggravation of damages, Mitigation or reduction of damages, How much? Financial loss and special damage, Exemplary damages, Joint liability
The functions of judge and jury;
21 Injunctions;
Introduction;
Interim injunctions, Undertakings, Final injunctions, Breach of an injunction, The Human Rights Act 1998;
22 Apologies;
Apologies, Statements in open court, The publication of summary judgments, PARTFOUR
PROCEDURE, STRATEGY AI\D TACTICS;
23 General considerations for claimants;
Introduction;
Only start if you intend to finish, Establish the goals at the outset, The oxygen of publicity-giving the defamation new life, Do not be unduly pessimistic, Assess the defendant at the outset, Move quickly
Attack may be the best form of defence, Probing the client, It may be wrong but is it defamatory?
Consider any offer of settlement seriously The perception of juries and judges;
24 General considerations for defendants;
Introduction;
Poacher and gamekeeper, "Hold or fold from day one" A simple and consistent message, Steel fist in a velvet glove, Empathy for the defendant (and his witnesses);
25 Defamation and the Civil Procedure Rules;
The overriding objective, The need for active case management, Focusing on the essential issues
The importance of the case, Levelling the playing field, The diminishing role of the jury;
26 Commencing a defamation claim;
Whom to sue?-Choice of defendant, Who should sue?-Choice of claimant, Letters of claim
Responses to letters of claim;
27 Jurisdiction-Claims with a foreign element;
General;
Basic concepts, The jurisdiction of the English courts in defamation claims, A more appropriate jurisdiction-forum non conveniens, Double actionability, Permission to serve out of the jurisdiction
Enforcement of English judgments abroad;
28 Statements of case;
General;
Claim form Particulars of claim, Defence Reply Rejoinder Malicious falsehood Requests for further information Amendment ,Extensions of time;
29 Summary disposal and strike out;
Introduction;
The grounds for summary disposal or striking out Summary disposal under CPR Part 24 and section 8 of the 1996 Act Rulings on meaning-Part 53 PD 4 The general power to strike out-CPR r.3.4 Procedure
Costs Tactical considerations;
30 Disclosure and further information;
Introduction;
Standard disclosure Disclosure before proceedings start, Disclosure against non-parties, Further information, Information from non-parties, Disclosure and information in defamation, Lost documents, Restrictions on the use of disclosed documents and further, information;
31l From case management conference to trial;
Case management conference, Exchange of witness statements, From exchange of witness statements to trial;
32 Trial;
Introduction;
The role of the trial judge, Preliminary argument, Empanelling the jury, Trial of preliminary issues
The claimant's advocate makes an opening speech, The claimant's witnesses give evidence
Defendant's submission of no case to answer, The defendant's case, Claimant's submission of no case to answer, Closing speeches, The judge's summing-up to the jury, The jury retires, The verdict and judgment, The media;
33 Appeals;
Final appeals;
The powers of the Court of Appeal, Appeals from interim orders, Procedure for appeals to the Court of Appeal, Appeals to the House of Lords;
34 Costs, security for costs and conditional fees;
Introduction;
The general rule-Costs "follow the event", Exceptions to the general rule, Costs in applications before trial, Costs in the Court of Appeal, Detailed assessment, Conditional fee agreements
The "chilling effect" of CFAs, Costs capping, Maintenance Security for costs, PART FIVE SPECIFIC CONSIDERATIONS;
35 Internet;
Introduction;
Libel and slander, Meaning, Proof of publication, Who can be held responsible for an internet publication? The defence of secondary responsibility-section I (3)(c), and (e) of the Defamation Act 1996, Who can qualify for protection?-Not the editor, author or publisher Reasonable care and absence of knowledge or reason to believe Electronic Commerce (EC Directive) Regulations 2002;
Jurisdictional issues;
Practical considerations for ISPs;
Practical considerations for online publishers;
Practical considerations for employers;
Practical considerations for internet users;
Practical considerations for people who have been defamed on the internet A recent example;
36 Pre-publication considerations for publishers;
General;
Advice not censorship;
Knowledge of the law, Practical knowledge, Creative advice, Creating a culture A personal view;
37 Considerations for a person facing a threatened defamatory publication, Don't panic, The objectives, Dialogue with the publisher, Exercise caution with journalists, Instruct a solicitor Injunctions, Warning the disseminators, The sympathetic spoiler;
PART SIX: HUMAN RIGHTS AND PRTVACY
38 Defamation and The Human Rights Act 1998;
Introduction;
The consequences of incorporation, Article 8-The right to respect for private and family life
How Article l0 works, Article l0 in practice-decisions of the European Court of Human Rights
The impact of Article l0 on English defamation law, Article 6-The right to a fair trial, Procedure and evidence, Applications to the European Court of Human Rights;
39 Defamation and privacy;
Introduction;
Privacy and breach of confidence-general, Misuse of private information, Main differences with defamation, Tactical considerations;
PART SEVEN: APPENDICES
I Precedents;
2 Statutes, statutory instruments and protocol;
Defamation Act 1952; Defamation Act 1996; Human Rights Act 1998; Pre-action Protocol for Defamation; CPR Part 53 Defamation claims; Practice Direction s3-Defamation claims; Practice Direction 5 1D-Defamation proceedings costs management scheme;
3 Schedule of defamation trials since 1990;
4 Decisions on damages under section 8 Courts and Legal Services Act 1990;
5 Personal injury awards;
6 Glossary;
7 Criminal libel;
Index