Draft Defamation Bill

Comment by Charles Gray QC

There is much to be welcomed, eg sections 5 (limitation period), 10 (evidence of convictions) and 12-13 (statutory privilege).

I would comment specifically on two proposals. Firstly, the summary procedure introduced in sections 7 to 9 of the Bill. Short cuts are always tempting and are desirable if indeed they save costs. We will have to see how these provisions operate in practice. But I have my doubts whether there will prove to be many plaintiffs who value their complaints at less than £10,000 or for that matter many defendants who accept they have no arguable defence. The upshot in a good many cases may be that additional interlocutory costs are incurred arguing entitlement to summary judgment but without any eventual abbreviation to the process of litigation. An alternative way of achieving the desired objective of avoiding the expense of trial might be to include defamation actions within the scope of Order 14.

The other provision which calls for comment is section 11, which permits a defendant to rely in mitigation of damage on all facts in the relevant sector of a plaintiff's life which would affect his reputation if generally known. The objective is clear: to prevent unmeritorious plaintiffs with many skeletons in their cupboards recovering large and undeserved awards of damages. This does happen. But section 11 might be said to be a charter for muckraking media defendants to dig out discreditable incidents from the past private life of the plaintiff in order to deter him from suing in respect of a libel which may be wholly unjustifiable. The existing law on mitigation of damages may be unduly restrictive for defendants. But the proposal in section 11 may go too far the other way.

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