Defending a defamation claim
The firm is best-known for bringing defamation claims, but in one in three instructions, we act for the defendant.
Our specialist defamation solicitors have an impressive success rate in defending defamation claims. This is, in part, because many defamation claims are misconceived. This is particularly so when they are asserted by non-specialist solicitors or litigants-in-person who may not properly understand the elements of a claim or applicable defences. In other cases, a threatened claim may be little more than a bluff.
In all instances, we are well placed to either see off a claim or negotiate the best resolution.
I have been threatened with a defamation claim, what do I do?
Firstly, don't panic. 'Defamation' is a term familiar to most and it is thrown around a lot by lawyers and non-lawyers alike. If you are worried about the potential consequences of being accused of defamation, then we recommend that you arrange a consultation with us before taking any further steps - including before publishing anything else or further engaging with the person accusing you of defamation.
We offer fixed fee consultations at relatively short notice. Ahead of the consultation we will review the publication and other relevant material carefully. At the consultation we will take your full instructions, advise you on the relevant law and procedure and set out your options and our recommendations.
Do I really need a solicitor to respond to a defamation claim?
If the threat of litigation is even remotely credible, avoid the temptation of dealing with the matter yourself. Mistakes made at this stage can be fatal. Even if you do not believe you are in a position to instruct lawyers to act for you for a prolonged period, it is worth taking some advice at the outset. The majority of the defendant matters we are instructed in are resolved immediately or shortly after we send a letter of response.
What is the likelihood of me being sued for defamation?
Whilst thousands of defamation claims are threatened every week, very few of them reach the courts. Indeed, in 2020 only 152 claim were issued in the Royal Courts of Justice (where all defamation claims in England and Wales must now be issued). Very few of these, perhaps a dozen or so, eventually reach trial - with most being settled by agreement and others being disposed of summarily.
The main reason for the relatively small number of claims is that it is normally very expensive to take a defamation claim to trial. In addition to funding a claim, an unsuccessful claimant will normally be ordered to pay the defendant's legal costs. However, that is not to say that you won't be sued and the consequences of being sued can be very serious. In addition to having to pay any award of damages (which could run into six figures), an unsuccessful defendant will normally be liable for a claimant's legal costs (which are also likely to run well into six figures). For many defendants, losing a libel claim at trial can be financially ruinous - resulting in bankruptcy and even the loss of their home. Even where a claim is settled pre-trial on relatively modest terms, a defendant's out-of-pocket costs can be significant.
How do I maximise the chances of not being sued for defamation?
No two cases are alike and we consider each client's case and instructions carefully before recommending a bespoke strategic approach. However, if a claim is weak or defective, you can seek to deter a claimant from issuing a defamation claim by instructing us to prepare a robust 'Letter of Response'. This will address the relevant factual and legal issues and explain why the claim is likely to fail, as well as warning the claimant of the adverse cost consequences of this.
Where an asserted claim is very strong, it may be disingenuous and counterproductive to argue otherwise. If the claimant is likely to sue (note they may not be in a position to do this even if they have a strong claim), then it may be prudent for us to seek to negotiate an early settlement, make 'cost protective' offers (which can reverse the normal cost rules in the event of a trial) and/or propose mediation. This is sometimes done in tandem - normally on a 'without prejudice' basis - with advancing a defence.
The cost of instructing us to prepare a Letter of Response is relatively inexpensive (compared to the cost of proceedings). A good response may avoid legal proceedings and save considerable cost, time and stress. A poor response can mean proceedings are more likely and even prejudice a defence. In short, it is not the time to cut corners.
Can I ignore a defamation Letter of Claim?
It would be a breach of the Pre-Action Protocol for Media and Communication Claims to ignore a Letter of Claim. This means if you are sued, a costs sanction could be imposed - even if you win the case. However, there is no strict legal obligation to respond to a Letter of Claim. A claimant cannot force you to respond to a Letter of Claim.
Whilst ignoring a Letter of Claim to test a claimant's mettle is a strategy that might work in certain cases, ignoring a Letter of Claim may mean you are more likely to be sued. If you then seek to resolve the case, the cost of doing so will normally be significantly higher, because the claimant will have been forced to instruct counsel and incur a court fee.
Can I ignore a defamation claim?
You should never ignore a Claim Form or Particulars of Claim. If you do this a Claimant will almost certainly ask the Court to enter judgment-in-default (which is normally an administrative exercise). This will usually result in you being ordered to pay damages and legal costs to the claimant. It may also harm your reputation.
It can be difficult to have a judgment-in-default set aside, although it is possible in certain circumstances. If you become aware that a judgment has been entered you should contact solicitors immediately. An application to set aside default judgment is less likely to be successful the longer it is left.
What does a claimant need to prove to win a defamation claim?
The claimant needs to prove the following elements:-
- That the defendant has published a statement to at least one third party that identifies them
- That the statement is likely to cause others to think less of them
- That the statement has caused serious harm to their reputation, or is likely to.
A corporate claimant also needs to prove that the statement has caused it serious financial loss or is likely to.
A claimant must also defeat any defence raised by a defendant.
Many misconceived defamation claims lack one or more of the above elements. The fact that a statement is untrue, upsetting and/or insulting does not necessarily mean it is defamatory.
What defences are available in defamation claims?
Numerous potential defences are available. These include:-
- Honest Opinion
- Publication on a matter of public interest
- Absolute privilege
- Qualified privilege (statutory or common law)
- Limitation - where a statement has not been brought within a year of publication
- Innocent dissemination (statutory or common law)
A truth defence is relatively straightforward to understand, albeit that the burden of proof is on a defendant (i.e. they must produce evidence to prove the defamatory imputation is substantially true). Other defences can be conceptually difficult, but are often determinative.
The availability of a defence will depend on all the circumstances of a case. Our specialist solicitors will be able to advise you of their applicability.
I didn't mean to make a particular allegation
At the point of liability, intention is generally irrelevant. What is important is what the publication was understood to mean by its readers (and this is often a source of intense debate at the early stages of defamation proceedings). Thus, once can certainly defame a claimant by accident. Where this occurs, in limited circumstances, a qualified privilege defence may apply. Where it doesn't (and there is no other applicable defence) then a defendant is able to take advantage of an 'offer of amends' procedure to seek to reduce their liability for damages - as well as seek to negotiate an early settlement in the normal way.
Why should I instruct Brett Wilson LLP?
In short, to ensure that you have the best team fighting for you and to get the best result. Defamation law is notoriously complex and it is generally ill-advised to instruct non-specialist lawyers. Our work and client care is of the highest standard. All cases are run by a specialist defamation solicitor. Every matter has partner involvement.
We have long-standing working relationships with the best media law QCs and junior barristers, whom we can draft into the team to represent you in court if the need arises. As well as being listed in the prestigious Legal 500 and Chambers and Partners directories as a leading firm in the fields of defamation, privacy and reputation management law, partners Iain Wilson, Max Campbell and Tom Double, together with solicitor Elisabeth Mason, are all individually recognised as leading individuals. Most importantly, we receive excellent feedback from our clients and contemporaries.
Litigation can be stressful, time consuming and costly. Therefore at the outset of your case we will conduct a cost benefit analysis with you. We will talk you through this process. We offer honest and pragmatic advice to our clients.
How do I instruct Brett Wilson LLP?
The first step is to book a preliminary consultation. At the consultation we will advise you on the merits of any claim, talk through the relevant practical and legal issues, and set out your options. We will review relevant documentation ahead of the consultation. The consultation will help you understand your position and allow you to make an informed decision about what action to take.
Consultations take place in our London offices or by Zoom/Teams/telephone. We can also travel to you.
To request a consultation with one of our specialist defamation solicitors please send us an email, complete our online enquiry form or call us on 020 7183 8950. If emailing or using the online form, please provide a short outline of your situation.
Details of the cost of a consultation will be provided following your enquiry.