Media law

By Amber Melville-Brown, Finers Stephens Innocent, London

Defamation protocolSome practitioners have never done it; some have been doing it for years; others have only done it since the implementation of the Civil Procedure Rules (CPR).

But now we must all do it - that is, abide by the spirit of the new defamation pre-action protocol which was launched at the Law Society at the end of November.

The protocol is the fourth implemented under the CPR, following those for personal injury and clinical negligence, both implemented in April 1999, and construction and engineering, implemented in October 2000.The defamation pre-action protocol is a 'superb' document, according to the shadow Attorney- General, Edward Garnier QC.

He said it was produced by a 'very hard working working group', set up by Jeremy Clarke-Williams of London law firm Russell Jones & Walker and made up of private practice solicitors, in-house legal representatives at national newspapers and media organisations and facilitated by the Law Society.Pre-action protocols are a key feature in the Woolf civil justice reforms.

They were devised to encourage an early exchange of information to reduce delay and costs in litigation.

Fraser Whitehead, chairman of the Law Society's civil litigation committee, explained that 'the protocol sets out a code of good practice which parties should follow when litigation is being considered'.However, although much of the defamation pre-action protocol may be no more than a matter of common sense and good practice, Alastair Brett, legal manager at Times Newspapers, pointed out at the launch that this good practice is perhaps honoured more in the breach than in the observance.

He had received many purported letters of claim which were often 'quite incomprehensible', to the extent that he had little idea about what the proposed claimant was complaining.The protocol sets out simple criteria regarding how both sides should behave when commencing or receiving notification of an intended claim.

For example, the letter of claim should include a copy of the article of complaint if possible, list factual inaccuracies or unsupportable comments and give a sufficient explanation as to why the words are inaccurate or unsupportable.

It is also 'desirable' for claimants to identify the meaning that they attribute to the words complained of.

This should give defendants a clear idea as to why a claimant feels aggrieved and of the nature of the case which must be met.

The protocol similarly applies to proposed defendants, who should respond as soon as possible and within 14 days.

If this is not possible, they should at least inform the claimant when they will be able to reply.Sarah Webb, a solicitor at Russell Jones & Walker and also a member of the working group, said that overall the protocol will be beneficial to the litigation process which, according to Lord Woolf, 'often seems as a battlefield where no rules apply'.

Importantly, she said the protocol 'will almost bring claimants onto a level playing field with defendants'.

Ms Webb sees four major benefits to the protocol: that it will encourage communication in an environment where lawyers with 'big egos are naturally suspicious of each other'; will achieve early disclosure; will set an early timetable for the case; and will ensure that costs are proportionate.The protocol also requires that 'in formulating both the letter of claim and response and in taking any subsequent steps, the parties should act reasonably to keep costs proportionate to the nature and gravity of the case'.

Ms Webb predicted that the amount of front-loaded work in collecting, considering and exchanging evidence and documentation at an early stage might lead to 'interesting arguments about whether the costs are proportionate'.Alastair Brett agrees, suggesting that the process of arbitration at the early stages of a potential claim may assist in doing so.

He told the Gazette: 'The court should be careful before allowing undue costs to be run up if there's a chance of arbitrating.' However, he maintained that arbitration will only be appropriate in certain circumstances, for example, when there is a dispute as to meaning or when the publication was funny and not intended to be taken seriously, and not when there is a straightforward dispute of evidence.

In Sarah Webb's view, alternative dispute resolution will not always be appropriate; a compromise may not be possible where reputation is at stake.Also at the launch was Carolyn Kirby, Deputy Vice-President of the Law Society, which played a constructive role in producing the protocol.

She expressed the Society's aim as being to set 'high standards for the profession, ensuring a better service for clients'.On a lighter note, Alastair Brett saw the protocol serving another function.

He said lawyers have been defined as people who will persuade two others to strip and then run off with their clothes.

He quoted the poet Keats who said: 'I think we may class lawyers in the natural history of monsters'.

Mr Brett hoped that the defamation pre-action protocol would help in banishing these unfortunate views.

However, he also took some solace in the thought that lawyers are perhaps not as badly thought of as journalists.

Quoting the former journalist Nick Tomalin: 'Journalists have to have little more than a degree of plausibility, a modicum of English and, most important, a rat-like cunning, before joining the great army of reptiles which serve up our daily dose of news'.

As a lawyer and some-time journalist myself, I'm a little worried about my reputation.

Where's that defamation pre-action protocol?