Legal Information Centre

13 August 2009 by Mary Heaney

Government attempts to cap defamation costs

The cost of bringing defamation cases to court may be significantly reduced under the government's inquiry into the high-level of legal fees for bringing an action in this area of law.

The cost of bringing defamation cases to court may be significantly reduced under the government’s inquiry into the high-level of legal fees.  Currently the costs involved in a defamation action are so high that even the threat of having to pay such costs is forcing defendants to settle out of court. The idea behind the proposed changes is to strike a balance between personal privacy and the protection of free speech.

The Ministry of Justice, Justice Minister Bridget Prentice commented: “We need to ensure that people’s right to freedom of expression is not infringed, and media organisations continue to report on matters of public concern”.

The MoJ has outlined the proposed changes as being:

• Limiting recoverable hourly rates by setting a maximum or fixed recoverable rates

• Compulsory cost capping or mandatory consideration of cost capping in every case

• Requiring the proportionality of total costs to be considered on cost assessments conducted by the court.

These proposals come at a time when defamation laws are already being criticised for not being sympathetic to the existence of internet publications. The current limitation period for bringing an action of defamation in Britain is one-year from the date of publishing. However, with many articles readily available on the internet, the date of publishing can easily become indefinite as each time an article is made accessible on a server it constitutes an act of publication.

In considering the proposals the government has been critical of ‘no-win, no fee’ cost agreements as they provide a risk-free avenue for claimants to sue media agencies and are therefore a greater threat to free-speech. It is hoped that if the changes to defamation litigation take effect they will provide protection for both the individual and the media.

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