Page 65 - Law and the Media

Law and the Media
Starting an action
The Civil Procedure Rules include pre-action protocols, which outline the steps each party
should take to seek information from and provide information to the other about a
prospective legal claim. The objectives of the pre-action protocols are to:

Exchange early and full information about the prospective legal claim
Enable the parties to avoid litigation
Support the efficient management of proceedings where litigation cannot be
avoided.

Non-compliance with the pre-action protocols may result in an award of costs against either
or both parties in any subsequent litigation.

The defamation pre-action protocol came into force on 2 October 2000. The protocol sets out
the details that should be included in a claimant’s letter before action, including full
information about the complaint, factual and evidential matters relating to identification and
meaning, and the relief sought. Although there are circumstances in which the protocol
allows the immediate issue of proceedings by the claimant without the provision of full
information about the complaint, there is no provision for delay by the defendant in
providing a full response.

The claim form must contain prescribed details if it does not contain or have attached to it
a full Statement of Case. Service of the claim form is effected by the court or the claimant.
A defendant must set out whichever defence he relies on in his Defence, and specify
defamatory meaning, the circumstances of any privilege claim, details of any matters relied
on in support and any statutory offer of amend he relies upon.

Injunctions
As those in the media are aware, before publishing a story in which a person might claim
to be defamed it is proper practice to confront the individual concerned and seek his
reaction to the allegations. Human nature being what it is, the initial reaction of the person
confronted with the prospect of publication of a potentially defamatory statement is to try
to work out what can be done to prevent the publication. With that in mind, it is not
surprising that such people frequently prefer speaking to their lawyer than the reporter on
their doorstep. The first thought that goes through the mind of a lawyer confronted with
such a situation is whether it is possible to obtain a court injunction to restrain
publication.

The injunction is undoubtedly the strongest weapon in the claimant’s armoury. On the
principle that prevention is better than cure, it has more practical effect than the issue of
proceedings after the damage has been done. Fortunately for the media, the court is generally
unwilling to grant injunctions preventing intended publications where the defendant claims
that he has a defence to the alleged defamatory statement.
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