Spike in cases
Figures were released in June 2019 stating that the number of issued defamation claims in the London Queen’s Bench Division (‘QBD’) of the High Court soared by 70% in 2018.
Last year court issued libel and slander claims made up six percent of all QBD claims. This is a remarkable statistic given that defamation is a specialist area of law and the QBD also deals with more generic types of disputes. These include debt cases, personal injury, negligence, breaches of contract, breaches of statutory duties, breaches of the Human Rights Act 1998, and various torts.
The next most recent year before 2018 that defamation claims reached the six percent mark of QBD claims was in 2005. In that year, fewer defamation claims were issued in the QBD overall (252, as opposed to 265 in 2018).
The number of English defamation cases so far in 2019 also look to be significant, if the amount of reported judgments up to and including June 2019 are taken into consideration.
There have already been more than 30 defamation judgments in England in 2019. On its face this appears to be a high volume, considering that the number of judgments make up a fraction of court issued claims, as the vast majority of cases settle out of court before a judgment becomes necessary. These defamation judgments in the first half of 2019 have not just been in the QBD, but also in the Court of Appeal and the Supreme Court, which are also processing their fair share of defamation disputes.
Possible drivers of the increase
Data is unavailable to show precisely what has created this recent spike in defamation cases being processed through the courts, but several factors appear relevant.
Firstly, section 11 of the Defamation Act 2013 required that defamation trials in England must be without a jury unless the court orders otherwise. This change in the law pretty much assigned defamation jury trials to the history books from 2014 onwards. Issuing defamation claims arguably became more attractive to claimants on the basis that they could be heard swiftly by judges-alone in a day or in a few days. Compared to this, judge and jury trials could take weeks, cost the claimants far more and delay vindication of their reputations.
It is interesting to note that the Defamation Act 2013 has generally been considered to favour defendants more than claimants. This was for a variety of reasons, many of which are valid. Despite this, the number of defamation claims issued in the QBD in London after the Act came into force in 2014 increased by 60% compared to 2013. Figures did dip again for the next couple of years, but that could have been caused by tentative claimants not wanting to run expensive test cases that interpreted various other aspects of the new Act. The increase in case law means we are now largely over that hurdle.
Secondly, the number of issued defamation claims picked up significantly in 2017. In that year, they increased by 39% in comparison to 2016. If we look at what happened in the judicial system in 2017, a change occurred with regard to how the courts process defamation claims.
On 1 March 2017 the judiciary created a new list within the QBD called the Media and Communications List. That list now takes primary responsibility for defamation cases and part of its remit is to establish whether there are any improved practical arrangements that might be made for cases.
Since the introduction of the Media and Communications List, the QBD seems to be trying to streamline defamation proceedings. In particular it is pushing litigation to swift resolution via early judicial decisions on issues such as discerning the meanings of words that form the basis of a dispute. With the new List and the absence of jury trials, by 2017 there was no reason why the defamatory meanings of words could not be decided very quickly by a judge alone. Defamation disputes tend to resolve quickly after such judgments are released. This is because the strengths and weaknesses of the cases become much clearer, which again could have made litigation more attractive to claimants.
Thirdly, sources estimate that around the world more than one million new internet users have come online every day since January 2018, that there are more than 5 billion unique mobile users, that there are 4.4 billion internet users, and that there are 3.5 billion active social media users. In such an environment the number of defamatory statements made, particularly in permanent form, is likely to increase continually, particularly as globalisation and populations expand, and new technologies develop. It is interesting to note that English defamation claims increasingly relate to allegations made on social media, or on websites, rather than in the traditional print press. We have had a large number of such claims already in 2019.
The major jump in 2018 in the number of issued defamation claims is an interesting development, but two recent events could arrest or reverse this upward trajectory.
The first is the Supreme Court decision in June 2019 of Lachaux v Independent Print Ltd and another. This case raised the bar for claimants in relation to proving that a publication has caused or is likely to cause serious harm to their reputations, as required by section 1 of the Defamation Act 2013. The Lachaux judgment said that claimants must establish serious harm by reference to the actual impact of the offending words, not just their inherent meaning.
The second development was the fact that the law changed this year so that success fees were no longer recoverable from losing defendants by claimants who issued defamation claims after 5 April 2019 through lawyers funded by conditional fee agreements (‘CFAs’), in other words on a no win no fee basis. Success fees were an uplift on standard legal fees that took into consideration the risk to the claimant’s lawyers of not being paid anything if their client lost their case at court.
This removal of success fee recoverability will make many defamation cases that are borderline on their merits less attractive for some lawyers who would previously have been willing to take a risk and act on a CFA. As such, it could increase the need for claimants to find private funding, which is not always available.
How much of an impact the removal of CFA success fee recovery will have on the volume of issued defamation claims after 5 April 2019 remains to be seen. This development has been anticipated for at least a decade by claimant defamation lawyers, and preparations for this change to the CFA regime should have been put in place by law firms. It should also be remembered that there are many alternatives to CFAs, and that lots of defamation claimant lawyers stopped offering CFAs to clients years ago anyway for a variety of other reasons
The impact on issued defamation claims of the Lachaux Supreme Court decision and the removal of recoverability of success fees will only be felt from the second half of 2019. Their inevitable influence on the number of libel and slander claims issued and heard from 2019 onwards is likely to be counterbalanced by the recently streamlined court procedures, and the ever increasing amount of online content, which arguably make defamation litigation more likely.
It will be interesting to see what statistics on issued defamation claims are released in 2020 when all the data for 2019 is available.