The winner takes it all in Defamation – Litigation strategy and the art of winning
For businesses and high net worth or public individuals bringing or defending defamation litigation it is important to use the various tools available to bring cases to a conclusion as quickly and cheaply as possible. Specialist defamation solicitors can either help restore a tarnished reputation or minimise the damage and negative publicity which can often attach to those on the receiving end of a claim.
As Hugh Grant knows too well, you don’t necessarily need to be in the right to win in defamation litigation.
“I don’t want to accept this money or settle. I would love to see all the allegations that they deny tested in court,” he said. “But the rules around civil litigation mean that if I proceed to trial and the court awards me damages that are even a penny less than the settlement offer, I would have to pay the legal costs of both sides.
“My lawyers tell me that that is exactly what would most likely happen here. Rupert Murdoch’s lawyers are very expensive. So even if every allegation is proven in court, I would still be liable for something approaching £10m in costs. I’m afraid I am shying at that fence.”
So what tools are available to experienced defamation lawyers to help their clients through the choppy waters of litigation?
The loser has to fall and the maggoty cake strategy
Claims or defences in defamation litigation often include good bits and bad points, thrown in for the sake of it, the so-called “maggoty cake” strategy. However, it can backfire. After all, why should a judge take the rest of your cake if some of it contains maggots?
One effective strategy to deploy is to make the litigation as much about the maggoty part of your opponent’s cake as possible. An experienced defamation solicitor can prepare formal request for information or clarification under Part 18 of the civil procedure rules (known as “Part 18 requests”), which can zero in on the weakest part of an opponent’s case. A party who receives such a request must provide answers signed by a statement of truth unless he challenges the questions via an application. When used effectively, a Part 18 request can force an opponent to either provide uncomfortable answers or admissions about their case (which can then be used against them at trial to undermine their credibility) or even to discontinue parts of their case, resulting in a costs order in in your favour relating to that issue
Part 18 requests are often powerfully used in circumstances where you know your opponent is withholding information and this needs to be brought out into the open.
The Judges will decide – Using summary judgement effectively
Another effective strategy for an experienced defamation lawyer to deploy is to apply to strike out the maggoty bits of an opponent’s case at an early stage, putting your opponent on the back foot and potentially facing a substantial interim costs order in your client’s favour.
Prince Harry won the first stage of his defamation case against the Mail (the court found the article he complained of was defamatory but still needed to consider potential defences) but he later failed to convince the court that the case could be determined at trial following an application for summary judgment and strike out.
To be successful in a summary judgement application, a court must find that the claim or the defence:
- has no real prospect of success, and
- there is no other compelling reason why the case should be allowed to proceed to trial.
Courts say that summary judgment is designed to deal with cases that are not fit for trial at all: Lord Woolf in Swain v Hillman (1999), the Court of Appeal.
The judgment avoids a close examination of all the evidence which might be produced at the usual end point of litigation, which is the trial.
Such applications, when used correctly, can significantly shorten the length of legal proceedings resulting in time and costs savings. Keeping such applications in mind is just one valuable tactic in a commercial litigator’s tool kit
Summary Judgement applications are ideally brought where parts of your opponent’s case are either bad in law or where any evidence to support it is untenable, and that is not going to change throughout the proceedings.
Courts take the view that when a claim or defence is bad in law, the sooner that is ended, the better.
Always staying low – Using Part 36
The possibility of settlement should never be ignored.
The settlement of Heard and Depp’s cases occurred very late in the day – after a full trial and after appeals were lodged. Could the trial have been avoided altogether with an early settlement? The case certainly shows that ultimately no dispute, however antagonistic, is immune from settlement.
Hugh Grant recently settled his case against the Sun via a mechanism known as a Part 36 offer. Part 36 offers are governed by the Civil Procedure Rules and are a critical tool in settlement negotiations for disputes including defamation. While financial compensation is often the primary focus of these offers, they can encompass a broader range of remedies, including non-monetary provisions aimed at addressing the underlying harm caused by defamatory statements. For businesses contemplating or defending a defamation case, understanding the role of Part 36 offers is essential. Such offers give parties an opportunity to resolve disputes efficiently and cost-effectively while safeguarding their reputation and integrity.
Following the Part 36 offer, Hugh Grant referred to the cost risk now being too great for him to carry on to trial. This is because Part 36 offers produce significant consequences relating to the recovery of legal costs depending on whether the offer is accepted or declined. For example, if a defendant does not accept a Part 36 offer made by the claimant and the claimant goes on to do better than its offer at trial then, unless the court considers it unjust to do so, the defendant can expect to pay more of the claimant’s legal costs, interest on damages and costs and also a further financial penalty in the form of a lump sum. This makes Part 36 offers particularly persuasive mechanisms for settlement. While Part 36 offers will most frequently include a settlement sum, non-monetary terms might include an apology or retraction of defamatory statements and undertakings to refrain from making similar defamatory statements in the future. For businesses, these non-monetary provisions can be invaluable in safeguarding their brand and restoring public trust.
I apologise if it makes you feel bad
In the recent Laurence Fox litigation, Fox was asked for, and then did offer, an apology from the witness box. Although the judge trial Judge referred to it as being something less than generously spirited, apologies can be a very effective tool in taking the sting out of defamation litigation, particularly if offered at an early stage. If such an apology was offered sooner it may have resulted in a much earlier settlement and avoided the trial, legal costs and the significant damages award.
The game is on again
In defamation claims, strategic considerations play a pivotal role in shaping outcomes and mitigating risks for all parties involved. These recent high-profile examples illustrate the importance of employing tactical approaches to achieve resolution effectively and efficiently to protect reputations. Having an experienced commercial litigator guide you through the best use of these strategies is invaluable.
For more information or to speak with a member of our commercial litigation team, please contact us online.
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