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No defamation claim should cost more than a home

By Nuffield Foundation

The high cost of libel claims and the length of the legal progress is preventing both claimants and defendants from asserting their legal rights, according to a report published today by the Alternative Libel Project and funded by the Nuffield Foundation.

The report is the result of a year-long inquiry into alternatives to the current system of resolving libel claims through the High Court. It recommends wider use of quicker and cheaper methods, such as mediation, arbitration and early neutral evaluation. It advocates capping the costs of a libel claim at a level equal to that of the average UK house price, as well as allowing the court to protect people with few resources from having to pay the other side’s costs even if they lose.

The Alternative Libel Project is a partnership between Index on Censorship and English PEN, and has been assisted by an advisory committee of experienced professionals, chaired by Sir Stephen Sedley, a former Lord Justice of Appeal. Its report is particularly pertinent in a week when the issue of access to justice is the subject of fierce debate in the House of Lords.

Recommendations include ensuring that the court encourages parties to use alternative forms of dispute resolution and penalises those who unreasonably refuse to do so. Alongside this, the government should give courts the mandate to manage the evidence and argument allowed in defamation cases in a robust manner. It should also introduce rules enabling a hearing to determine the meaning of the alleged defamatory words to be determined independent of a full claim for libel.

Alternative methods include mediation, which the Inquiry found had a success rate of over 90% in defamation claims, and arbitration, which works well to resolve key issues at the outset. Early neutral evaluation has the potential to help claims settle when neither mediation nor arbitration is suitable.

Jo Glanville, Editor of Index on Censorship said:

“NGOs, scientists, journalists, publishers, comedians, bloggers and many others have all experienced the chilling effect that the cost of a libel case has on freedom of speech. The procedure needs to change so this does not continue. Alternative forms of dispute resolution, such as mediation, need to be use much more often and the court ought to use is powers to redress inequality of arms between the parties.”

Jonathan Heawood, Director of English PEN said:

“Procedure and costs rules need to change for defamation claims. There is no good reason why a libel trial should ever cost more than the average house price in the UK. Costs of this level are still beyond the means of most people in this country – hence our other recommendations – but it would mark a massive reduction on today’s eye-popping costs.”

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