Commercial litigation insight from Summerfield Browne Solicitors, based on law & procedure in England & Wales.

The Pre-Action Protocols are sets of rules and procedures that should be strictly adhered to in every litigation matter. In total, there are 13 different Pre-Action Protocols, not including the Practice Direction on Pre-Action Conduct & Protocols, these protocols apply to different litigation matters ranging from personal injury to housing disrepair.

Claims of defamation, include both claims of slander and libel, the differentiating factor between the two being that one is the spoken word and the other is a written defamatory statement. The Pre-Action Protocol for defamation provides the aims of the protocol, ultimately they have been drafted with the intention of remaining in accordance with the Lord Woolf reforms on litigation.

Similar to generic litigation claims, a Letter of Claim is the first stage in proceedings, this should be sent at the earliest possible stage in proceedings, and in accordance with the Protocol it should include;

Name of the Claimant;
Sufficient details to identify the publication or broadcast which contained the words complained of;
The words complained of, and if known the date of the publication. If at all possible a transcript of the defamatory comment should be provided;
Factual inaccuracies of the defamatory comment;
The nature of the remedies sought by the Claimant;
Any facts which make the Claimant easily identifiable from the statement.

The Defendant should respond to the Letter of Action in full as soon as possible, the usual timeframe for replying to a Letter of Action is 14 days. If the Defendant feels that they will be unable to reply within the 14 days’, then they should notify the Claimant as soon as possible and request an extension of time. The letter of response should contain;

Whether or to what extent the claim is accepted;
If the claim is accepted, the Defendant should indicate the remedies it is willing to offer;
A request for more information if this is necessary;
If the claim is rejected, then the Claimant should explain why it is rejected.

As with every litigation matter, the parties should consider a form of Alternative Dispute Resolution as the overall aim of the procedure rules is to minimize costs and encourage out of Court settlements.

If you are in the process of asserting a claim for defamation against someone or have received a Letter of Action and are unsure how to respond or the law surrounding the claim, then your first point of call should be the Defamation Act 2015. This relatively short piece of legislation provides the definition of the offence and provides the defences. It is often advisable for individuals to instruct a solicitor to act on their behalf in claims of defamation to ensure that the protocol is strictly adhered to as the penalties for failing to do so can be detrimental to your case.

Summerfield Browne Solicitors have offices in London, Birmingham, Cambridge, Oxford and Market Harborough, Leicester.

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