ANALYSIS: On Tuesday 18 September, the Law Society held a public debate on the Defamation Bill, asking the panel – including two QCs, a libel reform campaigner and an in-house newspaper lawyer – what they thought of its measures, writes Judith Townend.
Much was said about what was missing in the final bill. But I would add something that was missing in the consultative process: data.
The lack of data is detrimental to informed research and debate. While it is a useful document, the Government’s Impact Assessment on the Defamation Bill had to estimate the numbers of libel trials in 2010 and was unable to state a ‘true number’ because there is no central collation of these basic statistics by HMCTS or the Ministry of Justice.
This article (an earlier version appeared on my blog Meeja Law) attempts to set out what we do know about defamation cases in England and Wales from various sources, but also identify the gaping holes in the public information available.
According to annual Ministry of Justice statistics, defamation claims make up around 3% of all claims issued in the Queen’s Bench.
But as is well-documented by legal scholars and media practitioners, libel’s reach is far wider than the cases that make it to court: there are unofficial warnings, letters before action, and of course the anticipated threat of a claim, even if it does not materialise (see, for example, Barendt et al 1997).
Additionally, of the claims that make it to court, only a fraction have a reported outcome. For example, the MoJ reported 165 claims during the calendar year 2011, but there were only 28 cases – according to Inforrm’s manual tracking – that reached summary judgment or full trial in the same time period (because of the length of libel proceedings, these are likely to be different cases from the new claims, ie. hearings of claims from one or more years previously. This figure also includes listed defamation appeals that concluded the case).
In other cases, the client either withdraws the claim or the parties settle. This may, or may not, be reported in the press.
Below is a summary of the various public sources of information about defamation claims and cases, with comments about their limitations for legal researchers and commentators.
Ministry of Justice – annually
The Ministry of Justice issues annual statistics about civil proceedings. However, it only records the outcome of cases in the Queen’s Bench overall (number of Summary Judgments, Judgment by Default, Trials, Interlocutory Applications for Master) (Excel doc, 2011). Presumably, these outcomes do not necessarily relate to the number of new claims issued for the reason noted above – they could include hearings of claims from one or more years previously. The only firm facts about defamation cases are the total number of claims issued in each claim value bracket (£15,000-£50,000 or over £50,000 or Unspecified). For a table showing the data for 1990-2011 see this post.
Master of the Rolls – 2009
In 2009, the then Master of the Rolls, Sir Anthony Clarke, gave evidence to the Culture, Media and Sport select committee for its second report into press standards, privacy and libel (see below). The committee asked for information ‘viz., statistical information regarding the number of defamation cases being heard before the courts, the percentage of time they take up and their cost to the tax payer’.
However, in his written submission, the Master of the Rolls stated:
‘I should point out that it is not possible for the judiciary to provide the statistical information requested. Such details, if they are kept at all, will be kept by Her Majesty’s Court Service (HMCS). Enquiry might therefore be better directed to HMCS or the Ministry of Justice.’ (Ev 200)
In written supplementary evidence to the committee, he provided a table showing Defamation, Privacy and Malicious Falsehood Trials heard in the Queen’s Bench Division since January 2008 (to April 2009, ev 223), which included 10 libel trials and one libel re-trial.
CMS Committee – 2010
The Culture, Media and Sport Select Committee observed the lack of data in its report, published in February 2010. In regards to “libel tourism”, it said:
‘During the course of our inquiry we asked for information on the number of cases challenged on the grounds of jurisdiction and the success rate of such challenges. We have been provided with no such information and it was not clear who would be responsible for collecting it.’ (par. 207)
As a result, it recommended:
’27. …. the Ministry of Justice and the Courts Service should as a priority agree a basis for the collection of statistics relating to jurisdictional matters, including claims admitted and denied, successful and unsuccessful appeals made to High Court judges and cases handled by an individual judge. We further recommend that such information be collated for the period since the House of Lords judgment in the Berezovsky case in May 2000 and is published to inform debate and policy options in this area of growing concern (Paragraph 208).’ (p. 135)
Jackson Report – 2009/10
Some general data about defamation costs was included in Appendix 17 of the Jackson Preliminary Report [PDF], which has been used to inform subsequent reports and debate.
It sets out the anonymised details of 154 libel and privacy claims resolved in 2008 involving nine national newspaper groups, broadcasters and news agencies as well as local newspaper publishers, as compiled by the Media Lawyers Association. This included 137 claims for libel, 15 claims for breach of privacy and two combined claims for both libel and breach of privacy. Details include the Result, Defendants’ costs; Sums paid to Claimant; and whether a Conditional Fee Agreement was used. The Final Report analyses this data in Chapter 2, section 7 (p.23), and summarises the data in tables in Appendix 1 (p. 515).
But as Jackson LJ told the CMS Committee in May 2009, when asked about the number of CFA cases that had been won by claimants, there was a limit to the evidence he was able to collect:
‘It appears, from the evidence which I have received, that claimants are successful in a very high percentage of defamation cases. The evidence which has been supplied to me does not enable me to give you a precise percentage; it is something I would have been delighted to receive, but none of the parties on either side of this particular divide has furnished me with evidence which enables me to confirm or contradict the 98%. I would be surprised if it is that high, but it is certainly a high percentage.’ (Ev 213)
Asked about data from previous years, he said:
‘I am afraid I do not have data from previous years. Obviously, it would be helpful if I did have. This [preliminary] report has been prepared in the space of four months and defamation litigation is actually a very small part of the total subject and there are a huge number of appendices dealing with costs in all sorts of areas. I took the view that the contemporaneous evidence is the most helpful, and my appendices give a snapshot of costs being incurred at about the present time.’ (Ev 216)
Jackson also stated in his Final Report:
‘In recent years there has been an increasing tendency towards trial by judge alone in defamation cases. In 2008 at the Royal Courts of Justice in London there were four jury libel trials and four libel trials by judge alone. At the time of writing [1st December 2009] in 2009 there have so far been four jury trials and nine trials by judge alone.’ (p. 328).
Libel Working Group
The Libel Working Group’s report [PDF], published in 2010, includes an Annex compiled by the Ministry of Justice summarising 219 unspecified defamation cases issued in the High Court in 2009. Of those, 34 were identified as having a ‘foreign connection’ (Annex B p. 45). Note that this figure differs from the number of claims issued in 2009, which was 298 (see above) and that there are a number of cautions about the data given in point 6. Annex C gives a list of ‘libel tourism’ cases raised by members of the Working Group (p. 52), with a footnoted disclaimer that ‘We recognise that ‘libel tourism’ is a controversial concept’.
It also cites Sir Rupert Jackson’s report: ‘fewer libel cases are now being heard with a jury rather than by a judge alone (he indicates that in 2008 there were 4 of each at the Royal Courts of Justice, and that up to November 2009 there had been 4 jury trials and 9 by judge alone).’ (p.85)
Defamation Bill Impact Assessment – 2012
In a document published in April 2012, the Ministry of Justice attempted to monetize, where possible, and assess the societal and wider economic cost and benefit of the proposed defamation reforms. While its Impact Assessment document is useful in the absence of much other collated data, its researchers lacked firm evidence, which is acknowledged throughout the document [PDF].
2.2 ‘The majority of the impacts on different parties identified in this Impact Assessment cannot be sensibly monetised, in part due to a lack of robust baseline data. We also do not have the necessary data and evidence to make quantitative predictions of how relevant variables would change compared to the baseline in future.’ (p. 24)
This is partly because it could not acquire the information from the parties involved in defamation cases, but it was also not able to acquire the necessary courts data. For example, its figures about defamation litigation rely on the Ministry of Justice’s annual statistics, which as outlined above, only contain very basic facts about defamation, the number of claims issued, categorised in three value brackets.
Some of the limitations are laid out on page 27 of the IA:
‘There is no official collection of figures relating to the number of defamation cases that reach full trial or on the number of pre-trial hearings in defamation cases …
Data are not collated centrally on the outcomes of defamation claims issued in court …
We have no reliable data on the number or outcome of cases that do not reach court, including damages and costs paid. …
[W]e have also not been able to obtain information on the amount spent by media organisations and others on legal advice to help them make decisions about whether to publish, challenge or defend a challenge.‘
In order to estimate the outcomes of defamation cases in 2010, the IA appears to have calculated 3.25 % of the outcomes of total cases in the Queen’s Bench, to arrive at the figures shown below. But these are not the actual outcomes; note the all important disclaimer, ‘if similar to all claims‘. It does say, however, that the evidence collected from its analysis of a sample of 145 case files ‘would seem to support these assumptions, particularly on the number of trials concluded’ (p.32).
Again, there is a disclaimer: “As not all case files are completed consistently, these data should be treated as approximate only.”
It gives details of 331 defamation cases identified as having been issued at the RCJ over the period 01/10/09 – 07/11/11 (not including any cases issued at District Registries). Table 4, below, shows some breakdown of detail about defendants and claimants (p. 33).
Its data on costs is based on the Jackson PR Appendix 17, as described above (Table 5, p.34).
‘[2.230] Statistics are not collected on the number of trials or jury trials in defamation cases specifically… As discussed under Option 0, if we assume that defamation cases follow a similar profile to all claims issued in the Queen’s Bench Division of the High Court at the Royal Courts of Justice (Table 2), we would expect fewer than 10 defamation trials a year in total. This is supported by our analysis of a sample of case files from cases issued in 2009 and 2010. These data should be treated as approximate only. However, of 145 cases, 5 had proceeded to full trial, and one more was listed for trial. A further 6 were still open. Though the true number may be higher than ten, with only 158 defamation claims issued in total in 2010 it is considered unlikely to be much higher.’
The bold is my emphasis: put another way, the IA had to estimate the number of trials because no central records are kept!
It replicates the information given by Lord Justice Jackson about the number of jury trials (see above) also contained in the report by the Ministry of Justice’s Libel Working Group (see above) and Lord Lester’s evidence to the Joint Committee on the Draft Defamation Bill (see p. 41 PDF):
2.231 It appears there are very few jury trials at all, and no systematic data is collected. However, the Ministry of Justice’s Libel Working Group reported that 8 of the 21 trials between January 2008 and November 2009 were heard by a jury. In evidence to the Joint Committee, Lord Lester noted that there were no jury trials at all in the 18 months to April 2011. (IA, p. 51).
The IA sets out a useful methodology for assessing the impact of defamation, which would be interesting to carry out pre and post-reform. However, in the absence of more data – and I am not sure to what extent the government/Judiciary/HMCTS plans to address this issue – it would be impossible to conduct this exercise.
This post concentrates on freely available public sources of data, but of course many of the legal textbooks covering defamation also track the case law in this area. For example, Defamation Law, Procedure & Practice, 4th Edition, 2010 by David Price QC, Korieh Duodu and Nicola Cain, sets out a schedule of defamation trials since 1990, with the name of the case, the date of the trial, the outcome and brief details.
Other related texts include The Law of Defamation and The Internet by Matthew Collins (3rd edition, Oxford University Press, 2010), Gatley on Libel & Slander (11th edition, Sweet & Maxwell, 2010). Books such as these can be found in law libraries although are probably outside the budget of the ordinary reader.
Sweet and Maxwell reports – annually
Each year the legal publisher Sweet and Maxwell releases statistics on the numbers of cases in court – not claims issued – for the year ending 31 May – and gives some additional detail about the type of claimants and defendants in a press release.
Posts on the Inforrm blog have criticised the opacity of the data and the reasons attributed for the changes. For example, the latest press release opened ‘Phone hacking scandal leads to lower media appetite for libel risk’ prompting various media reports that attributed a post-Leveson effect. However, a piece on Inforrm countered: ‘this means that activity in the courts in the period covered by the figures is likely to reflect the position well before the Leveson Inquiry was established in July 2011‘. Additionally the post questioned the categorisation of the data, suggesting that Lawtel, one of the sources of the report, labels a wide range of cases against the media as defamation, ‘even where that is not the cause of action relied on‘.
In this regard, it would be useful if more details about the data and its provenance were supplied: the case names, for example. This would help readers/researchers analyse factors affecting litigation, and any significant changes, for themselves. Of course, as a private company, Sweet and Maxwell is under no public service obligation to provide these reports, so it would be even better if the courts provided this information at source.
The Sweet and Maxwell data is significant because it has influenced public debate. For example, on 12 June and 12 September 2012 David Morris MP argued in the House of Commons that ‘”libel tourism” has been a burden on our civil legal system‘, citing the textbook Media and Entertainment Law (Smartt 2011):
‘In September 2010 the Daily Telegraph reported that libel challenges by actors and celebrities in the London courts had trebled over the past year.’
This appears to come from this Telegraph report, headlined ‘Libel challenges by actors and sport stars treble in year’, which was based on “figures from the legal information provider Sweet & Maxwell”.
At this stage, I am making no comment about the statement, or the level and type of ‘libel tourism’ in the courts, but use this example to show how more data at source would allow us to check public statements such as these, which may have a bearing on future policy and statute. Researchers would then be able to make more informed analyses of the features of libel law, such as the number of corporations making claims, or the nature of claims involving claimants and defendants based outside England and Wales.
Criminal libel – 2010-12
Finally, a note about the criminal offence of defamatory libel, which was abolished as part of the Section 73 of the Coroners and Justice 2009, which came into effect from January 2010.
I made inquiries about the circumstances of these reported offences, and was told by a spokesperson from the Home Office:
‘Suffolk [Police] have reviewed the four libel offences recorded in 2010/11 and have now ‘reclassified’ these to non-notifiable offences of Malicious Communication. South Wales have confirmed that they did record an offence in 2011/12 as it still appeared in the Home Office Counting rules but have not indicated whether this was in error.’
Inforrm tables – ongoing
This post has mainly focussed on data about claims and cases, but we also lack evidence about the cost of cases (see, for example, the discussion here). There are issues around the collection of privacy case data too.
I will draw on these tables and posts for a more in-depth article about the difficulties of tracking defamation cases and costs: please contact get in touch if you think there is something I have missed, or have any suggestions about researching the English & Welsh defamation and privacy law landscape.
This post is part of doctoral research by Judith Townend at the Centre for Law, Justice and Journalism, City University London.