Monday, 16 June 2014

The Perils and Pitfalls of DIY Libel Actions

A little over forty years ago, before my family had quite despaired of shoehorning me into a respectable career, they managed to obtain a position for me at a firm of City solicitors; Crawley and de Reya, in Austin Friars. This firm handled a lot of libel cases and it was my job to go and make applications and keep an eye on cases when they were being heard. The ones I most enjoyed were those where one or both parties were not represented by barristers. I had the pleasure of watching such a case recently and it brought back many fond memories. I thought it worth mentioning one or two points which struck me during the hearing that took place at the High Court earlier this year.

One of the phrases that many litigants in person fail fully to understand is, ‘absolute privilege’. They believe that it means that they can say what they please and tell any lies in the courtroom without fear of any consequence. This can be a double-edged sword!  It is true that one cannot be sued for defamation as a result of anything said during judicial proceedings, but that also means that the person you have hauled into court can also say all sorts of unflattering and possibly untruthful things about you once they are themselves in the witness box. If they have had enough foresight to ensure that friendly journalists are present, then these people can then go off and report whatever has been said in court. Needless to say, this can work to the disadvantage of the person who brought the action in the first place. It means that the statements complained of will  receive a national circulation in magazines and newspapers; rather than just being read by a handful of people on closed internet groups.

I said that some people fail to grasp the nature of ‘absolute privilege’ and we saw a beautiful example of this at the hearing a few weeks ago.  Having pretended that she had been menaced by one of the witnesses for the other side, the applicant in the case made the mistake of repeating the allegations once the hearing had been adjourned and the judge had left the court. Oh dear! Worse still, she made the statements in the hearing of a journalist from a national magazine, saying of the witness, for example,  ‘I’m frightened of that man!’ Alas, the court usher and the journalist had now been told something likely to lower the reputation of the witness concerned among right thinking members of society. Far from being covered by absolute privilege, her statements were actionable.

Another way that those bringing libel actions without the help of a barrister can fall down is over the questions of damages and costs. One of the most despicable methods used to try and shut people up is to threaten them and their children with the loss of the family home. Most people are alarmed at such threats. If the person you are threatening to sue is living in social housing, you can tell them that if the case goes your way, you’ll put in the bailiffs and seize the kids games consoles and toys. Ugh! Fortunately, it seldom comes to this. If judgement is awarded against a defendant and he or she does not have enough money or property to pay, the court usually arranges easy terms. Now the defendant has to abide by such an order, or can be found in contempt. On the plus side, the weekly sums to be paid are often laughably small. I recall one case in 1973, where a man had been awarded damages and costs of over £10,000; an enormous sum in those days. An order was made for him to pay this to the plaintiff at the rate of 50p a week! Even this wasn’t done, the procedure in such cases being that the person would pay one week and then not the next.  Paying your lawyer to haul him back into court was pointless. You would have to pay for your solicitor and the amount would just be added to the original amount that he technically owed you. Don’t even ask about people declaring bankruptcy to get out of this sort of pickle…

Barristers and solicitors know all about these things, which is why they very seldom advice people to start proceedings  for defamation; unless the client is wealthy enough not to worry about losing money on the business. I am watching with enormous enjoyment to the latest case in which I have an interest, because I have a strong suspicion that the applicant is going to regret getting embroiled with the courts in the first place.


  1. I suspect you may be right simon

  2. Usually the rich and famous initiate proceedings because of something damaging to their reputation in the media.

    Simon says:

    "Don’t even ask about people declaring bankruptcy to get out of this sort of pickle…"

    If that isn't an invitation to ask, I don't know what is...

  3. .'If that isn't an invitation to ask, I don't know what is..'

    Well, this is another reason that it is simply not worth playing the libel game. Unless somebody actually has thousands of pounds in the bank, then when faced with a demand to pay, say £10,000, in costs; they will simply declare themselves bankrupt. This means that the person suing them gets nothing at all. The only people it is worth suing are very rich people or those working for companies who will share the bill and can be compelled to pay up if the case goes against them. This is why the ordinary man or woman in the street is never sued for libel. Lawyers know that it is just not worth it in the end and their clients will be massively out of pocket.

    1. The mind boggles. The mind boggles.

  4. Two disappearing posts? What's going on?

  5. Maybe the point of suing, even with the risk of the other party declaring bankruptcy, is to teach the unruly simple manners and to demonstrate the penalty for a lack of integrity and gross interpretation of free speech.