The Decline Of English Libel Trials?

Reading libel Judgments from the English courts provides information about developments in the law but does much less in terms of informing of trends and approaches being used by legal practitioners in the field. Court Judgments also state little about the vast majority of claims which are settled without contested hearings and often without court proceedings being commenced at all.

Over recent years the balance in England has undoubtedly shifted towards early settlement, with fewer large scale trials. There are a number of driving factors towards this:

Offer Of Amends Procedure

This is a statutory provision which permits a defendant, in receipt of a libel complaint, to accept responsibility for the publication and in effect to "own up" to its mistake. In making such an offer they commit to making a "suitable correction" and "sufficient apology" and to pay "such compensation (if any) and such costs, as may be agreed or determined". These provisions were designed to encourage the early resolution of complaints and, although they came into force in 2000, it is only over the last few years that they have been increasingly used by defendants to good effect to do just this. They not only reduce a defendant's exposure on costs but where the court is asked to determine compensation, which is done by a Judge alone, it will often award substantially reduced damages (sometimes by as much as 50%) to reflect the benefit of an early apology to the claimant and, in effect, reward a defendant for admitting its mistake and seeking to rectify it at an early stage.

Part 36 Procedure

This is a formal procedure under which both claimants and defendants can make a without prejudice offer to the other to settle an action. Routinely such an offer will include terms as to damages, an apology, costs and undertakings. If an offer is not accepted and the party that made the offer does better than the offer at trial, he may recover a higher scale of costs from the losing party and interest on damages and costs awarded to him. These offers are being increasingly used by both claimant and defendant lawyers to bring pressure to bear on the other party to settle. They are particularly effective in Offer of Amends cases because a tariff of likely awards of damages has and is being established from the cases that have received judicial determination.

Conditional Fee Agreements And After The Event Insurance

Libel litigation in England has traditionally been seen as a rich...