Note: All emboldening is highlights not included in the original document released by the Lord Chancellor's department
It gives me great pleasure to bring forward a draft Defamation Bill which has been
prepared to show in detail how the Government would implement the important reforms
which we have proposed to improve this area of the law. This package of reforms is
designed to bring defamation law up to date and to
improve and simplify the procedures
for litigants who are unfortunate enough to become involved in an action for libel or
slander.
I am very grateful to Lord Justice Neill and the members of his working group, whose
recommendations on practice and procedure in defamation greatly assisted me in
considering what reforms were needed. Many of the reforms in the draft Bill are the
result of their recommendations. I would also like to thank Lord Hoffmann and Lord
Hooson, who suggested to me that
some of the problems now facing litigants in defamation
proceedings could be overcome by making a new and speedy remedy available to them.
Thanks go too, to the many others whose constructive suggestions have helped us to
produce the draft Bill.
By publishing the draft now, I hope to continue the process of perfecting the detailed
provisions, and further contributions to this process will be warmly welcomed.
Mackay of Clashfern
1.2
Most of these reforms follow recommendations which were made by a working group under
the chairmanship of Lord Justice Neill in response to the Lord Chancellor's invitation
to the Supreme Court Procedure Committee to investigate and propose changes to improve
defamation procedure. The working group's report (known as "The Neill Report") was
published in July 1991.
1.3
All the reforms have been decided following public consultation, during which they have
been widely welcomed. Although each one has already had a public airing in outline, these
reforms all require primary legislation to introduce them. A draft Defamation Bill has
now been prepared setting out the detailed provisions needed to put the reforms in
place. The legislation will be supplemented by new procedural rules.
1.4
The Lord Chancellor is very pleased to publish his draft Defamation Bill, with a short
commentary explaining how the reforms will work. Publication in advance of introduction
in Parliament allows consultation to take place on the details of drafting and on the
clarity of structure and presentation. This helps to ensure that Bills will be
introduced in the best possible form, with the benefit of all the expert scrutiny and
constructive practical advice which may be offered. The Government is hoping to increase
the number of draft bills which will published in this way.
1.5
The draft Defamation Bill will be circulated to the widest possible audience, including
Members of Parliament, the judiciary and lawyers, as well as members of the public and
businesses who are likely to be involved in defamation proceedings and are therefore the
real consumers who will benefit from the reforms.
1.6
Comments should be sent, as soon as possible, but by 23 October at the latest, addressed to:
1.7
The confidentiality of respondents will be respected if they so wish, but if no such
request is made, it will be assumed that a response is not intended to be confidential.
2.1
The cause of action in libel arises from the publication rather than the writing of
defamatory matter. Those who are considered to have only a secondary role in the
distribution of defamatory material may avoid liability if they did not know, and were
not negligent in not knowing, about the defamatory content of the material they
distributed. This answer to a libel claim is known as the "defence" of innocent
dissemination. Those who have invoked the defence include carriers, newsagents,
booksellers and libraries. It is probably not available to printers, or other
technicians who may be involved at some stage in the production of the published
material without being concerned with the substance of what is published.
2.2
The terms "publication" and "publisher" have very wide meanings in the context of
defamation, and are used to refer to the transmission of defamatory material to a
single individual, as well as in the more conventional sense of commercial publication.
Modern technology has had a tremendous impact on the world of commercial publishing. The
printing industry has already been revolutionised by new processes which can allow
printers to produce a finished printed work without seeing one word of the author's
material in written form. Similar processes have automated the production of other media
which are equally capable of carrying defamatory material. Moreover, recent years have
brought technology which is steadily reducing our dependence on the printed word for
everyday communications. Information can be disseminated in a form which gives the
recipient the option to convert it to a readable form, either presented on a VDU screen,
or printed on the recipient's own printer. Progress is now so rapid, that tomorrow's
technology may well make even these advances appear old fashioned.
2.3
None of these technologies was contemplated when the judges first considered that there
were intermediaries who should not be liable in defamation despite having been
instrumental in bringing defamatory material to an audience. Yet many of the
technicians now involved in processing and transmitting the author's words to his public
may be regarded as the modern equivalent of the "carriers" for whom the defence was
created. Clause 1 modernises the defence to match the modern world of communications. It
creates a new statutory defence which will be available to those who do not have primary
responsibility for the publication. It will never be available to the author (unless the
author did not intend the statement to be published) or to the editor or commercial
publisher responsible for the publication. Sub-section (4) provides examples of
contributors who will not be regarded as primarily responsible, and these examples
should provide guidelines for deciding which activities would not carry primary
responsibility, over a wide range of media, including those which may be developed in
the future.
2.4
The defence of innocent dissemination has never provided an absolute immunity for
distributors, however mechanical their contribution. It does not protect those who knew
that the material they were handling was defamatory, or who ought to have known of its
nature. Those safeguards are preserved, so that the defence is not available to a
defendant who knew that his act involved or contributed to publication defamatory of the
plaintiff. It is available only if, having taken all reasonable care, the defendant had
no reason to suspect that his act had that effect. Sub-sections (5) and (6) describe
factors which will be taken into account in determining whether the defendant took all
reasonable care.
2.5
Although it has been suggested that the defence should always apply unless the plaintiff
is able to show that the defendant did indeed have the disqualifying knowledge or cause
for suspicion, only the defendant knows exactly what care he has taken. Accordingly, as
in most defences, it is for the defendant to show that the defence applies to him.
2.6
The new defence to replace and modernise innocent dissemination takes account of the
rapid advances which have been made in the technology of communications. Most recently
the extraordinary expansion of computer network systems has focused attention on the
possibility of defamatory material appearing or being available at an almost infinite
number of widely dispersed outlets. We invite comments as to whether it would be
considered helpful if there were legislation to clarify any doubts as to when and where
publication has taken place.
3.1
Since 1952, a statutory defence (under section 4 of the Defamation Act 1952) has been
available to any defendant who has published defamatory matter, but who can prove that
he did not intend to do so, and is prepared to offer a correction and apology by way of
amends. The defence has been little used, partly because the procedure to be followed is
cumbersome and demanding, imposing on the defendant the difficult task of acting, and
proving his innocence positively at a very early stage.
3.2
Following a recommendation in the Neill Report, clauses 2-4 substitute a more
straightforward and usable defence. The new defence will be available to any defendant
who is prepared to offer amends, including compensatory damages to be assessed by a
judge, provided he is not shown to have known about or been indifferent to the
possibility of defaming the plaintiff. It will be presumed, until the contrary is shown,
that he did not publish the defamatory statement knowingly.
3.3
The defendant may, but need not, make his offer even before a writ is issued against
him, but in any event, it must be made before any defence is served. However, an offer
is not compatible with any other defence, and cannot succeed if the defendant seeks to
defend on any other ground. If it is made before the plaintiff starts any proceedings,
future proceedings can only be to follow up the offer. Similarly, if the plaintiff had
already begun proceedings, his acceptance of the offer operates as a bar to any further
step in the proceedings, except for determining and carrying out the offer.
3.4
Once an offer has been accepted, the parties will normally attempt to reach agreement on
the details of what the defendant must do to fulfil his offer to the satisfaction of the
plaintiff, with further recourse to the court only if they cannot reach agreement on any
of those details.
3.5
Assessment of damages will be a matter for the judge who will always determine them
without a jury. The damages will be assessed on the normal principles for defamation
damages, but the assessment will reflect all the other steps which the defendant has
taken to make amends. A defendant who has made amends cannot be asked to contribute to
any damages awarded against another defendant.
3.6
If the plaintiff's case is that the defendant was acting with knowledge, or recklessly,
or that the offer is defective in some other way, that will be the deciding issue. If
the offer is found to be defective, the defendant will have no defence and cannot raise
any other. If the offer is found to be good, the defendant has an absolute defence to
the plaintiff's claim.
4.1
A limitation period is a period prescribed by statute within which a plaintiff must
commence proceedings to enforce a right. If proceedings are commenced after that period
has expired, the defendant may raise a defence of limitation,
which will be a complete
answer to the plaintiff's claim. The claim is then said to be "statute-barred".
Limitation rules protect defendants by bringing certainty to legal proceedings and
preventing old and stale claims from being resurrected.
4.2
Since 1984 the limitation period for defamation claims has been three years from when
the cause of action accrued, which will usually be the date of publication.
If, however,
the plaintiff was not aware of relevant facts until after the period has expired, the
court may allow his claim to proceed provided it is brought within a year from the time
when he first knew the relevant facts. He will in fact be better off than a plaintiff
who found out about the publication just before the three years expired, and must
nevertheless act before it actually does expire.
4.3
The main purpose of a defamation claim is to repair the damage done to the plaintiff's
reputation, and that should be done quickly if it is to be effective. In most cases, the
plaintiff can be expected to start proceedings very soon after the publication, and
certainly within twelve months. Clause 5 accordingly reduces the limitation period from
three years to one, but the court will have a discretion to allow actions begun later to
proceed if in all the circumstances that would be fair.
4.4
The most obvious reason for failing to act within the year is that the plaintiff did not
know about the publication in time.
But there may be other reasonable grounds for delay,
including where the plaintiff has tried to avoid litigation by seeking a remedy under an
alternative form of dispute resolution, or where the viability of his claim depended on
the outcome of other pending proceedings, such as a criminal prosecution or disciplinary
proceedings affecting the reputation which the plaintiff is seeking to protect. The
court is therefore directed to have regard to the reasons for the delay, whatever they
are.
4.5
There are other specific factors which may need to be taken into account, such as
whether the defendant has contributed to the delay, and whether the plaintiff has got on
with his claim as promptly as he could, as well as possible deterioration of the
evidence with the passage of time, but the overriding test will be whether it is
equitable to allow the particular claim to proceed.
4.6
The reduction in the limitation period will also apply to actions for malicious
falsehood. In many cases, the same facts could give rise to actions both for malicious
falsehood and for defamation, and although the matters which the plaintiff must prove
are not quite the same, the torts are so closely related that the same limitation period
should apply to both. One difference between them, however, is that while the cause of
action in defamation dies with either of the parties, that in malicious falsehood
survives the death of one or both of them, so that the conduct of their personal
representatives could be relevant in deciding whether or not it is equitable to allow an
out of time action to proceed. This is taken into account in describing the matters to
which the court will have regard.
5.1
Where an action for defamation is tried with a jury, it is for the jury to decide the
meaning of the words complained of. But the decision as to whether the words are capable
of bearing a particular defamatory meaning is reserved to the judge, and he will
withdraw from the jury any meaning, contended by the plaintiff, which in the judge's
opinion a reasonable man could not understand the words to bear. There used to be no
special interlocutory procedure for early disposal of that issue, which was usually left
to the trial, but the defendant could apply to strike out the claim on the basis that it
was not arguable (note: their italics) that the words complained of were capable of bearing a meaning
defamatory of the plaintiff.
5.2
Following a recommendation in the Neill Report, the Rules of the Supreme Court have been
amended so that, under Order 82 rule 3A, either party can now apply for an order
determining whether or not the words complained of are capable of bearing a particular
meaning or meanings attributed to them in the pleadings (i.e. whether the words can have
that meaning, as opposed to whether that meaning could be defamatory). The judge may
dismiss the claim if it appears to him that the words are not capable of bearing those
meanings.
5.3
It is therefore quite pointless for the court to go through the additional stage of
considering whether those words are arguably, as opposed to actually, capable of bearing
particular meanings. The old "arguably capable" test is no longer needed, but clause 6
expressly provides that the court shall not be asked to rule on it. This recognises that
the old test has been superseded, and may not be used as a delaying or other tactic.
6.1
The introduction of a new summary procedure for defamation claims is, undoubtedly, one
the most innovative parts in this package of reforms. Hitherto, defamation proceedings
have been exceptional, because it has been impossible for a plaintiff to apply for
summary judgement on the basis that there is no arguable defence to his claim, even in
the clearest possible case. Clause 7 therefore brings defamation into line with most
other proceedings, but it goes much further than that in several ways. It creates an
entirely new regime, under which every defamation action must come before the judge at
an early stage, so that he can decide if the claim is suitable for summary disposal,
whether or not the parties have asked him to do so. Moreover, the judge's powers of
summary disposal will enable him to dismiss weak claims, and in the case of strong
claims, to make a modest award in the plaintiff's favour, including damages up to a
fixed ceiling, if he considers that the plaintiff would be adequately compensated.
6.2
Clauses 7 and 8 set out the powers which the judge will have on summary disposal of the
claim, and clause 9 lays the framework for the new procedure, the details of which will
be contained in new rules. It will not be possible for any claim to go to trial until
there has been a hearing at which the judge has considered whether he should dispose of
it summarily. The rules will allow either of the parties to apply for that hearing after
the statement of claim has been served, but if neither does so, the rules will convert
any other application made in the proceedings (with some exceptions) into an application
for such a hearing. The rules will also lay down the procedure to be followed, including
the form of the evidence to be considered at the hearing, to ensure that the issues are
clearly defined, and the strength of the case on each side can be assessed.
6.3
If the judge is satisfied that the claim has no reasonable prospect of success, and that
there is no reason for a trial, the claim will be dismissed. Otherwise, the outcome of
the hearing will depend both on the strength of any defence which has been raised, and
whether the relief which the judge has power to grant could provide the plaintiff with
adequate compensation for any wrong suffered. He will have power to award damages, up to
a ceiling which will initially be fixed at £10,000, although a different amount may
be prescribed from time to time. He will also have power to grant an injunction
restraining the defendant from publishing the material complained of, and to order the
defendant to publish material reflecting that the plaintiff's claim against him has been
upheld. The form of that publication will depend on whether the defendant is willing to
publish a correction or apology which is satisfactory to the plaintiff. If not, the
defendant will be obliged to publish the outcome of the case, probably in a special
format summarising the judgement. If the judge considers that there is no arguable
defence but that the exercise of his summary powers could not provide adequate
compensation for the wrong suffered, the claim must go for trial in the usual way.
6.4
The judge will not dispose of the claim summarily if he concludes:
This reflects the tests already established in other proceedings where summary judgment
is available, recognising that there may be compelling reasons, other than the strength
of the defence, which would justify a full trial of the claim. Examples are given, but
other equally compellinq reasons could influence the judge.
6.5
The defendant must decide in advance of the hearing whether he wishes to offer amends.
If he does so and the plaintiff accepts the offer, any further proceedings will be under
clause 3 (see Chapter 3). If, however, the plaintiff challenges the offer of amends
defence either by alleging knowledge or recklessness on the defendant's part, or in any
other way, the judge may conclude that the claim has no realistic prospect of success
and should be dismissed. Otherwise he may conclude that there is no arguable defence,
and give judgment, or that there is an arguable defence so that the claim should go for
trial.
6.6
Summary disposal of a claim will be a final determination of the plaintiff's claim
against that defendant. If there are other defendants, he will not be affected by any
judgment against them.
6.7
This early clarification of the issues, and testing the strength of both claim and
defences, should encourage more parties to settle before trial, and even before the
special hearing. For those claims which cannot be settled, it offers a streamlined
disposal procedure where the claim is straightforward and less serious. Even if the
issues are so complex, or the allegations so grave, that summary disposal cannot be
appropriate, the cards will be on the table much sooner than is now the case.
6.8
At present, virtually all defamation proceedings are heard in the High Court, as county
court jurisdiction is almost non-existent. The new procedure will filter out the less
complex cases and those which, even if not trivial, are not weighty, and would probably
be suitable for disposal in the county court. The Lord Chancellor will consider whether
it would be appropriate to confer jurisdiction on the county court to hear such cases
once the new procedure has been set up. He has power to do so under section 1 of the
Courts and Legal Services Act 1990.
7.1
Before 1968, a person's conviction of a criminal offence was not admissible in
defamation or any other civil actions. The curious result in one case was that a
plaintiff who had been convicted of robbery succeeded in an action for libel against a
defendant who had published a statement that he was guilty of the robbery. After 11
years, the defendant was unable to prove justification, on the balance of probabilities,
despite the previous conviction. The rules were changed following recommendations of the
Law Reform Committee so that:
7.2
It is sometimes necessary to prove the guilt of a person who was not a party to the
civil proceedings, e.g. in a claim against an employer who is vicariously liable for the
acts of a convicted employee. However, the effect of making proof of a person's
conviction conclusive in defamation proceedings to which he is not a party appears not
to have been fully considered. As the Neill working group pointed out, this rule can
operate unfairly when it prevents a party from challenging the correctness of some other
person's conviction. It can inhibit a defendant, such as an investigative journalist,
from justifying defamatory allegations about the conduct of police officers and others
who were involved in the prosecution.
7.3
Clause 10 narrows the application of the rule which makes conviction evidence
conclusive, to those cases where the convicted person is the plaintiff, or one of
several plaintiffs. Proof of the conviction of any other person will still be admissible
evidence, under section 11, but it will no longer be conclusive.
8.1
The essential purpose of the award of damages in a defamation action is to compensate
the plaintiff for the harm done to his reputation. A previously unblemished reputation
will be assumed, unless the defendant can show otherwise. He may produce evidence in
mitigation of damages, to show that the plaintiff had a general bad reputation prior to
the publication of the defamation complained of. But the plaintiff may have escaped
acquiring a bad reputation, even though the defendant could prove that his conduct has
been so appalling that he undoubtedly deserves one. In such cases, it is often difficult
for the defendant to produce witnesses who will testify to the plaintiff's bad
reputation, as opposed to particular acts of misconduct. Nevertheless, the rule known as
the rule in Scott v Sampson [1882] 8 QBD 491 prevents the defendant from proving and
relying on those acts of misconduct.
8.2
The Neill working group pointed out that the rule often caused a plaintiff to be
over-vindicated and unfairly compensated, because he would recover what seemed to be an
unduly generous award from a jury kept in ignorance of his misdemeanours and (which
might be more serious from the public point of view) he was actually given a positively
misleading vindication.
8.3
Clause 11 limits the plaintiff's right to damages so that he is not entitled to damages
for injury to his reputation beyond what he would be entitled to if everything likely to
affect his reputation were public knowledge. The defendant will be entitled to rely on
particular discreditable acts and other matters which, if they were generally known,
would affect the plaintiff's reputation at the time when the damages are assessed. This
may include examples of the plaintiff's behaviour after the defamatory publication, but
the defendant will not be able to rely on things which happened so long ago that they
ought not to affect the plaintiff's present reputation in the eyes of reasonable people.
The behaviour must relate to the plaintiff's reputation in the relevant sector of his
life, for instance his business probity, or his conduct towards his family.
9.1
By sections 7 and 9 of the Defamation Act 1952, specified categories of reports,
published in newspapers, or broadcast, were given qualified privilege as a defence
to an action for libel. Broadly these relate to reports of specified legislative and
judicial proceedings, and proceedings at public meetings. A qualified privilege provides
a defence, even where the defendant has published a statement which was defamatory and
untrue, provided that he did not have an improper motive (such as ill-will or spite) for
publishing it. In some cases, copies of official documents, or extracts, rather than
reports of them attract the privilege.
9.2
The specified categories are set out in the Schedule to the Act, in a list which is
divided into two parts. The first part broadly covers reports of legislative and judicial
proceedings and proceedings of public inquiries and international organisations. Those
listed in the second part relate to a range of public meetings and proceedings of
associations. Reports in the second part are "subject to explanation or contradiction",
which means that the defence is not available if it is proved that, although the
defendant has been asked to publish a reasonable letter or statement by way of
explanation or contradiction, he has not done so.
9.3
Clause 13 brings the privilege up to date in two ways. Firstly, it extends the privilege
to all forms of publication. The 1952 privilege excluded many media - including free
newspapers - which might now reasonably be expected to carry such reports as part of
the service they provide. It also excluded one-off or occasional publications, and
periodicals which appeared less than monthly. Since the privilege has always applied to
historical reports, as well as to contemporaneous ones, it is difficult to see any
justification for restricting it to publications which appear frequently, and broadcasts.
9.4
Secondly, it greatly extends the categories of reports and copies to which this privilege
applies, by substituting a new Schedule. The universal requirement is that the report or
copy should be fair and accurate. As recommended by the Neill working group, the new
Schedule recognises that it is no longer appropriate to confine the privilege to reports
of parliamentary and other proceedings in this country, and therefore extends the
privilege to cover reports of legislative, court and other public proceedings, and
official publications on a world wide basis. These reports will have the same privilege
as reports of UK proceedings already have under the 1952 Act. The categories of report
which are privileged, subject to explanation or contradiction, are also enlarged and
modernised. This is broadly in line with the recommendations of the Faulks Committee, as
indorsed by the Neill Report, with a capacity for further modernisation as it becomes
necessary. This likely need is illustrated by the fact that the Faulks Committee
recommended, in 1975, that the privilege should apply to reports of the adjudications,
statements etc issued by several bodies, such as the Press Council, which have now
ceased to exist but been superseded by new bodies.
9.5
Clause 12 confirms and clarifies the existing statutory privilege of contemporaneous
reports of judicial proceedings. The privilege is absolute, which means that it will not
be displaced even in the unlikely event of the report being published maliciously. The
privilege will no longer be limited to reports appearing in newspapers, or on television
or radio. Sub-section (2) makes allowance for those cases where truly contemporaneous
reporting is prohibited by law, but a report appears soon after the restriction ceases
to apply.
Offer of amends
Limitation
The meaning of words
Summary procedure
Evidence of convictions
The plaintiff's entitlement to damages
Statutory privilege
Supplementary provisions
Reforming Defamation Law and Procedure
Consultation of Draft Bill
July 1995
[
Foreward
|
Draft of the Bill
|
The text of the Bill
|
Schedules
]
Foreward
INTRODUCTION
1.1
The Government has responded to dissatisfaction which has been expressed about some
aspects of defamation law and procedure, by proposing reforms which will streamline and
simplify the procedure, and bring the law up to date.
Adrian Compton-Cook
Civil Policy Division
Lord Chancellor's Department
Trevelyan House
30 Great Peter Street
London
SW1 P 2BY
Fax: 0171-210-8559
RESPONSIBILITY FOR PUBLICATION
OFFER OF AMENDS
THE LIMITATION PERIOD
THE MEANING OF WORDS
SUMMARY PROCEDURE
EVIDENCE OF CONVICTIONS
THE PLAINTIFF'S ENTITLEMENT TO DAMAGES
STATUTORY PRIVILEGE
Defamation Bill
Arrangement of Clauses
Responsibility for publication
Schedules
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
For this purpose -
The above provisions of this subsection are not an exhaustive statement of the persons who are or are not primarily responsible for the publication of a defamatory statement; but in cases to which the provisions do not apply the court shall have regard to them by way of analogy.
For this purpose it shall be presumed until the contrary is shown that a person publishing a statement defamatory of another did so unintentionally.
If no such proceedings are taken, the court may, on application by the party aggrieved, make any such order for the payment of such costs and expenses as could be made in such proceedings.
But for the purposes of the Civil Liability (Contribution) Act 1978
(3) A defendant in proceedings for defamation may rely in mitigation of damages on an offer of amends not relied on, or not successfully relied on, as a defence.
"4A. The time limit under section 2 of this Act shall not apply to an action for
- (a) libel or slander, or
- (b) slander of title, slander of goods or other malicious falsehood,
but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued."
"(4A) If the action is one to which section 4A of this Act applies, subsection (1) above shall have effect -
- (a) in the case of an action for libel or slander, as if for the words from "at any time" to "occurred)" there were substituted the words "by him at any time before the expiration of one year from the date on which he ceased to be under a disability"; and
- (b) in the case of an action for slander of title, slander of goods or other malicious falsehood, as if for the words "six years" there were substituted the words "one year"."
"Discretionary exclusion of time limit for actions for defamation or malicious falsehood32A. (1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which
- (a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and
- (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,
the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.
(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to -
- (a) the length of, and the reasons for, the delay on the part of the plaintiff;
- (b) in a case where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the expiration of the period mentioned in section 4A, the date on which any such facts did become known to him;
- (c) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff is or is likely to be less cogent than if the action had been brought within the period mentioned in section 4A;
- (d) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
- (e) the duration of any disability of the plaintiff arising after the date of accrual of the cause of action;
- (f) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the facts in question might be capable at that time of giving 5 rise to an action for libel or slander or, as the case may be, an action for slander of title, slander of goods or other malicious falsehood;
- (g) the steps, if any, taken by the plaintiff to obtain legal advice and the nature of any such advice he may have received.
(3) In the case of an action for slander of title, slander of goods or other malicious falsehood brought by or against a personal representative -
(a) the references in subsection (2) above to the plaintiff or defendant shall be construed as including -
- (i) the deceased person to or against whom the cause of action accrued, and
- (ii) any previous personal representative of that person; and
- (b) nothing in section 28(3) of this Act shall be construed as affecting the court's discretion under this section.
(4) In this section "the court" means the court in which the action has been brought.".
This is not an exhaustive list of the matters which may be considered.
"(2A) In the case of an action for libel or slander in which there is more than one plaintiff
- (a) the references in subsections (1) and (2) above to the plaintiff shall be construed as references to any of the plaintiffs, and
- (b) proof that any of the plaintiffs stands convicted of an offence shall be conclusive evidence that he committed that offence so far as that fact is relevant to any issue arising in relation to his cause of action or that of any other plaintiff.".
For this purpose "court" includes any tribunal or body exercising the judicial power of the State.
Any such order may contain such transitional provisions as appear to the Lord Chancellor to be appropriate.
STATEMENTS HAVING QUALIFIED PRIVILEGE WITHOUT EXPLANATION OR CONTRADICTION
1. A fair and accurate report of proceedings in public of a legislature anywhere in the world
2. A fair and accurate report of proceedings in public before a court anywhere in the world.
3. A fair and accurate report of proceedings in public of a person appointed to hold public inquiry by a government or legislature anywhere in the word.
4. A fair and accurate report of proceedings in public anywhere in the world of an international organisation or an international conference.
5. A fair and accurate copy of or extract from
6. A notice or advertisement published anywhere in the world by or on the authority of a court, or of a judge or officer of a court.
7. A fair and accurate copy of or extract from matter published anywhere in the world by or on the authority of a government or legislature.
8. A fair and accurate copy of or extract from matter published anywhere in the world by an international organisation or an international conference.
STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION
9. A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of
10. A fair and accurate copy of or extract from a document made available by the court, or a judge or officer of the court, in connection with criminal proceedings or service disciplinary proceedings.
11. A fair and accurate report of proceedings at any public meeting or sitting in the United Kingdom of
12. (1) A fair and accurate report of proceedings at any public meeting held in the United Kingdom.
(2) In this paragraph a "public meeting" means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted.
13. (1) A fair and accurate report of proceedings at a general meeting of a UK public company.
(2) A fair and accurate copy of or extract from any document circulated to members of a UK public company
(3) A fair and accurate copy of or extract from any document circulated to members of a UK public company which relates to the appointment, resignation, retirement or dismissal of directors of the company.
14. A fair and accurate report of any finding or decision of any of the following descriptions of association, formed in the United Kingdom, or of any committee or 25 governing body of such an association
15. (1) A fair and accurate copy of or extract from any adjudication, report, statement or notice issued by a body, officer or other person in the United Kingdom designated by the Lord Chancellor for the purposes of this paragraph.
(2) An order under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
INTERPRETATION
16. In this Schedule
Chapter | Short Title | Extent of Repeal |
---|---|---|
1888 c. 64. | Law of Libel Amendment Act 1888. | Section 3. |
1952 c. 66. | Defamation Act 1952. | Section 4. Sections 7, 8 and 9(2) and (3). Section 16(2) and (3). The Schedule. |
1955 c. 20. | Revision of the Army and Air Force Acts (Transitional Provisions) Act 1955. | In Schedule 2, the entry relating to the Defamation Act 1952. |
1981 c. 49. | Contempt of Court Act 1981. | In section 4(3), the words "and of section 3 of the Law of Libel Amendment Act 1888 (privilege)". |
1981 c. 6l. | British Nationality Act 1981. | In Schedule 7, the entry relating to the Defamation Act 1952. |
1985 c. 43. | Local Government (Access to Information) Act 1985. | In Schedule 2, paragraph 2. |
1990 c. 42. | Broadcasting Act 1990. | In Schedule 20, paragraph 2. |