Guidance on making claims for defamation

24th July 2014

Defamation is a serious allegation and there are strict rules about how parties should make such a claim in formal legal proceedings. The court heard a defamation action brought by a litigant in person in the recent case of Mole v Hunter [1] and gave a helpful reminder of what must be dealt with in the claim.

The Background
The claimant, Ms Mole, was a tenant of the defendant, Ms Hunter, who owned a house which she rented out on a multiple occupancy basis. Relations between the two deteriorated with the result that Ms Mole terminated her tenancy and issued a claim against Ms Hunter for recovery of her deposit. Ms Hunter counterclaimed alleging that Ms Mole had published various defamatory statements about Ms Hunter in her capacity as a landlady both on the internet and via email. Ms Hunter claimed that this had damaged her reputation and made it more difficult for her to find new tenants.

Through no fault of her own, Ms Mole did not serve a defence to Ms Hunter’s counterclaim by the due date and the court granted Ms Hunter’s request to enter judgment in default on the counterclaim. Ms Mole applied to set judgment aside. She argued that the allegations of defamation in the counterclaim were insufficiently particularised and non-compliant with the Civil Procedure Rules (CPR) (and it is this issue we focus on below).

The judge agreed with Ms Mole, and set aside the judgment concluding that she had a real prospect of successfully defending the counterclaim at trial. He also decided that the overriding objective (the requirement to deal with a case justly and at proportionate cost) required the default judgment to be set aside not least because the counterclaim was so defective that he would not be able to assess the damages justly in any case.

How to claim for Defamation
The judge helpfully set out what a claim for defamation should include. The basic premise is that a party subject to a defamation allegation should be able to attend trial forewarned of that allegation. The CPR [2] require that:

• the [counter] claim must include a concise statement of the facts relied on by the claimant;
• where libel is claimed, the claim form must contain details of the publication which is the subject of the claim;
• where slander is claimed, the claim form must, so far as possible, set out the words complained of, who spoke them; to whom they were spoken and when; and
  the claimant must explain in the particulars of claim the defamatory meaning that the words used convey.
• The judge explained [3]: “In a defamation action the facts on which a claimant relies include (in addition to the matters set out in Practice Direction 53) the identity of the individuals to whom it is alleged that the words complained of have been published (this includes the readers who have accessed a website) and any facts on which it is alleged that the court should infer that there probably were such readers.”

The judge went on to remind the parties that damages for defamation are assessed on well known principles including the seriousness of the allegation and the identity and/or number of the individuals to whom the allegation has been published. The precise words used are therefore essential – as are who heard/read them so that the court can assess whether the [counter] claimant’s reputation has indeed been damaged by the publication.

In this case, the counterclaim did not include the material allegations: the claims made were bare and of a general nature. Nevertheless, the judge decided to give Ms Hunter the opportunity to apply for an amendment – but warned that this opportunity should not be read as an indication that he would grant leave to amend, particularly as Ms Mole did not allege that there was any truth in the allegedly defamatory statements. It was made clear to Ms Hunter that she would have to explain clearly why she thought Ms Mole responsible for the defamation and to prove that the alleged defamation was published to significant publishees. If Ms Hunter did not set this material information out clearly and her application to amend the counterclaim failed, the counterclaim would be struck out.

Practical points
To establish a defamation claim, a party must have a full grasp of all the key facts and set them out fully in its claim form and particulars. In this case, the judge thought that the defamation alleged was serious and could lead to the claimant recovering damages – but only if Ms Hunter could prove that Ms Mole was responsible for it – and that it had been published to significant publishees (like future tenants who might have been put off from renting the property in the future).

If you think you have been defamed, you should take prompt action to deal with it. If in doubt about whether you have a claim for defamation or if you want to remove defamatory material from the internet, contact us using the details below.

A note on litigants in person
Finally, each party in this case was acting as a litigant in person and the judge made some interesting obiter comments on the procedural difficulties that can arise when parties do not have legal assistance with the preparation of their claim. Paragraphs 107 to 119 [1] are worth a read by those interested in the consequences of actions being conducted by parties without legal representation.

[1] Mole -v- Hunter [2014] EWHC 658 QB
[2] CPR 16 and Practice Direction 53
[3] Paragraph 74 of the judgment at [1]