It continues to be the case that the media likes a story about a legacy dispute. Whether it is the spectacle of warring families, the opportunity to use photos of luxury homes or the prurience of how much cash someone had in the bank, these disputes remain of interest to a certain readership and some titles.

That has long been the case, but there are developments that arise from the digital age:

• Press articles never become 'yesterday's fish and chip paper' because of the ability to search and easily retrieve online content, even from many years ago;
• The fact that anyone might now come across niche titles that regularly write about probate or inheritance disputes, such as Today's Wills & Probate, This is Money or Charity Times;
• Large language models of AI (such as Chat GPT) will use online content as the basis for answers to questions and AI profiles, so errors made in old articles will be replicated into new content; and
• A party to a dispute seeking to cause trouble is not dependent on persuading a journalist to write about a story, when they can simply post on X or Instagram and hope it is picked up more widely.

One important element of deciding whether or not to issue formal legal proceedings is that it is a public process and can mean that the dispute is reported upon. According to the FT, almost 390 probate disputes were brought before the High Court over the first nine months of 2023, more than double that in the same period in 2016¹. These are the cases everyone gets to know about, but it's a very small proportion of those legacy cases where there are disputes. The vast majority are resolved without the need for formal proceedings, such as pursuant to a mediation.

It is usually more in one party's favour than the other for a dispute to become public. Generally, a charity with its considerations of protecting its brand reputation, and concerns of trustees, will be the party that is more reluctant to be exposed to publicity. If an opponent senses this reluctance to be exposed to publicity, they can feel that this gives them some leverage.

So what if a party tries to weaponise 'going to the press' in order to pressure a party into a settlement or even dropping a case entirely? In our view this should not usually be a reason to avoid disputes or be too quick to settle an otherwise meritorious claim.

• Many media law claims have considered the quality of speech, and how seriously it is to be taken, when it relates to social media posts. Judges have compared it to 'pub gossip' and been cautious to allow claims with a modest readership and little evidence of actual harm to reputation.
• It is important to assess how seriously any social media posts would be taken, especially where the grammar/spelling might be poor or it is obvious that the author has a personal grievance or vested interest.
• Adverse publicity – or even any publicity that is not within the charity's full control – is definitely a factor to consider, but it should not be given undue weight. The Charity Commission guidance to trustees on taking or defending legal action² makes clear that it is a duty to protect or secure the charity's assets, and taking legal action may be one way to fulfil that duty. The guidance acknowledges that 'whatever the outcome of legal action, the downsides are typically that it will cost the charity time and money and may have a negative impact on its reputation'. It is thus right to weigh that in the balance but not a reason for a charity to rule out an otherwise meritorious claim to secure charity assets.
• There is an exception to the 'without prejudice' rule if settlement correspondence is being used improperly to conceal blackmail or extortion. Thus, if an opposing party makes ludicrously unwarranted demands in a settlement negotiation whilst at the same time threatening that they will 'go to the press' to intimidate the other side and pressure them to settle unfavourably, this may be a reason for those otherwise secret exchanges to be revealed to the Judge.

Taking in turn how to navigate some of the issues arising from our digital world above:

• It is always sensible to work closely with a charity's communications team and review online search history and content. Whilst the so-called 'right-to-be-forgotten' which arises under GDPR only applies to individuals and not organisations, there may be a basis on which to request amendment if there is historic information online which has become out of date. The impact of AI means it is a bad idea to leave inaccurate information unchecked or assume that its impact will be minimal. It is more important now than ever to monitor a charity's online footprint and take action (whether it be legal, via fact checking or through PR and issuing your own corrective statements).
• Most readers will assess the credibility of the source of the information. A post on X by someone who clearly has a vested interest in the outcome will mean most people are sceptical of what has been posted. The Supreme Court said:

"The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read. 

"In Monroe v Hopkins … Warby J said this about tweets posted on Twitter: "The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet."

Another Judge (Mr Justice Eady) said in a 2008 case which foreshadowed much of what was to follow on social media: "Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or 'give and take'." 

• The commercial media will almost always contact any party to a dispute that they might plan to report on in advance. They must take into account information that is made known to them. This should be more than providing a quote for inclusion in a story; it is an opportunity to highlight any disputed or unproven facts and tell the publication that the reporting of a dispute must be presented both fairly and accurately (this is a requirement for the publication to have a defence to a claim in libel). Don't lose any opportunity to engage on an adverse story to seek to influence the output before it is published. We always recommend to clients that we work with them to have draft reactive text ready so that it can be deployed quickly and that everyone has already signed off on the wording without being under immediate time pressure.
• If factually incorrect statements are posted online, pause and consider whether they warrant challenge. It may give more credence to an obviously unreliable or biased claim. However, if the allegations are serious, it may be necessary to send a warning letter asking a party to 'cease and desists' from repeating defamatory statements. There are strict obligations about when to threaten that something is libellous or defamatory. The Solicitors Regulation Authority issued an updated warning notice in 2024 governing when a solicitor can assert such a claim – a party must have an arguable case taking into account various factors including whether the statement has caused or is likely to cause serious harm, and whether there might be any defences attached to the statement, such as honest comment. Ill-judged complaints of defamation can simply attract wider criticism (Liz Truss v Keir Starmer?) so this is an area where combining legal advice and sound judgement is vital.

It often feels like a lot has changed in communications over the last decade but in many ways, the stories are the same. Managing the noise around legacy disputes in the digital age can be frustrating but it is a manageable 'side effect'.

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