This article was originally published in The Times on February 11, 2021.
Judges will not allow unnecessary criticism of losing defendants
Admonished, scolded and slammed. Not the verbs you expect to be directed at you after winning a libel action. But they made headlines at the end of the Duke of Sussex’s defamation proceedings against The Mail on Sunday last week.
There are morals to take from this story for prince and pauper alike. First, a statement in open court is intended to publicise the achieved indication but it may also highlight judicial criticism, so be careful what you wish for. And while an apology may be worth its weight in gold, the statement to publicise it should cost considerably less.
In the High Court, Mr. Justice Nicklin ticked off Harry and his team at the conclusion of a claim that he had brought against The Mail on Sunday and Mail Online over allegations — described by his lawyers as “baseless, false and defamatory” — that he had turned his back on the Royal Marines after stepping down from his ceremonial role.
The legal action had been settled and frequently at that stage the parties are able to agree a statement in open court to publicise the settlement and to vindicate the claimant’s reputation. However, in this case, Harry’s lawyers argued that the defendants’ apologies underplayed the seriousness of the accusations and did not expressly say that those allegations were false.
They rightly sought to put this right and the civil procedure rules provide a mechanism that allows the court to approve a unilateral statement, as Mr. Justice Nicklin explained, “to explain why she or he brought the proceedings, why what was alleged was particularly hurtful or damaging and the effect that the publication complained of has had on the claimant”. The duke and his legal team took two attempts to produce a palatable statement, something they should have sought to agree with the defendant in advance, said the judge.
In ruling on the associated costs, the judge found them to be too rich by far for his taste, slashing them to about 10 percent of those claimed, while he found the original draft statement to have been “unduly tendentious”.
The media hound might reluctantly accept admonishment if it has been naughty, but it is unlikely to run, tail wagging, to have its nose rubbed in it. Likewise, a statement in open court that seeks to pile on unnecessary criticism will not be accepted by the court. As the judge found in Harry’s case: “A claimant cannot seek to use a statement in open court as a platform for collateral attacks on the defendant.”
The judge did not let the transgressing tabloid off scot-free as he approved a revised version of the statement, but all parties to defamation claims are left with a sharp reminder that unilateral statements must be “fair and proportionate” and that “the court will not permit them to be misused”.
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