Offer of amends
If a defendant is unable to defend the claim, e.g. because it made an innocent mistake in the publication or broadcast, then it can make an offer of amends. This must be done before serving a defence and so the defendant must act quickly. If the offer is accepted, the claimant may not bring or continue with the action, save for the purpose of assessing damages. The offer must be in writing, expressed as being pursuant to section 2 of the Defamation Act 1996 and offer to: make a suitable correction and apology, publish a correction and apology, and pay the aggrieved party compensation (if any), and such costs as may be agreed or determined. If the offer is not accepted, it is a defence (unless the defendant knew or had reason to believe the statement was false and defamatory of the claimant).
Jurisdiction
If the defamatory material is published not only in England and Wales but also in a contracting state of the "Brussels" Regulation 44/2001 (i.e. E.U. member states) and the defendant is domiciled in a contracting state, then the defendant can generally be sued in its place of domicile or where the publication occurred. If the publication is in the U.S., for example, as well as in England and the claimant wishes to sue in England, then the English court will decide if it is the appropriate forum. Generally, the greater the connection which the claimant has to England, the more likely the English court will seize jurisdiction. Thus, if the claimant is an English citizen or has a significant reputation in England, it is likely that the court will refuse to stay the proceedings, even if the publisher is based in the U.S. and most of the readers are in the U.S. Where, however, the number of publications in England is so insignificant that there was no real or substantial tort, the English court is likely to strike out the claim as an abuse of process. In the leading case on this issue, there were only five online subscribers to the defendant's publication in the jurisdiction and the court struck out the claim as the litigation would have been out of all proportion to any damage which might have been suffered by the claimant.
Procedure
Interim injunctions The claimant can in principle apply for a court order preventing publication or broadcast of the allegations pending the resolution of the matter at trial. If the claimant applies to court to try to prevent a publication/broadcast going ahead, then he should give notice to the publisher / broadcaster. In England, so long as the publisher / broadcaster credibly claims he will rely on a substantive defence e.g. justification, the courts will not stifle freedom of expression and will not grant an interim injunction but will instead order that the matter should proceed to trial. The position is different in relation to claims for breach of confidentiality/privacy (see below). If a claimant applies for an interim injunction, whatever the outcome of that application, he must start a normal action (see below for the procedure) unless agreement can be reached on the question of costs.
Normal action
The first step in a defamation case is usually when the claimant sends a cease and desist letter to the publisher / broadcaster. There is a pre-action protocol in the court rules which states that the letter should identify the words complained of, explain the claimant's case and set out what remedies are sought. Usually, the claimant asks for an undertaking: not to repeat the allegations, to pay damages and costs, and to have an apology published and also read out in open court. The publisher / broadcaster should respond as soon as reasonably possible and say whether, or the extent to which, the claim is accepted or rejected and explain why. If proceedings are started, they begin by the claimant issuing a claim form and sending particulars of claim which must address the issues of publication, meaning and identification. A defendant usually has 28 days in which to file its defence. This should respond to the particulars of claim and, where appropriate, advance a defence such as justification, fair comment or privilege. The claimant can file a reply to the defence. After that there is disclosure. This is less extensive than discovery in the U.S. It is usually restricted to documents: on which a party relies, which adversely affect his own or another party's case, and which support another party's case. The exchange of witness statements follows disclosure. The trial usually takes place about 9-12 months after the claim form has been issued, depending on the complexity of the claim and the state of the court list.
Remedies
If the claimant is successful at trial, he will generally be granted an injunction preventing the allegations being repeated. He will also be awarded damages which are determined by the jury. 'General damages' are to: compensate a claimant due to his lowered reputation, vindicate him, and compensate him or her for injury to feelings. Corporate claimants cannot claim this third element. For the most serious allegations (e.g. sexual interference with children), it is unlikely that general damages will exceed $350,000 . This can be contrasted with the position in the U.S. where defamation damages awards frequently exceed $1,000,000. If the defamatory allegation has caused the claimant reasonably foreseeable financial loss (e.g. loss of a contract), he can claim 'special damages'.
Costs (lawyers' fees)
The losing party usually pays a proportion (60%-90%) of the winner's costs (i.e. lawyers' fees). Costs usually far exceed damages in libel actions. They can run into the hundreds of thousands of dollars and sometimes millions. If a claimant's lawyer has entered into a conditional fee agreement, called a "CFA" (roughly, 'no win, no fee'), then the financial stakes are very high for the publisher. CFAs are different from contingency fees. Under a contingency fee arrangement in the U.S., the attorney's fees are a percentage of the damages awarded. Under a CFA, the claimant's lawyer can claim from the defendant up to a 100% uplift on his normal fees if the claimant wins at trial. If the claimant loses, he may not have any money with which to pay the publisher's / broadcaster's costs. In such a case, the financial cost-benefit analysis often points away from defending a libel claim. Therefore, defendants must act particularly swiftly and decisively in CFA cases.