This article discusses the advantages of using preliminary hearings in defamation cases, which can help to settle defamation disputes more quickly, and can save time and costs of litigation.
Defamation is a growing area of law and is becoming increasingly common due to extensive use of social media online. People can freely post whatever comes into their mind and frequently vent online unfairly. Comments made in the heat of the moment can severely damage reputations, especially if there is wide readership.
Companies and professionals
Defamation not only affects individuals, but can have serious economic impact on companies and their directors. It commonly affects professionals and their partnerships, who can become targets of unwarranted abuse when their clients are unhappy.
Commercial and professional reputations that have been built up after many years of hard work and careful planning can potentially be ruined overnight if prompt legal action is not taken.
Need for legal advice
Defamation proceedings can be stressful and expensive, and having experienced lawyers is essential.
There is generally a time limit of 1 year to bring a defamation claim from the date when the statement was published, or legal action may be barred, so there is a need to act promptly.
Fortunately there are mechanisms in law which can help to protect against the threats posed by publication of false information online.
It is possible to apply for injunctions to prevent someone from repeating false statements, and the offending party can be ordered to take offending material down and pay compensation for economic harm caused.
Meaning of the words
Common legal hurdles in defamation cases is to show that the statement considered to be defamatory is both i) incorrect and ii) damaging and moreover that this has caused serious harm.
This can be surprisingly difficult in some cases and statements can often have more than one interpretation.
The court often has to reach what it considers a single meaning of the words, and analysis of what appear to be straight forward comments can involve highly technical discussion.
A preliminary hearing is where a judge is asked to determine a specific issue, either of fact or law, central to whether the case has merit or not. Preliminary hearings are available in commercial litigation more widely, but are increasingly helpful in defamation cases in disputes about the meaning of the words.
There is usually a need to bring an application early in litigation, to try and prevent costs and procedure from escalating unnecessarily.
Central issues can be determined either with a face to face hearing in front of a judge, or even simply on the papers.
If a case is determined early on, on the papers, that can save a great deal of time and money for all involved and may lead to an early settlement, or a vexatious case being thrown out.
Bringing an individual who has to date remained protected or possibly anonymous online, into the limelight of a preliminary hearing can often bring home the realities of the legal action and may result in offers of settlement.
Not every case is suitable for a preliminary hearing, especially if the matter is very complex, but many defamation cases can be very well suited. Taking early legal advice is key.
Bokova v Associated Newspapers Limited  EWHC 2032 (QB)
This defamation case was brought by an individual against the publisher of the Daily Mail and Mail Online. A dispute arose as to the meaning of the articles in question. The case discusses in part the historic development of the court’s approach to disputes about meaning in defamation and advocates the use of preliminary issues.
The judge outlined increasing use of preliminary hearings is a “culture shift in defamation proceedings that has to be embraced” where “the benefits are obvious”.
Other cases that use preliminary hearings
As well as in defamation cases, preliminary hearings are common in cases in the Technology and Construction Court in disputes relating to complex machinery and construction matters. They are often used in intellectual property disputes. There is potentially much to gain from using them.