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Lord Williams of Mostyn: I speak against this amendment. In a action for defamation frequently the scales are uneven. The plaintiff is very often a private person. As I said earlier, legal aid is often not available. In a very substantial number of cases the defendants are extremely wealthy corporations with vast resources.

I take the citations from the speech of the noble and learned Lord, Lord Keith, in the case of Derbyshire County Council. But essentially I believe that relates to whether or not a public body has a reputation that is capable of being defamed. I do not believe that those remarks were intended to go or do go to the present question.

I put the matter on the basis of principle. A private person's reputation is his or her property. It may be of infinitely more intimate value than his or her home, which is presently defended by the law. If an attack is to be made on a private person's reputation, why should the attacker not have to justify it on the basis of taking on the burden of proof?

I give an example. I know that the noble Lord, Lord Aldington--he is not in his place at the moment--intends to speak later, but I am sure that he will not

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object to my poaching part of his territory. How on earth could he possibly have taken on the burden of proof in the case of Tolstoy and Ors? It would have been impossible for any private person.

It seems to me that balances may need to be redressed. The Court of Appeal, as the noble and learned Lord the Lord Chancellor indicated, has begun to redress the balance in terms of the excessive awards for damages which have recently been made. But to put on the plaintiff the impossible, intolerable burden suggested by the amendment tilts the balance far too far against the individual and far too much in favour of the multinational, very wealthy organisations which substantially control the public press and other media.

9 p.m.

The Lord Chancellor: I too speak against the amendment. First, it would be a major change in the law of defamation, with considerable ramifications, and the Bill does not attempt to do anything of that major kind.

As the Committee will be aware, Lord Justice Neill's working group--upon whose recommendations many of the provisions in the Bill are based--considered representations to the effect that the burden of proof was the wrong way round. However, as the group pointed out, it is normally the plaintiff who is the accused and who should be presumed innocent of the defamatory charge unless the defendant can prove that he was guilty; or, to adopt the phraseology of the noble Lord, Lord Williams of Mostyn, he is the person who has the reputation, and if somebody is going to seek to deprive him of it, that person should be under the obligation to show that that deprivation is justified. If the defendant can prove that the plaintiff was guilty, then his plea of justification will succeed.

The amendment would alter the whole structure of defamation law so that every hapless person against whom another chose to allege dishonesty, immorality, dishonourable conduct, incompetence and so forth would always have to prove his innocence in order to protect his reputation.

Professor Barend's comments are interesting. The one that I would wish to mention is part of what he described as the second reason--proving a negative. But it is a negative in which I would say the plaintiff normally has the right to have it presumed that the positive (that is, his reputation) is something of value to him.

The Irish Law Reform Commission, by a majority, decided to do that. I am not sure whether the Doyle--the Irish Parliament--has yet given effect to it. It may be right to wait to see whether anyone introduces it to the Doyle and, if so, what the result is. I also subscribe to the view that the observations of my noble and learned friend Lord Keith of Kinkel in the Derbyshire case were not intended to be as general as the defendant's counsel would seek to make them in this situation.

Lord Lester of Herne Hill: It is not my purpose to seek further to debate the point. The fact that the Irish Law Reform Commission was split three to two shows, I hope, that reasonable people can reasonably disagree

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about this. I remain convinced that one day, at some time in the future, the burden will need to be readjusted. It may be that the circumstances in which that will happen will be circumstances in which a specific kind of plaintiff is regarded as giving rise to the need to change the burden of proof. However, that is a matter to be dealt with by the courts rather than by Members of your Lordships' Chamber.

I am grateful for the explanations given. This may be the first time in which such explanations have been given in this Chamber. I am sure that Professor Barend will be particularly interested to see the fruits of his article having been commented on in the serious way in which they have. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Summary disposal of claim]:

Lord Lester of Herne Hill moved Amendment No. 34:


Page 7, line 42, leave out from ("that") to end of line 44 and insert--
("(a) there is no arguable defence to the claim on the ground of justification or fair comment or under section 1 (responsibility for publication) or section 3 or 4 (accepting an offer to make amends),
(b) there is no other defence which has a reasonable prospect of success, and
(c) there is no other reason why the claim should be tried.").

The noble Lord said: The present wording of this part of Clause 8 represents a slight variation to the draft Bill in the Lord Chancellor's consultation paper of July last year. To avoid summary relief being granted against him, a defendant now has to do more than show an arguable defence of justification or fair comment. It must appear to the court that there is no defence which has a reasonable prospect of success.

That is a heavier burden than confronts a defendant on an application for summary judgment under Order 14 of the Rules of the Supreme Court. It is difficult to think of a good reason why a defendant's right to defend a defamation claim should be so restricted. Amendment No. 34 would restore the wording of Clause 8 to the form it took in the draft Bill in the consultation exercise and, in my view, would provide a fairer test. I beg to move.

Lord Hoffmann: Amendment No. 34 looks like a minor change in language. The Bill says that the plaintiff may have judgment if there is no defence to the claim which has a realistic prospect of success. My noble friend Lord Lester would substitute for some defences, "no arguable defence" and for others,


    "no other defence which has a reasonable prospect of success".

This looks like a rather arcane dispute--the kind of thing which gives lawyers a bad name. But underneath there is a point of some importance. As my noble friend said, he chose his phraseology from the existing general summary judgment procedure under Order 14 because it is well worn and familiar. It has been used for more than a century in connection with applications for summary judgment or to strike out hopeless cases.

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There are many cases in which judges have said what these little phrases mean. But the intellectual baggage that they bring with them is from a past time and different circumstances. They were defined by the courts at a time when cost and delay in litigation hardly seemed to matter. Summary procedures were regarded as something quite exceptional; and if there was the slightest prospect of an arguable point, the whole procedure of a full trial had to grind into action. The assumption was that only at a full trial could one have perfect justice.

In our day we have come to realise that if we insist on perfect justice, for many people there will be no justice at all. It is so perfect that hardly anyone can afford it. So the draftsman of the Bill--these are not my words--has deliberately broken away from the old formulae and all the resonances of the old procedures that they carry with them. The words "a realistic prospect of success" are ordinary English words. They have not been used before, but my noble and learned friend Lord Woolf tells me that they are in the draft of the rules for the summary procedure which he is preparing for general use in the courts. Together in this Bill with the very wide discretion which is given by the words,


    "there is no other reason why the claim should be tried",
they allow the judge to decide whether there is really anything in the case that needs to go to a full trial--is there really any justification for putting the plaintiff to all that trouble and expense?

Of course, judges are human, and sometimes they will get it wrong, but the more realistic approach to civil procedure which the noble and learned Lord, Lord Woolf, recommends and which we have adopted today is that one will never attain perfection in these matters. A jury sometimes also gets it wrong. The Bill as drafted is intended to encourage judges not to look back to the old Order 14 procedure but to use the power to grant summary relief in a vigorous, humane and commonsense way. I would urge your Lordships therefore not to retreat to the old language which comes from a different age.

The Lord Chancellor: I am grateful to my noble and learned friend Lord Hoffmann for his support for the clause as drafted. The amendment reflects what was in the clause put out for consultation. In the light of the consultation, and as one of the benefits of it, we saw a way considerably to simplify and to focus on the issue which, as far as I can see, is the correct issue to determine whether or not the summary disposal should be given effect. I do not know that the noble Lord, Lord Lester, actually suggested that there was anything wrong with Clause 8 in the sense in which it would deal with the matter. Rather, he preferred the more detailed but not so succinct version of the summary judgment clause. I would submit to the Committee that, as drafted, clear guidance is given as to the questions which the court has to ask, and the result on answering these questions is what justice would suggest was the right answer.


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