By Jamela Collins, Technical Underwriting Manager
(Estimated reading time: 4 minutes 29 seconds)
During 2024 we have been celebrating our 25th anniversary. In that quarter of a century one of the areas of law that helped build Temple’ reputation in After the Event (ATE) insurance for commercial litigation is in media and defamation cases. Our Commercial Director, Matthew Pascall has been involved in underwriting the phone hacking cases that have been ongoing for a number of years and has provided cover for both claimants and defendants in defamation cases. In this article – which will be of particular interest to those litigators considering ATE for the first time – we draw on that experience to show why it is so popular for this area of law.
For both claimants and defendants, running a defamation case can be a daunting prospect. The overall legal costs will often outweigh the damages awarded, but the action may be pursued anyway if there is a principle at stake or a reputation to be defended.
What is covered under an ATE insurance policy?
Peace of mind given is one of the main reasons why it is popular. Here’s a few examples:
- In the event that the policyholder is successful, the usual rule in defamation cases is that the insurance premium is usually recovered from the losing party.
- With Temple, our cover for these cases is for the opponent’s costs. This provide costs protection if the policyholder is unsuccessful in bringing or defending the action.
The prospects of success we would require from you for this type of case start at 51%. That may not be the case with other providers, but Temple’s in-depth experience in this area of law enables us to take on cases that others might not.
What is the situation for libel matters?
For a claim in libel the statement made by the defendant will be in writing or is in a permanent form, with the claimant stating that it is untrue. The claimant must then prove the following:
- That the statement conveys a defamatory imputation.
- The claimant must be identifiable.
- The statement must have been published.
- The publication of the statement has caused serious harm to the claimant’s reputation or is likely to do so in the future (so that their standing has been diminished in the community).
How is publishing defined?
How things have changed here… publishing can be online which includes posts on X (formerly Twitter) and WhatsApp messages. Publishing also includes if a member of the public decides to leave a review about a business or service provided. This could either be on the claimant’s website or on a review platforms such as Trip Advisor. There is a growing interest in these types of actions.
What happens next and why?
The claimant will have to show that the untrue words were read by at least one other person; the greater the circulation, the more damages can be claimed. The claimant will also have to prove that other parties have read – and believed – that the words used were true about the claimant.
- The statement – the words used – can be considered libellous and untrue if it makes right-thinking people think substantially the worse of the claimant. For this purpose the imputation is considered without reference to the effect of its publication.
- To consider whether the statement is defamatory, it is necessary to determine its meaning. This interpretation will go beyond the literal meaning of the words.
What are the most common defences in a media law case?
For the defendant to successfully defend the action will depend on the factual matrix. Detailed consideration will be given to the statement being the precise words that the defendant has stated. The Judge will have to determine the single correct meaning of the statement and will decide whether the words used are fact or opinion. If the words are fact then the defendant will have to prove that the words are substantially true. The most common defences in a media case are –
- Truth
- Honest opinion
- That publication was for public interest
- Privilege
If your client is the winning claimant, what happens?
The claimant will be entitled to an award of damages. The following factors will be considered in making that award –
- How serious was the defamatory statement?
- The volume, influence and circulation of what was published.
- Did the claimant actually suffer injury to their reputation – can they point to examples of exclusion and also injury to their feelings?
- Did the defendant behave in a way that would enable the claimant to argue that their conduct has aggravated the situation to then be awarded aggravated damages?
Did you know?
If the policyholder is successful in a defamation case then, under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 the ATE insurance premium is still a recoverable cost from the opponent. if the case is lost the insured can make a claim on the ATE policy. As mentioned earlier, generally costs will be a significant factor in these types of cases, and a reason why ATE is popular is the peace of mind it provides.
The Temple perspective
With Temple, we have no requirement for your client to pay a premium up front as it is always deferred and contingent on success.
If you would like to discuss your requirements for either an individual case or a bespoke solution for a potential defamation case scheme (for a segment of clients have similar facts cases with common risks on a case) or any other type of commercial dispute please email me on or feel free to call me directly on 01483 514871.
Jamela Collins
Technical Underwriting Manager
Jamela Collins
Jamela qualified as a Solicitor specialising in litigation. She has extensive experience specialising in commercial, construction, inheritance and insolvency claims. She has also worked at RSA as a Team Leader.
Jamela has joined the commercial team as a Senior Underwriter in 2023 and is very much looking forward to using her litigation and insurance experience to support Temple’s customers with market leading products and services.
Read articles by Jamela Collins
