Guidance note for responding to a defamation claim

8 June, 2018

The Rules of Responding

This note sets out what to consider when responding to a defamation claim made:

  • formally, by a Letter of Claim issued under the ‘Pre-action Protocol for Defamation’ (the Protocol); or
  • less formally, for example, by way of a comment on social media.

The Protocol is a set of rules that the parties to a defamation dispute are meant to follow before a court claim is started.  The aim is to ensure that the parties exchange sufficient information to allow them to assess the strength of the claim and to settle it, if possible, without incurring the expense and disruption of a court claim.

The Letter of Claim, the first step under the Protocol, should set out the details of the claim and the remedies sought, which may include all or some of the following:

  • a takedown and retraction of the defamatory statement;
  • an undertaking not to repeat the same or similar comments;
  • a payment of compensatory damages; and
  • an apology.

An aggrieved party who is not aware of the Protocol may, however, raise their claim another way, by posting an angry comment on social media.

This can make it trickier to identify the precise details of the claim and the remedies sought and the ‘wrong’ response could escalate the dispute and make settlement very difficult.

If you do not address a defamation claim properly, however it is made, you could find that a formal court claim has been issued against you, without further notice, and that you have missed a critical opportunity to settle the dispute informally.

That said, a rushed ‘knee-jerk’ response should also be avoided.  A properly considered response strategy has considerable advantages.

Whether or not the claim is made under the Protocol, we recommend that you respond, as a minimum, in line with the guidance in the Protocol.

Under the Protocol you should respond as soon as possible, normally within 14 days, so you should seek legal advice without delay.

At Cripps we have a lot of experience advising clients facing defamation claims.

How Cripps can help:

  • objective analysis of the facts of the claim, applying the law of defamation (for example, whether the claim satisfies the ‘serious harm’ requirement), to give you a realistic assessment of the strength of the claim;
  • if the claim has not been made under the Protocol (e.g. is in a social media comment/post,) we can advise on what can be done to have the claim taken down (if possible) and any other remedies you may have against the author if the way in which the claim has been raised is itself defamatory;
  • advise on any defences which may be available to you, such as limitation (whether the other side is in time to bring their claim); honest opinion (how you can rely on this) and truth (what evidence you will need to support this – as defendant, you have to prove that your statement was not false, and therefore not defamatory);
  • draft an appropriate response to rebut the claim, following the Protocol where appropriate;
  • provide practical, strategic advice on Alternative Dispute Resolution (settlement outside of court) and draft appropriate settlement offers (defamation claims are expensive to defend to trial and many are settled out of court without any admission of guilt); and
  • if there is no real defence and we recommend that you admit the claim , we can advise on drafting an ‘Offer of Amends’, making an apology and early admission.  A claimant who accepts an Offer of Amends cannot then bring or continue with a defamation claim, so this can be a powerful weapon for a defendant when responding to a claim.

The fact that a Letter of Claim has been sent, does not confirm that a claim has merit; each case must be judged on its own set of facts.  

Given the serious implications if a claim is not addressed early on, the best course of action for an individual or a business facing a defamation claim is to seek legal advice as soon as possible and then make a considered, strategic response.

The law relating to defamation is complex and constantly developing.  The purpose of this note is to assist in providing an overall understanding of the legal context within which such claims operate.  It is not intended as specific legal advice.  You should always seek specific legal advice on any claim that is made against you.

If you wish to know more, or to speak to us about how we could help you, you will find further guidance and our contact details on this page: Protecting your Reputation.

You can download a copy here. 

If you require further guidance please contact Will Charlesworth at will.charlesworth@crippspg.co.uk or on +44 (0)1892 506 004