English libel lawsuits, why so extravagantly expensive to defend against?

Factual Questions
1

Note: I assume “English” rather than “British” law is correct here.

[QUOTE=“Libel Tourism - Writ Large” The Economist 10 Jan 2009, p. 51]

http://www.economist.com/world/international/displayStory.cfm?story_id=12903058&source=hptextfeature

… Small non-British news outlets and humble non-British authors (…) are being suied in English courts by rich-mighty foes. The cost of litigation is so high ($200,000 for starters, and $1m-plus once you get going) that they cannot afford to defend themselves. The plaintiffs often win by default, leaving their victims humiliated and massivly in debt.
[/quote]

Now these numbers ($200k, $1m) given are legal costs for defending, not the awards if you lose. How can a relatively straightforward civil case take more than a thousand lawyer-hours for one party?

I understand that

[QUOTE=ibid.]
… Under English libel law, a plaintiff must prove only that material is defamatory; the defendant then has to justify it, usually on grounds of truth or fairness.
[/quote]

and

[QUOTE=Wikipedia: English_defamation_law#Modern_law]

…The allowable defences against libel are:

* Justification: the defendant proves that the statement was true. If the defence fails, a court may treat any material produced by the defence to substantiate it, and any ensuing media coverage, as factors aggravating the libel and increasing the damages. A statement quoting another person cannot be justified merely by proving that the other person had also made the statement: the substance of the allegation must be proved. The defence fails if the statement concerns spent convictions.[1]
* Fair Comment: the defendant shows that the statement was a view that a reasonable person could have held, even if they were motivated by dislike or hatred of the plaintiff.
* Privilege ...

[/quote]

so the burden is on the the defendant to prove usually the truth or the quality of a fair comment. Still, why would such a civil defence take thousands of hours to assemble and argue? We get (the civil-law equivalent of) libel trials in Germany too (even criminal cases), and the defendants grouse about the verdict being unjust or the award/punishment being too high, never that I have heard of about being bankrupted by their defence cost.

Also, civil litigation cannot be that costly in the UK in general, or nobody could sue or defend normal cases like “Your defective plumbing flooded my apartment” or similar.

2

Civil Litagation is expensive in England and Wales (yes English law is correct here). There are many reasons why it is so

  1. Adversarial system. In Germany, the courts are inquistorial in nature, in an adversarial system the parties argue the case and the court gives its decision. This means that the parties use all the ammunition at there disposal.

2)Defamation law suits (defamation here includes both lible and slander the former is written the latter oral) are expensive, for many reasons, they are some of the few remaining civil trials where a jury is used (Sec 69 (1) Supreme Court Act), the claimants ususally ask for a lot of money, the time and effort needed to get all the witnesses and other evidence together takes a while, especially since defamation cases often turn on points of fact rather than law, meaning the defendant will be spending a lot of effort trying to prove that saying “claimant is an asshole” was true or was fair comment in the circumstances while the claimant will be doing so.

Incidentally, it is NOT up to the defendant to prove the facts in issue in a civil trial in England ans Wales, it is the Claimant who has that burden, on a balance of probabilities.

  1. Civil cases in England and Wales are divided up generally on what is know as “tracks”. The Simplest cases; with a value of less than 5,000 pounds are allocated to the Small Claims track, this track has generally less stringent rules of evidence, hearing is informal and the whole process takes less than a day (total; the time table is 6 weeks). Between 5000 and 15000 is the Fast Track, it has tailored directions and a time table of thirty weeks to settle a dispute. Finally you have multi track, which deals with cases above 15,000 pounds. There are a few exceptions to this, but strictly not relevent to the OP.

Cases above 50,000 pounds are begun in the High Court, those below can be begun in the County Court. The High Court has the more senior judges, with more experience and specialisation.

3

The fact at issue would be whether or not the materially is substantially true, ie. not defamatory, no?

4

Is that true for defamation cases? Here in the US, the claimant has the burden of proof usually. However in defamation per se cases (calling someone a felon, a woman unchaste, a person incompetent for their job or just dishonest) it is assumed to be damaging, and a person may assert truth as a defense, but then carries the burden of proving it.

5

For the Plaintiff to prove defamation he has to show that the statement was one that tends to “adversely affect a person in the estimation of reasonable people generally”, Gillick v BBC [1996] EMLR 267. Once this is proved, it would be a defence to prove justification, for that the defendant would have to prove it on a balance of probabilities.

He who asserts must prove.

6

Defamation cases are complex for reasons outlined, but I think overall you just don’t realise how expensive hard fought commercial litigation is. $200,000 up is not at all unusual in any even moderately complex but hard fought litigation.

I’ve instructed lawyers on the continent under the civil law system, admittedly mostly in France, and litigation there is no cheaper.

7

In libel (and torts generally) the loser has to pay the winner’s costs as well as his own, plus any damages. In instances where the plaintiff (I refuse to say ‘claimant’, makes him sound like a welfare scrounger) has signed a ‘no-win, no-fee’ agreement these costs to the loser are ratcheted up considerably to cover those instances where his lawyers didn’t win and ended up covering the costs themselves. Where the loser objects to the bill for legal costs he can apply to a ‘taxing master’ to arbitrate the fees.
Libel is a Rich Man’s Sport. If you can’t pay, you are unlikely to play in the first place. Outside of a few headline cases, most libel suits are settled for very small sums.
English courts rarely award punitive damages, following the general rule that damages should be strictly compensatory, i.e. put you back in the same financial position you were in beforehand.

8

Note that under English law, the defendant runs a high risk of being punished for even asserting truth as a defense. It’s considered repeating and aggravating the defamation. That’s a huge handicap.

9

In recent times the concept of the ‘Albert Reynolds’ defence has arisen which suggests qualified privilege exists in the case of information of importance to the public. Several subsequent cases which ran an ‘Albert Reynolds’ have failed, however (usually under Mr. Justice Eady, who seems to have a monopoly on hearing libels at the moment.