It has been quite an exciting couple of years for Defamation. First, we had the Depp -v- Rudd case in the London Courts, which was then re-run in the US. The UK then played host to the Vardy -v- Rooney case, better known as the “Wagatha Christy” trial. Vardy -v- Rooney threw up some very interesting (and creative) arguments about disclosure.
Most recently, in the US, Dominion have settled their claim against Fox News. A number of commentators have expressed disappointment that Mr Murdoch, or members of the Fox News team did not have to appear in front of a jury. The subject matter of the case is also a political “hot potato”
If the case had come before the England and Welsh courts, would the case have ended differently? Litigation in the US is very different to that in England and Wales. Not only does the law differ from state to state, the quantum of damages is generally greater in the US. In England and Wales, Dominion would have had to prove that they had suffered serious harm to their reputation (S1 Defamation Act 2013) As a body trading for profit, they would also have to show that the offending statements caused, or would cause serious financial loss.
Fox would also have had a number of defences open to it; that the comments were truthful, that it was in the public interest for the statements to be made, or that it was “honest opinion”.
S11 of the Defamation Act 2013 also reduced the right for a defamation case to be tried by a jury. If the case had been heard in England and Wales, it is likely that the final trial would have been heard by a judge.
Of course, this is all academic; the matter was settled between the parties. As well as a large financial settlement, an agreed statement was released. In England and Wales, this is one of the advantages of mediation. A court can be limited in what it orders; as part of a mediation, the parties can agree the most creative of settlement outcomes.
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