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Form over substance

Much has been made about the substantive changes proposed in the draft defamation bill but procedural changes are likely to have much greater impact on libel litigation, say Colin Gibson and Rhys Griffiths

8 August 2011

The draft defamation bill has been the subject of much comment – chiefly for its lack of boldness. However, buried deep in the consultation paper were serious questions about how we as practitioners will be litigating defamation matters in future. These related to the impact of the more substantive changes such as the loss of the right to a jury trial, the need to improve access to justice, the speed and cost of defamation litigation, and the powers of the court at the very beginning and very end of defamation proceedings. They have attracted little comment but are arguably more significant than the superficial changes proposed to the substantive law.

Defamation proceedings are often drawn out, expensive affairs. Reasonableness does not pervade and entrenched views can mean that claimants on CFAs and wealthy media group defendants can slug it out endlessly in situations where potential damages are, in the context of commercial disputes, trivial. On the other hand, claimants ...

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