Defamation Costs: Recovery and Negotiation of Costs in Defamation and Privacy Cases

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A claim for defamation can be brought if you have been the victim of the publication of a false statement. In defamation matters, the Claimant is likely to have been severely affected by such an incorrect statement/publication, and their reputation may have been permanently damaged, ultimately causing them financial loss.

Under the threshold test in the Defamation Act 2013“a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

As punishment of offenders is vital, you can hold anyone who has been involved in the situation liable. This may include printers, publishers, and broadcasting companies.

If you are successful in your matter, you should receive a settlement which is consistent with the severity of your harm. Following this, legal costs will need to be addressed.


Defamation Costs


Following the implementation of the Legal Aid, Sentencing and Punishment Act 2012 (LASPO 2012), the rules for costs in defamation cases have subsequently been adapted, after immediate costs changes were brought into other aspects of law from April 2013 onwards.

LASPO 2012 followed the Government’s intentions to reign in control of the high legal costs that were being incurred in civil litigation cases. They decided to do this by amending the rules regarding ‘no win, no fee’ cases.

This has led to the costs of these cases becoming subject to more fixed costs (for personal injury cases particularly in relation to RTA, EL/PL costs for claims under £25,000), and also through the introduction of QOCS (this removed the entitlement to recover a success fee from the losing party, but also removed a Defendant from recouping their costs of defending a claim where it was ultimately unsuccessful).


Implications of LASPO 2012


Prior to LASPO 2012, the Claimant’s Solicitors were able to charge the losing party up to 100% in success fees. However, in line with the 2011 MGN Ltd v UK judgment of the European Court of Human Rights, the government considered that allowing the winning party to do this was disproportionate.

Furthermore, MGN v UK established that under the Conditional Fee Agreement regime (the rules which allowed Claimant’s to charge the success fee), that the Claimants were in breach of the Defendant’s rights under Article 10 of the European Convention on Human Rights (Freedom of Expression).

Initially following LASPO 2012, in particular Section 44, no immediate changes were made in relation to the costs of defamation claims; however, the regime has now been amended and the lawyer’s success fee will no longer be recoverable. 

Lord Chancellor and Secretary of State for Justice, David Gauke, stated the following in November 2018 regarding the abolition of the existing costs protection regime.

“Having considered the responses to the consultation, the Government has now decided on a different approach that will further control the costs of these cases and will also give effect to our legal obligations under the MGN v UK judgment of the European Court of Human Rights in 2011. “

 The new rules came into force for these cases on 6 April 2019 with the approach of abolishing recoverability of success fees.


Additional Liabilities Post 6 April 2019


Despite these amendments, Claimant’s in Defamation and Privacy Claims are still able to recover After the Event (ATE) insurance premiums. This may be changed in the future to match the rules for other civil litigation matters; however, it has been allowed to continue currently (similar to clinical negligence disputes) to ensure that the government protect access to justice. These rules allow an element of costs protection in defamation cases.

Subsequent to the changes in the LASPO Act 2012, costs for defamation cases have become more streamlined. However, it remains vital to employ a specialised costs expert to handle your legal costs, to ensure that all recoverable costs and disbursements have been claimed. medical fees for psychiatric trauma must also be considered in the Bill of Costs. 


How can ARC Costs Assist?

Our team of expert Costs Lawyers and Costs Draftsman can assist in a large variety of costs matters, including defamation costs disputes.

As independent experts, we can act for either paying or receiving parties. For paying parties, we assist in settling of Points of Dispute to minimise the legal costs exposure, and provide negotiation and advocacy services to resolve the costs dispute either amicably, or at detailed assessment. 

We can aid our clients in the production of thorough Bills of Costs and Costs Budgets. Following this, we can handle the negotiations for the settlement of legal costs. Due to our expertise, we are confident in our recovery and pride ourselves on an average recovery of 72% on all our Bills. We usually achieve this within one month of service.

Additionally, our 5-working day SLA turnaround on costs instruments, such as Bill of Costs or Costs Budgets, allows your case to move swiftly and settle as soon as possible.

Due to our remote working methods, we can provide expert advice and aid you in your legal costs regardless of your location, and as we are paperless, we can achieve our quick turnaround and you can determine the level of access that we have to your files via remote access.

If you require advice regarding defamation costs, or any other costs matter, please contact an expert via our email or by telephone on 01204 397302. Alternatively, you can speak to an expert through our free chat facility available below.

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