Defamation – What is it?
When I was studying this subject my law professor was not enthused about this subject. This was largely due to the fact that he considered it to be about rich people pursuing other rich people and clogging up the courts. In some respects he is right; many of the cases that we see have little relevance for the everyday person in ordinary life. For example do you remember Jason Donovan where it was claimed that he was homosexual (wrongly) or perhaps Berkoff v Burchill where the actor sued against claims that he was ugly.
There are three elements to defamation: the statement must be defamatory about claimant, it must be published and the statement must be calculated to injure the reputation of another by exposing them to hatred content or radical. In the celebrity age where reputations can increase or decrease earnings considerably the law does provide protection.
- Image by Getty Images via Daylife
One of the most interesting cases of late is the Max Mosley v News Group Newspapers; where it was alleged that five women role-played in Nazi uniform and mocked the suffering of the Jews in the Nazi war camp. Did the press have the right to expose this sort of behaviour of public life professionals? Max Mosley sued the newspapers under article 8 (privacy of family) of the Human Rights Act 1998. He claimed that it was an invasion of his privacy to family life. The Human Rights Act provides individuals with a whole host of basic human rights. The judge agreed with Mosley and held that the papers had been in breach of his human rights. In the aftermath of this decision and other ones to. For example the photographing of Naomi Campbell leaving a drug rehabilitation clinic, where it was ruled that the press do not have the right to publish such personal confidential information. The press in the UK has been claiming that this is unfair. Why?
Whether one morally agrees with the alleged acts, it does raise some rather interesting questions one may hope by such rulings that the press is now forced to report news that is more relevant to society; instead of the current doorstepping of empty and vacuous media personalities. One may hope that they will concentrate on exposing corruption within different levels of society. Would it be too much to ask that instead of devoting large proportions of newspapers space to such easy targets like A B and C Celebrities. They Instead of go after harder targets, and questionable policies an decisions. For example the current economic crisis did not happen overnight. I’m sure that more questions should have been asked at the level of lending in relation to unsecured loans. If it had we might not be facing the current crisis. What one does in private should not be the concern of the general public. What happens in public bodies is very much our concern. Whistleblowers are protected as our number of other individuals including MPs from liable for defamation in the Houses of Parliament. If we are not asking the questions then nobody is thinking.
Representing Yourself
The introduction of arbitration act 1996 was the start of many reforms to the legal systems to increase access to justice. What was fundamentally laid out in the act was that there were many paths that one could pursue to resolve a dispute. With lawyers fees on average in the area of 200 pounds per an hour getting legal advice, never mind actually pursuing it in the courts, was well beyond most people’s means. In consultation for the access to justice act in 1999 it was discovered that many disputes could be resolved cheaper, more quickly and better in number of process such as, Arbitration, Mediation, Conciliation, Med-arb, and Natural fact finding.
The courts have been encouraging Alternative dispute resolution since 1993 one can feel its influence in employment, social security, mental health, land, rent, and divorce. The last has been found to be less encouraged by lawyers who are probably keen to keep the fees gained when mediation is not used.
Having experienced a work tribunal myself, there are a number of observations that spring to my mind. In most tribunals it is normal for both parties to represent themselves. When pursuing claims under £10,000 pounds solicitor’s fees could very quickly eat up a large chunk of that money and that is before you have even reached the tribunal. So what can one do to ensure that you achieve the best result?
Well there is no doubt that it is about advocacy. It is about convincing the members of the tribunal that your case is the better one, and that they should make a decision in your favour. Although the decisions are binding you can appeal. So what to do in practical circumstances? Well it is about a number of principles. Knowing your case and applicable law beyond all doubt will increase your chances. Insuring that you participate in the proceedings and are good at presenting you argument will help too. I will deal with each one of these individually.
Knowing your case and applicable law beyond all doubt
Whether you are employing someone to do this for you or planning to do it yourself, you are going to need to know as much about the relevant matter as possible. Where do you start? Well lets say the case is about terms and conditions in your contract. One can quite easily find any number of books relating to employment law on Amazon. Make sure that you get the most update version as law never stands still and you would not want to be quoting something that is out of date. It is quite reasonable to drill down on just a small area of law. Most text books will give the important precedent relating to the matter. A precedent is the legal case that has defined the law in a certain area. When you have your precedent (i.e. Smith v Jones) you will need to read that case and dissect it for all the relevant information that will help your case and any other related information that was used in reaching that judgment. It may now sound daunting but anybody who regular reads and has a reasonable education with the proper motivation could be extremely well informed on the matter in relative short period of time. If reading is not your thing, than you will need to find someone who can be persuaded to do it for you and is up for the challenge. When you the have the relevant information it will be come clear what your argument is and what your chances of winning are. A word advice though, when examining the facts, always look for what can be argued reasonable and remember English law is not about punishing the other party; it is about putting you in the position you were before the breach.
Ensuring that you participate in the proceedings
I was recently watching criminal proceedings in a magistrate’s court. The defendant had an excellent case. Unfortunately he was let down by his presentation. In the first instance he turned up 15 minutes late. He was a road construction worker and turned up in his working clothes. He had by then unintentionally bordered on treating the whole proceedings with contempt. Even if the magistrates wanted to make a decision in his favour he made it very difficult. If you want your matter to be treated seriously it is important that you show the tribunal basic respect. Ensuring that you turn up on time and are properly dressed will give the impression that you are reasonable and seeking a reasonable solution. If this is too difficult than you are better off to be represented by some one who can do this. In all tribunals you can be represented by anyone you choose. So if this is not your forte find someone whose strength it is.
Presenting your arguments
Clarity is key, the only way to get clarity is to go over and over your argument. In the process of that you will than start to be come aware of your opponent’s argument and can prepare relevant questions for when that moment comes. Of course tribunals are not courts of law, they are usually a three panel member board and will try assist you in anyway they can.
With good basic planning you can achieve excellent results in whole host matters and it need not cost you the earth. Which is what justice is all about.
For Manx case law check out this site: www.judgements.im
This is also a good resource about arbitration:
