Media and communications claims — could pre-action dispute resolution become compulsory?

The Civil Justice Council (CJC) has made a recommendation that parties involved in a media and communications claim must engage in pre-action dispute resolution.

Currently, all civil litigation in England and Wales is subject to a ‘pre-action protocol’, which sets out the obligations of the parties to disputes before court proceedings commence.

There’s already a bespoke pre-action protocol for media and communications claims, which was last updated in 2019. This applies to claims of defamation, misuse of private information, breaches of data protection or harassment by publication and claims in breach of confidence and malicious falsehood which arise from publication or threatened publication by the print or broadcast media, online, on social media or in speech.

Here, commercial litigator Glyn Lancefield outlines the proposed changes to the protocol.

What’s the current pre-action process for media and communications claims?

The existing protocol sets out the following steps and timings:

1. The intended claimant is required to send a letter of claim “at the earliest opportunity” containing information prescribed by the protocol.
   • For claims of defamation, slander and malicious falsehood, this includes the imputation conveyed by the statement, details of factual inaccuracies or unsupportable comment and (for defamation claims) details of serious harm.
   • For claims of breach of privacy and breach of confidence, this includes details of the circumstances that give rise to confidentiality or a reasonable expectation of privacy and (in claims of misuse of private information) why the claimant claims that their right to private and family life outweighs the right to freedom of expression.
2. The intended defendant is required to send a letter of response “as soon as reasonably possible” (within 14 days, according to the protocol).
3. The parties are expected to consider alternative dispute resolution.
4. The parties should review their respective positions before the claimant decides whether or not to commence court proceedings.

The CJC report recognises that these short timings are necessary because of the urgency of media and communications claims.

The report recommends only two amendments to the above process.

New obligation to engage in alternative dispute resolution?

The protocol expects parties to consider alternative dispute resolution (ADR), but it doesn’t expressly say that ADR or mediation is compulsory.

The CJC’s phase two report on pre-action protocols recommends that all pre-action protocols are amended to include a mandatory pre-action dispute resolution obligation.

However, it’s important to note that the CJC’s recommendation falls short of a mandatory obligation that the parties specifically attend mediation or any specific type of dispute resolution process. 

The report indicates that the CJC was mindful of the Court’s increasing powers to order ADR once court proceedings have begun — supported by a recent court of appeal decision — and the duplication that would be created by requiring ADR both before and after the commencement of court proceedings.

At the pre-action stage, dispute resolution can be as simple as a remote or telephone meeting between the parties. We anticipate that media organisations and other interested parties will be relieved that there’ll be no mandatory pre-action requirement to follow one of the other listed possible dispute resolution processes such as mediation or early neutral evaluation. Given the circumstances, some lobbying around the detail of any rule change in this area can be expected.

Due to the contentious nature of media and communications disputes, these meetings would likely take place through the parties’ representatives rather than directly between the parties.

Of course, another form of ADR is simply exchanging correspondence that discusses settlement.  Though this is potentially the cheapest option available, it isn’t recognised as a process as such in the CJC’s report. Therefore — if the protocol is amended as the CJC recommends — this wouldn’t be deemed sufficient to comply with the requirement to engage in a formal dispute resolution process.

Failing to make any settlement proposals or meaningfully engage in settlement discussions at the pre-action stage poses a significant risk, as the court can impose cost penalties at a later stage. However, the proposed rule change will serve to focus minds and promote early resolution.

Could the stocktake process become compulsory?

Beyond ADR, the CJC also recommends amending the ‘stocktake’ stage before court proceedings commence.

The protocol currently encourages the parties to review their positions. The CJC report recommends that the parties must perform a stocktake of a joint list of issues, setting out areas of agreement and disagreement as well as the parties’ respective positions on the latter. This must be done within 21 days of the dispute resolution process. 

The stocktake report must be filed with the particulars of the claim. Claimants will note that they can commence court proceedings without a stocktake report if the defendant fails to cooperate.

It’s now for the Civil Procedure Rule Committee (CPRC) and the Online Procedure Rule Committee (OPRC) to consider how to take forward the CJC’s recommendations.

Talk to us

Media and communications disputes require specialist legal guidance. If you’re facing or bringing a claim, our defamation and privacy team can help you to understand your obligations and protect your interests. 

Talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.