This is a post about a defamation trial where one party (the claimant – C) is claiming the other party (the defendant – D) has caused his reputation serious harm by making statements that allege domestic abuse by C against D. Far removed from the recent Depp-Heard trial in the US, this case is being heard in London and the parties are not celebrities: C is described as a businessman and D is a school teacher.
I hope that outlining this case as it progresses might be helpful to anyone worried about this aspect of the aftermath of the Depp decision, because although the law is different in the U.K., I’ve seen several warnings in the media that being sued for defamation is a threat after disclosing abuse. Just being aware of such a threat can have a ‘chilling effect’ on people speaking out. This is not a Family Court case but I think it’s relevant for those with an interest in the family court, because there are some common themes emerging about alleged perpetrators of abuse using court processes to further oppress complainants. There are possibly some other matters in this libel action, related to C’s business dealings, but I didn’t hear about those in court yesterday, so I’m only mentioning those allegations I did hear about.
I can write about this case because defamation hearings are held in public and I was able to attend one day at the Royal Courts of Justice. I’m only able to report in a neutral manner though, as the case is ongoing. I hope that on conclusion of the case, it will be possible to comment on the outcome.
The first stage of a defamation trial in England and Wales is, essentially, for C to prove his reputation has suffered serious harm caused by D’s statements (section 1 Defamation Act The 2013). Here, C is claiming damage has been caused by what D has written (libel) and on one occasion by something said (slander). I became aware of the case because D has been tweeting publicly about it for some time. She was worried about not having legal advice or representation. Legal aid is not available for defamation, and defamation lawyers are very specialised and expensive. Both parties here have had lawyers at times. When I attended this week, C was a litigant in person and D had representation.
If C can establish the likelihood of serious harm, there are some possible defences available to D. The purpose of this stage of the trial was to deal with Stage One – the claim. As the judge stated frequently, any defences (e.g. that the allegations are true) are not relevant until Stage Two “if we get that far”. If C doesn’t show serious harm to his reputation, the claim fails.
Day 1 of the defamation trial
D had been successful, just a few days earlier, in obtaining legal representation through We Are Advocate, but the solicitor-advocate who came to her aid was a family lawyer, not a defamation lawyer. His contribution to the proceedings centred around any protection available to D to avoid her being cross examined by her ex partner and alleged abuser. The advocate was only able to participate online, so this was a ‘hybrid’ hearing, with everyone else there in person. D had picked up that C had built time into the 5 days to cross examine her, but the judge made it very clear that D was not going to be asked to give evidence this week. The judge repeatedly emphasised that the burden was on C to prove serious harm, in Stage One, so there wouldn’t be any evidence required from D that she could be questioned on.
The judge itemised what these 5 days were about:
- Some initial dispute about the alleged slander and whether the person who heard it was needed as a witness.
- What was the “natural and ordinary meaning” of the words used in the written material, and was this defamatory, i.e. did it tend to lower C’s reputation.
- Whether C’s reputation had suffered serious harm proved either by factual evidence of impact, or by inference (the test here is in a case we have written about, called Lachaux).
Disappointingly, Day 1 only resolved the slander issue – it was agreed that the person who heard the allegation did not need to be called as a witness. There may be some ongoing questions about ‘meaning’, and we didn’t get into C’s evidence of serious harm. I therefore don’t know exactly what the allegedly defamatory statements said nor how C will try to prove their consequences. It may not be possible to write further on this before we see the judgment, which the judge, Collins Rice J, told us will be reserved i.e. not handed down this week.
The hearing began late because there were connectivity problems in Court 13 and we eventually moved to Court 14. It also ended quite early and could only reconvene two days later because of train strikes.
Some observations on open justice
A couple of other people also sat in the public benches for most of the hearing. While I was in other parts of the building I noticed a lot of education activities going on, with small groups being given guided tours, law students being facilitated to attend etc. It was a little surprising to me that tourists and students popped in and out of Court 14 at various times during this hearing, seemingly out of general interest, as there was no indication outside of the nature of the case. For a few minutes, what looked like a family group including young teenagers quietly entered and sat at the back with me, then just as quietly moved on to resume their tour.
It crossed my mind to wonder whether all these visitors were aware that section 4 of the Contempt of Court Act 1981 poses strict restrictions on reporting from court, which is why I am being very careful what I write here. There were many ‘No Photography’ signs, but no notice saying ‘Do not tweet your opinions about what you hear parties saying’ etc. At one point in the hearing, D became quite distressed and I felt it was fortunate that there weren’t any casual visitors present at that moment. As she was sitting right down the front, she would not have known who was behind her anyway.
D’s advocate was primarily focused on trying to assuage her fears of being cross examined, in which he was to some extent successful, but because of the tech problems he was a disembodied voice, behind me, from the back of the room. I’m not sure what, if anything, he could see. C and D were both sitting at opposite ends of the front row. During the morning C had a ‘McKenzie friend’ who was also his son and a solicitor, but D had no one sitting immediately behind her during the lengthy period we were waiting. Her advocate understandably compared the inappropriate arrangements with the ‘special measures’ that complainants may be offered for protection in criminal and family courts.
My experience of this hearing was a far cry from the little I’ve seen of the televised theatricality of the Depp-Heard trial – everyone spoke politely and all the visitors were duly silent and respectful. I appreciated the opportunity to observe in person, especially when it was so easy compared to trying to access a family court hearing. However, the whole process must have been very unpleasant for D, extremely time-consuming for the judge (who had clearly spent hours on case management), and resource-heavy in a resource-starved environment. I counted seven different members of court staff involved for the day.
Overall, I was left with an uncomfortable feeling about a system designed to seek remedies to restore a wrongfully tarnished reputation being used to discuss matters of intimate partner violence in open court, at the instigation of an individual who was being accused of coercive control. Whether or not he is successful in his claim, there must surely be a more appropriate approach to such personal situations.
My understanding is that a defamation barrister is now being sought for D via We Are Advocate.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.
Thanks for reading!