Griffin Law

Beware Trolls!
The Slander of the Defamation Act 2013
Once upon a time, there were three billy goats gru . e trolls, however, were shielded by the very system designed to protect the goats which were known to be antiquated, costly and unfair. e nasty internet trolls cherished these qualities for it enabled them to bash, bully and bamboozle the poor innocent goats at will. We at Gri n Law are tenacious pioneers of the law in the developing eld of internet harassment. We are well aware that the law in this eld is antiquated, costly and unfair and have been nding innovative ways to protect both individuals and companies from internet trolls and alike.

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Tel: +44 1732 525923 Fax: +44 1732525924 Email: justice@gri nlaw.co.uk Web: www.gri nlaw.co.uk

Summer, 2013

Quarterly Newsletter Summer, 2013

In this edition
1 Beware Trolls! e Slander of the Defamation Act 2013 Jacksons Case for Reform: Not all Bl a ck or White End of a success fee era Damages Sharing the Success

4 5

On 25th April 2013 the Defamation Act 2013 (the Defamation Act) received royal assent. It was enacted, amongst other things, to protect internet users from internet trolls. Because of its stormy passage through Parliament, there are still a number of uncertainties that need clarifying. Perhaps once the accompanying regulations are published What we, at Gri n Law, are coming clari cation will follow. We can only across more and more is internet wait in anticipation. providers will not reveal the details of the tormentor

In combatting trolls, there is now a complaints procedure that website operators must o er to victims if they want an internet post to be removed or the identity of the author revealed. at said, in reality it would take a brave website operator to reveal the name or IP address of the author of a post without a court order compelling it. Furthermore, how far will a website operator go when exercising its right to remove a post before he burns all his bridges with the freedom of speech campaigners?

C o n t i n u e d on pG. 2

Grin Law is a niche litigation rm of innovative, proactive, tenacious and commercially-minded lawyers who guarantee to share the risk of litigation with every client.

Grin Law is a niche litigation rm of innovative, proactive, tenacious and commercially-minded lawyers who guarantee to share the risk of litigation with every client.

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unless, in not doing so, they are committing a criminal act. e Defamation Act does The Slander not carry any criminal sanctions, so a victim will of the still need recourse to the Defamation courts for the issuing of Act 2013 an injunction preventing the tormentor from C o n t i n u e d from pG. 1 posting elsewhere and an entitlement to claim for damages for the injury to feelings and/or nancial loss the posts have caused.

Summer, 2013

Beware Trolls!

requirement for companies to show that the defamatory publication caused or is likely to cause serious nancial harm. As such the threat of libel proceedings has a lesser weight than before because unless a company can show it can overcome this additional hurdle, such threats are simply empty threats and, like all empty threats, carry no weight at all. Gone now is the archaic presumption there will be a trial by jury. However, this is no big change for it simply codi es a practice that judges have been trending for a number of years now.

Recourse to the courts can be costly for victims because e Defamation Act, although a positive move in there is not an abundance of solicitors out there who can bringing the law up to date, does little to protect the o er protection at a competitive and commercial rate. victims of internet trolls or limit the risk of them having to seek recourse through litigation. erefore the systems Gri n Law has a wealth of experience in helping victims intended to protect the billy goats gru but which in fact in obtaining these injunctions and claiming damages shield their tormentors are still known for being costly, through inexpensive means. We share the risk of litigation but perhaps not known for being quite as unfair and/or with clients by o ering a reduced rate in our fees, only antiquated as before. claiming our normal rate if we are successful. Sadly for us all, the trolls have not been tossed out into Freedom of speech campaigners have embraced other the cascade. ey are still lurking, waiting and being new changes to the law of defamation, especially the protected behind the smoke screen of the World Wide new serious harm threshold. ey claim the law prior Web. to 2013 was unfair and claimant-friendly. Now there is a

Reporting on Twitter what has previously been revealed in the public domain is not always acceptable. During the recent trial of Jeremy Forrest, the victims name was discussed by hundreds on Twitter. However, legislation protects her as a minor and therefore anybody discussing proceedings on Twitter should consider whether they are breaching the law themselves by doing so!

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t weet it?

Grin Law is a niche litigation rm of innovative, proactive, tenacious and commercially-minded lawyers who guarantee to share the risk of litigation with every client.

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Summer, 2013

Jacksons Case Not all for Reform B l ack or Whi t e

The Jackson reforms came into e ect on 1st April 2013. Recommended by Lord Justice Jackson, these reforms are the biggest change in the legal landscape for civil litigation since 1998. Jacksons main remit was to deal with the costs of high volume personal injury cases, but his reforms bring with them risks for other commercial litigation in which Grifn Law specialises. Unless the courts change their spots, the reforms may end up increasing rather than reducing the cost of litigation, just as the Woolf reforms did before them. is article summarises key changes and explains the implications for our clients. successful claimant, by way of payment for their legal services. Gri n Law will generally not litigate in this manner. consider their disclosure documents earlier and more carefully. A Part 36 O er is a formal o er to settle a claim which can be made by a Claimant or a Defendant at any stage, a powerful tactic when used correctly in a litigation strategy. Failure to accept one can have signi cant consequences if the recipient fails to beat the o er at trial. Following the Jackson Reforms, a Defendant failing to beat a Claimants Part 36 o er must pay an extra 10% on damages, as well as the usual cost penalties. Witness statements may be limited by the courts. New rules increase the courts power to control numbers of witnesses and issues to be considered. ey also limit the length of witness statements. It is hoped that this will see o repetitive and irrelevant witnesses. Expert witness costs will be better monitored and potentially curtailed. Parties must give costs estimates for expert evidence early in the case, obtaining competitive quotes to justify those costs to the court.

Paying for Litigation

e Conditional Fee Arrangements (CFAs) we use have changed. At Gri n Law we guarantee to share the risk of litigation and used to get paid at a reduced hourly rate plus a success fee if we won your case, which was recovered from the losing party. However, since the Jackson reforms these success fees can no longer be recovered from the other party. Similarly, premiums for a er the event (ATE) legal expenses insurance policies are no longer recoverable from losing parties. is means on winning, Gri n Laws clients using an ATE policy must meet any agreed success fee and/or insurance premium from their own funds. Contingency fees, or Damages Based Agreements (DBAs), are being introduced. For the rst time solicitors can conduct litigation in return for a share of the damages awarded to a

rule will be used by the courts to promote the idea that the cost of bringing a case should be proportionate to the damages at stake. In addition, lawyers must submit and update costs budgets for cases brought before certain courts which will cap recoverability from losing litigants. is is meant to promote transparency and accountability in limiting costs, although at Gri n Law we understand that at times our clients commercial demands outweigh concerns over costs.

Managing Your . Costs A new proportionality

Managing the Process e changes

in the process by which parties exchange evidence relating to their case mean Gri n Law must le and exchange information for you at a very early stage. Standard disclosure will not be the usual direction: judges can instead tailor disclosure from a menu of di erent directions. It is hoped that in this way parties w i l l

raises the question as to whether another revolution in civil procedure was actually needed and, if so, whether the Jackson approach is the correct one. Is it still sustainable to have a single set of civil procedure rules applicable to cases of all sorts or has the time come to develop di erent rules - perhaps even di erent court structures - for di erent types of litigation?

More Reform Ahead? All the above

Grin Law is a niche litigation rm of innovative, proactive, tenacious and commercially-minded lawyers who guarantee to share the risk of litigation with every client.

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Summer, 2013

End of a success fee era

One of the most notable changes to a ect Gri n Law clients in the Jackson Reforms relates to how legal fees are managed, particularly in relation to Conditional Fee Agreements (CFA) and A er-the-Event (ATE) insurance. We use both of these arrangements as part of our guarantee to share the risk of litigation with our clients. CFAs used by Gri n Law allow clients to pay their solicitors at a discounted rate, with an upli in fees if the claim is successful. ey also used to allow for a success fee to be claimed from the losing party. ATE insurance is used as a method of protecting claimants against the nancial e ects of losing in litigation and having to meet an opponents legal costs. Before 1 April 2013, both CFA success fees and ATE insurance premiums were recoverable from an opponent if a claimants case was successful. Lord Justice Jackson felt that this procedure allowed claimants e ectively to litigate risk free. If they were to win the case they could claim the costs back from the defendant, but if they were to lose then their costs would be minimised under the CFA and their opponents costs covered by their ATE insurance. Changes imposed by the Jackson Reforms mean that success fees are no longer recoverable in the case of every CFA, nor are ATE insurance premiums taken out a er 1 April 2013. e exceptions to the abolition of the recovery of ATE insurance premiums include those in relation to insolvency proceedings (at least until April 2015) and proceedings such as defamation, misuse of private information and harassment. ey are also still recoverable in clinical negligence cases to cover the costs of expert reports. However, there are still signi cant bene ts to taking out ATE insurance. Claimants now need to assess their chances of success in some detail before deciding whether to fund the ATE premium themselves, or alternatively waive insurance altogether and risk paying the full costs of their case should their claim turn out to be unsuccessful.

e Jackson reforms have shi ed the burden of funding to the claimants, effectively acting as a bar to claimants with limited funds and riskier cases. On the other hand, for defendants these changes are welcomed. It means that clients placed under stress and pressure in defending a claim are not faced with the extra nancial worry that a successful claim against them could far exceed their own costs if their case proves unsuccessful and success fees and ATE premiums are added. is is of particular bene t to Gri n Law clients who may face a large number of claims against them, for example banks or insurance companies, as claimants with low-value low-merit claims will be less to obtain ATE Gri n Law is a likely niche litigation rm of insurance. innovative, proactive, tenacious and commercially-minded

People think that once a limited company is incorporated the owners and directors of that business are free from serious potential liability. at is a fallacy. If directors fail to conduct themselves in accordance with certain provisions of the Insolvency Act or Companies Act they could face civil and even criminal sanctions. It is important that you are advised properly about this and Gri n Law is always ready to help with that.

lawyers who guarantee to share the risk of litigation with every client.

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Summer, 2013

Damages Sharing the Success

As mentioned elsewhere in this newsletter, the Jackson Reforms have introduced a new Damages Based Agreement (DBA) as an option for funding litigation. It has been suggested that with their introduction, we are moving towards a more American-style contingency fee system. Under a DBA, the solicitors fees for the winning party are taken from the damages pot awarded if certain predetermined success criteria are achieved. If the case is lost, the only payments for which the losing party are liable are disbursements (such as court fees) and expenses. A DBA, is of bene t to clients who may not have access to funds on a daily basis. With a DBA there is no obligation on the client to pay costs to the lawyer for the duration of the legal process. A client can simply pay the fees at the end if the case has been a success. is suggests that with a DBA, there is greater exibility and a scope for more claims to be pursued by wronged litigants otherwise excluded by the potential costs of the Court process. If so, this nally gives e ect to the old Woolf reforms, which focused on access to justice. It is considered that there are disadvantages to DBAs. It is argued there is a greater incentive for lawyers to pursue a claim funded by a DBA. However, if nancial recovery from the losing party is relatively low, the percentage of that recovered sum awarded to the legal representatives under the DBA could well be signi cantly less than that which would have been payable by the client on a normal retainer basis or pursuant to a Conditional Fee Agreement. For now, DBAs are more likely to be suited to lawyers generating high volumes of process-driven personal injury claims than the sort of innovative and bespoke litigation that Gri n Law o ers. Operating under a DBA can also mean a client is not required to commit to the process nancially at the outset and may fail to consider the consequences of winning until the matter is over. Disputes with their advisers may then arise. For example, a claimant may win and then decide against paying over a proportion of damages that have been awarded prompting further litigation. Such a claimant may seek to allege that solicitors have not given proper guidance in that they have not provided su cient information when advising on the e ect of a DBA. We expect to see a rise in professional negligence claims resulting from this. Gri n Law guarantees to share the risk of litigation with our clients through the use of Conditional Fee Arrangements (as described elsewhere in this newsletter) but DBAs do not represent truly mutual risk in the same sense of all parties having skin in the game.

Gri n Law is a niche law rm. We guarantee to share the risk of litigation with every client. Our team of innovative and commercially- minded lawyers are skilled, proactive and tenacious.

We represent household names and international businesses in claims ranging from a few thousand pounds to many millions. Our ability to issue a er-the-event insurance policies means that our clients can litigate disputes knowing that they do not have to worry about paying their opponents costs. We look forward to serving your needs.

C ON N EC T

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Grin Law is a niche litigation rm of innovative, proactive, tenacious and commercially-minded lawyers who guarantee to share the risk of litigation with every client.