Defamation & Communications Claims in Northern Ireland Update – New Pre-Action Protocol

A new Pre-Action Protocol has been issued by the Office of the Lady Chief Justice and comes into effect retrospectively from 4 October 2022.  It has been quite some time since this Pre-Action Protocol was updated, with the last Pre-Action Protocol in Defamation being issued on 14 April 2011.  Interestingly for Practitioners and Claimants in this area, the Pre-Action Protocol is now in respect of defamation and, significantly, other media and communications claims. It is not limited to defamation but includes other possible claims such as data protection, misuse of private information, breach of confidence and breach of privacy, and harassment.  The scope of the new Protocol is considerable.

This Protocol extends to both the jurisdiction of the High Court and the County Court.  Northern Ireland is often the jurisdiction of choice for these claims because the Defamation Act 2013 does not apply in Northern Ireland.  The Protocol now states that where the proposed Defendant is not domiciled in the United Kingdom, any facts or matters relevant to Northern Ireland being the most appropriate forum for the dispute, should be included in the Pre-Action correspondence.

The Protocol details the particulars required in the letters of claim for the various types of communication claims that are being issued.  These are mentioned at the start of this Article and to confirm are as follows:-

1. Defamation and malicious falsehood;
2. Misuse of private information and breach of confidence;
3. Data Protection;
4. Harassment, where the course of conduct includes publication.

All of these Letters of Claim require particulars of the claim in detail at the outset and are specific to the communication claim brought.

The Protocol states that no party can or should be forced to mediate or enter into any form of alternative dispute resolution. Of course, all parties should be aware of the potential costs sanctions for not engaging or exploring such possibilities and legal advice should be sought on any refusal to mediate.

Parties now need to comply with the Protocol in relation to all communication claims in both High Court and County Court, not just defamation actions in the High Court. Failure to comply could have costs sanctions. A claimant also needs to consider carefully if Northern Ireland is the correct jurisdiction to bring a claim.

Please do not hesitate to get in touch with our Dispute Resolution Team if you have any questions in relation to this new Pre-Action Protocol and communication claims.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.