Defamation help needed

[BankFodder]

Do we know that no protocol is been followed? I had missed that but if that is correct then of course that will be helpful.

 

I think we need to know more from the OP and also to see the POC.

 

Also, I have sent the OP a direct email.

[cjcregg]

It's unlikely that the claimant would agree to the case being heard in the County Court, how would they get their costs paid if they won?

[BankFodder]

It doesn't matter if they agree or not. It's the strategy which counts.

[BazzaS]

It's unlikely that the claimant would agree to the case being heard in the County Court, how would they get their costs paid if they won?

 

Wouldn't that depend on the track, though?, with the most severe limitation on costs being in the small claims track.

 

Even if the claimant has chosen the amount claimed to try to be at the upper limit for the small claims track, the complexities of a defamation case mean it would be unlikely to be allocated to the small claims track even if it was started (by consent) in the County Court.

[BankFodder]

Small claims are not only based on the value of the claim. It is also a matter of the complexity of the case. A general rule is whether the case will take more than five hours. In any event, I would expect this kind of case to be allocated to the small claims track

[unclebulgaria67]

Reading back through the thread.

 

We need to know what pre action protocols the claimant followed before they issued the court claim.

 

We need to know the particulars of claim.

 

As the claim was issued in the High court, then the claimant would not need to seek consent to decide which court dealt with i.e reduce to County Court. Presumably there is a process to be followed where the defendant asks the High court to decide without hearing to transfer down to County court ?

[BankFodder]

If the complainants agreed then I think a transfer down to the County Court would be pretty well automatic.

 

On the question of enforcement of costs, if costs were awarded against either party then eventually there could be a transfer up (I imagine) to get enforcement by HCEO

[SuperVillain]

If the Claimant has failed to follow the Protocol, in my view this enforces the notion that the Claim is nothing more than vexatious.

 

However, Bazza's back to basics post is essentially the key points that the Claimant should include in the Defence.

 

Bankfodder mentioned harassment - anyone have any thoughts on the OP counter-claiming for harassment assuming the OP has kept evidence of the 'campaign' (S3 of the Protection from Harassment Act 1997)?

 

If the defamation claim is indeed vexatious, a legitimate counter-claim could put the frighteners on the Claimant...

 

Just an idea...

[BankFodder]

The term "vexatious" has a very specific meaning and does not apply here.

 

We really don't know enough about what has happened so far and how the claim has been dealt with to make any further valid comment on this. I'm very sorry that the OP doesn't appear to have come back again with any more information or reply to my direct email

[cjcregg]

If the Claimant has failed to follow the Protocol, in my view this enforces the notion that the Claim is nothing more than vexatious.

 

However, Bazza's back to basics post is essentially the key points that the Claimant should include in the Defence.

 

Bankfodder mentioned harassment - anyone have any thoughts on the OP counter-claiming for harassment assuming the OP has kept evidence of the 'campaign' (S3 of the Protection from Harassment Act 1997)?

 

If the defamation claim is indeed vexatious, a legitimate counter-claim could put the frighteners on the Claimant...

 

Just an idea...

 

I don't think the claimant is responsible for any harassment.

 

'' The complainant has not previously caused any major trouble. As I mentioned earlier, his partner has been a complete nightmare and is the one who has the convictions (public order offence and criminal damage to our property)''

[Haunter]

A claim for defamation must be brought within 1 year of the published statement complained of.

CPR Pre-Action Protocol For Defamation applies to defamation claims and the Claimant is expected to comply with the protocol before he commences with proceedings (before he files his claim to court).

 

There are statutory defences against defamation claims and they are provided under the following Act:

 

Defamation Act 2013

Statutory defences

 

Defences

2Truth

(1)It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

(2)Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.

(3)If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.

(4)The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.

3Honest opinion

(1)It is a defence to an action for defamation for the defendant to show that the following conditions are met.

(2)The first condition is that the statement complained of was a statement of opinion.

(3)The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.

(4)The third condition is that an honest person could have held the opinion on the basis of—

(a)any fact which existed at the time the statement complained of was published;

(b)anything asserted to be a fact in a privileged statement published before the statement complained of.

(5)The defence is defeated if the claimant shows that the defendant did not hold the opinion.

(6)Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion.

(7)For the purposes of subsection (4)(b) a statement is a “privileged statement” if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—

(a)a defence under section 4 (publication on matter of public interest);

(b)a defence under section 6 (peer-reviewed statement in scientific or academic journal);

©a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege);

(d)a defence under section 15 of that Act (other reports protected by qualified privilege).

(8)The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.

 

 

There has clearly been (and still is) a longstanding dispute between you and your neighbours, all the facts and circumstances to this should be set out in your Defence.

 

Based on what you have posted here, I think you and your family should try and get away to a better place, this is easier said than done I know, but I think you and your partner should give your serious consideration to moving to another area/county for yours and your family’s sake so as to protect your rights to live peacefully in your home.

 

Can you please post up the particulars of claim?

 

Thanks.

 

Haunter

[SuperVillain]

I don't think the claimant is responsible for any harassment.

 

'' The complainant has not previously caused any major trouble. As I mentioned earlier, his partner has been a complete nightmare and is the one who has the convictions (public order offence and criminal damage to our property)''

 

Good point!

[scarlettuk]

Apologies for apparently disappearing of the face of the earth. Family things took priority last night (joys of having children with additional needs!) and work has been busy today. Due to time constraints I have today put together and submitted a defence, which will at least prevent the claimant for going for a default judgement.

 

I am just putting the children to bed and will post POC and defence. Thanks for your patience, and again, sorry for appearing ignorant. x

[BankFodder]

Thank you, but please could you post these up in PDF format. – Single file multipage in proper order.

 

Also, I've sent you two emails. Have you received them?

[Haunter]

Having read his particulars and your defence against them, what you posted on your Face Book profile was true, I don't believe he will succeed with his claim!

 

 

Haunter

[Haunter]

The fact that his wife re-published the statement in question and shared it on her Facebook profile at a time when you had already removed it from your Facebook profile, makes his wife legally responsible for his claim! His cause of action complained of is against his wife!

 

Seeing that you only have 2 local residents as contacts on your Facebook profile, you can argue that only 2 others may have seen the questioned statement before you removed it, therefore his claim for damages in the region of £10k is excessive and unjustifiable, in any event, the statement you posted and then removed was a statement of fact.

 

Upon his wife re-publishing the said statement to his and her family and friends, after it had been removed, and those persons expressing their views about what they think about said statement, which most likely caused him to bring this claim, has no legal basis, because:

The statement is true;

The statement is clear and unequivocal, it is not ambiguous;

and

You are not legally responsible for what his friends and family think of the said statement of fact, which his wife published to them, and how they wish to interpret it, he has clearly been riled up by their comments which underpinned his bringing the claim.

 

Anyone visiting the Facebook website would have to know your name in order to view your profile, so 2 billion viewers would not have seen the said statement!

 

His claim is vexatious. If he doesn’t like someone posting a picture of him looking out his window at children who are playing naked in their garden, then he shouldn’t be looking out his window looking at children playing naked in their garden.

 

Such behaviour is unnatural and would cause concern to any good and reasonable parent!

 

Haunter

[cjcregg]

I’ve just responded to your email BF, thanks.

 

Another try at uploading the docs...

 

The POCs have not been properly redacted and need to be removed. I've reported the post.

[honeybee13]

The POCs have not been properly redacted and need to be removed. I've reported the post.

 

Thank you. OP, I've hidden your post for now.

 

HB