It is always worth remembering that the vast majority of legal disputes do not end up going to trial, which in turn means that most do not get reported. In fact, most cases decided at trial, especially in the County court, don’t get reported either.
A feature of almost all cases that are settled is that the settlement terms will require all aspects to be confidential. Consequently, many fascinating situations and cases go unreported.
However, sometimes, claims are neither decided at trial or settled. Instead a claim is discontinued and this means if one or both parties decide to go public about it, they can, subject of course to being very careful about libel.
One such case which has been picked up by news reports in fact concerned alleged libel online.
There is a summary of what happened in the case on the defendants website – worth reading here. The whole issue of what we say online is very topical but this isn’t what really interested me about this case. For me, what’s really interesting is :-
- discontinued claim – the claimant discontinued his claim quite a way down the legal road, which is a quite unusual thing to do and only he can offer an explanation as to why. Having come so far with the claim, it is quite unusual to just abandon it. This is especially the case because, whilst costs are always technically in the discretion of the court, it is usually the case that with a discontinuance, the claimant will be ordered to pay the defendants costs.
- proportionality (or lack thereof) – whilst sometimes enforcing legal rights is about principle, this case is a prime example where the outcome – an order that the claimant pay the defendant’s costs of £82,00.00 (whether he pays may be another matter) plus his own costs, can realistically bear no proportion to the damage he believed had been done to his reputation.
- the claim seems to have backfired spectacularly – with respect to the defendant, Ms Kemp, who may have been active before this dispute arose, we doubt very much that she would have had her current number of twitter followers (8,863 as at today) if this case had not arisen. She and her business have also received a lot of publicity as a result of the case which may well be good for business. In contrast, the claimant has had his reputation called into question and that questioning, after the initial tweets which caused the claim, has been amplified by the press attention.
- funding of the defence – we can only speculate, but it must be somewhat likely that when the claimant stated his claim, he believed that Ms Kemp would be scared and might apologise and offer compensation. What in fact happened was that Ms Kemp received a lot of financial and other support to fight the claim. One interesting aspect is the costs order. On her website, Ms Kemp says that her defence was at least partially funded no win no fee. This may account for the £82,000.00 costs order. However, the website also says that part of her costs were funded by donation. If that’s the case, I’m not sure how the court took that into account as 3rd party funding of cases, without a formal contract making the receiving party liable to repay those costs as a loan, can prove problematic in terms of whether a paying party can then be liable for those costs
- wording of the tweet – the original tweet creating the issue in the case “called out” the claimant for not paying Ms Kemp’s invoice. I am speculating again but the tweet also inferred that the invoice was not paid because the claimant had cashflow problems. I would doubt that the bare complaint about not having been paid could be libelous, it was surely the opinion element.
Complaints are made about poor service and other aspects of many businesses online every day. The consensus now is that if your business receives such a complaint, you are best served by politely replying, stating that you will look into the issue, to take the heat out of the situation and show a willingness to look into concerns or complaints. No one wants these things, but none of us are perfect, so it’s vital to respond proportionately but also to deal with the issue if at all possible.
Hopefully, this case is a reminder both of the risks of what you say online, and being very sure of facts, but also of the risks of taking action, even if you are infuriated by what you consider an unacceptable or untrue comment about you. Proportionality is also worth bearing in mind – is your reputation really being damaged if the person making the comments about you has a small audience which is not your clients, on a social media channel which moves fast and is unlikely to appear against your name in a general online search about you ?
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