A local councillor in South Wales has settled a defamation action brought against him, after he became the subject of the first defamation case brought in the United Kingdom involving a comment made on Twitter. The settlement, which included costs being paid by the defendant of almost twenty times the value of the damages paid, also highlighted the topical and controversial issue of CFAs and success fees in the context of defamation claims
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A local councillor in South Wales has settled a defamation
action brought against him, after he became the subject of the
first defamation case brought in the United Kingdom involving a
comment made on Twitter. The settlement, which included costs
being paid by the defendant of almost twenty times the value of the
damages paid, also highlighted the topical and controversial issue
of CFAs and success fees in the context of defamation claims.
The defendant, Caerphilly Plaid Cymru councillor Colin Elsbury, had
mistakenly said in a tweet on local polling day in June 2009 that
another councillor, Eddie Talbot, had needed to be removed from the
polling station by the police. Although he corrected his mistake in
another tweet over a week later, Councillor Talbot brought an
action against Mr Elsbury for defamation. After a hearing at the
High Court in Cardiff, a settlement was reached.
As part of the settlement, Mr Elsbury agreed to pay damages of
£3,000, and agreed to give Mr Talbot a written apology and to
reactivate his Twitter page to publish the apology. Mr
Elsbury also agreed to pay a figure reported to be close to
£50,000 in respect of Mr Talbot's costs, a significant
portion of which was attributable to a large success fee contained
within the no-win, no-fee conditional fee agreement
("CFA") in place between Mr Elsbury and his
solicitors.
CFAs have recently been criticised by the European Court of Human
Rights ("ECHR") in MGN Limited v United Kingdom,
where the ECHR held that the requirement for the losing party in
defamation litigation to bear the cost of a success fee was
disproportionate and a violation of the right to freedom of
expression enshrined in Article 10 of the European Convention on
Human Rights.
However, the recoverability of CFA success fees was already under
threat in the UK before the ECHR's decision as a result of the
Jackson costs review, which was recently the subject of
consultation. Further, the recently published Government
consultation paper on the draft Defamation Bill refers to the issue
of CFAs and the possible abolition of success fees. The draft
Bill itself also attempts to deal (albeit indirectly) with the
issue of reducing costs associated with defamation proceedings, by
attempting to clarify the law in this area, and thereby reduce the
length of, and necessity for, proceedings. To read our recent
Law-Now on the draft Defamation Bill, please click here.
All individuals and companies who are embracing new forms of social
media should be aware that despite the ease and informality of
Facebook and Twitter, the law of defamation, and the risks of
extremely costly and time-consuming proceedings being brought,
still apply. A throw-away 140 character message might
actually have a much more serious consequence than the author could
ever have imagined.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 23/03/2011.