My Lords, for those of us who were involved in the Committee stage of the Defamation Bill, this is a surprising and exciting development on what might have been regarded as some of the more dry amendments that were then before the House. However, it is important—I declare an interest as a practising barrister with some experience of the law of defamation—that we bear in mind that this is an amendment to the Defamation Bill. It should not be thought that all claims by those who say they have been defamed result in full-scale trials. Thanks largely to the intervention of the noble and learned Lord, Lord Woolf, and the Civil Procedure Rules, and to initiatives by the noble and learned Lord, Lord Irvine, by way of protocols, much has been done to improve the way defamation actions are heard.
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I am sure that the House would like to know about the protocol that currently exists in relation to defamation. Parties are encouraged to,
“consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt”.
They may be,
“required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed … the Court must have regard to such conduct when determining costs”.
That is very much along the lines of the amendment, but the end of the protocol contains a very important proviso that says:
“It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR”.
As my noble friend Lord Lester pointed out, that is partly because of Article 6 of the convention. I appreciate that this amendment is to do with building blocks or stalking horses and so forth. Yet it is, I respectfully submit, contrary to the European Convention and out of synch with the law of defamation. It should be resisted.