Session 2012 - 13
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Other Bills before Parliament



Defamation Bill

commons DisAgreeMENTS and REASONS

[The page and line references are to HL Bill 41, the bill as first printed for the Lords.]

After Clause 1


Insert the following new Clause—


“Arbitration Service for defamation and related civil claims against members of


Independent Regulatory Board



The Lord Chief Justice shall establish a Defamation Recognition





Schedule (Recognition Commission) makes provision relating to the


Defamation Recognition Commission.



The Defamation Recognition Commission shall certify bodies as


Independent Regulatory Boards in accordance with the criteria in Schedule


(Recognition Commission).



An Independent Regulatory Board shall provide a recognised arbitration


service as set out in Schedule (Specialist Arbitration Service).



A court shall take into account when awarding costs and damages whether


either party, claimant or defendant in a dispute has chosen not to use the


recognised arbitration service of an Independent Regulatory Board.



A court shall award costs under subsection (5) on an indemnity basis unless


the interests of justice require otherwise.



A court may order a successful party to pay all the costs of proceedings if


such party has unreasonably refused to use an available recognised


arbitration service.



A court awarding in its judgment exemplary damages where a defendant


is guilty of a flagrant breach of a defendant’s rights can also take into


account whether—



a claimant refused to use a recognised arbitration service;

HL Bill 9655/2





a defendant refused to use or join a recognised arbitration service.”




The Commons disagree to Lords Amendments Nos. 1, 15 and 16 for the Reason set out at




Insert the following new Clause—


“Non-natural persons



This section apples to an action for defamation brought by—



a body corporate;



other non-natural legal persons trading for profit; or



trade associations representing organisations trading for profit.



The permission of the court must be obtained in order to bring an action to


which this section applies.



The court must strike out an application under subsection (2) unless the


body corporate can show that the publication of the words or matters


complained of has caused, or is likely to cause, substantial financial loss to


the claimant.



Non-natural persons performing a public function do not have an action in


defamation in relation to a statement concerning that function.”




The Commons disagree to Lords Amendment No. 2 for the following Reason—


Because it is unnecessary and inappropriate for the Bill to make special provision


restricting the bringing of defamation claims by non-natural legal persons.

After Clause 17


Insert the following new Schedule—




Recognition Commission



This Schedule provides the method by which the Recognition


Commission may be constituted for the purposes of this Act.



Appointments to membership of the Recognition Commission will be


made by the Lord Chief Justice.



An individual may be appointed only if he or she has consented to act


and is—



a present or former Civil Service Commissioner;



a present or former holder of high judicial office (within the


meaning of Part 3 of the Constitutional Reform Act 2005); or






a person who in the opinion of the Lord Chief Justice is suitable


for appointment having regard to their reputation and


experience and is independent of all political parties and all


media organisations.



The Recognition Commission must consider whether an Independent


Regulatory Board body has—



sufficient guarantees of independence, including suitable


independent, fair and transparent procedures for appointments


and funding,



suitable functions, powers, personnel and resources to ensure


that it can fulfil its principal objectives effectively,



an appropriate standards code,



an arbitration service able to deal with defamation and related


civil claims, effective processes for upholding standards,



an efficient procedure for handling complaints, and



is open to all news publishers.



The Recognition Commission must review a recognised regulator at


least once during the period of two years beginning with the date of


certification, and at intervals of not more than three years after that.



If having reviewed a body the Recognition Commission is no longer


satisfied that it complies with paragraph 4, the Recognition Commission


must consult the body and give directions designed to ensure that the


body complies with paragraph 4 within a reasonable time.



If the body fails to comply with directions given under paragraph 6 the


Recognition Commission must revoke the body’s certification.



The Recognition Commission shall not be involved in the regulation of


any subscriber to an Independent Regulatory Board.”




The Commons disagree to Lords Amendments Nos. 1, 15 and 16 for the Reason set out at




Insert the following new Schedule—




Specialist Arbitration Service



An Independent Regulatory Board must provide an Arbitration Service


in relation to defamation and related civil legal claims drawing on


independent legal experts on a cost-only basis to the subscribing





The arbitration rules must provide for a fair, quick and inexpensive


process, which is inquisitorial and free for complainants to use (save for


a power to make an adverse order for the costs of the arbitrator if


proceedings are frivolous or vexatious).






The arbitrator shall have the powers set out in section 48(3) to (5) of the


Arbitration Act 1996.



The arbitrator must be able to hold hearings where necessary or dispense


with them where not necessary.



The process must include provision for frivolous or vexatious claims to


be struck out at an early stage.”




The Commons disagree to Lords Amendments Nos. 1, 15 and 16 for the following Reason—


Because the draft Royal Charter on Self-Regulation of the Press and provisions in the


Crime and Courts Bill and the Enterprise and Regulatory Reform Bill will be sufficient to


implement the recommendations in Lord Justice Leveson’s report.



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Revised 17 April 2013