Part XV: Defamation Actions

108. Pre-action protocols for defamation actions

Claimants in defamation actions must comply with the pre-action protocol set out in Appendix F before commencing Court proceedings. All parties are required to comply in substance and spirit with the terms of the protocol. A breach by one party will not exempt the other parties in the action from complying with the protocol so far as they are able to do so.

In exercising its discretion as to costs, the Court will consider whether the protocol has been complied with. If non-compliance with the protocol has led to unnecessary costs, the Court may make the following orders:

an order disallowing a defaulting party his costs, or some part of his costs, even if he succeeds in the action; (b) an order that the defaulting party pay the other party or parties their costs of the proceedings, or part of those costs; and (c) an order that the defaulting party pay those costs on an indemnity basis.

The Court will consider whether the protocol has been complied with when exercising its discretion in determining the amount of interest payable, and may make the following orders as it thinks fit:

an order awarding a successful party who has complied with the protocol interest from an earlier period; and (b) an order depriving a successful party who has not complied with the protocol interest in respect of such period as may be specified.

Where there are good reasons for non-compliance with the protocol, the Court will not impose any sanction against the defaulting party.