Bringing a Defamation Claim
Bringing a defamation claim under the Defamation Act 2013: the serious harm test, one-year limitation, the pre-action protocol, defences and remedies.
Quick answer
To sue for defamation in England and Wales you must show the statement's publication has caused or is likely to cause serious harm to your reputation — and a body trading for profit must show serious financial loss (Defamation Act 2013, s.1). You have one year from the date the cause of action accrued to issue a claim (Limitation Act 1980, s.4A), and under the single publication rule later publication of substantially the same statement is treated as accruing at first publication. Before issuing, send a Letter of Claim under the Pre-Action Protocol for Media and Communications Claims — setting out the statement complained of, the date of publication and the remedies sought — and consider ADR, which the court expects. The main defences are truth, honest opinion and publication on a matter of public interest; if you win, the court can award damages, order the defendant to publish a summary of the judgment (s.12) and order website operators to remove the statement (s.13).
Overview
Defamation law (libel and slander) protects reputation, but the Defamation Act 2013 sets a deliberately high bar: a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant, and a body that trades for profit must show serious financial loss. Claims are also subject to one of the shortest limitation periods in civil litigation — one year from the date the cause of action accrued. Before issuing proceedings, claimants are expected to follow the Pre-Action Protocol for Media and Communications Claims and to consider alternative dispute resolution.
Who Can Use This Process
- A statement about you has been published
- Its publication has caused or is likely to cause serious harm to your reputation (Defamation Act 2013, s.1)
- If you are a body that trades for profit, the harm has caused or is likely to cause serious financial loss
- Less than one year has passed since the cause of action accrued (Limitation Act 1980, s.4A)
Step-by-Step Process
Check the serious harm threshold
Section 1 of the Defamation Act 2013 provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. For a body that trades for profit, harm is not 'serious harm' unless it has caused or is likely to cause the body serious financial loss. If you cannot evidence serious harm, the claim fails at the first hurdle.
- Gather concrete evidence of harm: lost business, abuse received, people who thought less of you
- Trivial or barely-read publications rarely clear the threshold
Check limitation — you have one year
Under section 4A of the Limitation Act 1980, no action for libel, slander or malicious falsehood may be brought after the expiration of one year from the date on which the cause of action accrued. Under the single publication rule in section 8 of the Defamation Act 2013, later publication of the same or substantially the same statement is treated as having accrued on the date of the first publication — republication does not normally restart the clock, unless the manner of the subsequent publication is materially different.
- Note the date of first publication immediately — online material is often older than it looks
- The court has a discretion to disapply the time limit under s.32A Limitation Act 1980, but do not rely on it
Preserve the evidence
Capture the statement complained of and, if known, the date of publication — the Pre-Action Protocol requires these details in your Letter of Claim. Take dated screenshots or copies of the publication, the surrounding context, and evidence of who read it and what harm followed.
- Save URLs, screenshots and archive copies before content is edited or deleted
- Keep records of complaints, lost contracts or messages showing reputational damage
Send a Letter of Claim under the Pre-Action Protocol
The Pre-Action Protocol for Media and Communications Claims applies to all cases involving claims in defamation, misuse of private information, data protection law or harassment by publication. Your Letter of Claim should include your name, the statement complained of and (if known) the date of publication, the nature of and basis for the entitlement to the remedies sought, and details of any funding arrangement in place.
- Be precise about the exact words complained of and the meaning you say they bear
- State the remedies you want: apology, correction, removal, damages, undertakings
Consider the response and engage with ADR
The defendant should provide a full response to the Letter of Claim as soon as reasonably possible, and should explain if they cannot respond within 14 days. Although ADR is not compulsory, the court will expect the parties to have considered it — a party's refusal to engage with ADR might be considered unreasonable by the court and could lead to that party being ordered to pay additional costs.
- Mediation or a negotiated apology-and-correction can achieve more, faster, than a trial
- Keep a paper trail showing you proposed or considered ADR
Assess the defences you are likely to face
The 2013 Act codified the main defences. Truth (s.2): it is a defence to show that the imputation conveyed by the statement is substantially true. Honest opinion (s.3): the statement was a statement of opinion, indicated the basis of the opinion, and an honest person could have held it — defeated if the defendant did not actually hold the opinion. Public interest (s.4): the statement was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed publishing it was in the public interest.
- If the sting of the statement is substantially true, the claim will very likely fail
- Comment pieces clearly flagged as opinion are hard to attack
Issue proceedings if the dispute is not resolved
If pre-action correspondence and ADR fail, issue proceedings within the limitation period. Since the Defamation Act 2013 (s.11) removed libel and slander from the statutory lists of jury actions, defamation claims are tried by a judge without a jury unless the court orders otherwise. Throughout, the protocol requires the parties to act reasonably to keep costs proportionate to the nature and gravity of the case.
- Media and communications claims are subject to specific court rules (CPR Part 53) — take advice before issuing
- Consider whether the defendant could actually pay damages and costs before committing
Remedies if you win
The court can award damages and, under section 12 of the Defamation Act 2013, may order the defendant to publish a summary of the judgment — the wording and placement to be agreed by the parties or settled by the court. Under section 13, the court may order the operator of a website on which the defamatory statement is posted to remove it, or order distributors who were not the author, editor or publisher to stop distributing, selling or exhibiting the material.
- Think about what actually restores your reputation — removal and a published correction often matter more than damages
Important Warnings
The one-year limitation period is among the shortest in civil law, and republication of substantially the same statement does not normally restart it.
A company or other body trading for profit cannot sue unless the publication has caused or is likely to cause it serious financial loss.
Refusing to engage with ADR might be considered unreasonable by the court and could lead to an order to pay additional costs.
Defamation litigation is costs-intensive: the protocol expressly requires parties to keep costs proportionate to the nature and gravity of the case, and an unsuccessful claimant faces paying the defendant's costs.
Useful Links
Frequently asked questions
- What is the serious harm test?
- Section 1 of the Defamation Act 2013 provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. For a body that trades for profit, harm is not 'serious harm' unless it has caused or is likely to cause the body serious financial loss.
- How long do I have to bring a defamation claim?
- One year. Under section 4A of the Limitation Act 1980, no action for libel, slander or malicious falsehood may be brought after the expiration of one year from the date on which the cause of action accrued. The court retains a discretion to disapply the limit under s.32A, but you should never plan on it.
- Does every repeat of the statement online restart the clock?
- Normally no. Under the single publication rule in section 8 of the Defamation Act 2013, a subsequent publication of the same statement, or one substantially the same, is treated as having accrued on the date of the first publication — unless the manner of the subsequent publication is materially different (for example, much greater prominence or extent).
- What defences could defeat my claim?
- The three main statutory defences are: truth — the imputation conveyed is substantially true (s.2); honest opinion — a statement of opinion indicating its basis, which an honest person could have held (s.3); and publication on a matter of public interest, where the defendant reasonably believed publishing was in the public interest (s.4). Peer-reviewed academic statements and protected reports carry their own privileges.
- What do I have to do before going to court?
- Follow the Pre-Action Protocol for Media and Communications Claims, which covers all claims in defamation, misuse of private information, data protection law or harassment by publication. Send a Letter of Claim identifying the statement complained of and the remedies sought; the defendant should respond as soon as reasonably possible and explain if unable to do so within 14 days. The court will expect both parties to have considered ADR.
- What can the court order if I win?
- As well as damages, the court may order the defendant to publish a summary of the judgment (Defamation Act 2013, s.12), and may order the operator of a website on which the defamatory statement is posted to remove it, or order others to stop distributing, selling or exhibiting the material (s.13).
- Will my case be heard by a jury?
- Almost certainly not. Section 11 of the Defamation Act 2013 removed libel and slander from the statutory lists of actions to be tried with a jury in the Senior Courts Act 1981 and County Courts Act 1984, so defamation claims are now tried by a judge alone unless the court orders otherwise.