Quote:
Originally Posted by Flyboy
That would be a very perilous enterprise for them, as the burden of proof is less. They would have to; a) proof that they did not behave they way in which they were accused and b) that the defendant's actions were the cause of their lack of trade.
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You have this all back to front and upside down. If they were to commence libel proceedings against Tazi, it would be with regard to the things
she said about
them, and therefore for
Tazi to defend herself using any of the range of defences set out in the Defamation Acts. She would most likely have to make her defence by claiming that her statements were the truth, in which case she would have to prove that they were. That would be tricky, because a court has already failed to find her truthful, and as you correctly point out the burden of proof is lower in a defamation case. That burden of proof, however, is working against Tazi, not for her.
What the the Vogelenzangs would in fact have to show is this:
A) That,
on the balance of probabilities, Tazi did in fact make certain claims about the Vogelenzangs behaviour;
B) That their standing in the eyes of the common man was reduced as a result.
The first point is certainly proven, and I see no problem with the basic cause-and-effect of the second point, certainly not at the level of proof required in the case. Your suggestion that they would have to prove "that they did not behave they way in which they were accused" is way off beam. In a libel action, the complainant effectively says, "you said some nasty things about me, now prove that you have the right to say them". It is not for the subject of libellous comments to prove that those comments are untrue. It is for the person who made the comments to prove that they
are true, or else the comments were reasonably made (for example, a defence of fair comment, although that would be unlikely to be relevant in this case).
Set against all of this, of course, is the fact that Tazi has the legal protection of qualified privilege to make the statements she did while in Police interview or on the stand at Court. Nothing she said in either of those contexts can result in a defamation claim, even if it were later shown to be a complete pack of lies. She could, on the other hand, be at risk of a charge of perjury (although I don't think that's likely here).
A libel action would be likely to fail firstly because Tazi made her claims in a privileged context. She may have repeated them outside of that context but the Vogelenzangs would have to prove that publication of those comments has taken place. If they did that, the action would then almost certainly fail at the second hurdle. There's little point denying that this has damaged their business, but it is clearly the court case that has damaged their business, not any unprivileged libel by Tazi.