Defamation

Don't expect a windfall from a defamation action

By AdvocateDaily.com Staff

Former war reporter Arthur Kent’s $250,000 legal cost award is a reminder that plaintiffs should never enter defamation actions in hopes of a big payday, says Toronto defamation lawyer Brian Radnoff.

Kent had asked a judge for $1.2 million to cover the costs of his eight-year legal battle over a negative 2008 newspaper article written about him while he was running for office at the legislature in his home province of Alberta.

A 22-day trial in the case ended with a $200,000 damages award in Kent’s favour after the judge found he was defamed in a piece by then-Postmedia columnist Don Martin.

“For a 22-day trial, $250,000 in legal costs is not a bad result, but it’s definitely not a great result. It’s near the lower end of what you would expect for a trial of that length,” explains Radnoff, a partner with the Toronto office of Dickinson Wright. “For plaintiffs in Canada, a defamation claim really has to be a matter of principle. If you want vindication, that’s fine. But you can’t be in it for the money.”

Martin’s article played on Kent’s "Scud Stud" nickname picked up during his coverage of the Gulf War for NBC, alleging he had been labelled a “dud” on the campaign trail, but the writer admitted in court that he had got that part of the story wrong.

However, the judge did not find any malice on the part of Martin or his publisher, a fact Radnoff says may have served to limit the awards for both damages and costs. Even in a best-case scenario, he says only a handful of defamation plaintiffs have won more than $1 million in Canada’s legal history.

“I normally advise my clients that if you add your damages to your costs and you come out even on the financial side, then you’ve got a great result,” he tells AdvocateDaily.com. “That’s the way you’ve got to look at this type of action because there’s not going to a financial windfall if you’re successful.”

In a news release issued after the costs judgment, Kent expressed a similar sentiment: “I did not file and pursue these actions for monetary gain,'' he said. “I did it to reveal the truth and set the record straight.”

Radnoff says defamation actions are a risky proposition for claimants, especially if they go all the way to trial.

“If you don’t win, not only do you have to absorb your own costs, but you could also be on the hook for a fairly significant costs award yourself,” he says. “A good lawyer will advise you when you should settle the case. If they know what they’re doing, they should be pretty good at predicting what a judge will think.”

For defendants, libel actions are equally perilous, he adds.

“It’s a very expensive process. No news organization wants to lose, but it has a significant practical effect beyond the reputational damage,” Radnoff says. “When you’re a lawyer advising a news outlet, you have to exercise a degree of prudence about the advice you give to them. The defendant has to consider whether this is the hill they die on.”

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