Rare action that is hard to prove: Keith Mathieson explains the background and pitfalls of the little-used legal process of slander

SLANDER cases are rarely started and even less frequently reach court. It is an unusual coincidence that two cases should have been before the courts in as many weeks, the Wraith decision following hard on the heels of John Patten's public apology to Birmingham's education chief.

The last jury award for slander was pounds 150,000 - reduced to pounds 50,000 on appeal - against Dr Alanah Houston who, in front of patients, had called her male colleague a groper. Lady Foster, wife of Sir Norman Foster, the architect, failed to convince a jury last year that she had been 'slandered by conduct' after a customs officer had escorted her through a concourse at Heathrow in a manner which she said would have meant to everybody that she was being arrested for a serious offence.

The distinction between libel and slander is that a libel must be in permanent form (eg, written or broadcast) whereas slander is transitory - the spoken word, conduct or gestures. The practical difference is that damage is presumed in libel, but has to be proved in slander, though that rule is subject to exceptions for certain kinds of allegation, including, as in the Wraith case, any imputation that someone is suffering from an infectious disease.

Historical accident appears to be responsible for the distinction between libel and slander which is unknown in Scotland and has been widely criticised. In 1975 a committee of experts recommended its abolition. That the distinction still exists may be partly due to fear that removing the requirement to prove actual loss might encourage a flood of 'garden wall' slander actions. That fear is misplaced. Most slander actions never get off the ground because of the difficulty of proving what was said in the first place.

Keith Mathieson is a libel specialist with the London solicitors, Oswald Hickson, Collier & Co.

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