Counter-Defamation: What to Do When the Other Side Makes a Claim Against You

Receiving a defamation letter or finding yourself named as a defendant in defamation proceedings is alarming — but it does not mean you will lose. UK defamation law includes robust defences, and many claims against defendants are resolved without proceedings ever reaching court. This guide explains what to do if a defamation claim is made against you.

Don't Panic — But Do Act Immediately

The most important thing to do upon receiving a letter of claim or pre-action correspondence is to take it seriously and respond promptly. Ignoring a defamation letter will not make the claim go away — it will simply mean that the claimant can proceed to issue court proceedings without any warning, and the court will view your failure to engage in pre-action correspondence as unreasonable, potentially affecting your costs position.

Equally, do not respond substantively to the claimant directly without first taking legal advice. Anything you say in response — particularly any admission, explanation, or attempt at justification — can be used against you in subsequent proceedings. An improperly-worded response can inadvertently damage your position.

Understand What Is Being Alleged

Read the letter of claim carefully. A properly-drafted pre-action letter under the Defamation Pre-Action Protocol should identify:

• The specific words complained of.
• The natural and ordinary meaning attributed to those words by the claimant.
• Why the claimant says those words are defamatory.
• The alleged harm caused.
• What remedy the claimant is seeking (removal, apology, compensation).

If the letter is vague or does not clearly identify the statement complained of, your solicitor may respond by requesting this information before engaging on the substance of the claim.

Key Defamation Defences Available to You

The Defamation Act 2013 provides several statutory defences. A claim against you will not succeed if you can establish one of the following:

Truth (Section 2)

If the statement you published was substantially true, it is a complete defence to defamation. Truth is an absolute defence — the claimant's distress or embarrassment at having the truth exposed does not override it. Gather your evidence: documents, records, witness statements, or other material that supports the factual basis of what you said.

Honest Opinion (Section 3)

If the statement was opinion rather than fact, honestly held, on a basis of fact that existed at the time, the honest opinion defence may apply. The statement must be identifiable as opinion (not presented as established fact), and it must be opinion you genuinely held. This defence protects critical reviews, commentary, and evaluative statements — but not fabricated opinions or statements of fact dressed up as opinion.

Publication on a Matter of Public Interest (Section 4)

If the statement was made on a matter of public interest and you reasonably believed that publishing it was in the public interest, this defence may apply. This is the "responsible journalism" defence, extended beyond professional journalists. Courts assess whether you behaved responsibly in publishing the statement, considering factors such as whether you contacted the claimant for comment.

Qualified Privilege

Statements made in certain contexts carry qualified privilege — a defence that protects the publisher unless the claimant can prove malice (meaning the statement was made dishonestly or for an improper purpose). Examples include complaints to regulatory bodies, employment references, and statements made in the ordinary course of professional duty. If you made the statement in such a context, qualified privilege may protect you.

Your Pre-Action Response Strategy

Once you have taken legal advice, your solicitor will help you formulate a pre-action response. The options typically include:

• Denial: If the claim is without merit — for example, the words do not bear the meaning the claimant ascribes to them, or do not meet the serious harm threshold — your solicitor may advise a response challenging the basis of the claim.
• Offer to make amends: Under sections 2–4 of the Defamation Act 1996, you can make a formal "offer to make amends," involving a published correction and apology and an offer to pay compensation. If accepted, it ends the claim. If refused and you proceed to rely on the offer as a defence, it is a powerful mitigating factor and limits your costs exposure.
• Negotiated settlement: In many cases, early settlement — involving removal of the content, a private or published apology, and sometimes a modest payment — is the most pragmatic resolution. The claimant bears the costs burden in defamation proceedings and many are not interested in the cost and exposure of a full trial.
• Defence and counterclaim: In some cases, the claimant's own conduct provides a basis for a counterclaim — for example, if the claimant made their own false statements about you in the course of the same dispute.

The Costs Risk for Both Sides

UK defamation proceedings are expensive for both parties. A claimant funding the case on a conditional fee agreement (no win no fee) still faces the risk of a failed claim — and the defendant's costs may be significant. A defendant who loses at trial faces not only damages but also a substantial costs order.

This mutual costs exposure creates strong incentives to settle, and the great majority of UK defamation disputes are resolved without a full trial. Early legal advice significantly improves your ability to achieve a good settlement and avoid unnecessary costs.

Related reading: Defamation Act 2013 explained | How defamation cases settle out of court | Qualified privilege in UK defamation law