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Further 'judicial direction' given on meaning of serious harm under defamation laws, says expert

Courts in England have given further guidance on when statements can be said to have caused or be likely to cause 'serious harm' under defamation laws, an expert has said.15 Jan 2016

Media law specialist Imogen Allen-Back of Pinsent Masons, the law firm behind Out-Law.com, highlighted a recent High Court ruling as the latest in a growing list of case law on how 'serious harm' should be interpreted under the 2013 Defamation Act.

Under the Act, defamation claims can only be pursued if a statement caused, or is likely to cause, serious harm to the reputation of the claimant. In the case of "bodies trading for profit", serious harm is defined as harm that caused, or is likely to cause, serious financial loss.

His Honour Judge (HHJ) Moloney QC, sitting as a High Court judge, was ruling in a trial of a preliminary issue that forms part of a broader dispute between a recruitment company, Nourish Training, and a former employee, Sam Theedom.

In the case the judge was considering the parties' submissions on meaning and whether or not, on the balance of probabilities, statements made in emails sent by Nourish Trading and one of its managers had caused serious harm to Theedom's reputation. HHJ Moloney QC said that it was his view that the serious harm test had been satisfied, in a decision that means that a full trial on the defamation claims made by Theedom can go ahead.

The judge said: "[Theedom] has persuaded me, on the balance of probability, that the publication of these emails has caused harm to his reputation of a sufficient degree of seriousness to pass the threshold set by [section 1 of the Defamation Act]. Beyond that bare finding I should not go, given the possibility of a future damages hearing before another judge and very likely on rather different evidence."

Allen-Back of Pinsent Masons said that there is now amassing "some much needed judicial direction" on the meaning of serious harm under section 1 of the Defamation Act 2013.

"HHJ Moloney QC’s recent decision includes a useful summary of nine points of principle derived from the recent case law," Allen-Back said. "The decision also confirms a ruling last year by Mr Justice Warby over defamation claims brought by aerospace engineer Bruno Lachaux against three media organisations in which the judge held that a claimant’s case on serious harm could be largely inferential."

In the case before him HHJ Moloney QC said the statements made by the recruitment company "raise an inferential case for serious harm to reputation" that required rebuttal by the business.

The judge assessed the rebuttal evidence that had been presented. He said that Theedom had not suffered "demonstrable financial loss" from the recruitment company's actions but confirmed that the Defamation Act 2013 does not require "pecuniary loss" for an individual to prove they have been defamed.

The judge said that few recipients of Nourish Training's emails had "manifested hostility to [Theedom's] face" but he did not accept that this implied that no harm had been caused to his reputation.

In reaching his decision HHJ Maloney QC also took into account the fact that the recruitment company has not withdrawn, corrected or apologised for the emails it sent about its former employee, meaning that Theedom had nothing to show to anyone who might raise the allegations in order to vindicate his reputation. Allen-Back said an apology had been a key determining factor in the decision of Cooke v MGN in which the issue of serious harm was assessed for the first time since the new Act came into force.

"Interestingly, contrary to the view of Mr Justice Warby in the Lachaux case, HHJ Moloney QC expressed some doubt about whether issues regarding serious harm should be dealt with by way of a preliminary issue trial, as he said these were becoming increasingly costly due to the amount of evidence being adduced," Allen-Back said.

"Instead, he suggested that the Masters should be reluctant to direct a trial of a preliminary issue 'if the exercise is likely to involve a lengthy evidential dispute or to overlap with other factual issues arising later in the case'. He went on to say that 'if a routine practice develops of listing such preliminary issue trials uncritically, that is likely to increase the overall cost and delay of libel cases, which is the opposite of parliament’s clear intentions in passing [the section 1 provisions of the Defamation Act on serious harm]'," she said.

When considering the defamatory meaning of the statements Theedom had complained about, the judge considered eight points of established case law, one of which requires judges to look at what the meaning of statements is through the eyes of "the hypothetical reader". The hypothetical reader is "taken to be representative of those who would read the publication in question", according to the judgment.

In applying this point of law and looking at meaning through the eyes of the hypothetical reader, HHJ Moloney QC said "it is necessary to take into account the characteristics of the typical reader of this particular type of publication and … the circumstances in which he is likely to read it".