Defamation lawyers had hoped that the Supreme Court’s judgment in Lachaux v Independent Print Ltd & Anor [2019] UKSC 27 (see our blog here) would provide some much-needed clarity on how section 1 of the Defamation Act 2013 should be interpreted. Prior to Lachaux preliminary issue trials had become something of a bête noire for judges in the Media and Communications List who found themselves having to condemn the disproportionate expense of such trials as well as drawing to the parties’ attention the potential for wasteful duplication of evidence and cross-examination of witnesses if the action proceeded to trial. Following Lachaux, preliminary issue trials to determine serious harm have largely disappeared, but whether a particular publication has caused or is likely to cause serious harm remains a vexed issue for practitioners in many cases, especially where real-world adverse consequences flowing from the publication complained of are absent, or very limited, thereby raising the prospect of an application by a defendant for summary judgment.
This article reviews several decisions following Lachaux where defendants have sought summary judgment on the basis that there is no real prospect of the claimant demonstrating they have suffered serious harm to their reputation nor is such harm likely and there are no other compelling reasons why the claim should be allowed to proceed to trial. In some cases, the defendants sought additionally or, in the alternative, to strike out the claim on the basis that the pleaded case, insofar as it related to serious harm, was inadequate.
Unless a defendant can obtain summary judgment, they are often faced with the invidious binary options of defending the matter until trial or settling a claim which might otherwise be disposed of at trial on the basis that the claimant’s evidence of serious harm does not meet the necessary threshold (or because a substantive defence succeeds).
What does section 1 of the Defamation Act 2013 say and how can the test be met?
Section 1 provides that:-
“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2)For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
At paragraph 14 of Lachaux, Lord Sumption stated:-
“section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”. The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is “likely” to be caused. In this context, the phrase naturally refers to probable future harm.”
At paragraph 21, Lord Sumption continued:-
“…The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome.”
How should a defendant challenge a claimant’s case on serious harm?
As stated above, in the years immediately following the introduction of section 1 of the Defamation Act 2013, defendants who wished to dispute the existence of serious harm could apply for a preliminary issue trial in the hope that a finding in their favour would dispose of the claim without requiring them to incur very substantial costs. It was the Court of Appeal in Lachaux which effectively sounded the death knell for preliminary issue trials on serious harm with the following words:-
“Courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on a dispute as to whether serious reputational harm has been caused or is likely to be caused by the published statement.
A defendant disputing the existence of serious harm may in an appropriate case, if the circumstances so warrant, issue a Part 24 summary judgment application or issue a Jameel application: the Jameel jurisdiction continuing to be available after the 2013 Act as before (albeit in reality likely only relatively rarely to be appropriately used).”
The Supreme Court in Lachaux did seek to impugn this practice which has now been incorporated into the latest version of the King’s Bench Division Guide (2023) at paragraph 17.34.
Pursuant to Civil Procedure Rule 24.2, the Court may grant summary judgment against a claimant if it considers that (i) the claimant has no real prospect of succeeding on the claim or issue and (ii) there is no other compelling reason why the case or issue should be resolved at trial.
Caselaw
Al Sadik (aka Riad Tawfiq Mahmood Al Sadek aka Riad Tawfik Sadik) v Sadik [2019] EWHC 2717
In Al Sadik, the Defendant made an application to dismiss the Claimant’s claim for libel on three separate grounds, including that the Claimant had no real prospect of showing that the words in question were defamatory of him pursuant to section 1 of the Defamation Act 2013. The Defendant was the Claimant’s sister-in-law and she had accused him of committing perjury, amongst other things, in a WhatsApp message sent to a group containing 34 family members. The Defendant contended that it was unrealistic to suggest that the Claimant had suffered serious harm in circumstances where the Claimant had failed to identify any adverse consequences flowing from the message complained of. The Claimant’s case was, in other words, purely inferential and the Defendant submitted that whilst this approach was in principle permissible, it was very difficult to get off the ground save for in cases of substantial publication (e.g. publication in a national newspaper). Whilst the judge accepted that there was “no direct evidence of adverse impact” and, indeed, “positive evidence of the opposite”, he was unwilling to grant the Defendant’s application because he was not satisfied that the Defendant had demonstrated that the Claimant had no real prospect of showing that the statements complained of had caused serious harm to his reputation or that such harm was likely. In reaching this decision, the judge relied on the same factors the Court identified in Lachaux, namely, the meaning of the words, the situation of the Claimant, the circumstances of publication and the inherent probabilities. The judge placed particular reliance on the ‘grapevine effect’, in respect of which he said, “the inherent probabilities in this case, certainly at this stage, are that there will have been some people who have become aware of the Messages and concluded that the Defendant would not have made such widespread and serious accusations against her sister's husband unless there was some substance to them.”
Davidoff & Ors v (i) Dhir Doshi and (ii) Thomas Govan [Claim No. QB-2021-001113 and QB-2021-001115] (unreported)
In Davidoff, the Claimants (which included two companies) complained about various Google reviews, the thrust of which were that the Claimants were guilty of fraudulent and dishonest conduct. On the Defendants’ own case, their reviews were available on Google for three months and during that time the Claimants failed to gather “any significant evidence” to show that they had been read by third parties. However, the judge refused to accept this submission and dismissed the Defendants’ application, relying, in the same way as the judge in Sadik, on the factors identified by the Supreme Court in Lachaux, including that the reviews had been posted on Google – “a well-known, publicly available resource by which any potential client of the corporate Claimants could read the reviews.”. Interestingly, the two corporate Claimants also survived the Defendants’ application even though they had not produced any evidence of financial loss (despite promising to provide a schedule of such loss, which did not materialise). Mr Justice Warby (as he then was) accepted in Gubarev v Orbis Business Intelligence [2020] EWHC 2912 that financial loss could be inferred but indicated that wide publication and the seriousness of the allegations complained of are not likely to be enough: “More evidence, and a more detailed examination of the context, will normally be required.”
In Webb, the Defendant issued an application for an order that the particulars of claim be struck out in their entirety on four separate grounds, including because they were embarrassing for want of particularity in respect of serious harm. The Claimant complained about seven posts the Defendant had made in a thread of 382 comments and replies from various individuals on a Facebook group called “Dodgy Horse Dealers”, which appear to have accused the Claimant, a retired social worker, of having falsified documents to have children removed from parents.
In support of the Claimant’s case on serious harm, she invited the Court to draw an inference of substantial publication based on the fact that the Facebook group on which the statements complained of were published had approximately 16,000 members on 12 May 2020 and that the statements remained online and accessible to all members. The judge roundly dismissed these as a legitimate “platform of facts” from which to draw an inference of substantial publication because:-
“…not all of the members of the Group will be active. Not all of them will read every thread. Not all of them will read every post even on the threads they do read, particularly given the ramshackle and lengthy nature of the thread in question. A thread is unlikely to be read by anyone when it has ceased to be current, even if (which I am told is not, in fact, the case) it remains online and accessible.”
Having found the plea of substantial publication to be inadequate, the judge also found that the other relevant particulars did not enable the Court to draw an inference of serious harm and made clear that serious harm could not be “established by reference to the gravity of the defamatory statements alone”.
Haviland v The Andrew Lownie Literary Agency Ltd & Anor [2022] EWHC 1688 (QB)
The Claimant formerly worked for the First Defendant, a literary agency. The claim was brought in respect of five emails the Second Defendant (the owner of the First Defendant) had sent to a website named Reedsy.com which enables individuals associated with the publishing industry to promote their services. The Court found the emails contained an imputation that the Claimant had knowingly made false and misleading statements on his webpage on Reedsy’s website. The Defendants’ application for summary judgment was predicated on, inter alia, the fact that the emails had been received by just two individuals who did not want anything to do with the Claimant’s case, which meant that there was no evidence in respect of the publishees’ reactions before the Court, nor was such evidence likely to be forthcoming as proceedings progressed. The judge accordingly had no hesitation in granting summary judgment in the Defendants’ favour, commenting that it would be “wholly unfair” to allow the case to proceed.
Soriano v Societe D'exploitation De L'hebdomadaire Le Point SA & Anor [2022] EWHC 1763 (QB)
In Soriano, the Claimant, a British-Israeli businessman, domiciled in England, brought a libel claim in respect of an article published in French in the online edition of Le Point, which was held to bear the following natural and ordinary meaning:-
“The Claimant is a spy or a spook and there are grounds to investigate whether he has directly or indirectly used surveillance, military methods or data interception technology in his work; whether he was involved in the surveillance of police officers investigating President Netanyahu; and whether he was involved in Russia's attempt to interfere in the 2016 election in the USA.”
The Defendants disputed the Claimant’s case on serious harm and invited the Court to grant summary judgment in their favour. However, the judge declined to do so on the basis the circumstances of publication provided a legitimate basis or starting point for an inferential case which was not easy to dismiss as obviously unreal:-
“ (a) the apparent status of Le Point as a serious and influential current affairs magazine with edited content of potential relevance to such a due diligence system, (b) the proposition that the allegations about the Claimant themselves fall into that category even at Chase level 3, (c) the case he raises and evidences for being a UK-based businessman with UK-based interests capable of being impacted by an international due diligence system of this sort, (d) the evidence of wider UK dissemination, in particular via the financial sector's due diligence network, and to specific publishees capable of seriously recalibrating the Claimant's reputation and acting on that to his detriment, and (e) publication to 94 paying UK subscribers probably including corporate subscribers”
Hayden v Family Education Trust [2023] EWHC 950 (KB)
In Hayden, the Claimant complained about a tweet published by the Defendant on 10 October 2022 which, according to the Claimant, accused her of being guilty of the criminal offence of harassment. The Defendant had 2,399 followers. The tweet was deleted within 40 minutes and the only direct evidence of the actual impact of publication was the reaction of another Twitter user who the judge found considered the Defendant’s allegation about the Claimant to be unsubstantiated, which meant that the Claimant had no prospect of showing that the statement complained of had caused serious harm in the mind of that Twitter user. Mr Justice Nicklin granted the Defendant’s application for summary judgment for the following reasons:-
“44. …The Tweet was available, at best, for 40 minutes before it was deleted. Therefore, of whatever number of publishees in whose timeline the Tweet would have appeared, the actual number who would have read it would have been much smaller. A Twitter user would have to have looked at their timeline within the 40 minutes that there was available the Tweet to read before it was deleted. Of that smaller subset of people who actually read the Tweet before it was deleted, for the purposes of serious harm to reputation, the Claimant must also show that those publishees understood the Tweet to refer to her. An inferential case of serious harm to reputation, based on a grave allegation made against a named individual in a mass circulation newspaper, may well have a real prospect of success. That is because, in that case, there is a solid basis on which the court can draw the necessary inferences of fact. Here, the Claimant's inferential case is devoid of reality, even making several assumptions in her favour.
45. I cannot and do not rule out that it might be possible to prove that the Tweet was read by one or more people in the short time it was available and that that relevant person understood the Tweet to refer to the Claimant. As I have noted above, I am mindful that serious harm to reputation is not simply a numbers game, but ultimately such serious harm must be proved by evidence. In this case, the Claimant has not adduced any evidence of that publication of the Tweet that caused any harm to her reputation. As noted, the case is entirely inferential.
46. In her submissions today, the Claimant argued that she would have the opportunity to put in evidence at trial. That will not do. The scope of the facts upon which the Claimant intends to rely in support of any claim of serious harm to reputation must be set out in the Particulars of Claim. The Claimant has rested her case, as she accepted today, on a wholly inferential case. She has actually had the opportunity, in answer to the summary judgment application, to put in any evidence in support of her claim that the publication of the Tweet has caused or is likely to cause serious harm to reputation. She has not presented any evidence to the Court on this issue. The Claimant cannot resist the Defendant's application for summary judgment by suggesting that some evidence may emerge during the litigation. There is no real prospect of anything emerging from the Defendant's disclosure on the issue of publication or serious harm that might come to the aid of the Claimant. Equally, the Claimant cannot point to a witness who, for example, although s/he has refused to assist by providing a witness statement, could nevertheless be served with a witness summons.
47. Standing back, it is fanciful to suppose that there is any likelihood that the Claimant's case on the issue of serious harm to reputation is going to improve if this case were permitted to continue. She has put forward her best inferential case and, on an assessment of the underlying facts, it is hopeless. The Claimant is not entitled to progress further with the claim in the hope that some actual evidence of serious harm to reputation may turn up.”
Amersi v Leslie & Anor [2023] EWHC 1368 (KB)
In Amersi, the Claimant, a businessman and founder of the Conservative Friends of the Middle East and North Africa Limited, brought a libel action against Charlotte Leslie, a former MP, and a company in which Ms Leslie is the managing director. The Claimant complained of the First Defendant’s publication of several documents to various individuals which, he said, contained 22 distinct imputations that were defamatory of him, including that he posed a risk to the national security of the UK. On 11 November 2022, the Defendants applied to strike out the claim on three principal grounds which included that the Claimant had advanced an “unparticularised and composite plea of serious harm” which failed to establish serious harm in respect of each discrete publication complained of. Mr Justice Nicklin accepted this argument, holding that the original Particulars of Claim “failed to disclose a proper pleading of serious harm to reputation” because the composite case “did not distinguish between the publications alleged to have caused the harm”. Nicklin J also rejected the Claimant’s application to amend his Particulars of Claim to improve his case on serious harm and declined to provide him with a further opportunity to amend this pleading because there was no direct evidence before the Court demonstrating that the publications complained of had caused or were likely to cause serious harm to his reputation in the minds of the publishees and there was no realistic prospect that such evidence would turn up at trial.
Where are we now?
Caution must be exercised in extrapolating general principles from the decisions referred to above, since the circumstances of publication will invariably be different in each future case. Nevertheless, the following observations can be made:-
- Claimants will need to think very carefully about whether direct evidence of adverse impact is required in response to an application for summary judgment. Where a serious allegation has been published to a very wide audience, such evidence is unlikely to be necessary. As Mrs Justice Collins Rice noted in Sivananthan v Vasikaran [2022] EWHC 2938 (KB), “the authorities on establishing serious harm by inference alone tend to feature mass-circulation publications so that evidence of individual impact may be both genuinely unreachable and inherently probable at the same time.” Collins Rice J contrasted this with “publication to a closed and small WhatsApp group where there is little or no evidence of adverse impact in the chat itself or from any member” which she said does not “easily facilitate an inference of serious harm.” On the face of it, these observations are difficult to reconcile with the decision in Al Sadik, where each of the publishees was contactable and the judge accepted that there “no direct evidence of adverse impact” and “positive evidence of the opposite”.
- What helped to keep the claim alive in Al Sadik was the fact that the judge accepted the Claimant’s case that there was “evidence of dissemination beyond the WhatsApp group to people who do not know the Claimant. [The judge] regard[ed] it as an arguable inference that there will be some among that population, who do not know the Claimant, and in whose eyes he has suffered serious reputational harm”. Accordingly, the ‘grapevine effect’ can be important in resisting an application for summary judgment, although as Collins Rice J stated in Sivananthan, “the fewer the original publishees, the more intense the scrutiny needed of their probable potential or propensity for onward publication.”
- Claimants who rely on a wholly inferential case on serious harm must ensure that the pleaded case on publication is not too speculative. In a social media context, it is not necessarily enough, particularly following the decisions in Webb and Hayden, for a claimant to invite the Court to draw an inference of substantial publication based on the fact that a statement complained of has been published to a group or profile with many followers. Absent clear evidence to show that such followers in fact read the statement complained of, the Court is likely to conclude, as the respective judges did in Webb and Hayden, that the actual number of publishees is much lower than the number of people to whom the statement complained of was theoretically accessible.
- Whilst not strictly relevant to the issue of serious harm, defendants will need – following the decision in Hayden - to be wary about bringing applications seeking an order that the Court strikes out a claim as an abuse of process (pursuant to the principle in Jameel) in conjunction with a summary judgment application disputing the claimant’s case on serious harm. This is because in Hayden Nicklin J stated, “it will be a rare case where the court will conclude that a case has a real prospect of success, but yet strikes it out as an abuse of process under the Jameel jurisdiction after concluding that there is no way in which the proceedings can be conducted at proportionate cost to what is at stake.” Nicklin J rejected the Defendant’s Jameel argument in Hayden and, consequently, made a modest reduction to the costs awarded to the Defendant.