The first substantive judgment on the 'serious harm' test under s.1 of the Defamation Act 2013 has been handed down by Mr Justice Warby.
In a preliminary issue ruling, it was held that the requirement of serious harm or the likelihood or serious harm must be proved on the balance of probabilities. The legal presumption of damage in defamation actions is no longer applicable. Whilst serious harm may be proven by inference, the relevant evidence may or may not justify such an inference.
A number of issues were decided by Warby J in this judgment, but this article will only consider the issue of serious harm. The other issues will be discussed in a subsequent article.
This case concerns the publication of three articles (in The Independent, Huffington Post and Evening Standard), which, in summary, alleged that the claimant was a wife-beater and had falsely accused his ex-wife of kidnapping their young son. The Claimant sued each publication for libel.
In a trial of preliminary issues (i.e. before the substantive trial of the matter), Warby J was required to decide whether the publication of the words complained of satisfied the serious harm requirement under s.1 of the Defamation Act 2013 (the "Act"). Specifically, it was required to be determined what a claimant must prove in order to satisfy the requirement. Was the claimant required to prove: (a) that the offending words have a tendency to cause serious harm to his reputation; or (b) that serious harm to the claimant's reputation has in fact been caused or is likely to be caused?
The Defendants' arguments
The Defendants argued that, when drafting the Act, Parliament deliberately departed from the common law approach of determining only whether the words have a defamatory tendency. The Defendants submitted that different language would have been used by Parliament if it was its intention to allow claims to proceed provided that the allegation only had a tendency, or was inherently likely, to cause serious harm (e.g. it could have used 'substantial' instead of 'serious' or expressly used the word 'tendency').
The Claimant's arguments
The Claimant argued that s.1 of the Act did no more than adjust the existing definition of 'defamatory' and thereby raised the threshold test of seriousness identified in the case of Thornton v Telegraph (which held that a meaning is defamatory if it "substantially affects in an adverse manner the attitude of other people towards the claimant, or has a tendency to do so"). The existing law was to be and was otherwise undisturbed.
Warby J disagreed with the Claimant's interpretation. He held that Parliament clearly intended to do more than simply raise the bar from 'substantial' to 'serious'. The intention was that claimants should have to go beyond showing a tendency to harm reputation. Therefore, the claimant must prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of. Legal presumption of damage will no longer play any significant role in defamation claims.
This does not mean that the serious harm requirement is not capable of being satisfied by an inferential case, although this is dependent on the gravity of the allegation and the extent of readership and audience. Warby J gave the example of a well-known public figure who was the subject of the publication in the national media of an allegation of conspiracy to murder or a serious sexual crime. In those circumstances, the individual would patently not be required to call witnesses who read the publications to say that they thought worse of the claimant in order to establish a claim.
Despite the Defamation Act 2013 being in force for over 18 months, this is the first substantive judgment on the serious harm test.
The judgment observes that the test is a more significant hurdle for a claimant to clear in order to bring a successful claim than under the pre-existing law.
Two likely outcomes of the judgment are apparent. First, it is likely that issues of serious harm will be tried by way of preliminary issue, rather than incurring the expenditure of proceeding to full trial before being determined. Secondly, it is likely that a claim will no longer succeed where the meaning is a serious one, but the claimant's reputation in the eyes of those who read the allegation is not in fact harmed seriously (e.g. if the publication obviously lacked credibility).