Meeting the serious harm threshold in defamation claims: Claimants gets second bite of the cherry

In the case of Tinkler v Ferguson & Ors [2019] EWCA Civ 819, the Court of Appeal provided some much-needed clarification on whether a claimant is able to demonstrate by evidence at trial that a defamatory statement has caused or is likely to cause serious harm to his/her reputation after the Court has declined to draw an inference of serious harm at an interlocutory stage based on the gravity of the allegation.  The guidance from the Court of Appeal indicates that a claimant should be given this opportunity.

In the seminal case of Lachaux v Independent Print Ltd [2017] EWCA Civ 1334 the Court of Appeal stated that if a meaning is found by the court to be seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm.  This decision paved the way for claimants to surmount the serious harm threshold in section 1(1) of the Defamation Act 2013 at an interlocutory stage without the need for evidence (indeed evidence is not permitted at a meaning hearing).

Whereas there could be no doubt that a case in which an inference of serious harm is drawn should be allowed to proceed, the question arose in cases where the Court did not draw such an inference as to whether evidence of serious harm could subsequently be relied on to satisfy the s.1(1) threshold (or whether the claim had effectively failed at that hurdle).  Mr Justice Nicklin indicated it could.   In Morgan v Associated Newspapers Ltd [2018] EWHC 1725, for instance, he stated:-

“If the Claimant is unable to rely upon the inference of serious harm, he would need to prove that the Article, in the wording of s.1(1), "has caused" serious harm to his reputation. That would be a matter of evidence at trial.”

However, Mr Justice Warby, the Judge in charge of the Media and Communications List, appeared to disagree.  In Sube v News Group Newspapers Ltd [2018] EWHC 1234, he stated:-

“If the words fall short of conveying a seriously harmful defamatory imputation, no amount of evidence can make up the deficiency.”

On this issue, the Court of Appeal in Tinkler have preferred Mr Justice Nicklin’s approach.  Lord Justice Longmore, giving the leading judgment, stated:

“..in agreement with the judge, that an inference of serious harm cannot be drawn. The result of that is that, if Mr Tinkler wishes to pursue his defamation claim by reference to the single defamatory meaning found by the judge, he will have to demonstrate by evidence that the Announcement has caused or is likely to cause serious harm to his reputation.”

Thus, the Court of Appeal has found that evidence could make good a claimant’s case on serious harm where the Court has refused to draw an inference.

Given this decision, there ought to be little to deter a claimant who has brought an action for libel in respect of a serious allegation from inviting the Court to draw an inference of serious harm at any hearing where the court has already been asked to determine the meaning of the words complained of (which happens frequently in libel claims).   As the authorities have made clear, serious harm is evaluated having regard to the seriousness of the imputation conveyed by the words used: coupled, where necessary or appropriate, with the context in which the words are used.  As stated above, this assessment does not call for evidence, and there is no need for extensive submissions from either side on the issue.  If the claimant fails at this stage, then it is now clear that they will have a second chance to establish serious harm has been caused or is likely to be caused with recourse to evidence.

Click here to find out how Brett Wilson LLP defamation solicitors can assist you if you have been defamed or accused of defamation.