CA-2024-001499 - [2025] EWCA Civ 1321

I agree that, for the reasons given by Warby LJ, the judge was wrong to find that the tweets published by Mr Blake, Mr Seymour and Ms Thorp did not cause serious harm to Mr Fox. I give this short judgment because we are allowing an appeal against the judgment of the judge below on the issue of serious harm, so far as Mr Fox’s counterclaims are concerned, and against the judge’s assessment of damage suffered by Mr Blake and Mr Seymour.

As Lord Sumption made clear when giving the judgment in the Supreme Court in Lachaux v Independent Print Ltd [2019] UKSC 27; [2020] AC 612 (with which Lords Kerr, Wilson, Hodge and Briggs agreed) it is permissible to make findings of serious harm based on: (1) the scale of the publications; (2) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux; (3) that there were likely to have come to the attention of others who either knew him or would come to know him in the future; and (4) the gravity of the allegations themselves. This appears from paragraph 21 of Lachaux and this did not involve taking the impermissible approach taken by the Court of Appeal in the same case whose interpretation of section 1(1) (considering whether a statement had a tendency to cause serious harm) had not given effect to the statutory language used.

In Lachaux the Supreme Court confirmed that the repetition rule continued to apply after the coming into force of the Defamation Act 2013. The repetition rule is to the effect that a statement that someone else had made a defamatory statement, which is then repeated, is treated as making a direct statement to the same effect as the reported defamatory statement, see paragraphs 22 and 23 of Lachaux.

In Lachaux the Supreme Court also confirmed what is known as the Dingle rule, taken from Dingle v Associated Newspapers Ltd [1964] AC 371. This rule is that a defendant cannot rely in mitigation of damages on the fact that similar defamatory statements have been published about the same claimant by other persons. Evidence of damage to the claimant’s reputation done by earlier publications of the same matter is legally irrelevant to the question of what damage was done by the particular publication which is the subject of the proceedings. Lord Sumption noted that the rule had been criticised, but he confirmed that it continued after the Defamation Act 2013, see paragraphs 22 and 24 of Lachaux. Lord Sumption also pointed out that the practical impact of the Dingle rule had been mitigated by section 12 of the Defamation Act 1952, which permitted a defendant to rely in mitigation of damage on certain recoveries from other parties and by the Civil Liability (Contribution) Act 1978, but those statutes did not affect the operation of Dingle on the “serious harm” test. The continuing application of the rule in Dingle has been confirmed by the Supreme Court in Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21; [2025] AC 945, see in particular paragraphs 109 and 112.

What can be said for the Dingle rule is that it means that a claimant about whom a defamatory statement has been published will not be prevented from vindicating their reputation because earlier defamatory statements to the same effect had been made. It is apparent that the judge’s approach to the issue of causation of serious harm failed to respect this rule, for the reasons given by Warby LJ in paragraph 79 above.

I also agree that the judge made legal errors in finding that the tweets did not cause harm to Mr Fox’s relationship with his agent or cause harm to his acting career, because the judge did not apply the correct test of causation at all material parts of the assessment. It is not possible to be confident that if the judge had applied the correct test the finding of fact would have been the same. The issue of whether the tweets did cause that harm either to his relationship with his agent or cause harm to his acting career must be remitted to be determined in the High Court on the facts. This also means that the defences of honest opinion, on the part of Mr Blake and Mr Seymour, and the defence of truth on the part of Ms Thorp, will all need to be determined by the High Court.

I agree that the judge was right to find that Mr Fox’s tweets about Mr Blake and Mr Seymour caused serious harm for the reasons given by Warby LJ. I agree, however, with Warby LJ that the awards of damages of £90,000 to each of Mr Blake and Mr Seymour were manifestly excessive. The judge was right to find that Mr Fox’s tweets justified a substantial award of damages to both Mr Blake and Mr Seymour. The judge, however, could not have had proper regard to the effect of the steps taken by Mr Fox after his publication of the original defamatory tweet, as identified by Warby LJ in paragraph 119 above, which must have resulted in significant mitigation of the harm. The judge also made the errors of approach identified in paragraphs 120 and 121.