QB-2022-002867 - [2025] EWHC 2558 (KB)

The Claimant’s Pleading

The first limb of the Defendant’s challenge submits the Claimant’s pleading discloses no reasonable ground for bringing the claim. Miss Skinner KC, leading counsel for the Defendant, says I can be certain the claim as pleaded is bound to fail, because, with reference to the threshold test for serious reputational harm, the pleadings either do not set out a coherent statement of facts, or set out facts which, even if true, are incapable of amounting to a claim of serious reputational harm recognisable as such. Two matters in particular are relied on.

Meaning

Because the trial of preliminary issues and the hearing of this application to dispose of the claim were conducted at the same time, the amended particulars of claim I am looking at do not reflect the single natural and ordinary meaning of the words as determined. It is usual following a determination of defamation preliminary issues for the parties to be given an opportunity to amend their pleadings to reflect that determination. The Claimant in this case has not yet had (or sought) an opportunity further to amend her particulars of claim. But Mr Stables, counsel for the Claimant, maintained the pleading of serious harm remains essentially sound in any event.

The preliminary issues determination necessarily impacts the Claimant’s pleading nevertheless. The decided meaning of the words complained of, and their inherent defamatory tendency, fell some way short of the Claimant’s contentions. That affects paragraphs 14.2 and 14.3 in the first place. The preliminary issues as determined do not support the pleaded extrapolated meanings that the Claimant would render the Defendant ‘homeless’, that she was ‘untrustworthy’ or that her ‘personal integrity as an honest member of society’ had been impugned. It also affects paragraph 14.8. There is no basis in the preliminary issues determination for a pleading that ‘the publication encouraged the readership to dissociate themselves from the Claimant’.

Paragraph 14.1 pleads ‘the seriousness of the allegations complained of’; that must now be understood in the determined terms that, in the context of a dispute between them which had divided their erstwhile mutual friends, and which in turn was now prompting the Defendant to reduce those with access to her Facebook account, the Claimant had been trying to deprive the Defendant of her home, and been telling lies about her. That is a more limited, and less intrinsically serious, allegation than that pleaded out. That is relevant not only to the coherence of the pleadings simply as they stand today, but also to the other objection Miss Skinner KC makes to them

The Serious Reputational Harm Test

Paragraph 4.2 of Practice Direction 53B requires a defamation claimant to set out in the particulars of claim ‘when, how and to whom the statement was published. If the claimant does not know to whom the statement was published or it is impracticable to set out all such persons, then the particulars of claim must include all facts and matters relied upon to show (a) that such publication took place, and (b) the extent of such publication’; and also ‘the facts and matters relied upon in order to satisfy the requirement of section 1 of the Defamation Act 2013 that the publication of the statement complained of has caused or is likely to cause serious harm to the reputation of the claimant’.

The principal criticism of the pleading of serious harm as advanced by Miss Skinner KC is that it fails to address the serious harm test properly or at all; it simply misses the target. There are three strands to this criticism.

The first is that the particulars of serious harm pleaded – that is, what they say about the factual impact of the words complained of – are incapable of addressing the serious harm test to the extent that they have to do not with the reputational impact of the publication on the minds of its readers, but with the Claimant’s own subjective reaction to the post. This criticism is levelled at paragraphs 15 to 17. Paragraph 15 pleads ‘enormous impact on the Claimant’. Paragraph 16 pleads the Claimant’s suffering ‘significant distress and anxiety’. Paragraph 17 pleads that the Claimant ‘has felt’ unable to visit the English village where the parties had both lived (the Claimant had emigrated to Italy some two years before the publication complained of).

I agree with Miss Skinner KC that these pleadings do not address the statutory test of serious reputational harm. The subjective reaction of a defamation claimant and any emotional or psychological harm suffered may go to the issue of quantum of damages in due course. But these paragraphs do not plead out serious reputational harm for the purposes of the statutory test. The test is an objective one, concerned with establishing the fact of impact on the minds of readers other than a claimant.

The second strand to Miss Skinner KC’s criticism is that the specific examples of serious harm advanced in the pleadings, if such they are, are not set out with adequate particularity or coherence. This criticism is levelled at paragraphs 13 and 14.7.

Paragraph 13 pleads that ‘multiple colleagues and friends of the Claimant who have not reacted to the post have contacted the Claimant to discuss the content of the post’. That is at least potentially relevant to the issue of extent of publication, which can have an important bearing on establishing harm caused (and is discussed in relation to the third strand, below). But if it is intended to advance a case that the contacts and discussions pleaded themselves amount to or are capable of directly evidencing serious harm, it is objected that they cannot do so as they stand. There is no pleading here that any of the colleagues and friends thought any the worse of the Claimant because of the post, and there is no necessary implication that they did.

Paragraph 14.7 pleads ‘the response of ‘Facebook Friends’ of the Defendant expressing support for the Defendant’s post and condemning the alleged behaviour of the Claimant’. The number of ‘reactions’ to the post on Facebook is already pleaded at paragraph 13 in relation to the issue of extent of publication. So paragraph 14.7 can be taken to plead the content of those reactions. But, says Miss Skinner KC, it does not on its face plead that they themselves amount to or demonstrate the causation or likely causation of serious reputational harm to the Claimant. It pleads a partisan reaction to the post – and, it must be understood, to the ensuing multi-party Facebook conversation of other reactions – in the context of what the post itself indicated was an established dispute between the Claimant and the Defendant and a declared intention by the Defendant to ‘unfriend’ those former mutual friends of the parties who had decided to side with the Claimant and against the Defendant accordingly. The post garnered supportive and partisan declarations from those who did not regard themselves as being in that camp, and that, says Miss Skinner KC, is the extent of this pleading. The ‘alleged behaviour of the Claimant’ is not even, in context, securely tied to the specific allegations of defamatory tendency.As such, this pleading does not address the serious harm test. It does not particularise any impact of the words complained of on the minds of this segment of readership and there is no necessary implication to that effect. I agree that the pleading of an unparticularised partisan response, and to the post in general (including its non-defamatory content, and others’ reactions) rather than the defamatory meaning, does not in itself address the serious harm test.

The third strand to Miss Skinner KC’s objection to the pleadings is that, taken as a whole, they fail to set out a factual groundwork capable of supporting an inferential case of serious reputational harm. Mr Stables accepted that the particulars of claim, as they stand, do purport to raise an inferential case.

Where a wholly inferential case is raised, a statement of case must articulate the factual inference invited, and sufficiently plead the factual components which, taken together, are said to raise that inference. Here, the potentially relevantcomponents identified are (a) the seriousness of the allegations, (b) the extent of publication, and (c) the situation or profile of both parties in the village in which the Claimant used to live and the Defendant still did.

The gravity of the words complained of lies (consistently with their determined meaning) in the defamatory sting of citing, in the context of a post explicitly predicated on a divisive family dispute and consequent partisanship of their formerly mutual friends, of allegations that the Claimant had been trying to deprive the Defendant of her home and telling lies about her. These factual allegations are presented in context as (a) aspects of that established dispute and (b) relevant for that reason to the explanation of the Defendant’s decision to delete some of her Facebook friends. They are therefore incidental or secondary allegations aboutthe nature and consequences of the dispute and the Claimant’s conduct of it.

Their possible contribution to an inference of serious harm accordingly lies in their potential to establish an impact on the Claimant’s reputation beyond the impact of what is said about the simple fact of the underlying dispute and of the Defendant’s consequent past social inhibitions and present intentions, which are not in themselves defamatory. In other words, the power of their gravity to support an inferential case of reputational damage lies in the difference between the likely impact of what the Defendant actually posted, and what she could have said to the same effect leaving out the allegations of inherent defamatory tendency. That difference, and its potential inferential power, is not in itself pleaded out.

A defamation claim must plead extent of publication. Here, the primary readership is pleaded at constituting at least the 57 identified individuals who reacted to the post. This is not a ‘mass publication’ case; the primary readership is a closed category of (potentially) identifiable individuals – the Defendant’s Facebook friends at the time. 57 is not a negligible number, but it is a relatively modest starting point for a generalised inferential case of serious harm.

The pleadings however invite a further preliminary inference that the total readership was ‘substantially higher’. An inference that the Defendant had more Facebook friends than those who responded to the post may fairly be recognised as implied by that, although no indication of the possible extent of that is advanced. Beyond that, there is no clear pleading of wider readership. It is suggested that ‘many within Whalley are likely to have seen the words complained of’. But the factual basis on which that inference is invited is not set out. It is not, for example, clear whether it is being suggested that the ‘many’ here, or the ‘multiple colleagues and friends of the Claimant’ who contacted her about the post, were within the primary Facebook readership or not – perhaps the reference to the fact that the latter were people ‘who have not reacted to the post’ suggests they, at least, were within it. There is no indication of even the contended scale of ‘multiple’ or ‘many’here in any event. No readership beyond the primary publishees – no republication or percolation effect – is explicitly or clearly pleaded at all.

If that is the intended implication of the references to the status of both parties as ‘well known’ locally, it is not clearly articulated as such, and it gives no coherent account of any propensity for republication or any asserted impact of the words or the publication complained of by way of republication. It is not, for example, suggested that others beyond the primary readership could have obtained direct access to the post on their own initiative. No case is advanced as to the probability that this particular primary readership would have republished, or to whom, or as to the likelihood of a wider readership taking an interest in or being affected by the words complained of in this particular post.

Mr Stables suggested to me the intended case was one based on a ‘village gossip’ scenario, but that does not appear in the pleadings. The fact that both parties were well-known within the village is pleaded but the factual context of that, and the inference invited from it, is not. That they were both well-known locally carries no necessary implication that, for example, a Facebook post by one referencing (but not naming) the other would have any particular real-world impact, or would be particularly likely to gain onward traction from its primary publication. The relevance of this factor to the case advanced on serious harm is left in the realms of speculation.

There is a difference between laying a factual groundwork for inference, and leaving a vaguely and allusively indicated case to be fleshed out by speculation and guesswork. Adjusted for the subsequent determination of the preliminary issues, and shorn of legal irrelevancies, the amended particulars here set out a case of serious harm dependent on inference from a very few primary facts additional to the inherently defamatory tendency of the words themselves. Even on the working assumption that those facts are true, they amount to a primary readership of the Defendant’s Facebook friends, including mutual acquaintances of both parties, totalling something (unspecified) more than 57. There is no particularised or coherent account set out of the factual inferences invited from the combination of the words complained of and that readership. That combination does not speak for itself. The pleading is not necessarily inconsistent with a factual impact capable of constituting serious reputational harm for the purposes of section 1 of the Defamation Act 2013, but it falls a long way short of articulating any such impact and setting out how and why it can be inferred on the basis pleaded. Establishing the few facts relevantly pleaded would not be properly capable of establishing an inference from them that the words complained of as a matter of fact caused in the past or were likely to cause in the future serious harm to the Claimant’s reputation. The factual basis pleaded lacks the necessary particularity, substance and inherent logical probability.

I am bound to conclude in all these circumstances that the pleading of serious harm in the Claimant’s amended particulars of claim fails to comply with the Practice Direction and does not give the Defendant an adequate account of a case on serious harm she can fairly be expected to meet. The case on serious harm, as pleaded, would be bound to fail. No suggestion was made to me as to how it might be re-pleaded to put the case on any viable footing. In those circumstances it ought to be struck out.

The Claimant’s Evidence

The Defendant’s supplementary, or alternative, challenge is that these defects of pleading are irremediable, and the claim should in any event be dismissed, because the Claimant has no real prospect on the evidence of establishing serious reputational harm. The circumstances of this application are unusual as regards the evidential situation. This is an interlocutory application ahead of a retrial. For the original trial, the Claimant had prepared a small number of witness statements: her own and those of two supporting witnesses (one of her sons, and a friend). Mr Stables confirmed to me that no other evidence could be expected to be available at the retrial, and that, in other words, I have all the evidence of serious harm to the Claimant’s reputation that is going to be advanced. I am unusually well-placed at an interlocutory stage, therefore, to assess the prospects of the claim, since no reasonable grounds exist for believing a fuller investigation into the facts would add to or alter the evidence available to a trial judge

The Claimant’s witness statement of 23^rd September 2024 runs to some 16 pages. In it, she states she accepts that, whether as a result of the Defendant’s previous regular Facebook posts about it or otherwise, many of their mutual friends would have been aware of the dispute between them following Mr Tattersall’s death in 2019. It is the impact on this segment of potential readership – erstwhile mutual friends and acquaintances – to which her evidence is principally directed. Of the particular post complained of, she acknowledges that it came at a time when the parties were ‘in the middle of’ the County Court proceedings she had initiated in furtherance of that dispute. She describes her personal reaction to the post (of which she says she was informed by a friend).

Towards the end of the statement, in a section headed ‘Consequences of publication’ running to three or four pages, she expands on her reaction to and fears about the post. She mentions that theirs was a well-known family and gives a view that the post ‘would have sparked a lot of interest, concern and further gossip’, although she does not explain or expand on that more generally.

She references some of the reactions and comments posted in response to the Defendant’s post. I was shown a record of the reactions to the post (although perhaps not all of them had been included) in the evidential material. They are certainly partisan, some of them vehemently so. The Claimant may understandably have found a revelation of the extent of that partisanship dismaying news, if such it was. But I saw no references in this responsive material to the specific allegations complained of, and indeed few to the Claimant herself (as distinct from her partisans). The responders appeared instead to be concerned to give warm messages of personal support to the Defendant in light of a further observation she herself had made in the comment section early on in the multi-party conversation that ‘apparently they are now saying that Mick wasn’t happy with me’. That reference is to her late husband; and the ‘they’ appears to refer to those erstwhile mutual friends that had sided against her. Her supporters on Facebook were, on the evidence I was shown, preoccupied with offering her reassurances and emotional support, in response to that, to the effect that her husband had loved her very much and any suggestions to the contrary were not to be taken to heart. The responses are also strongly suggestive that the responders were entirely familiar with the antecedent history of the parties’ dispute. In these circumstances, the responses I was shown are not, in my judgment, capable of materially supporting an inferential case that readingthe allegations complained of caused the responders to think less well of the Claimant – at all, or seriously so. They are mostly about other allegations, other people and other matters altogether.

The Claimant’s account of the ‘consequences of publication’ continues by describing how she was contacted (while living in Italy) by ‘people close to me’ who had come across the post and that ‘I could see that my good standing and behaviour was being questioned by even those closest to me and my family’. She mentions ten names of friends and family who had contacted her. She could not give evidence of the content or dates of any of those conversations, but she felt her callers had gained an impression about her being accused of ‘acting vindictively and mistreating the Defendant’. ‘It felt like the FB Post and the associated comments by others planted seeds of doubt in people’s minds about me.’ The post, she felt, had been ‘causing people to doubt my character’.

This is not evidence that, even if seeds of doubt had been sown in the minds of her friends and family, they had germinated, much less borne the fruit of serious reputational harm. It is not evidence that her callers were otherwise than steadfastly sympathetic or swiftly reassured. It is scarcely evidence of their (as opposed to the Claimant’s) state of mind at all. And there is no evidence from any of them.

It is a commonplace of mass publication cases that claimants cannot necessarily be expected to produce evidence from individual publishees willing to testify that they thought worse of them. Amersi confirms, however, that at the other end of the spectrum, publication to a limited category of identified or identifiable individuals has more limited potential to found an inference of serious harm in the absence of evidence from any of them. The fewer the publishees, the more the actual impact is likely to turn on the particular facts of the context of publication and of the publishee audience. Publication to a class or subclass of named family members and friends is a paradigm example of that. It is inherently improbable that close friends and family of the present Claimant would form any seriously adverse view of her on the strength of a single Facebook post from the daughter-in-law they knew (or could be expected swiftly to be told on calling her) the Claimant was pursuing through the County Court in a family property dispute following Mr Tattersall’s death, and which referenced that dispute. And it is of course their reaction to the words complained of in the Defendant’s own post, not to other people’s commentary on it, which is in issue here. The Claimant’s evidence on this account, taken at its highest, is not realistically capable of properly supporting an inference of serious reputational harm.

The Claimant does not offer developed evidence on extent of publication more generally. Mr Stables invited me to proceed on basis that, because the post had been deleted by the Defendant, and the possibility of examining its data analytics thereby lost, an adverse inference could and should be raised against her as to extent of primary publication (based on the principle in Armory v Delamirie(1722) Strange 505). He did not suggest what inference that should be, beyond ‘the top end of the reasonable range’. That in turn would have to be determined by reference to the wider evidential context. About that, the Defendant had said this (in October 2024):

I presently have 307 friends. I am not sure how many I had at the time. I am not a major social media person, eg I don’t have an Instagram, I don’t do Twitter. Maybe I had 100 less at that time, so around 200. Whenever I work on a film I collect Facebook friends now, sometimes people from other countries when I have worked there and I have recently worked on lots of films, having to pay for legal fees. I also add Facebook friends now in the industry to make them aware of my Costume Hire Business. The majority of my fb friends are people who work in the film industry and friends from when I lived in London the majority of my life, people who do not know Lynette and Lynette does not know them.

I am not conducting a mini-trial of all the evidence; I am considering the Claimant’s own evidential case at its highest. I do question the fairness of drawing, on the Delamirie principle, inferences adverse to the Defendant on extent of publication, in circumstances in which it appears that the Defendant deleted the post in response to a direct request from the Claimant’s solicitors to do so. But if I did proceed on an assumption at the top end of the reasonable range for primary publication, I still have no basis for a total other than one remaining relatively modest. And none of this is of course simply ‘a numbers game’: propensity to be impacted and/or to republish remains a key question about primary publication to a closed category in the low hundreds, and the Claimant’s evidence does not lay the groundwork for adverse inferences about any of that.

The Claimant testifies that, more generally since finding out about the post, she has felt ‘like people do not contact me as much as before, like they prefer to stay away or not get involved’. She has not wanted to return to the village in England, and has been there on only two occasion since. On one of those occasions she had felt uncomfortable and insecure, and describes a feeling of being stared at and not spoken to by some individuals from whom she might have expected a greater degree of warmth.

The burden is on the Claimant to establish that any of that, if accepted, can properly be attributed to readership of the words complained of to a degree capable of being described as serious reputational harm – rather than, for example, to (a) her own subjective emotional distress at the Defendant’s post and what was said by those who responded to it, and a consequent loss of social confidence in relation to mutual acquaintance on her own account, (b) the natural distaste of any mutual acquaintanceship for proximity to, much less ‘getting involved in’, a family financial dispute (in the wake of a family tragedy) which has got as far as litigation, or (c) the simple fact that she had quit her former village, and the country, some years previously and that people’s lives move on. The prospects of her discharging that burden on the basis of inference from this evidence can fairly, in my judgment, be described as ‘unreal’. The latter factors have overwhelmingly more inferential explanatory potential, and the Claimant’s evidence does not materially address any of them or positively make the necessary alternative case.

In all these circumstances (the brief witness statements of the Claimant’s son and her friend can fairly be said to support, but not materially add to, her own account of the ‘consequences’ of the Claimant’s discovery of the post complained of) it is my conclusion that the prospects of a court being persuaded to infer serious reputational harm from the facts and evidence before it are also unreal. The inherent gravity of the words complained of is not, in context, more than modest. The Claimant is referenced at all – and not by name – only incidentally to the Defendant’s decision to limit her Facebook friends on account of their existing dispute; inferred reputational impact therefore necessarily relies on a readership with enough established knowledge to take an interest in the parties’ dispute but not enough to have a settled partisan view and closed mind about it, and there is no evidential basis for doing other than guessing at that. The (reasonable maximum) extent of primary publication is no more than moderate; it was to a limited class of (potentially) identifiable family and friends in a polarised context and there is no evidence from – or materially about – any of them. The immediate commentary on the post is not capable of materially supporting an inference of serious reputational harm to the Claimant as a result of reading the words complained of. There is no or wholly insufficient evidence of republication or of propensity for republication. (Mr Stables cited Monroe v Hopkins [2017] EWHC 433 (QB) to me; all social media has some potential for onward sharing, but we are dealing in the present case not with Twitter/X but with a private Facebook account and the context of a family’s internal money dispute – a family with an asserted but entirely unspecified local profile. These are facts with limited inherent potential by themselves to support an inference of substantial republication.)

These elements are not, taken together, properly capable of founding an inference that the words complained of, in the meaning determined, have caused or are likely in future to cause serious reputational harm to the Claimant. Again, they are not necessarily inconsistent with a factual impact capable of constituting serious reputational harm for the purposes of section 1 of the Defamation Act 2013. But that is not enough. Taken together and at their highest, they fall a long way short of advancing a positive case beyond the allusive and speculative. As such, it is unreal to contend a trial court could properly infer the fact of serious reputational harm from the evidence available. I am given to understand that a trial court cannot expect anything else. The Defendant is therefore entitled to the interlocutory dismissal of the claim.

The Overriding Objective

I do not in these circumstances need to take a view on the third challenge Miss Skinner KC makes – that not only has the Claimant failed to articulate and evidence a case capable of establishing serious reputational harm, but that even if she did manage to cross that threshold the defamation capable of being established, and the vindication available, are simply too slight to justify (a) the consumption of scarce and costly resource in a High Court defamation trial and (b) constraining the Defendant to defend her exercise of freedom of expression by being required to discharge the burden of demonstrating the substantial truth of her allegations.

Jameel may have survived the introduction of the statutory serious reputational harm test, but in a case in which, on pleading and/or evidence, the test is not capable of being passed, its role is limited. I confine myself therefore to the following observations.

Defamation law is an abridgment of free speech. When it introduced the serious harm test, Parliament’s intention was to allow a greater margin to free speech, and to prevent the scarce and costly public resources of the senior courts from being occupied with defamation challenges to others’ freedom of expression, unless objectively demonstrable real-life reputational impact can be established, by fact and evidence, on ordinary causational principles and to a proper threshold of gravity. The burden is squarely on a claimant to do so. The result produced by the statute otherwise is that, whatever the inherent tendency of the words, a publication ‘is not defamatory’.

The strict logic of that is that a defamation defendant is in principle entitled not to be put to the legal defence of any such publication. Of course it is usual for a defamation trial judge to receive evidence and submissions on both serious harm and any defences advanced where these are in issue; that will usually be the most efficient way to enable determination of liability one way or the other. The evidential burden shifts accordingly in the process of the trial. But sight should never be lost in defamation litigation of a defendant’s in-principle entitlement not to be held to account for a publication which ‘is not defamatory’.

It is not in anyone’s interests, including a claimant’s, for all the stress and expense of a defamation trial (or indeed a retrial) to be incurred unless there is a not-unreal prospect of a claim’s success in the end. The present claim is not, for the reasons I have given, a proper vehicle for the Claimant’s pursuit of her grievances against the Defendant. It is not in the interests of justice, or the public interest, for it to proceed. If and insofar as the conclusions I have set out had left any room for discretion nevertheless to permit this case to go on to trial, I would in all these circumstances have declined to exercise it, having regard to the overriding objective. There is no good reason, aside from any merits and prospects it may have had, for permitting this claim to continue. On the contrary, the continuation of this litigation risks, in itself, constituting ‘an interference with freedom of expression that is not necessary for the protection of the Claimant’s reputation’.