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

Defamation Law - Serious Harm

Section 1(1) of the Defamation Act 2013 provides that ‘a statement is not defamatory unless its publication has caused or is likelyto cause serious harm to the reputation of the claimant’.

The leading authority on this provision is the decision of the Supreme Court in Lachaux v Independent Print Ltd [2020] AC 612. The caselaw since was helpfully summarised by Nicklin J in Amersi v Leslie [2023] EWHC 1368 (KB) at [143]-[163]. The authorities emphasise a number of important points about the s.1(1) ‘serious harm’ test.

Lord Sumption’s judgment in Lachaux makes clear ([12]-[14]) that s.1(1) imposed a new threshold test for defamation claims, the application of which is to be determined by reference to the actual facts about the impact of a publication, and not just to the meaning of the words. It requires real-world effects to be established beyond the inherent ‘defamatory tendency’ of any publication. The statutory term ‘has caused’ points to some historic reputational harm, which can be shown actually to have occurred; and ‘is likely to cause’ points to probable, actual, future harm.

The ‘harm’ itself is the effect of a publication in the mind of a third-party publishee (reader), and thereby on a claimant’s reputation. It is not constituted by a claimant’s own subjective reaction to the publication. Nor is it constituted by any specific action adverse to a claimant any publishee may take as a result. The test does not require the demonstration of adverse actions by publishees, although such actions may be powerful evidence of the state of the publishee’s mind. Instead, it concentrates on whether or how anyone’s mind is changed about a claimant for the worse as a result of reading the words complained of.

The serious harm test is a question of fact, and facts must be established by evidence. Facts and evidence – and causation – are matters which are entirely case-specific. Lachauxconfirmed that there is no hard and fast rule as to how serious harm is to be evidenced. In a mass publication case, for example, the evidential process may be able to be discharged by inference based on establishing, and combining, the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. But where the original publication is to a limited class of identifiable publishees, then unless there is direct evidence of impact from the publishees themselves, a claimant may struggle to establish the factual basis from which to discharge the evidential burden imposed by s.1(1). The same holds good for the question of the propensity of those publishees to share the publication onwards and create a percolation or ripple effect exacerbating any harm caused (Amersi at [150], [158]-[159] and [162]).

Terminating Rulings

The Defendant’s application asks me to consider striking out the claim on grounds of defective pleading and/or abuse of process, and/or to dismiss the claim on the ground that it has no real prospect of succeeding.

Strike Out

Civil Procedure Rule 3.4(2) provides that:

The court may strike out a statement of case if it appears to the court –

(a)

that the statement of case discloses no reasonable ground for bringing … the claim; [or]

(b)

that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;

….

Guidance is provided by the authorities: HRH the Duchess of Sussex v Associated Newspapers Ltd [2020] EMLR 21 at [33] and [2021] 4 WLR 35 at [11]; Collins Stewart v Financial Times [2005] EMLR 5 at [24]; Richards v Hughes[2004] PKLR 35).

A court will strike out a claim or part of a claim under the first limb, CPR 3.4(2)(a), if it is ‘certain’ that it is bound to fail, for example because pleadings set out no coherent statement of facts, or where the facts set out could not, even if true, amount to a claim recognisable as such in law. That calls for an analysis of the pleadings without reference to evidence; the primary facts alleged are assumed to be true. It also requires a court to consider whether any defects in the pleadings are capable of being cured by amendment and if so whether an opportunity should be given to do so.

The second limb, CPR 3.4(2)(b), is broad in scope; evidence is in principle admissible as to whether a statement of case is likely to obstruct the just disposal of proceedings, and that phrase must be interpreted and applied in light of the overriding objective of dealing with a case justly and at proportionate cost.

The Court of Appeal in Jameel v Dow Jones & Co[2005] 2 WLR 1614, a case which predates the introduction of the serious harm test, noted (at [50]):

…in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant’s reputation. In such circumstances the appropriate remedy for the defendant may well be to … seek to strike out the action as an abuse of process.

The Court concluded in that case ([69]-[70]):

If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.

If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but, subject to the effect of the claim for an injunction that we have yet to consider we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of process to continue to commit the resources of the English court including substantial judge … time, to an action where so little is now seen to be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate small claims procedure. Such a course is not available in an action for defamation where, although the claim is small, the issues are complex and subject to special procedure under the CPR.

Summary Judgment

Civil Procedure Rule 24.3 provides as follows:

The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if—

(a)

it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

(b)

there is no other compelling reason why the case or issue should be disposed of at a trial.

The proper approach of a court on an application for summary judgment was summarised in Easyair v Opal [2009] EWHC 339 (Ch) at [15] as follows:

i)

The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success;

ii)

A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;

iii)

In reaching its conclusion the court must not conduct a ‘mini-trial’;

iv)

This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents;

v)

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial;

vi)

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case;

vii)

On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction.

In considering the test of ‘no real prospect of success’ the criterion is not one of probability, it is absence of reality. The test will be passed if, for example, the factual basis for a claim is entirely without substance, or if it is clear that the statement of facts is contradicted by all the material on which it is based. On the other hand, if reasonable grounds exist for believing a fuller investigation into the facts would add to or alter the evidence available to a trial judge, or if a factual dispute is unlikely to be able to be resolved without reference to further (and especially oral) evidence, then a case should be permitted to proceed to trial (Three Rivers DC v Bank of England[2003] AC 1; Doncaster Pharmaceuticals v Bolton [2007] FSR 63 at [18]).