KB-2024-003652 - [2025] EWHC 1900 (KB)

It is immediately apparent that:

These are not minor or inconsequential deficiencies in the Particulars of Claim.

On the contrary, in accordance with s1 of the Defamation Act 2013 (“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”), serious harm is a threshold requirement for a claim in defamation. As Lord Sumption explained in Lachaux v Independent Print Ltd [2020] AC 612 at [14] and [21]:

“… section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”. The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is “likely” to be caused. In this context, the phrase naturally refers to probable future harm.

… [the claimant] must demonstrate as a fact that the harm caused by the publications complained of was serious … (or, I would add, likely to be serious)”.

Of equal significance, the authors of Gatley on Libel and Slander, 13^th edn, state the following at 22-019 and 28-042, accurately in my opinion (emphasis added):

“22-019 It has been said many times that malice is a serious allegation, tantamount to dishonesty, which should not be made lightly. To be probative of malice, the pleaded case must be more consistent with the presence of malice than its absence. It is vital to plead and prove the facts from which malice is to be inferred. The courts commonly encounter pleas of malice that fail because they are formulaic, or nothing more than assertion, or allege facts that on analysis are equally consistent with innocence. They are likely to be struck out.

28-042 Where the claimant pursues a claim for slander of goods, slander of title or other malicious (or injurious) falsehood, there are different requirements of pleading. The claimant must plead the issue of publication with equal particularity as in libel or slander … The claimant must also specifically allege that the words in the relevant meanings were false and that they were published maliciously. He should set out the factual respects in which the words complained of are alleged to be untrue, and he should give particulars of the facts and matters on which he relies to support the allegation of malice. Before settling any document containing an allegation of malicious falsehood, a pleader should satisfy himself not only that he has clear instructions to make the allegation but also that the material on which it is based is of such a character as to lead a responsible lawyer exercising an objective professional judgment to conclude that serious allegations could properly be based upon it. Further, there are special rules governing the pleading of a case of malice: the facts as pleaded must be more consistent with the existence of malice than its absence. Finally, the claimant must allege either that the words were calculated to cause pecuniary damage and give particulars of the nature of the alleged probable damage and the grounds relied on for saying that damage is more likely than not, or that they did in fact cause such damage and again particularise that loss. In the latter case, the claimant should give particulars of the damage and show sufficient nexus between the publication of the words and the damage. A claimant suing for malicious falsehood may make a claim for aggravated damages in respect of injury to feelings where the hurt feelings have been caused by any financial loss that the claimant can prove he or she has sustained.”

Further, in George v Cannell [2024] 3 WLR 153 the Supreme Court held: (1) the effect of s3(1) of the Defamation Act 1952, where it applies, is to create a presumption of law that the publication of the words complained of has caused financial loss, which presumption is irrebuttable so far as concerns liability; nevertheless (2) if the malicious falsehood has not in fact caused any financial loss, then the claimant is not entitled to damages for financial loss or damages for injured feelings consequent on such loss, even if financial loss is presumed for the purposes of liability under section 3(1) (and the question of an award of aggravated damages on the basis that the conduct or motives of the defendant has aggravated the injury done to the claimant also does not arise unless he or she has been caused financial loss). Accordingly, a claimant will be entitled to no more than nominal damages in circumstances where the claimant has not, in fact, suffered financial loss.

In light of this decision, a failure to plead and prove financial loss has the effect that the claim will result in nothing more than an award of nominal damages, and is accordingly liable to be struck out as an abuse of process as no rational person brings proceedings, especially those as expensive as the present claim is likely to be, for such an objective.

For these reasons, I would uphold the second limb of the Defendant’s application, in respect of both the pleaded case in defamation and the pleaded case of malicious falsehood, on the grounds (see CPR 3.4(2)(a)) that the relevant statement of case – i.e. the Particulars of Claim – “discloses no reasonable grounds for bringing … the claim”.