Contact: Jill Bainbridge and Michaela Berryman; Blake Morgan (Southampton, England)
The High Court has recently attempted to clarify the requirement for serious harm in defamation cases and at which stage the seriousness of the harm should be assessed.
As part of the Defamation Act 2013, the requirement for serious harm to have been caused to the reputation of the claimant was introduced, building on a number of previous authorities which provided for a "threshold of seriousness". Indeed, the Defamation Act 2013 went further in relation to bodies trading for profit, and provides that serious harm will not be found in such claimants who are unable to show that it has caused or is likely to cause serious financial loss (section 1(2)).
The recent case of (1) Michael McGrath; (2) Necon Technologies Ltd v (1) Byron Bedofrd; (2) Proeconomy Ltd [2016] EWHC 174 (QB) examined the requirement for serious harm in the context of defamation and provided some clarity as to what a Claimant will be expected to show to establish serious harm.
In his judgment, Sir David Eady (sitting as a recorder) explained that the need for any Claimant to show that serious harm to reputation had occurred or is likely to occur was now a substantive element in any claim for libel or slander, and as such it would therefore need to be considered an issue separate from any strength or weakness of a possible defence.
Assessment of serious harm should be carried out early in the process where the words complained of appear to lack the requisite gravity or where evidence surrounding publication is limited in order to provide time and cost efficient ways of dealing with claims. In the event that the harm suffered or likely to be suffered is not of a serious nature then this will effectively prevent the claim from proceeding further.
This manner of assessment was also discussed in the case of Lachaux v Independent Print Ltd and Others [2015] EWHC 2242 (QB). Warby J stated that it would be unnecessary and undesirable for a defendant who had contended that the claim did not meet the requirement for serious harm to plead a defence before the issue of whether serious harm has or is likely to occur had even been established.
Warby J further stated that in situations where a defendant raises a serious harm threshold issue, it may be unwise to also choose to plead a defence if not required to do so. Defendants who choose to plead a substantive defence will do so at risk to costs if they later succeed on the issue of the lack of serious harm.
It may therefore, be wise for claimants to make a case for serious harm even before a defence is served, which goes further than a mere assertion of serious harm and a realistic prospect of success. It will generally not be acceptable to simply make the assertion of serious harm and call upon the defendant to plead to it without more information.
Sir David Eady in McGrath stated that situations such as these may be a case for the serious harm element of a claim to be decided by way of a preliminary hearing. This approach would be in line with Warby J's suggestion in Lachaux and would reduce time and cost incurred in claims. However as noted by Moloney J in Theedom v Nourish [2015] EWHC 3769 (QB) there are certain risks associated with this type of analysis at an early stage. In the case of Theedom, the parties had expended nearly £200,000 on such an issue before any other issues were resolved, which resulted in a duplication in process.
There is no general rule which can be applied therefore when considering serious harm. Much will be dependent on the facts of the case. It will be for each judge to utilise their powers in relation to case management to best assess the simplest path for the case. However, in the absence of conclusive guidance on this subject, a prudent claimant should always seek to provide as much information to the defendant as possible in respect of the nature of the harm suffered or anticipated and the loss suffered at the earliest opportunity.
Jill Bainbridge is a Partner and heads up the firm's intellectual property group and Trade Mark prosecution team, Jill specialises in IP and IT disputes and reputation management.
