The High Court has made two important rulings so far this year as to what constitutes "serious harm" under section 1 of the Defamation Act 2013, which requires claimants in defamation actions to prove that the statement complained of has caused or is likely to cause serious harm.
In Theedom v Nourish Training Ltd ( EWHC 3769 (QB)) the court found that the claimant had satisfied the threshold test. Conversely, in Alvaro Sobrinho v Impresa Publishing SA ( EWHC 66 (QB)) the court found that the test had not been met and that the claim was an abuse of process.
Importantly for claimants, although the cases had opposite outcomes, both judges agreed that serious harm can be inferred without the need for evidence, in certain circumstances.
In Theedom the claimant's then employer had sent 124 emails to clients alleging that Mr Theedom had regularly leaked confidential company information and had accordingly been dismissed for gross misconduct. The majority of the emails also suggested that Mr Theedom may have committed a criminal offence.
The Judge concluded that the circumstances in themselves meant that the serious harm test was met. The Judge summarised the particular circumstances of the case: the defamatory allegations were extremely serious; the email had been sent to over 100 people who were potentially close to and important to the claimant's career; the claimant was young and embarking on a career in a competitive business; and the author of the email was influential.
The case makes clear that defamation claimants may well be able to satisfy the s.1 hurdle without having to submit detailed evidence of harm to reputation. The Judge noted that the evidence in the case had "added little or nothing to the conclusions that an experienced defamation judge would have drawn simply from reading the email and considering the agreed distribution list".
The Impresa claim was brought by an Angolan-Portuguese national, against a leading Portuguese publisher, over allegations published in the Portuguese weekly newspaper, Expresso. The critical evidence in relation to serious harm was that the claimant had achieved vindication of his reputation in Portugal through the reporting of his evidence to a Portuguese Parliamentary Inquiry. As a result, he had dropped his claim in Portugal. Dingemans J found that the same coverage was available in England and Wales, meaning that if Mr Sobrinho’s reputation had been restored in Portugal by the media coverage, then it was also restored in England and Wales.
Taking into account also the insufficient evidence about actual serious harm or likely serious harm, the Judge concluded that the serious harm test had not been met. The Judge also concluded, given that Mr Sobrinho’s reputation had been restored by the reporting of his and other evidence to the Parliamentary Inquiry in Portugal, the pursuit of the proceedings was an abuse of process.
The two decisions are very different. They perhaps illustrate that the English courts will not be quick to infer serious harm in cases involving relatively limited circulation and foreign parties, even if the allegations are serious.