Yesterday, the Court of Appeal handed down its long awaited judgment on the controversial new 'serious harm' test under section 1(1) of the Defamation Act 2013, which media defendants have been seeking to rely on to knock out libel claims at an early stage.

Section 1(1) provides that:

"A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."

Since that provision came into force in 2014, defendants have accordingly sought to derail libel claims, either at the pre-action stage or after proceedings have been issued, by demanding evidence of such serious harm to reputation.

As is well known to practitioners in the field, such evidence is generally extremely hard to come by for all the obvious reasons. Only a cynic would think that that was precisely why the media lobbied so hard for inclusion of that requirement.

Media defendants have been seeking to argue that the common law presumption of damage had somehow been abolished by the new Act. While there have been some High Court decisions on the issue, this judgment is significant because it is the first time that the point has been considered by the Court of Appeal.

In a trenchant and compelling judgment from Lord Justice Davis, with which the other Lord and Lady Justices unanimously agreed, the Court made clear that:

  • the common law presumption as to damage in libel cases is unaffected by section 1(1);
  • all that section 1(1) does is to raise the common law threshold (established in Thornton) for bringing a libel claim from 'substantial' harm to 'serious' harm;
  • the Court is entitled to draw an inference of serious harm on the basis of the statement in question and the nature and extent of publication ("if the meaning conveys a serious defamatory imputation – and that does not require cases of the extreme kind – then an inference of serious reputational harm ordinarily can and should be drawn accordingly");
  • the serious harm issue will not generally be suitable for decision at a preliminary stage.

This decision is therefore a big boost for those who have been defamed and wish to seek redress from the media or others.

It is understood that the media defendants have made an application for permission to appeal to the Supreme Court.

A full copy of the judgment is available here.

Key Contacts

David Engel

David Engel

Partner, Dispute Resolution
London, UK

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