Briefing

First judgment under the new Defamation Act

Posted by : Alicia Mendonca | Date posted : 29/08/2014

Cooke and Midland Heart Ltd v MGN

This highly anticipated judgment, the first to be decided under the Defamation Act 2013, looked specifically at the new "serious harm" test under s1(1). In finding against the claimants, the court made it clear that the threshold for a statement to be defamatory had been raised.

The court attached significant weight to early apologies and suggested that evidence will almost always be required to pass the serious harm test. However, on the meaning of "serious harm" itself, discussion was somewhat limited. The judge said that this was an ordinary term in common usage, providing little clarity on how it differs from the previous common law approach. 

Background

The claimants were Midland Heart Ltd, a not for profit housing organisation, and Mrs Cooke, its CEO. On 27 January 2014 the Sunday Mirror published an article entitled MILLIONARE TORY CASHES IN ON TV BENEFITS STREET which focused on houses featured on Channel 4's Benefits Street and owned by landlord Paul Nischal. The article went on to state:

"Three more homes in the road where residents claim they have been portrayed as scroungers and lowlife by Channel 4 are owned by Midland Heart housing association. Its chief Ruth Cooke, 45, earns £179,000 a year and lives in a large house in Stroud, Glos."

The Sunday Mirror published an apology on 2 February 2014. Despite this, the claimants sued for defamation.

The judge said the natural and ordinary meaning of the words applied – that Midland Heart is "making money from the misery of James Turner Street residents" and that Mrs Cooke "is personally responsible" and has profited from this. The question therefore was whether or not these allegations were "defamatory" under the new Act.

"Serious harm" - the new requirement

Under Section 1(1) 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."

As the first case to be decided under s1(1), it fell to Mr Justice Bean to offer much-anticipated judicial interpretation of this new requirement.

Bean J said it was clear that the Act intended to create a higher threshold, alluding to the concept of "raising the bar" for defamation claims, as set out in the Act's Explanatory Notes. This follows the approach of the courts in recent years, for example in Dell'Olio v Associated Newspapers Ltd [2011] where it was held that merely insulting statements are not sufficient to be defamatory.

It was hoped that the judgment would clarify the distinction between "serious harm" and the previous requirement of substantial harm established in Thornton v Telegraph Media Group [2011]. While it is clear that the threshold is higher, there is still an unresolved question of where to draw the line. The judge held that "serious" is an ordinary word in common usage, and did not offer further interpretation of its meaning.

Evidence

There is perhaps a clearer indication of the seriousness of the "serious harm" requirement in the judge's comments on evidence. Bean J stressed that it was "not enough to show that the publication has caused or is likely to cause serious distress or injury to feelings." The "serious harm" test clearly goes beyond this.

The judge also said it was clear that "some statements are so obviously likely to cause serious harm to a person's reputation that this likelihood can be inferred." Where this is the case, claimants should not have to incur the expense of providing evidence to prove the "serious harm" element. However, the examples cited were allegations of terrorism or paedophilia in a national newspaper. The extreme nature of these instances implies that s1(1) will only be satisfied without evidence in exceptional circumstances.

In this case the claimants relied on witness statements from senior executives at Midland Heart, who had received negative reactions from professional contacts. While submitting that the damage was done "in the minds of many hundreds of thousands of readers", the claimants said evidence of this kind is "almost always impossible to obtain."

Apology

The court made it clear that apologies will carry significant weight in defamation claims from now on. The judge held that where an apology is "sufficient to eradicate or at least minimise any unfavourable impression", the "serious harm" threshold is unlikely to be met. This appears to follow the Act's intentions to reduce the number of defamation claims in general, as well as the court's general encouragement of early settlement. As a result, we may find that defendants are quicker to give apologies in future. 

Timing

Another question for the judge was the point at which the serious harm test should be assessed. The Act does not specify the moment at which to consider whether a statement "has caused or is likely to cause" serious harm. While it was submitted that this could be the date of trial, Bean J preferred the date of issue of the claim, in line with the common law rule in relation to slander.

However, the judge did not provide a definitive ruling on this point, and assessment at the date of issue may be complicated in the context of statements which are "likely" to cause serious harm. If a statement is "likely" to cause serious harm on the date of issue, it could be suggested that evidence of this harm should be available by the date of trial. This could deter claimants where they are less than certain that serious harm will have occurred by the time of trial, which appears to defeat the purpose of a providing for future 'likelihood' in the first place.

Likelihood

On the issue of likelihood itself, while noting that this was not an issue in the present case, the court seemed content with the parties' submissions that this will only be established where the occurrence "is more probable than not." The implication again appears to be that evidence will be required. Where a claimant intends to rely on the likelihood of serious harm in future, defendants may therefore find that a prompt apology could eradicate almost all chance of the claim succeeding.

Decision

In this instance, the court held that the allegations made were not serious enough to satisfy the requirements of s1(1) without further evidence.  It therefore fell to the claimants to prove that the publications had caused serious harm to their reputations, which they had failed to do.

The court also found that the apology, despite its lack of prominence, was sufficient to eradicate the harm caused by the original article. The claimants had failed to show that the statements were "more likely than not" to cause serious harm to their reputations in future. On that basis, the claimants failed to meet the requirements of s1(1) of the Act.

Comment

While Mr Justice Bean did not provide much discussion on the meaning of serious harm, in a way his decision is quite telling. Despite accepting that the statements were derogatory, the court did not consider them to be "anywhere near" those which obviously met the threshold. This decision marks the first interpretation of the new Act in the courts, confirming the tougher approach that s1(1) brings to defamation. Yet the meaning of s1(1) remains somewhat unclear. It is likely that we can expect more discussion on this section in the near future.

If you require further information on anything covered in this briefing please contact Julian Pike (julian.pike@farrer.co.uk; 020 3375 7217), Alicia Mendonca (alicia.mendonca@farrer.co.uk; 020 3375 7614) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Brand & reputation management page on our website.

This publication is a general summary of the law.  It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2014


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