Defamation: Preliminary Hearings

The coming into force of the Defamation Act 2013 and with it the abolition of the presumption of trial by jury, has had the effect of giving judges greater scope to achieve early resolution. Previously some issues could not have been decided until it was known whether the trial would take place before a jury. One such issue was determining the “natural and ordinary” meaning of the words complained of. However, the new legislation allows judges to make this ruling at an early stage which can clarify the issues between the parties and this can go a long way in resolving cases where the main disagreement preventing settlement is a dispute about meaning.

Several libel cases in the past year have had meaning determined as a trial of a preliminary issue. These include high profile cases such as Simpson v MGN Limited [2015] EWHC 77 and HRH Prince Alwaleed Bin Talal Bin Abdulaziz A Saud v Forbes [2014] EWHC 3823.

However, more recently, the courts have taken the opportunity to consider several other matters as preliminary issues. These have included:

The requirement of serious harm under section 1 of the Defamation Act 2013; and
Applications to strike out claims as an abuse of process pursuant to the principles set out in Jameel v Dow Jones & Co Inc [2005].

The Requirement of Serious Harm

In summer of last year, Cooke and Midland Heart v MGN [2014] EWHC 2831 was the first case to consider the interpretation of the new serious harm requirement in section 1 Defamation Act 2013. Rather than have this issue decided as part of a full trial, the Deputy Master made an order, with the consent of both parties, for trial as a preliminary issues whether the words complained of had caused or were likely to cause serious harm to the reputations of either or both of the Claimants within the meaning of the new Act.

In considering submissions as to the extent to which the bar has been raised by s.1(1), the word “serious” was considered to be “an ordinary word in common usage”. It was also held to set a higher threshold than the requirement of “substantial harm” which was the wording which had been used in the original draft Bill.

The judge further held that in all but the most severe cases (of which he gave the example of a national newspaper with a large circulation wrongly accusing someone of being a terrorist or a paedophile) actual evidence would be required to prove that serious harm had indeed been caused.

Significant importance was also attached to an apology which had been published by the newspaper albeit without agreeing the wording with the claimants in advance. The judge held that the apology had been “sufficient to eradicate or at least minimise any unfavourable impression created by the original article in the mind of the hypothetical reasonable reader who read both”.

Following careful consideration, Justice Bean found that the claimants had not satisfied the criteria of section 1 and found in favour of MGN. Despite being given permission to appeal, the claimants later announced that they did not intend to do so.

Jameel Abuse of Process

More recently, on 27 January 2015, Justice Warby handed down judgment in the case of Ames & anor v The Spamhaus Project Ltd & anor [2015] EWHC 127 (QB). The claimants were two California-based entrepreneurs who had set up and worked for a successful direct email marketing company. They issued libel proceedings over allegedly defamatory publications by a not for profit organisation called Spamhaus Project Ltd which tracks and reports on sources of spam emails and its founder and chief executive, Stephen Linford.

The claim concerned publications in England and Wales via the Spamhaus website in which the claimants were both named as spammers and placed on the Spamhaus Projects’s Register of Known Spam Offenders (the ROKSO list) and at the top of its list of the Top 10 world's worst spammers.

The defendants applied for an order dismissing all of these claims on the grounds that they represented an abuse of the court's process pursuant to CPR 3.4 under the principles established in Jameel. The defendants also sought, in the alternative, summary judgment under CPR 24.2 on the grounds that the claimants were not able to satisfy section 1 of the Defamation Act 2013. They alleged that that the claimants had no pre-existing reputation in the UK, and that there had been very limited publication of the words complained of in the UK. As a result, it was argued that no real and substantial tort had been committed and/or no serious harm had been, or was likely to be, caused to the claimants’ reputations.

Warby J held that the issue of serious harm should be dealt with by way of preliminary issue and that questions of meaning ought to be dealt with at the same time. The court should ask itself whether the requirement of seriousness under section 1 has been – or has a real prospect of being – satisfied. If the answer is yes, he suggested that “it may be hard to establish that the tort alleged fails the ‘real and substantial’ tort test.”

Finding that the claimants in this case had a real prospect of establishing that publication of the words complained of had caused serious harm, the judge refused to strike out the claim. Commenting on procedure, Warby J concluded that:

“In my judgment it is likely in today's legal context to be preferable to address issues of serious harm or Jameel abuse by means of preliminary issues, with any disputes as to meaning being resolved at the same time. On an abuse or summary judgment application it may well be found, as I have found, that the case is not ripe for a final decision and the facts deserve further examination. At a trial of preliminary issues the court can decide the relevant issues once and for all.”

Summary

The courts appear eager to ensure that issues of meaning, serious harm or Jameel abuse are determined as early as possible by trying them as preliminary issues. Warby J suggested in Spamhaus that "for the purposes of a preliminary issue trial disclosure can be ordered if and to the extent necessary and proportionate in the circumstances” and there may even be cross-examination where appropriate.

This approach is all the more appropriate in light of the changes to the law brought about by section 1 of the Defamation Act 2013 which, following Cooke v MGN, has set a very high hurdle for the claimant to clear before he will be deemed to have a cause of action. If this threshold cannot be met, it certainly seems sensible to establish this as early as possible.

The hope will be that an early determination of these issues may result in the proceedings being terminated or at the very least considerably reduced in scope. This will allow for a more effective course of case management if the case does progress and, as a result, a potentially significant reduction in costs for both parties.