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Law Column: No appeal in 'serious harm' case

footansteylogonewYou know a legal issue is important if the absence anything happening gets your lawyer excited, and especially if the same lawyer writes about that issue for a third time in as many months.

So what is this issue? Well, it’s the new requirement (in section 1 of the Defamation Act 2013) that for a publication to be defamatory of an individual, a person must prove that the words and/or images caused serious harm, or is likely to cause serious harm, to his reputation.

And if the claimant is a “body that trades for profit”, serious harm to its reputation only arises if the publication has caused, or is likely to cause, serious financial loss.

These new tests were intended by Parliament to discourage frivolous libel claims, and in the first eight months of this year, it became clear that the bar had been raised for complainants if they wanted to sue for libel.

But then the lawyers became very excited in August by the decision of Mr. Justice Bean in Cooke & Midland Heart v MGN.

As my colleague Sam Hancock has previously reported on HTFP, this was the first case to come before the Courts in which the nature of these two tests was considered.  And we were excited because the judgment in Cooke was particularly favourable to publishers. The ruling as to what is meant by serious harm raised the bar considerably.

But by the end of September, any euphoria was beginning to evaporate when Mrs. Cooke and the housing association she heads announced that they intended to appeal the decision to the Court of Appeal.

The consensus amongst a number of eminent and highly respected QCs was that Mr. Justice Bean had overstepped the mark, that he had extended the meaning of serious harm in a way that Parliament had not intended, and that the Court of Appeal was likely to reach a different conclusion.

But last week, the claimants announced that they no longer wish to pursue an appeal against the judge’s ruling, despite having been given permission to do so.

From a publisher’s point of view, the absence of a challenge to the decision is important and very welcome.  In the few weeks since Mr. Justice Bean’s decision, lawyers for the press have been able to rely on his ruling to fend off potentially expensive libel claims, particularly when the mistake has been acknowledged quickly and an apology has been published without delay.

The prospect of an appeal to the Court of Appeal had suggested that the press would have a limited time to enjoy the protection of the new principles laid down in Cooke.  Now, however, the benefits of Cooke will be with us for some time to come.

And that’s why, unusually, the absence of any developments in this case is so important to the press.

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