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Law Column: Another episode in the serious harm saga

footansteylogonewSince section 1 of the Defamation Act 2013 came into force two years ago, there have been a number of significant cases which have contributed to the interpretation and understanding of the requirement that for an article to be defamatory, a Claimant must prove that serious harm has, or is likely, to occur.

Some of these cases have been good news for the press, and some less so. The most recent of these, Theedom v Nourish Training Ltd., is a bit of a curate’s egg.

The case concerns a claim for libel brought by Mr Theedom against his former employers, Nourish Training Ltd. Following Mr Theedom’s departure from the company, emails were sent by his former manager to over 100 mutual professional contacts entitled “Dismissed for gross misconduct”. The emails alleged that Mr Theedom had been leaking confidential information to former employees, and that as a result, criminal proceedings against Mr Theedom were being considered.

Mr Theedom brought a claim against the company and it was agreed between the parties that there be a preliminary issue trial to determine the issues of meaning and whether or not serious harm could be established by the Claimant.

Mr Theedom argued that although he had found similar employment within a month of leaving the company, it was highly likely that he would cross paths with recipients of the emails in a professional capacity and that as a result of the allegations made within the email, recipients would be reluctant to work with him in a professional capacity. Mr Theedom was not able to provide significant evidence to prove that he had suffered demonstrable harm in this way.

At the conclusion of the trial, Judge Moloney QC held that despite Mr Theedom’s failure to produce actual evidence that he had suffered serious harm , he had by inference, on the balance of probabilities, established a degree of serious harm sufficient to satisfy the S.1 test.

So, let’s have the bad news first…

On the face of it, this case appears to lower the threshold for serious harm by confirming that an inference can be sufficient to prove serious harm. Here, the Court held that where the libel is serious enough, there is no need for a claimant to produce actual evidence of harm to his reputation. Whether or not a libel is “serious enough”, is to be determined by reference to the circumstances of the claimant themselves, in other words, it is a subjective test.

Although this point was raised in the recent case of Lachaux v Independent Print Ltd., this is the first time that it has been confirmed in practice. Self-evidently, it represents a shift in favour of claimants.

However, it’s not all doom and gloom, as the case also confirmed that serious harm cannot be established merely by reference to “injury to feelings”; the Judge held that there is a clear distinction between subjective perception and what actually constitutes serious harm.

In addition, it was held by the Court that a preliminary issue trial to establish meaning and serious harm will not always be necessary. Although in some cases, such action can limit the ultimate costs of the litigation as a whole, Judge Moloney recognised that a preliminary trial is still a significant financial undertaking and so should only take place where there is a substantial dispute as to the evidence, and certainly not as a matter of course.

So where does this latest decision leave us? Well, there is an element of uncertainty as to what, actually, must be proved for words to be considered defamatory in law. The message at the moment seems to be each case depends on its own distinct facts, which leaves much scope for further argument and uncertainty.