Serious harm: in the balance?

Serious harm: in the balance?

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Author: Harriet Campbell

In Cooke v MGN Ltd [2014] EWHC 2831 the High Court gave the first judgment on the serious harm test in section 1 of the Defamation Act 2013. We look at lessons which can be learnt from the judgment and anticipate issues which may arise in the future.

The Cooke judgment makes it more difficult for claimants to bring successful libel actions where:

  • the libel was not overtly 'serious'
  • an apology had been issued
  • the claimant had no actual proof of serious harm

Background

In Cooke, a housing association and its chief executive issued libel proceedings against the Sunday Mirror for an article entitled: 'Millionaire Tory Cashes in on TV Benefits Street'. The story referred to the Channel 4 series Benefit Street and focussed on the alleged exploitation of low income tenants on James Turner Street by disreputable landlords.

Whilst the story did not specifically allege that Midland Heart Housing Association or its chief executive, Ms Cooke, were disreputable landlords, the court did find that the article meant that Midland Heart was making money from the misery of James Turner Street residents and that Ms Cooke was personally responsible for that conduct and had personally profited from it.

The hurdle the claimants failed to overcome, however, was that of serious harm. Under the new test in section 1(1), 'a statement is not defamatory unless it has caused or is likely to cause serious harm to the reputation of the claimant.'
In this case, three factors weighed against serious harm being established:

  • the defendant issued a swift (albeit unagreed) apology
  • the libel was not of itself 'obviously likely to cause serious harm' (the judge cross-referenced accusations of paedophilia or terrorism)
  • the claimants could not provide any specific evidence of serious harm

What does this mean for libel claims?

In Cooke, the judge awarded significant weight to the fact that an apology had been issued relatively swiftly. He also ruled that the relevant date for determining whether serious harm had been caused was the date of issue of the claim.
Practically speaking, this may make it difficult for a claimant to ever issue libel proceedings where an apology has already been secured.

The following steps need to be carefully considered in relation to libel claims:

  • pre-action correspondence needs to be carefully crafted. If an apology can be used by a defendant to defeat a libel claim, it is crucial that the claimant secures the apology it wants
  • prior to issuing a libel claim, steps need to be taken to identify evidence of serious harm
  • defendants need to give serious consideration to protecting themselves by issuing appropriate and swift apologies

What next?

At present, claimants need to assume that the serious harm threshold is a high one, particularly where proceedings are issued after publication of an appropriate apology.

We understand that on Friday 26 September, the court granted permission to appeal this decision and costs were awarded (partially) in the claimants' favour.

In granting permission to appeal his decision, Mr Justice Bean made no comment in relation to the prospects of success of any appeal. He did, however, recognise that this was the first case to be heard on the interpretation of s1(1) of the Defamation Act.

The judge also awarded the claimants their costs up to the issue of the apology. This is perhaps significant in emphasizing the weight the judge gave to the issuing of the apology in this case. It remains to be seen whether the appeal court will attach a similar significance.

If you are in any doubt about threatened or actual libel proceedings, seek legal advice.

About the Author

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Harriet Campbell

Senior Associate

03700 868418

Harriet is a Senior Associate in the Dispute Resolution and Compliance team in Milton Keynes. She advises on a broad range of commercial disputes principally involving High Court proceedings and arbitration in claims relating to contract, professional negligence, partnership disputes and fraud. She has specific experience in reputation management and defamation including privacy law.

Harriet is an expert in cross border and jurisdictional disputes.  She is experienced in using a variety of alternative dispute resolution techniques including mediation and expert determination and regularly handles high value claims for domestic and overseas clients

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