A2/2015/2723 and A/2015/2723(A)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE (QUEEN'S BENCH DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
LADY JUSTICE SHARP
| Bruno Lachaux
Independent Print Limited
Evening Standard Limited
|- and -
AOL (UK) Limited
David Price QC (instructed by David Price Solicitors and Advocates) for the Appellants, Independent Print Limited and Evening Standard Limited
Adrienne Page QC and Godwin Busuttil (instructed by Taylor Hampton) for the Respondent
Hearing dates: 29 and 30 November 2016
Crown Copyright ©
Lord Justice Davis:
The legal context
" but as practitioners in this field are well aware, it is generally impractical for a claimant to seek out witnesses to say that they read the words complained of and thought the worse of the claimant".
Clearly if an identifiable damaging consequence is identified that may be capable of being supportive evidence of harm to reputation: but what if there is none? This sort of consideration surely helps explain why, in cases of libel, it was settled at common law that damage is presumed: the extent of the damage then being left, in the usual way, to assessment at trial if liability on the part of the defendant is established. It is, to my mind, also noticeable that this presumption survived the introduction of the Human Rights Act 1998 and was not displaced by considerations relating to Article 10 of the Convention: see Jameel (Mohammed) v Wall Street Journal Europe Sprl  UKHL 44,  1 AC 359; Jameel (Yousef) v Dow Jones & Co. Inc.  EWCA Civ 75,  QB 946. In the latter case, Lord Phillips MR, in the course of giving the judgment of the court, said this at paragraph 31:
"There have always been strong pragmatic reasons for proceeding on the premise that a defamatory publication will have caused the victim some damage rather than opening the door to the claimant and the defendant each marshalling witnesses to say that, respectively, they did or did not consider that the article damaged the claimant's reputation."
It was in terms held in that case that the presumption of damage that forms part of the English law of libel is not incompatible with Article 10 of the Convention: see paragraph 41 of the judgment.
"the publication of which he complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him or has a tendency to do so."
A threshold of seriousness, phrased in terms of substantiality, was thereby introduced. As to the connection between this approach and the common law presumption of damage Tugendhat J explains it in this way at paragraph 94:
"There is a further point to be noted if my conclusion in paras 90 and 92 is correct. If this is so, then it explains why in libel the law presumes that damage has been suffered by a claimant. If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant. It is difficult to justify why there should be a presumption of damage if words can be defamatory while having no likely adverse consequence for the claimant."
Applying the test he had posed at paragraph 96 of his judgment, Tugendhat J went on to give judgment, on the summary judgment application before him, in favour of the defendant: among other things concluding, in that case, that the required threshold of seriousness was not overcome (paragraph 107). This requirement of a threshold of seriousness was subsequently confirmed by the Court of Appeal in Cammish v Hughes  EWCA Civ 1655,  EMLR 13, it being also said, at paragraph 40 of the judgment in that case, that the question of seriousness is "multi-factorial".
"10. Subsection (1) of this section provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. The provision extends to situations where publication is likely to cause serious harm in order to cover situations where the harm has not yet occurred at the time the action for defamation is commenced. Subsection (2) indicates that for the purposes of the section, harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss.
11. The section builds on the consideration given by the courts in a series of cases to the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd in which a decision of the House of Lords in Sim v Stretch was identified as authority for the existence of a "threshold of seriousness" in what is defamatory. There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake. In Jameel v Dow Jones & Co it was established that there needs to be a real and substantial tort. The section raises the bar for bringing a claim so that only cases involving serious harm to the claimant's reputation can be brought."
The 2013 Act
"(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss. "
I note that s.1(2) was introduced into the 2013 Act at a very late stage.
"In this Act
"publish" and "publication", in relation to a statement, have the meaning they have for the purposes of the law of defamation generally;
"statement" means words, pictures, visual images, gestures or any other method of signifying meaning."
By s.16(4) it is provided that nothing in s.1 or s.14 affects any cause of action accrued before the commencement of the section in question. Section 14, in relation to slander, provides that a statement conveying the imputation of a contagious or infectious disease "does not give rise to a cause of action for slander unless the publication causes the person special damage."
The meaning of s.1(1)
The decision of the judge and the arguments on s. 1(1)
"In my judgment this approach leads to the clear conclusion that in enacting s.1(1) Parliament intended to do more than just raise the threshold for defamation from a tendency to cause 'substantial' to 'serious' reputational harm. The intention was that claimants should have to go beyond showing a tendency to harm reputation. It is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of."
"In arriving at my conclusions I have given careful thought to Ms Page's submissions that they involve imputing to Parliament contrary to principle an intention to revolutionise defamation law by implication, and to do so in a way that in practice risks defeating Parliament's intention by making litigation in this area more, not less, expensive and complex. I regard both submissions as alarmist and ill-founded. I acknowledge the presumption against implied repeal of the common law. But I do not accept that my construction of s.1(1) is as radical as is suggested, or that it involves the dramatic consequences attributed to it by the claimant's counsel. To the extent that my construction does involve the implied repeal or amendment of common law principles, an intention to achieve that is, in my judgment, necessarily implicit in Parliament's choice of language."
And he said this at paragraph 60:
"I accept that my construction of s.1(1) means that libel is no longer actionable without proof of damage, and that the legal presumption of damage will cease to play any significant role. These, however, are necessary consequences of what I regard as the natural and ordinary, indeed the obvious meaning of s.1(1). They are, moreover, consequences which had in practice already been brought about by previous developments. The HRA and the emergence of the Jameel jurisdiction which substantially eroded if they did not wholly undermine these common law rules. Since Jameel it has no longer been accurate other than technically to describe libel as actionable without proof of any damage. I cannot see this as a substantial argument against my construction of the statute."
He went on to hold (at paragraph 66) that if a defendant raised an issue that the harm was too slight to justify a claim then it would usually be preferable to try the matter as a preliminary issue (his emphasis).
Disposition on s.1 ground
"Upon this point we heard interesting discussion on both sides. I would go by the principle, which is well-established, that in defamation be it libel or slander the cause of action is the publication of defamatory words of and concerning the plaintiff. The cause of action arises when those words are published to the person by whom they are read or heard. The cause of action arises then: and not later."
At p. 831 C-D Dunn LJ said this:
"Like Lord Denning M.R., I would prefer to deal with this on principle. I agree that a publication is an essential part of the cause of action; that once there is publication the cause of action is complete, and there is no room for the doctrine that the cause of action can, so to speak, be allowed to be inchoate or lie dormant until such time as some fact emerges which would transform an otherwise innocent statement into a defamatory one ."
"I do not accept that in every case evidence will be required to satisfy the serious harm test. Some statements are so obviously likely to cause serious harm to a person's reputation that this likelihood can be inferred. If a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile, then in either case (putting to one side for the moment the question of a prompt and prominent apology) the likelihood of serious harm to reputation is plain, even if the individual's family and friends know the allegation to be untrue. In such a case the matter would be taken no further by requiring the claimant to incur the expense of commissioning an opinion poll survey, or to produce a selection of comments from the blogosphere which might in any event be unrepresentative of the population of "right thinking people" generally. "
"The words "has caused" involve looking backwards in time, the words "or is likely to cause" involve looking forwards. The Act does not make clear the moment which marks the dividing line between past and future. It cannot be the moment of publication, since at that moment no harm "has been caused". The two logical possibilities seem to be the date of issue of the claim and the date of the trial (or of the trial of the preliminary issue of serious harm). Either of these has the curious effect that whether a statement is held to have been defamatory on the day it was published might depend retrospectively on the timing of the issue of proceedings or the timing of the trial."
He went on to conclude that the relevant date was the date of issue.
"(e) Depending on the circumstances of the case, the claimant may be able to satisfy s.1 without calling any evidence, by relying on the inferences of serious harm to reputation properly to be drawn from the level of the defamatory meaning of the words and the nature and extent of their publication.
(h) It is important to bear in mind that s.1 is essentially a threshold requirement, intended by Parliament to weed out those undeserving libel claims otherwise technically viable, but which do not involve actual serious harm to reputation or likely serious harm to reputation in the future. Once that threshold has been passed, no useful purpose is served at this early stage of the proceedings by going on to consider evidence which is really material only to the quantum of damage if liability is proved."
"(c) In the result, the hearing of evidence has added little or nothing to the conclusions that an experienced defamation judge would have drawn simply from reading the email and considering the agreed distribution list.
(d) The reason for this is that s.1 sets a threshold test; and the threshold is simply that there shall have been serious harm to reputation. Once that level is passed, further evidence goes to quantum only. Throughout this trial, my sense has been that that distinction was in danger of becoming blurred or lost sight of.
(e) Assuming this action now goes to a final trial, there is a likelihood that there will be a wasteful duplication of evidence and cross-examination already carried out before me and/or that the ultimate trial judge will be vexed with submissions about what has or has not been determined in the course of this phase of the trial."
He concluded by expressing the need for caution in directing preliminary issues under s.1 of the 2013 Act.
(1) Section 1(1) of the 2013 Act has the effect of giving statutory status to Thornton, albeit also raising the threshold from one of substantiality to one of seriousness: no less, no more but equally no more, no less. Thornton has thus itself been superseded by statute.
(2) The common law presumption as to damage in cases of libel, the common law principle that the cause of action accrues on the date of publication, the established position as to limitation and the common law objective single meaning rule are all unaffected by s.1 (1).
(3) If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.
(4) Courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on a dispute as to whether serious reputational harm has been caused or is likely to be caused by the published statement.
(5) A defendant disputing the existence of serious harm may in an appropriate case, if the circumstances so warrant, issue a Part 24 summary judgment application or issue a Jameel application: the Jameel jurisdiction continuing to be available after the 2013 Act as before (albeit in reality likely only relatively rarely to be appropriately used).
(6) All interlocutory process in such cases should be sought to be managed in a way that is proportionate and cost-effective and actively promotes the overriding objective.
(7) Finally, it may be that in some respects the position with regard to bodies trading for profit, under s.1(2), will be different. I say nothing about that subsection which clearly is designed to operate in a way rather different from s.1(1).
The defendants' appeal
"If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first. Perhaps one newspaper influences him more than another but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes."
"It does a newspaper no good to say that other newspapers did the same. They must answer for the effect of their own circulations without reference to others ."
That is all consistent with the general principle that each libel, as published, is actionable as causing distinct damage to reputation. Moreover, in the present case the various published articles will doubtless in any event have had substantially different readerships.
" I do not think I would be justified in accepting the defendants' submission that the absence of 'tangible' evidence of adverse responses to publication indicates that the true position lies towards the 'Macfarlane' end of the spectrum, or that those who did read the offending words were unaffected by it. Mr Macfarlane is evidently a good friend of the claimant, who was confident enough to trust him over the publishers on a matter of this kind. Only two other individuals have been named as having read some of the words complained of, and there is no evidence of their reaction to whatever it was they read. But it is only human nature for people with less close relationships whose opinion of a defamed individual has been affected, to shy away from raising the matter with that individual. Sometimes there is an outward display of hostility, or an overt shunning or avoidance of a person. But evidence of that kind has always been rare, for obvious reasons. The advent of social media has notoriously increased public online denunciation by strangers, but there is no evidence that it is common for friends or acquaintances to do this. My conclusion is therefore that there were, on the balance of probabilities, tens of people and possibly more than 100 who know or know of the claimant and read one or more of the articles and identified him, and who thought the worse of him as a result."
Those findings were open to the judge. Also entirely in point, in my view, were his important observations at paragraph 140 where he said this:
"What I think of rather greater significance is that all this discussion tends to leave out of account, as if it was unimportant, the impact of publication on the claimant's reputation in the eyes of people who do not already know the claimant. A person can after all be defamed, and seriously defamed, in the eyes of those who do not know him. He does not need to establish an existing reputation in order to complain, and may be entitled to substantial damages for the harm to his reputation caused by publication to people who have never heard of him. This was acknowledged in Jameel. The matter is discussed in Ames at -."
I can see nothing whatsoever objectionable in any of this. It is, indeed, both relevant and correct in principle.
"The principal grounds for concluding that the publication caused serious harm are (a) that publication on the agreed scale is inherently likely to have reached a significant number of people by which I mean at the very least a dozen who know the claimant or know of him, whose opinion of him is likely to have been seriously affected in an adverse way; and (b) that the probability is that the claimant's reputation has been seriously harmed in the eyes of others, whose opinion of him matters. Mr Macfarlane is clearly a person whom this article did reach, who knew who it was about, but whose opinion of the claimant was not so affected. But he was a close friend. For the reasons given above I do not agree that the absence of visible or tangible evidence of adverse reactions from other identifiable publishees undermines my conclusions. As the claimant said in his oral evidence, though in different words, silence is not evidence of the absence of impact."
Here too it is, in my view, sufficient to say that I consider that the judge was perfectly entitled to reach these conclusions.
Lady Justice Sharp:
Lord Justice McFarlane: