Case Law: Cooke and Midland Heart Ltd v MGN: A seriously harmful approach to serious harm? – Kirsten Sjøvoll

13 08 2014

Mr-Justice-BeanJudgment was handed down today by Mr Justice Bean in the libel case of Cooke and Anor v MGN ([2014] EWHC 2831 (QB)). The judgment follows the trial of two preliminary issues in the case: the meaning of the words complained of; and, most significantly, whether either or both of the publications complained of reached the “raised threshold” of “serious harm” within the meaning of section 1 of the Defamation Act 2013 (“the 2013 Act”).

Media lawyers have been waiting with bated breath for judicial interpretation of the 2013 Act; in particular Section 1(1). However, finding that the Claimants had failed to meet the threshold required under Section 1(1), the judgment is a disappointing first step in the judicial interpretation of “serious harm”.

Background

Mrs Cooke is the Chief Executive of Midland Heart, a housing and care organisation with a particular focus in deprived inner city areas. On 26 January 2014, the Sunday Mirror published an article with a front-page headline “MILLIONAIRE TORY CASHES IN ON TV BENEFITS STREET”, followed up over two pages later on in the paper. The article was focussed on Paul Nischal (the “Tory millionaire” of the front page headline, also described as “Mr Goldfinger”) and the properties which he rented out to benefit claimants on what was described in the article as the “rundown road”. Viewers of the Channel 4 documentary “Benefits Street” will be familiar with the street in question as well as its now infamous reputation. The article discussed, amongst other things, disreputable landlords making a profit from low income tenants.

The Sunday Mirror had promised the Claimants that there would be no explicit mention of them in the article. They were, in fact, mentioned and this was said by the Sunday Mirror to have been an honest mistake. The paragraph relating to the Claimants was then removed from the online version of the article during the day on 26 January 2014. By that time, the online article had been accessed 4,534 times. The following Sunday, the Sunday Mirror published on page 2 an “apology”, which read as follows:

“Midland Heart and Ruth Cooke: An Apology

Last week we included Midland Heart Housing Association and its Chief Executive Ruth Cook in our article “Millionaire Tory cashes in on TV Benefits Street”.  Midland Heart is a not for profit housing and care charity and any surplus made by it is reinvested into its home from the benefit of its customers.  Midland Heart and Mrs Cooke take their responsibility to support customers and the communities they live in very seriously.  We did not intend to include them in the article and wish to apologise to both Midland Heart and Mrs Cooke for our mistake”

The Claimants did not agree this apology and claimed that it did not make clear that they were not the disreputable landlords portrayed in the article. It was further said that this was an implicit acknowledgement of the harm the article had caused.

The Claimants subsequently brought a claim in libel against the publishers of the Sunday Mirror and a website which also ran the article. It was ordered by consent that meaning and serious harm would be tried as preliminary issues.

Judgment

The trial of the two preliminary issues was heard by Mr Justice Bean on 23 July 2014.  His reserved judgment was handed down on 13 August 2014.

Meaning

The meaning of the words complained of was dealt with fairly shortly by the Judge. Having rejected both parties submitted meanings, he held that the words complained of, in their natural and ordinary meaning were that:

(1)  Midland Heart, whose chief executive is Ruth Cooke, is one of the well-off landlords of rented properties on James Turner Street who let houses to people in receipt of housing benefit at rents of up to £650 per month, thereby making money from the misery of James Turner Street residents; and tha

(2)  Ms Cooke is personally responsible for this conduct of Midland Heart, and has herself profited and become rich from it, in that she is paid £179,000 a year and lives in a large house in Gloucestershire. [19]

He then went on to briefly consider the apology, noting that it had not been agreed by the Claimants but holding that it had been “sufficient”. Its relevance was not, however, to the meaning but to the issue of “serious harm”. [21] – [22]

“Serious Harm”

Having dealt with meaning, the more difficult question was whether the words complained of reached the “serious harm” threshold prescribed by Section 1(1) of the 2013 Act, which 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 key issue was the extent and nature of the relationship between the statutory definition of “serious harm” and the common law definition of “defamatory”.

As is well known, at the common law, following Thornton v Telegraph Media Group [2011] 1 WLR 1985, “defamatory” incorporates a qualification or threshold of seriousness:

“the publication of which [a claimant] 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.” [95]

It was not in dispute that section 1(1) requires a claimant to show that serious harm has been caused or is likely to be caused to his reputation. In this case, it was only necessary for the court to consider what was meant by “has caused” (i.e. looking backwards) rather than the alternative “is likely to cause” (i.e. looking forwards to potentially serious harm). [33]

As to the date from which past harm (‘has caused’) or future harm (‘likely to cause’) should be assessed, the Judge accepted the Claimants’ submission that the date in either case should be the date on which the claim is issued, although the date made little difference on the facts of the present case. [32]

The Judge then turned to the question of what would be likely to amount to “serious harm” and how that could be evidenced under the 2013 Act before considering whether the Claimants had met that threshold on the facts.

The Judge considered the drafting history of the section 1(1), noting in particular the decision to replace “substantial harm” with “serious harm” in the final version. It would be uncontroversial to suggest that “serious harm” involved a higher threshold than “substantial harm” and that, as it was put in the Explanatory Notes, this “raises the bar” over which a claimant must jump. [37]

What was more difficult to ascertain was the extent to which the bar was raised. The Claimants had sought to rely on an observation made by Lord McNally, the Minister of State in charge of the Bill, in the House of Lords Grand Committee debate of 17 December 2012, when he said:

“Our view is that the serious harm test would raise the bar to a modest extent above the requirement of the current law.” [emphasis added in judgment]

However, the Judge took the view that this statement was inadmissible. The words “serious harm” were sufficiently clear taken in their ordinary meaning and there was no ambiguity so as to bring the rule in Pepper v Hart into play. [39]

The Judge then turned to the question of how serious harm might be proved. The Claimants had submitted that there were a number of “evidential difficulties” in establishing serious harm and for that reason, it would not be appropriate to engage in a “sophisticated ‘analytical’ approach” to the question of “damage to reputation”. Rather, the courts have always embarked upon a “broad assessment” of the question of damage to reputation and to depart from that in light of the new Act. The central questions to be answered in the course of such an assessment should remain: (1) the seriousness of the allegations; and (2) the extent of the circulation. [40]

Conversely, the Defendants argued for a more “tangible”, evidence based approach. It was submitted on behalf of the Defendants that, for example, it would be appropriate for the courts to look at comments on the blogosphere as evidence of readers’ views. [42]

The Judge adopted a “middle-ground” approach. He first observed that evidence would not always be necessary to satisfy the “serious harm” test. In cases where statements are “so obviously likely to cause serious harm to a person’s reputation” that the likelihood of serious harm could be inferred, it would serve little purpose for the claimant to, for example, commission an opinion poll survey or produce a skeleton of comments from the blogosphere. He suggested that such an obvious case might be where a national newspaper accuses someone (wrongly) of being a paedophile or a terrorist. However, the article in the present case did not “come anywhere near that type of case”. [43]

Assessing the facts, the Judge attached great weight to the apology issued and the amended version of the online article. Having already concluded that the apology “was 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”, there was only a “residual” group who had not read the apology to consider. This group was likely to be fairly small, especially in light of the fact that the apology is now more prominent online than the original article. [44]

There was no specific evidence of serious harm that could be adduced. There was no reasonable inference that could be drawn in the absence of such evidence. For the same reasons, they had not been able to show that the article was more likely than not to cause serious harm to their reputations in the future. The Claimants had therefore failed to meet the “serious harm” threshold prescribed by section 1(1) of the 2013 Act.

Comment

This was the first case to consider the interpretation of section 1(1). It is therefore disappointing that it seems to raise more questions than it has answered about the thorny threshold test of “serious harm”.

First, the judgment leaves open the possibility that an in-depth, analytical approach of the kind consistently rejected at common law – for example in Cairns v Modi –  may be appropriate in the “less obviously” harmful cases.  However, it is difficult to see how such an approach would work in practice. If, in cases where the allegations are not so “obviously” serious as the examples of “terrorist” or “paedophile” given by the Judge, it would seem that hard evidence would need be adduced either demonstrating or allowing an inference of serious harm (whether actually caused or likely to be caused). But what would that evidence look like?

It was argued on behalf of the Defendants that online comments could be adduced. Yet, those are inevitably unrepresentative and, I would suggest, this would mark a dangerous departure from the view that “reputation” is something more intangible, not easily measured with any real accuracy. It is not like financial damage or physical damage. For much the same reasons, witness evidence is likely to be unhelpful: a witness who reads a piece is likely to know the claimant and so would anyway disbelieve the allegations. Even if they somehow “demoted” the claimant in their mind, that is evidence that is very difficult to assess in a judicial context. Unfortunately, the judgment offers little guidance – other than the importance likely to be attached to an apology – on what sort of evidence the Claimants might have adduced to pass the serious harm threshold in this case.

Secondly, while the judgment tells us that “serious harm” is more serious than “substantial harm” it fails to tell us just how much higher the bar is raised for claimants. It is surprising that the Judge felt the language to be sufficiently clear so as to remove the need to consider the remarks of Lord McNally. In particular, the relationship with the approach taken at common law was not explored. It would seem, taking into account the inference that hard evidence must now be adduced in some cases, that the bar is set quite considerably higher. It may therefore be with an abundance of caution that claimants proceed with libel claims in the future.

Thirdly, although the point did not need to be decided on the facts, it is disappointing that the opportunity to give guidance on the meaning of “likely to cause” serious harm was not taken. Other than establishing that the point from which harm is assessed is the point of issuing a claim form, we will need to wait for a case dealing directly with future harm to understand how future harm will be assessed. In particular, it is unclear whether – or to what extent – there is a difference between a “tendency to cause substantial harm” and a “likelihood of causing serious harm”. Is likelihood “could” or “probable” or something in between? What evidence would a claimant be expected to produce to prove likely harm? None of these questions were answered in the judgment although raised in submissions by both parties.

It seems that we must accept that the bar is raised for claimants. However, we do not know by how much or how that threshold might be met. That places both claimants and defendants in a position of uncertainty that will only be resolved by further litigation. Perhaps that is the most seriously harmful outcome of all.

Kirsten Sjøvoll is a barrister at Matrix Chambers specialising in media law


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