Defamation Act 2013, Serious Harm and the Cooke costs ruling – Oliver Fetiveau

30 09 2014

Mr-Justice-BeanOn 13 August 2014 Mr Justice Bean handed down his judgment in the case of Cooke v MGN ([2014] EWHC 2831 (QB)).  This was the first case in which the requirement for ‘serious harm’, as newly prescribed by the Defamation Act 2013 (the “2013 Act”), was considered.

Crucially, Mr Justice Bean decided that the moment at which the serious harm test is to be applied is that of the issue of proceedings (and not, as previously the case, at the moment of publication).

I considered (see here) this to be an extremely press-friendly development, particularly at a moment when one might expect the prevailing wind to be blowing in the opposite direction.  Effectively it allows a newspaper to publish a defamatory piece, to reap financial reward, and promptly to apologise:  the effect of the apology could be to repair the ‘serious harm’ and therefore the elements of the tort of defamation under the 2013 Act would not be made out.

Further, I identified a further wrinkle: given there would be no liability under the 2013 Act , then under the usual principles of costs recovery (that they follow the event) there would be no ability for the claimant to recover costs  – even if but for the sending of a Letter Before Claim no apology would have been obtained.   I asked in the previous article as to whether the Judge might address the prejudicial and extremely defendant-friendly costs position his judgment had created,

Thankfully he has taken steps to address the situation.  Notwithstanding that he had found for the Defendants on the question of libel (on the basis that the apology had addressed the question of serious harm), he awarded the Claimants their costs up to and including the publication of the apology by the Defendants.  He concluded that it was “entirely reasonable in the present case for the Claimants to consult lawyers and for them to write as they did and to expect the prompt publication of an apology and the payment of such costs as were reasonably incurred in attaining that apology”. Unsurprisingly, given his decision on liability, he awarded the Defendants their costs from the moment of publication of the apology.

So where does this leave claimants?  If a claimant issues a Letter Before Claim and if an apology is issued, then the claimant can expect to receive his reasonable costs up until the apology – and a defendant would be well-advised to offer payment of such costs at the time of the apology.  Further, given that the Judge has decided that an apology imports an obligation to pay reasonable costs – even if the test under the section 1 of the 2013 Act may not have been met : this is a welcome relief for the CFA market as a “win” can easily be defined so as to encompass this scenario.

The situation is not entirely resolved though.  What of the costs position if an apology is issued by the defendant with no admission of liability, and with no offer of a payment of costs?

In his decision on costs Mr Justice Bean has gone some way to addressing the problem his judgment on liability has created: it still appears more sensible that the moment for the test of serious harm to be applied immediately after publication, and that significant importance be attached to the issue of any prompt apology in considering the question of damages.  However, we have not heard the last of this:  the Claimants have been granted Permission to Appeal on the question of liability.  Mr Justice Bean has rightly decided the thorny question of serious harm, and when it is to be assessed, is one for the Court of Appeal to decide.

Oliver Fetiveau is a Partner at M LAW LLP. 


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