It is suggested that a number of helpful guidelines for practitioners can be derived from this judgment. These are as follows:
- If the issue of serious harm is raised it will usually be preferable for it to be tried as a preliminary issue (rather than by an application to strike out or for summary judgment) (Lachaux [66]).
- Preliminary issues of meaning and serious harm should (if they arise) be tried together (Lachaux [167]; see also Ames v Spamhaus Project [2015] 1 WLR 3409[101]).
- Where there is a “threshold” issue such as serious harm it will, generally, be undesirable for the defendant to serve a Defence (Lachaux [168]). In other words, there should be an extension of time for service until after the trial of the preliminary issue.
- Evidence is admissible at a preliminary issue trial dealing with serious harm. It may consist of evidence from individuals who have read the publications (even where they have not believed their contents) or in evidence as to “adverse social media responses, name-calling or similar events” (Lachaux [86]). It seems that expert evidence will be admissible (the point was not addressed in Lachaux). Evidence should be confined to what is necessary and proportionate (Lachaux [64]). Irrelevant material may be struck out if this is necessary in the interests of justice.
- Disclosure needs to be given in relation to the preliminary issue. Searches of email accounts and electronic media should be carried out carefully (Lachaux [185]).
- Cross-examination may not always be necessary. If it is, consideration should be given to giving directions imposing time limits (Lachaux [189]).
The legal issues arising from the decision are considered in the Inforrm Case Comment here.
Lorna Skinner is a barrister at Matrix Chambers, specialising in media and information law.