Defamation ActAt first blush, the two most recent libel cases in which the question of serious harm has been tested, yielded contradictory findings.  Both cases were argued on the same day before different Judges at separate trials of preliminary issues. In Theedom v Nourish Training Ltd ([2015] EWHC 3769 (QB)) the court found that the Claimant had satisfied the threshold test of s.1 Defamation Act 2013. In Alvaro Sobrinho v Impresa Publishing SA ([2016] EWHC 66 (QB)) the court found that the threshold test had not been met and further, that the claim was an abuse of process.

The cases had similarities.  Both cases involved serious allegations. Both cases involved relatively  insubstantial publication in terms of numbers, though as Dingemans J observed in Impresa, the issue of serious harm is not a “numbers game”.

So how can the decisions be reconciled? As ever, the devil is in the detail.

Both Judges agreed on the principles. In particular, that serious harm can be inferred, even in cases of relatively small circulation, if the defamatory words are serious.  However, whether or not serious harm will be inferred depends on the facts.  In Lachaux v Independent & Ors, Warby J said that “Serious harm may be proved by inference, but the evidence may or may not justify such an inference.” On close examination, both Theedom and Impresa adhere to that principle.

In Theedom, His Honour Judge Moloney QC, whilst concluding that the actual evidence neither added nor detracted very much from the inferential case, attached particular weight to the nature of (as opposed to just the extent) of the publication and its recipients, namely the proximity of the publication and the potential importance to Mr Theedom’s career.  The offending email, had a “different character from a newspaper article” as the readers were all business people known to the sender of the email, essentially warning them about the Claimant’s alleged conduct.

The Judge found, in spite of evidence that relatively few recipients were known to have taken adverse action against Mr Theedom, that publication had caused harm to his reputation of a sufficient degree of seriousness to pass the threshold set by s.1.

The facts of Impresa were very different.

The claim was brought by an Angolan-Portuguese national, against a leading Portuguese publisher, over allegations published in the Portuguese weekly newspaper, Expresso.  Although, as the Judge observed, it might be thought that the most appropriate place to bring proceedings was Portugal,  in fact, because Impresa is domiciled in Portugal ( a member state of the Brussels Convention), Mr Sobrinho was entitled to bring a claim in England and Wales provided he limited his claim to harm caused by publication within this jurisdiction.  His claim was not caught by the requirements of s.9 Defamation Act 2013 which requires a person suing a defendant not domiciled in the UK or a Member State to show that England and Wales is “clearly the most appropriate place” to bring an action.  Mr Sobrinho also brought proceedings in Portugal but he subsequently discontinued them.

This did not mean, however, that the court ignored what was happening in Portugal.  The critical evidence was the Claimant’s evidence that he had achieved vindication of his reputation in Portugal through the reporting of his evidence to a Portuguese Parliamentary Inquiry into the collapse of the bank Banco Espirito Santo.  It was as a consequence of that coverage that he had dropped his claim in Portugal.   Dingemans J found on the evidence that all the same coverage was available in England and Wales, meaning if Mr Sobrinho’s reputation had been restored in Portugal by the media coverage, then it was also restored in England and Wales.

Taking into account also the insufficient evidence about actual serious harm or likely serious harm, the Judge concluded that the serious harm test had not been met. In other words the evidence detracted from any inference that might otherwise be drawn given the seriousness of the allegations.  The Judge also concluded, given that Mr Sobrinho’s reputation had been “so effectively restored” by the reporting of his and other evidence to the Parliamentary Inquiry in Portugal,  the pursuit of the proceedings was an abuse of process.

So where does that leave, in particular, foreign nationals who want to sue here, or foreign publishers who find themselves being sued here?

The Impresa case shows that English courts will not be quick to infer serious harm in cases involving relatively limited circulation which involve parties who are foreign, even if the allegations are serious.  Foreign claimants need to take heed from this decision and start to put together actual evidence of harm or evidence of likely harm, starting with evidence about their reputation in this jurisdiction.  However, whilst foreign publishers may take heart from the fact that the burden is on the claimant to get over this hurdle, and they can be assured that the question of serious harm will be dealt with as a preliminary issue before they have to serve a Defence, they cannot safely assume they will not be sued.  The more serious the allegations, and the bigger the circulation, the greater the risk of a finding of serious harm and the greater the risk that serious harm will be inferred.

Carter-Ruck acted for both Mr Theedom and Impresa.

Claire Gill is a Partner and Isabella Piasecka is an Associate at Carter-Ruck