On 21 December 2022 the UK Supreme Court (Lords Briggs, Hamblen and Leggatt) granted the defendant permission to appeal in the case of George v Cannell.
The appeal is against a decision of the Court of Appeal on 27July 2022 ( EWCA Civ 1067). That Court allowed the claimant’s appeal against a decision of Saini J on 9 November 2021 ( 4 WLR 1451).
The claim was brought by Ms George against her former employer Ms Cannell over four publications in January 2019. Saini J dismissed the claims in libel, slander and malicious falsehood. He held that in relation to claims in malicious falsehood under s.3(1) of the Defamation Act 1952 Ms George had failed to prove that pecuniary damage had probably resulted from those publications. He did find the allegations were false and had been published maliciously.
Warby LJ gave a judgment in the Court of Appeal with which Underhill V-P and Snowden LJ agreed. He held that the purpose of s.3(1) was to relieve a claimant of the need to plead or prove any actual loss on the balance of probabilities as a matter of historical fact. The words “calculated to cause pecuniary damage to the plaintiff” set out a forward-looking test. It was enough for a claimant to prove the publication by the defendant of a false and malicious statement of such a nature that, viewed objectively in context at the time of publication, financial loss is an inherently probable consequence or, putting it another way, financial loss is something that would probably follow naturally in the ordinary course of events. It was held that this interpretation of s.3(1) respects the intention of Parliament, is consistent with authority, and Convention-compliant. The 5RB case comment can be found here.
There is no doubt that this decision makes it easier for a claimant to satisfy the s.3(1) test. As a result, it has been suggested that the Court of Appeal may have opened up a new area of risk for journalists and publishers
On her appeal to the UK Supreme Court Ms Cannell challenges the Court of Appeal’s interpretation of s.3(1) and seeks to restore the first instance decision of Saini J. The appeal is likely to be heard later this year.
Update: The 22 page Grounds of Appeal can be found here [pdf].