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SERIOUS HARM' TEST CASE HEADS FOR COURT OF APPEAL


29 September 2014

Media Lawyer

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The first defamation case involving the requirement that a would-be claimant must show that published material caused or was likely to cause "serious harm" to his or her reputation is to go to the Court of Appeal.

Mr Justice Bean, who dealt with the original claim in Ruth Cooke and Midland Heart Ltd v MGN Ltd and Trinity Mirror Midlands Ltd ([2014] EWHC 2831 (QB)) gave permission for an appeal at a hearing on Friday last week (September 26).

The Midland Heart housing association and Mrs Cooke, its chief executive were suing the Sunday Mirror over an article about wealthy landlords renting properties to people in the road featured in the TV series Benefits Street, but Mr Justice Bean held in a decision on August 13 that the claimants could not show that the story had caused or was likely to cause serious harm to their reputations.

He reached that decision in part because the newspaper had removed the words complained of from the online version of the article, and had subsequently published an apology for having mentioned the housing association and Mrs Cooke.

The decision was the first to examine the new "serious harm" test set out in section 1 (1) of the Defamation Act 2013.

Mr Justice Bean gave permission to appeal on after being told on Friday by Adrienne Page QC, for the claimants, that his original judgment, if it was correct, demonstrated the potentially far-reaching consequences of section 1, which included overturning centuries-old common law principles.

The website of Ms Page's chambers, 5RB, reported: "The Judge, in granting permission to Midland Heart Limited and its chief executive, Ruth Cooke, expressed no view on the prospects of success of any appeal.

"He said that permission was being granted because this was the first case to have come to a hearing on the proper interpretation of section 1 of the Defamation Act 2013."

The judge also clarified one aspect of his written judgment, explaining at Friday's hearing that he had made no finding and had intended to express no view as to whether the natural and ordinary meanings he found the words to bear, as set out in paragraph 19 of his judgment, would have been defamatory under the common law as it applied before January 1 this when, when the Defamation Act 2013 came into force.

Mr Justice Bean awarded the claimants their costs up to and including the publication of an apology by the defendants, saying 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".

He awarded the defendants their costs from that point onwards.

In his decision in August Mr Justice Bean said that both Mrs Cooke and Midland Heart accepted that there was no specific evidence that the newspaper's article had caused serious harm to their reputations so far; and that he considered that such serious harm could not be inferred.

But he also said: "I do not accept that in every case evidence will be required to satisfy the serious harm test.

"Some statements are so obviously likely to cause serious harm to a person's reputation that this likelihood can be inferred. If a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile, then in either case (putting to one side for the moment the question of a prompt and prominent apology) the likelihood of serious harm to reputation is plain, even if the individual's family and friends knew the allegation to be untrue.

"In such a case the matter would be taken no further by requiring the claimant to incur the expense of commissioning an opinion poll survey, or to produce a selection of comments from the blogosphere which might in any event be unrepresentative of the population of 'right thinking people' generally.

"But I do not consider that the Article in the present case, with the meaning relating to the claimants which I have held it to have, comes anywhere near that type of case."

ends

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