Amersi v Leslie and another

The Claimant is the founder of the Conservative Friends of the Middle East and North Africa Limited which aims to promote relationships between the Conservatives, the Government and the Middle East and North Africa (“MENA”). The First Defendant is a former MP and the managing director of the Second Defendant, the Conservative Middle East Council (“CMEC”). CMEC, while it was incorporated in March 2019, has been existence for over 40 years and its stated purpose is to forge and maintain relationships between the Conservatives and MENA.

The Claimant brought a libel action in respect of the publication by the First Defendant of fifteen memos in December 2020 and January 2021 to six identified individuals. The Claimant pleaded a composite case on serious harm which was primarily inferential. The Claimant pleaded that percolation and republication caused serious harm to the Claimant’s reputation.

Two applications were before the court:

(i) the Claimant’s application to amend his Particulars of Claim to particularise and clarify his position on serious harm, and

(ii) the Defendants’ application to strike out the original claim for failing to plead a proper case on serious harm.

1. Should the amendment application be granted?
2. Should the strike out application be granted?

Nicklin J held that the Claimant had not demonstrated a case of serious harm to reputation caused by the publications complained of to the six identified individuals which had a real prospect of success. Permission to amend was refused and the claims in respect of these six publishees were dismissed. It was not necessary for the Judge to consider whether the Claimant had a real prospect of showing that any percolation or republication had caused serious harm to the Claimant’s reputation. If the cause of action in respect of original publication fails, any further damage alleged to be caused by it falls away.

Nicklin J also held that, in a case involving individual and discrete publications, a composite plea on serious harm should not be adopted. It is necessary to set out separate particulars of serious harm for each publication relied upon because each publication is a separate cause of action.

In addition, where a Claimant complains of publication to a limited number of publishees, the scope for reliance on inference is likely to be reduced both in relation to the direct harm caused to the claimant’s reputation in the eyes of the immediate publishee and any ‘percolation’ effect. Where the publishees can be identified, the absence of evidence of the actual impact on the publishees may mean the claimant cannot discharge the evidential burden of s1 of the Defamation Act 2013.

This is an important case on the requirements for pleading serious harm in limited publication cases. In such cases a composite plea should not be adopted and the scope for reliance on inference is likely to be much reduced.