Reference:  EWHC 915 (QB)
Court: High Court of Justice (Queen’s Bench Division)
Judge: Nicola Davies J
Date of judgment: 1 Apr 2015
Summary: Libel – Defamation Act 2013 – serious harm – trial of preliminary issue – meaning – evidence – costs budgeting – proportionality
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Godwin Busuttil (Claimant)
Instructing Solicitors: Taylor Hampton for the Claimant; David Price Solicitors & Advocates for The Independent & London Evening Standard; Lewis Silkin for Huffington Post (AOL) UK
The Claimant brought separate actions for libel (for substantially similar allegations) against three publishers: Huffington Post (AOL) UK, and the publishers of The Independent and the London Evening Standard newspapers. The Claimant contended that the allegations were defamatory both at common law and under section 1, Defamation Act 2013.
In the latter two actions, defences had been served, and Sir David Eady (sitting as a Judge of the High Court) had determined meaning: see  EWHC 620 (QB). Those two defendants applied for orders for trial of two further preliminary issues: (a) whether their publication of defamatory statements had caused, or were likely to cause, serious harm to the reputation of the Claimant; and (b) whether the publications were understood to refer to the Claimant.
In the former action, no defence had been served. The Claimant had applied for trial of a preliminary issue on the meaning of the words complained of. The defendant then applied to add two further issues to that trial: (a) had the words complained of caused (or were they likely to cause) the Claimant serious harm to his reputation; and (b) should the Claimant’s claim be struck out for Jameel abuse?
The Claimant argued that the applications were premature, and that the common issues in the two actions would not be crystallised until after service of a defence. The Court’s costs management duty could not be performed without exchange of cost budgets. Until those were filed the court would not be in a position to properly determine if ordering a preliminary trial as sought would save costs. The applications should instead be heard at a Case Management Conference (CMC) after service of a defence.
Should the Court order that the issues of reference to the Claimant, “serious harm” (per section 1, Defamation Act 2013), Jameel abuse and meaning be tried as preliminary issues, or defer decision until after a CMC and cost budgeting?
Granting the Defendants’ applications:
Warby J’s decision in Ames v The Spamhaus Project Limited  EWHC 127 (QB) had given guidance as to the appropriate procedural mechanism for dealing with “serious harm” as a preliminary issue in libel actions (usually to be held at the same time as a trial on the preliminary issue of meaning).
The judge considered that, notwithstanding that Huffington Post (AOL) UK had not yet filed a defence, the issues between the parties were sufficiently clear from correspondence and so the lack of defence was not necessary in order to determine the issue of “serious harm”, the burden of which fell on the Claimant to prove.
Matters of reference, serious harm, and a “real and substantive tort” (the test for Jameel abuse) were all interlinked: if a claimant could not be identified, his reputation could not suffer serious harm, without which there could be no real and substantive tort. The overriding objective and common sense suggested a combined trial of such preliminary issues without waiting for exchange of costs budgets or a CMC.
This is likely to be the first trial of “serious harm” as a preliminary issue at which evidence will be adduced (as anticipated in Ames v Spamhaus), including disclosure and cross-examination. Should this ruling gain wider application, it suggests that – at least where issues have been clarified in pre-action correspondence – there will be little need for a defence, or cost budgets, or a CMC prior to a trial of preliminary issues being sought and ordered