C, a French national working in the UAE, brought libel actions in respect of five articles published by three newspaper publishers between January and February 2014. Each of the articles contained an account of events in the UAE, including proceedings against C’s British ex-wife for allegedly ‘kidnapping’ their child. The articles reported allegations said to have been made against C by his ex-wife including of domestic abuse.
A trial of preliminary issues, including ‘serious harm’ under section 1(1) of the Defamation Act 2013, was held in July 2015, which lasted two days. Significant witness evidence was adduced and C was required to attend in order to give oral evidence and be cross-examined.
Warby J accepted the newspapers’ submissions that Parliament, in passing s1(1) of the Defamation Act 2013, had done more than merely raise the common law threshold of seriousness identified by Tugendhat J in Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB). However, he found that the allegations made in four of the articles had indeed caused or were likely to cause serious harm to C’s reputation. In doing so, Warby J applied the rule in Dingle v Associated Newspapers Ltd  AC 371, and decided against taking account, in considering whether the articles published by these newspapers had caused serious harm, of the fact that there had been other publications which were said to be to the same or similar effect.
The newspapers appealed to the Court of Appeal, with some differences between them as to their contentions in respect of s1(1). Amongst the arguments they advanced were: that a court should not infer serious harm to reputation in the absence of evidence of such harm, even in the case of publication in mainstream media; that the common law rules for determining meaning, including the ‘repetition rule’, form an unreliable basis for inferring serious harm to reputation where none is apparent; that a cause of action arises under the Act only when the serious harm was caused or was likely to be caused, which could be at a date later than publication (citing Cooke v MGN  1 WLR 895); that Dingle should not be applied in the context of a serious harm determination, therefore account should be taken of other publications to similar effect in order to negative an inference of serious harm. C contended that the effect of s1(1) was to raise the common law threshold of seriousness from ‘substantial’ to ‘serious’ and that Warby J’s construction was incompatible with the common law principle, unaltered by Parliament, that the cause of action for defamation accrues upon publication.
The Court of Appeal upheld Warby J’s finding in favour of C on serious harm and rejected all the newspapers’ challenges to his decision. However, it differed from Warby J on the construction of s1(1), concluding that its effect was to give statutory status to the test of ‘defamatory’ adopted by Tugendhat J in Thornton, albeit raising the threshold from ‘substantial’ to ‘serious’  and deprecating the idea that the cause of action in defamation might now accrue at a date later than publication  –  or be “ambient….drifting in and out of actionability” . The Court agreed that serious harm could be proved by a process of inference, envisaging that there would be cases where a finding of serious harm would depend on more than an inference from the tendency of the words and would have to be determined after evidence, at trial  – .
Following the decision of the Court of Appeal, the publisher of the Huffington Post settled with C while the other two publishers (Independent Print Limited and Evening Standard Limited) applied to the Supreme Court for permission to appeal, which was granted.