The Defendants’ applications were dismissed.
(1) No. The claim should not be struck out but the plea of serious harm should be amended to reflect the meaning subsequently found by Nicol J and to further particularise the case on causation in the jurisdiction.
The basic building blocks of a statable case on serious harm was sufficiently discernible from the pleadings to date in the form of a proposition as to general inference from the basic factual matrix of the case, together with allegations of specific consequences.
While the pleadings were inconsistent with the meaning subsequently found by Nicol J and should be reframed to reflect it, this could be amended. The pleadings should also be reframed to refer to harm caused in the UK as a result of UK publication, but were again capable of being remedied by further particularity.
(2) No. Taking the evidence in the round the witness evidence available set out a factual basis for a case of serious harm which, if established, was realistically capable of discharging the s.1(1) test.
First, witness evidence, tested orally, characteristically plays a significant part in fact-finding in serious harm trials.
Second, the inferential route to serious harm is multifactorial and cries out for trial procedure.
Third, there is already before the Court: (a) the imputation of grounds to investigate the Claimant’s involvement in instances of international political destabalisation is not a trivial allegation; (b) an established non-negligible UK subscription readership and evidence of wider dissemination (the total of 94 subscribers was not inconsistent with the causation of serious harm); (c) evidence that the Claimant has valuable reputational capital in the UK capable of being seriously harmed; (d) evidence that the business and financial sectors in the UK operate due diligence which are sensitive to the sorts of allegations published in the article; and (e) evidence of sample instances of serious consequences capable of linkage to the article complained of.
Fourth, there was the prospect of further evidence on serious harm at trial. This was an interlocutory hearing.
Fifth, there is already evidence before the Court from the Claimant and his financial and business advisers of specific and serious damage in the UK and to UK based interests attributed to the article complained of.
Sixth, while the jurisdictional issues raised by causation are complex they are fact sensitive and while causation may be difficult the case was not fanciful. It was not proper or possible to go any further in the evaluation of the material in an attempt to assess the Claimant’s prospects as this would have entered mini-trial territory and usurp the function of a trial judge.