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April 27, 2016

New decision on serious harm

Category: News

Warby J considers claim under s. 1(2) of the Defamation Act 2013

On 26 April 2016 Mr Justice Warby handed down judgment following the trial of preliminary issues in the case of (1) Khalid Undre, (2) Down to Earth London Ltd v London Borough of Harrow [2016] EWHC 931 (QB). The claim arose out of a news release concerning the conviction of the claimant, who owned a vegan restaurant, for failings in the care of cows he kept on farmland in Harrow.

The first claimant having accepted an offer of amends, the claim was pursued by the second claimant company. The trial was of the issues of reference, meaning, and serious harm, and is the second time that a court has considered in detail the question of serious harm amounting to serious financial loss for the purposes of s. 1(2) of the Defamation Act 2013.

Having failed to show that a reasonable reader would have taken the words complained of to refer to the claimant company, or that they bore a defamatory meaning of it, there was no prospect of it establishing a cause of action. However, the Judge went on to consider whether or not the imputation had caused serious financial loss.

The Judge held that, since a claimant can only recover damages for loss of profit (or increased losses), the evidence adduced by the claimant which showed a likely fall in profits at the material time did not go far enough to show serious financial loss. He also considered causation, and held that the fact that the business was possibly struggling in any event, and that the first claimant had been convicted of offences relating to the welfare of his cows, with associated adverse publicity, defeated any conclusion that the alleged libel caused loss.

Along with the Judge’s analysis of the case on serious harm, the judgment also contains observations which will be interesting to practitioners as to how the trial of a preliminary issue on serious harm should be conducted. The Judge said that the issue of whether quantum should be considered at the same hearing if a claimant succeeds on the threshold issue of ham will deserve future consideration. He also emphasised that it would be desirable to develop a means of cost-budgeting for preliminary issue trials, and that, today, a defence case on the preliminary issue of harm should be served beforehand.

5RB‘s Adam Wolanski, instructed by BLM LLP, acted for the Defendant