October 22, 2014
Section 1 appeal will not go ahead
Cooke v MGN appeal no longer being pursued
The Claimants in Cooke v MGN  EWHC 2831 (QB) have said they no longer wish to pursue the permission to appeal granted by Bean J in respect of his decision, handed down in August, that an article published in the Sunday Mirror in January 2014 failed to meet the serious harm test in section 1(1) of the Defamation Act 2013 (see 5RB case report here).
Bean J had granted permission to appeal because this was the first case to have come to a hearing on the proper interpretation of section 1. At the same hearing, the Judge had also clarified one aspect of his judgment (see previous 5RB news report here).
At the permission hearing, 5RB’s Adrienne Page QC had argued that the court was in error in holding that, by virtue of section 1(1), the court can no longer infer serious harm or the likelihood of serious harm from the nature of the defamatory imputation, except in cases at the extreme top end of the scale of gravity. That was, she argued, to read into the Act the abolition of some of the most fundamental principles of the common law. At common law, in order to be actionable as defamatory, the words must be likely to cause harm, although modest harm will suffice. What Parliament had done in section 1(1) was to qualify the common law to the extent only that, in order to be actionable, the words must be likely to cause serious harm. There was no necessity or warrant to read into section 1(1) any greater interference in the common law than this simple adjustment. Moreover, deciding whether a statement is defamatory remains an objective exercise on which no evidence of harm is required owing to the presumption of harm that, in Jameel v Dow Jones the Court of Appeal, held to be compatible with article 10 of the ECHR and which Parliament has not abolished.