Defamation – libel – serious harm – trial of preliminary issue
C, a prominent Labour politician, sued Ds over a passage in D1’s book “Broken Vows – Tony Blair, the Tragedy of Power”. Ds contended in correspondence that the words complained of were not defamatory of C at common law, and, if they were, they had not caused and nor were they likely to cause serious harm to his reputation. Before serving a Defence, Ds applied for an order that the question of serious harm be tried as a preliminary issue. The parties were in agreement that meaning and common law defamatory status were suitable for trial as preliminary issues, but C contended that it was not appropriate, in the circumstances of this case, for serous harm also to be tried early.
Should the question arising under section 1 of the Defamation Act 2013 of whether the words complained of had caused, or were likely to cause, serious harm to the reputation of the claimant be tried as a preliminary issue?
The trial of serous harm as a preliminary issue in the circumstances of this case was not appropriate.
There has been a recent trend towards the question of serious harm being tried as a preliminary issue, following on from Lachaux v Independent Print Media [2015] EWHC 2242 (QB). This case is a useful reminder that there is no rule of practice that the issue should be tried early, and all depends on the facts of the case. Here, the Ds had not yet served a Defence, and, until the evening before the hearing, had not indicated whether any substantive defence would be relied on should they fail on serious harm. Even then it remained, in the view of the Judge “highly uncertain whether any substantive defence would be advanced”. It was not “just or convenient” to order a preliminary trial, and that course would “be more likely to complicate, delay and waste resources than to simplify, expedite and economise.”
