In Theedom v Nourish Training t/a CSP Recruitment the High Court has provided further clarification as to what constitutes “serious harm” under Section 1 of the Defamation Act 2013.
During 2013-2014 the claimant worked for CSP, a recruitment consultancy based in Leicester. In early 2014 two of the claimant’s colleagues, one of whom subsequently became his girlfriend, left for a rival firm. The claimant’s employment with CSP came to an end on 26 June 2014 following a meeting between him and the managing director of CSP during which he was accused of leaking confidential information to his ex-colleagues and their new employer.
On 29 and 30 June 2014 the management partner of CSP sent emails to 124 different email addresses, the recipients working for 102 different companies and all being actual or potential customers of CSP. The emails were headed “Dismissed for gross misconduct” and accused the claimant of passing confidential information to his ex-colleagues and their rival employer, with 115 of those emails stating that CSP were considering criminal proceedings against him.
The claimant brought a claim for defamation against CSP and one of its directors. It was agreed that the court should consider as a preliminary issue the meaning of the emails and whether their publication was likely to have caused serious harm.
The judge concluded that the meaning of the emails was that while employed by CSP the claimant had regularly supplied commercially important, confidential information about CSP’s business and its customers’ businesses to CSP’s commercial rivals in breach of his employment contract and as a result, CSP had rightly dismissed him for gross misconduct. The 115 emails that referred to possible criminal proceedings also bore the further meaning that the claimant’s misconduct had been so serious that there were reasonable grounds to suspect that it also amounted to a criminal offence. These were said by the judge to comprise “very serious defamatory meanings”.
The judge then went on to consider the issue of serious harm. He said that depending on the circumstances of the case, a claimant may be able to meet the threshold without calling any evidence but by relying on inferences drawn from the level of the defamatory meaning of the words and the nature and extent of their publication.
The claimant argued that inferences of serious harm could be drawn from the emails and the nature and extent of their publication. He also relied on evidence that some recipients of the emails had been influenced against him by the emails to show that serious harm had in fact occurred. CSP countered that as the claimant had been successful in his new employment since the emails, it could be inferred that it was unlikely that he had suffered or would suffer any serious harm to his reputation.
Having considered the evidence the judge stated that the issue of serious harm in each case will have to be considered in the light of its own circumstances, and when, as here, there had been:
- defamatory words of a fairly high degree of gravity;
- publication to a fairly substantial audience, both in terms of number (over 100) and, more importantly, in terms of proximity and potential importance to the claimant’s career;
- a vulnerable claimant in the form a young man starting out in a competitive business and trying to make his way; and
- an influential and prima facie reliable author of the words complained of,
there would be an inferential case for serious harm to reputation requiring rebuttal.
In this case CSP’s rebuttal evidence had shown that relatively few recipients of the email were positively known to have taken adverse action against the claimant as a result. However, the judge said that the fact that few recipients of the emails had been hostile to the claimant’s face was not a reliable guide to his standing in the eyes of those who had remained silent.
The judge found that on the balance of probability the claimant had met the serious harm threshold.
This case confirms the previous finding in Lachaux v Independent Print Ltd that it is possible to satisfy the serious harm test using inference, with the judge providing some further helpful guidance as to the elements that claimants will need to be able to demonstrate in order to do so. Once a claimant is able to demonstrate these elements, defendants will need to adduce evidence to rebut the inference of serious harm.
The judge commented that the question as to the date at which the likelihood of future serious harm falls to be assessed, and whether this was the date of issue of the claim or the date of the hearing itself, remained unresolved, but did not address the issue. It remains to be seen how the courts deal with this in future cases.
The judge also commented that the courts should exercise caution in dealing with serious harm as a preliminary issue, as in some instances this could lead to a lengthy evidential dispute or to overlap with other factual issues arising later in the case, thus increasing the overall cost and delay of libel cases. The judge suggested that in the first instance the court could instead rule on whether a case was capable of passing the serious harm test, or on the other hand whether the defendant had any real prospect of establishing that it did not, which could be determined without hearing any evidence.