At first blush, the two most recent preliminary issues trials on serious harm have yielded contradictory findings.

The serious harm threshold was introduced by section 1 of the Defamation Act 2013. It requires claimants in defamation actions to prove that the words complained of caused, or are likely to cause, serious harm to their reputation. Early cases in which section 1 was applied confirmed that serious harm may be inferred.

They have also confirmed that section 1 is a ‘more exacting test’ than the common law ‘real and substantial tort’ test established in Jameel v Dow Jones, which was applied before the 2013 act to strike out trivial claims. This means it will be rare for a claim to meet the serious harm test but nevertheless fall foul of Jameel as an abuse of process.

In Theedom v Nourish Training Ltd, Judge Moloney QC found that where you have serious, defamatory allegations and publication to a fairly substantial audience, you have the ingredients for an inferential (but rebuttable) case on serious harm. In Alvaro Sobrinho v Impresa Publishing SA, handed down only a month later, Dingemans J found that serious harm could not be inferred on the facts, albeit the allegations were just as grave and there was similar publication in terms of numbers. Neither were cases of mass publication in this jurisdiction. But, as ever, the finer detail is telling.

Mr Theedom complained of 124 emails sent by a manager at his former employer, a recruitment consultancy, to its actual or potential customers, essentially warning them about alleged misconduct. Mr Theedom relied both on the inference of serious harm to his reputation, and on some evidence of actual harm. The defendants’ evidence in rebuttal showed the claimant had suffered no demonstrable financial loss, and that the great majority of the email recipients took no adverse action against him. In any event, according to the judge, this body of evidence neither added nor detracted very much from the inferential case; serious harm could be inferred.

Superficially, Mr Sobrinho’s claim had similar elements. The allegations complained of, published in an article by Portuguese newspaper Expresso, were equally serious, concerning alleged misconduct by him while head of Angolan bank Banco Espirito Santo Angola (BESA). Publication (in this jurisdiction, as opposed to Portugal) was found to be narrower than in Theedom, to a maximum total readership of 55. But, as Dingemans J made clear, the issue of serious harm is not a ‘numbers game’.

So how can Impresa be distinguished from Theedom, if not on the gravity of the allegations or the extent of publication? One distinction is that the judge in Theedom attached particular weight to the nature (as opposed to just the extent) of the publication and its recipients, namely the proximity of the publication and the potential importance to Mr Theedom’s career. The offending email had a ‘different character from a newspaper article’, as the readers were all business people known to the sender. It was a targeted audience.

Another key difference is that the judge in Impresa found not only that the claimant had suffered no serious harm to his reputation, nor was he likely to suffer serious harm, but that his claim was an abuse of process. This was on the basis that, by the claimant’s own admission, his reputation had already been vindicated in Portugal by the reporting of his evidence to a parliamentary inquiry there about the collapse of BESA’s parent bank, Banco Espirito Santo. The judge found his reputation would also have been restored in this jurisdiction by the Portuguese media coverage available here. Even if the court had found that the section 1 threshold was met, the claim may have been one of those rare cases where it was nevertheless found to be an abuse of process.

Mr Sobrinho was of course perfectly entitled, under EU law, to bring a libel claim in England and Wales against a Portuguese-domiciled defendant; his claim was not caught by the requirements of section 9 of the 2013 act to show that England and Wales was ‘clearly the most appropriate place’ to bring an action.

But he was obliged by the findings in Shevill v Press Alliance to limit his claim to the harm caused, and publication within, this jurisdiction. He could have opted to, and in fact did, sue Impresa in Portugal over the same article, with no similar need to limit the claim. He later chose to withdraw his Portuguese proceedings however, because he said his reputation in Portugal had been vindicated, but continued proceedings here. Convincing the court of an inferential case was difficult.

In Lachaux v Independent & Ors, which was the second ever trial of serious harm as a preliminary issue (Theedom and Impresa were the third and fourth respectively), Warby J said that ‘serious harm may be proved by inference, but the evidence may or may not justify such an inference’. On close examination, both Theedom and Impresa adhere to that principle. In Theedom, an inferential case was not rebutted. In Impresa, however, it seems that a prima facie inferential case was in fact displaced by a finding of abuse, and because there was insufficient actual evidence of serious harm.

One lesson for both claimants and defendants is that, barring the clearest inferential cases (involving mass publication and grave allegations), evidence of actual harm, or the likelihood of actual harm, matters. Another, perhaps obvious reminder is that each case will turn on its facts. It would be dangerous when assessing the merits of a case ever to assume serious harm, as it will almost invariably be challenged.

Carter-Ruck acted for both Mr Theedom and Impresa. All three defendants in Lachaux have recently been granted permission to appeal.

Isabella Piasecka is an associate at Carter-Ruck

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