Cooke & Anor v MGN Ltd & Anor

Under section 1(1) of the Defamation Act 2013, a claimant must establish that publication has caused, or is likely to cause, serious reputational harm. Distress or injury to feelings does not suffice. The provision raises the former threshold of seriousness.

Specific evidence of harm is unnecessary where serious reputational harm can properly be inferred from the gravity and reach of the allegation. The court must make a broad assessment of all relevant circumstances, including any prompt apology. Future serious harm will generally be likely only if it is more probable than not.

Natural and ordinary meaning remains determined from the whole publication through the eyes of the single hypothetical reasonable reader. The court should avoid strained analysis and preserve the reader’s first impression.

The claimants were the chief executive of a housing association and the association itself. They brought defamation proceedings concerning a newspaper article about landlords of properties in a Birmingham street featured in a television series. The article identified the association as owning three properties and referred to its chief executive’s salary and home.

By consent, Deputy Master Bard ordered the trial of two preliminary issues. The court had to determine the natural and ordinary meaning of the words and whether publication had caused, or was likely to cause, serious harm within section 1 of the Defamation Act 2013. The defendants had published an apology in the following edition of the newspaper.

1. The preliminary issues were determined by finding a defamatory natural and ordinary meaning, but no serious harm. The words meant that the association was among the well-off landlords making money from the misery of residents receiving housing benefit. They also meant that its chief executive was personally responsible and had become rich from that conduct. The article did not, however, accuse either claimant of providing squalid or substandard accommodation: that allegation was confined to another landlord.

2. The natural and ordinary meaning had to be determined through the eyes of the single hypothetical reasonable reader. The governing principle was reasonableness. The publication had to be read as a whole, without strained interpretation or over-elaborate analysis, and with proper attention to the reader’s first impression. The publisher’s intention was irrelevant. Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and Slim v Daily Telegraph Ltd [1968] 2 QB 157 were applied.

3. Section 1(1) of the Defamation Act 2013 requires serious harm to reputation. Serious distress or injury to feelings does not satisfy that requirement. The statutory language raises the pre-existing threshold: “serious harm” sets a higher threshold than the “substantial harm” wording proposed in the draft Bill.

4. The relevant date for looking backwards to harm already caused and forwards to likely future harm was preferably the date on which proceedings were issued. That choice did not affect the present result. Future serious harm will generally be established only where it is more probable than not, although the court did not decide whether exceptionally grave threatened publications might justify a lower degree of likelihood.

5. Specific evidence is not invariably required. The court may infer serious reputational harm where the gravity of the allegation and the scale of publication make that consequence obvious. The present allegation did not approach that category. Neither claimant proved specific adverse consequences, and serious harm could not properly be inferred.

6. The apology was relevant to the serious-harm assessment. Although less prominent than the original article, it was sufficient to eradicate or minimise any unfavourable impression among readers who saw both publications. Its greater accessibility through internet searches also reduced the likelihood of future harm. The claimants therefore failed to show either serious harm already caused or a probability of serious future harm.

• High Court (Queen's Bench Division): Determined two preliminary issues. It found that the words bore a defamatory natural and ordinary meaning but answered the serious-harm issue under section 1 of the Defamation Act 2013 in the negative.
• Procedural order: On 4 June 2014, Deputy Master Bard ordered by consent that the meaning and serious-harm issues be tried as preliminary issues. Service of the defence was postponed until after their determination.