Theedom v Nourish Training (t/a Recruitment Colin Sewell)

Under section 1 of the Defamation Act 2013, a claimant must prove, on the balance of probabilities, that publication has caused or is likely to cause serious harm to reputation. Serious harm is assessed in the circumstances of the individual claimant. The court may draw a strong inference from the gravity of the defamatory meaning, the nature and extent of publication, the claimant’s vulnerability and the apparent reliability of the publisher. Evidence of financial loss is unnecessary for a natural person, although evidence of subsequent career success may rebut the inference. Section 1 is a threshold requirement. Once crossed, further evidence generally concerns damages rather than liability. Preliminary trials should therefore be directed cautiously where they risk lengthy evidence, credibility disputes or duplication at the final trial.

The claimant brought a libel action concerning 124 emails circulated by the defendants to actual or potential business customers. The emails alleged that he had regularly passed confidential commercial information to competitors and had been dismissed for gross misconduct. Most emails also stated that criminal action was being considered.

The trial was confined to two preliminary issues: the natural and ordinary meaning of the publications and whether publication had caused, or was likely to cause, serious harm under section 1(1) of the Defamation Act 2013. The court also considered the evidential and case-management approach appropriate to a serious-harm hearing.

1. Meaning. Applying the principles summarised in Jeynes v News Magazines Ltd [2008] EWCA Civ. 130, the reasonable reader must be assessed by reference to the publication and its intended audience. Business recipients reading an email from a known recruitment firm would read the allegations with care and attach weight to their detail. The longer emails conveyed that the claimant had regularly supplied commercially important confidential information to commercial rivals in breach of contract, had rightly been dismissed for gross misconduct, and was reasonably suspected of having committed a criminal offence. The shorter emails conveyed the first two meanings only.
2. Section 1 principles. The court adopted assistance from Cooke v Mirror Group Newspapers [2014] EWHC 2831 (QB) and Lachaux v Independent Print Limited [2015] EWHC 2242 (QB). Serious harm is a substantive element of the claim and must be proved as fact on the balance of probabilities. A natural person need not prove serious financial loss. Harm to feelings alone is insufficient. Depending on the circumstances, serious harm may be inferred from the defamatory meaning and the nature and extent of publication, without evidence from recipients.
3. The statutory threshold is more demanding than substantial injury under Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) and the abuse-of-process threshold in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75. The question is whether the harm is serious for the individual claimant, viewed in the circumstances of the case. The need for apology or vindication may be an important consideration.
4. The gravity of the allegations, publication to more than 100 commercially relevant recipients, the claimant’s position as a young person beginning a competitive career, and the apparent reliability of the publisher established a strong inferential case. His subsequent employment success and limited evidence of direct adverse responses did not rebut it. The absence of correction, retraction or apology indicated that any harm was likely to persist.
5. The claimant therefore proved serious harm under section 1(1). The judge cautioned that preliminary trials should be ordered carefully where extensive evidence or credibility disputes are likely, and suggested that courts should first consider whether the case is capable of passing the threshold or whether the defendant has a real prospect of showing that it does not.

The judgment determined two preliminary issues in a first-instance libel action. By consent, an order dated 14 September 2015 directed a trial of meaning and serious harm, with service of the full defence postponed.