Harrath v Stand for Peace Ltd & Anor

In a libel claim, matters relevant to serious harm to reputation must be distinguished from matters relevant only to damages for injury to feelings. A pleading must identify clearly the facts relied on and the purpose for which they are relied on. Directly relevant background context may be admissible in mitigation, but vague references to context are insufficient. Other allegations in the same article may be relevant where causation of a specific kind of harm is disputed, but cannot ordinarily reduce damages for the allegation complained of. The serious-harm requirement in s 1 of the Defamation Act 2013 did not alter the existing rules governing specific misconduct relied on to rebut reputational harm.

The claimant brought a libel action over an online statement that he was a convicted terrorist. He applied under CPR 3.4(2) and CPR 24.2 to strike out parts of the Defence. The defendants cross-applied for permission to amend.

The defendants abandoned pleas of truth and statutory qualified privilege based on Tunisian convictions and an Interpol Red Notice. The remaining disputes concerned proposed reliance on matters said to bear on serious harm, damages, mitigation and pre-action conduct. The central questions were whether those matters were legitimate in principle, adequately pleaded and sustainable at trial.

1. Disposition. The claimant’s strike-out application succeeded in substantial part. Permission was granted for amendments reflecting abandonment of the truth and statutory privilege defences, and for reliance on the fact of the Tunisian convictions as a possible matter in mitigation. The proposed reliance on other matters was struck out or refused, subject to any properly formulated further application. (Paras [25]–[26], [37], [51]–[52].)
2. Serious harm to reputation and damages for injury to feelings are distinct, although they may overlap. A pleading must state clearly what is relied on and the way in which it is relied on under each head. Matters relevant only to injury to feelings cannot answer serious harm. (Para [32].)
3. Directly relevant background context may be admissible in mitigation, but the material relied on must be identified clearly and is subject to case-management control. Matters relevant to the public-interest defence could not reduce reputational harm and, on the pleaded case, could not mitigate injury to feelings. (Paras [34]–[36].)
4. The fact of the Tunisian convictions was capable of being pleaded in relation to damages, provided their current status was understood and agreed. The court was not required at the pleading stage to decide whether the fact would in fact mitigate damages. (Para [37].)
5. Other allegations in the same article could be relevant where a specific kind of harm was alleged and causation was disputed. They could not generally be used to reduce compensation for an inferential claim of reputational harm. The trial court could consider the article as a whole to ensure that any award compensated only harm caused by the complained-of allegation. (Paras [41]–[48].)
6. The serious-harm requirement in s 1 of the Defamation Act 2013 did not alter the law governing specific misconduct relied on to rebut reputational harm. The court remained bound by the rule in Scott v Sampson. The proposed allegations were inadequately particularised and did not plead that readers knew of the matters relied on. (Paras [49]–[52].)

The court also criticised both parties’ pre-action conduct, but concluded that the defendants’ post-issue refusal to exchange information or negotiate was the principal cause of their mistaken pleadings. Costs were to be determined after any further argument required. (Paras [55]–[64].)