Brown v Bower & Anor

Whether to order preliminary issues in a defamation claim is a case-management decision governed by the overriding objective. Meaning and defamatory tendency will often be suitable for early determination because they are potentially decisive, involve a narrow inquiry and can usually be tried promptly and economically.

The serious harm requirement is a substantive threshold, but there is no automatic procedural right to have it tried as a preliminary issue. The court must assess the circumstances of the individual case, including factual disputes, novel legal issues, possible substantive defences, delay, evidential overlap and proportionality. A defendant has no right to withhold the general nature of a possible substantive defence when seeking such an order.

The claimant, a Member of Parliament, brought a libel claim concerning a passage in a biography which alleged that he had paid male prostitutes for violent sexual acts. The defendants applied before serving a Defence for preliminary trials of meaning, defamatory tendency, serious harm under section 1 of the Defamation Act 2013, and abuse of process under the principles in Jameel v Dow Jones [2005] 1 QB 946.

The claimant agreed that meaning and defamatory tendency should be tried as preliminary issues, but opposed early determination of serious harm and abuse. The defendants had indicated only in guarded terms that they might rely on truth if unsuccessful. The central questions were whether the proposed issues would further the overriding objective and whether the defendants could defer indicating their possible substantive defence.

1. Meaning and defamatory tendency. The court directed a preliminary trial of meaning and defamatory tendency. These issues were potentially decisive, depended on a short publication and straightforward pleaded meanings, required little evidence, and could be determined promptly and at modest cost. Meaning is an issue of fact, while defamatory tendency is an issue of law. The applicable principles were settled.
2. General approach to preliminary issues. The decision whether to order a preliminary issue is always case-specific. The court must apply the overriding objective in CPR 1.1 and balance the importance of the substantive rights against procedural and practical considerations. Relevant considerations include whether the issue is decisive or potentially decisive, whether it is usually a question of law, whether it can be tried on agreed or assumed facts, whether it can be determined without significant delay, and whether early determination will avoid rather than create duplication, cost or injustice.
3. Serious harm and Jameel. Section 1(1) of the Defamation Act 2013 creates a substantive threshold, but it does not confer a right to challenge that threshold by preliminary trial. Earlier observations favouring preliminary trials of serious harm or Jameel abuse were contextual and did not establish a rule of practice. If serious harm is tried as a preliminary issue, it will generally be preferable to try it with meaning, but that too is not an inflexible rule.
4. Disclosure of possible defences. A defendant need not formally plead a substantive defence before a preliminary issue is decided, particularly given the offer of amends regime under sections 2 to 4 of the Defamation Act 1996. However, the defendant has no right to keep silent about whether a substantive defence may be advanced or its general nature. The Defamation Pre-Action Protocol and CPR 1.3 require parties to assist the court, and the court needs that information to decide what a proposed preliminary issue is preliminary to.
5. Application to this case. A preliminary trial of serious harm and Jameel abuse was refused. The proposed issues involved disputed facts, substantial evidence, three novel legal arguments, possible overlap with a later trial, uncertain substantive defences and potential delay while relevant legal principles were under consideration by the Court of Appeal. The defendants' application was therefore allowed only to the extent of directing preliminary trials of meaning and defamatory tendency.

This was a first-instance case-management decision. The judgment records no prior appellate decision in the same proceedings.