Sube & Anor v News Group Newspapers Ltd & Anor

For the serious-harm threshold in the Defamation Act 2013, a publication must be assessed by reference to each defamatory imputation it conveys. A claimant cannot aggregate reputational injury from several imputations which are individually below the serious-harm threshold. Meanings that fail the consensus requirement cannot be added to meanings that satisfy it. Separate articles are normally separate statements, although an earlier interlinked article may form part of the context of a later one. Repetition may diminish defamatory impact, even if it may aggravate injury to feelings. The court also confirmed that the result did not depend on any rule that expressions of opinion cannot defame.

The claimants sued two newspaper publishers over 22 articles published between September and November 2016. Following an earlier preliminary-issues judgment, the court found that some meanings were not conveyed, some failed the consensus requirement, and the remaining opinions did not individually satisfy the serious-harm requirement under section 1(1) of the Defamation Act 2013.

The claimants then argued that multiple imputations within an article, or across articles, could be aggregated to establish serious harm. The issue was decided on written submissions, together with an application for specific disclosure. The central question was whether an article could be defamatory where none of its individual imputations was defamatory under the statutory test.

Disposition. The court rejected the Cumulative Harm Point. The defamation claims therefore failed. The application for specific disclosure was dismissed as premature and, by the time of judgment, otiose.

1. Statutory structure. Section 1(1) of the Defamation Act 2013 asks whether publication of a statement has caused or is likely to cause serious harm to the claimant’s reputation. The Act distinguishes a statement from the imputation it conveys, including through sections 2, 9, 14 and 15. The statutory wording did not itself resolve whether harm from several imputations could be aggregated.
2. Applicable test. The modern approach identifies the imputations conveyed by the publication, applies the consensus requirement to each, and then asks whether the qualifying imputation causes or is likely to cause serious harm. The serious-harm requirement cannot be satisfied by aggregating injury caused by two or more less harmful imputations. The formulation in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) [2011] 1 WLR 1985 supported assessment by reference to the publication complained of.
3. Scope of authority. The court rejected the submission that Lachaux v Independent Print Ltd [2017] EWCA Civ 1334 conclusively answered the cumulative-harm issue. That issue had not been argued or decided in Lachaux, and the judgment contained no reasoning addressing it. Hayward v Thompson [1982] 1 QB 47 showed only that unusually interlinked publications may sometimes be considered together for purposes such as meaning or reference.
4. Application. The Sun articles did not satisfy the serious-harm requirement individually, and their closely related imputations would not have crossed the threshold even if aggregation had been permissible. The same applied to most Express articles. Articles 11 and 17, and potentially article 13 if amended, would have satisfied the threshold on the assumed cumulative approach, but that approach was rejected. Repetition would generally tend to dull and dissipate defamatory impact. The decision did not rest on the proposition that expressions of opinion cannot defame; context, including repetition by the same publisher, may be relevant.
5. Costs. The defendants were awarded the costs of the applications and preliminary-issue trial. The second defendant’s costs were summarily assessed at £18,550. The first defendant’s costs were assessed at £46,360, including £6,000 additional costs.

The judgment was a first-instance determination. At an earlier stage, the court decided preliminary meaning, defamatory-status and fact-or-comment issues in [2018] EWHC 1234 (QB), then directed written submissions on cumulative harm.