Alexander-Theodotou & Ors v Kounis (Rev 1)

For a preliminary trial of serious harm in a defamation claim, the ordinary burdens and standards of proof apply. Serious harm under Defamation Act 2013, section 1, is assessed by reference to the gravity and context of the publication, ordinarily drawing an inference where appropriate. That inference may be rebutted by evidence, including evidence about the number and identity of publishees, reference, grapevine publication and the opinions already held by those who identified the claimant. Online publication carries no automatic presumption that the material was read by a substantial number of people.

Where the words do not identify the claimant, reference must be established objectively, by reference innuendo if necessary. A proposed amendment should be refused where the claim is fanciful or has no real prospect of success, although the court must not conduct a mini-trial.

The claimants, a solicitor and two associated firms, brought libel proceedings concerning a Facebook post and webinar publications relating to their conduct of Cyprus property litigation. The defendant disputed reference, meaning and serious harm, and applied to strike out or obtain summary judgment on parts of the claim.

The court also considered preliminary issues concerning reference, meaning and serious harm, together with the claimants’ application to amend the proceedings to add a claim for inducing breach of contract and substantial financial loss. The central issues were whether the Facebook post referred to the first and second claimants, what meaning it conveyed, whether serious harm had been established, and whether the proposed new claim had a proper evidential and pleaded basis.

1. Strike-out and preliminary issues. The strike-out application was granted in its entirety. The claim concerning the webinar, the third claimant’s libel claim, irrelevant and vexatious allegations, and the separate claim for damages for inducing breach of contract were removed. The claim form was confined to damages for libel arising from the Facebook post and an injunction against repetition.
2. Reference. Reference is an essential element of defamation and is determined objectively. Words need not name the claimant. The question is whether reasonable people acquainted with the claimant would understand the words to refer to that person. Where identification is not apparent from the publication, the claimant must plead and prove reference innuendo by establishing the special facts known to the relevant readers. Reference to the first and second claimants was established, but only among a limited group.
3. Meaning. The Facebook post did not convey that the claimants had driven Mr Davies to suicide. Read as a whole, it conveyed that they had exploited his and Mrs Davies’s vulnerable position by charging almost £30,000, failing to protect their best interests and forcing them to fund alternative representation.
4. Serious harm. The meaning was defamatory, but section 1 of the Defamation Act 2013 required proof that publication had caused or was likely to cause serious reputational harm. Seriousness is an ordinary concept requiring no further gloss. Inference may arise from the gravity and context of the publication, but material posted online is not presumed to have been read by a substantial number of people. The limited audience who could identify the claimants already held adverse views of their professional conduct. Serious harm was therefore not established. The second claimant would also have failed under section 1(2), since neither the pleading nor the evidence established serious financial loss.
5. Amendment. Permission to add the proposed inducement claim was refused. The allegation that the defendant used the pseudonym “Guy Fawkes” was fanciful and unsupported. The webinar claims were inadequately pleaded, speculative and lacked a coherent causal link to the alleged losses. The action was dismissed; any new inducement claim would require a fresh action.