Johnson v McArdle & Anor

In a defamation claim, serious harm to reputation is an essential ingredient of the cause of action. The claimant must plead the facts and matters relied on to establish that requirement for each publication. A general assertion of reputational damage, personal injury, distress or financial loss is insufficient. A medical report attached to the Particulars of Claim cannot ordinarily supply missing particulars which the pleading itself must contain. An internet publication does not give rise to a presumption of substantial publication. In malicious falsehood claims, falsity and malice must be coherently and sufficiently pleaded. Malice requires facts more consistent with its presence than its absence and must be distinguished from carelessness, impulsiveness or irrationality. The Particulars of Claim were struck out, but the Claim Form was preserved and amendment remained possible.

The claimant brought claims in libel and malicious falsehood against two defendants concerning a blog article and associated Twitter publications. The first defendant applied to strike out the Particulars of Claim for failure to disclose reasonable grounds and failure to comply with CPR PD 53B paragraph 4.2(3). She also sought preliminary determinations concerning meaning, falsity and whether the words were fact or opinion.

The central issues were whether the claimant had adequately pleaded serious harm to reputation for each publication, and whether falsity and malice had been sufficiently particularised for malicious falsehood.

1. Libel. The Particulars of Claim failed to comply with paragraph 4.2(3) of CPR PD 53B and disclosed no reasonable grounds for the libel claim. The statutory requirement in section 1 of the Defamation Act 2013 is part of the cause of action. The claimant had to plead the necessary facts and matters, not merely assert serious or severe reputational damage.
2. The court applied Lachaux v Independent Print Ltd [2019] UKSC 27 in holding that serious harm is assessed by reference to actual facts concerning impact, including the scale and nature of publication, the identity of readers and the gravity of the words. Loss, distress and personal injury do not themselves establish serious harm to reputation. The Particulars of Loss concerned interests other than reputation.
3. Each publication is a separate tort. Each publication therefore had to be pleaded as having caused, or being likely to cause, serious harm. The pleading did not identify sufficient readership or establish that relevant persons, including members of the claimant’s band, had read publications for which the first defendant was responsible. There is no legal presumption of substantial publication merely because material was published on the internet.
4. A medical report attached to the pleading could not cure the deficiency. The Practice Direction required the relevant facts and matters to be set out in the Particulars of Claim itself, and the report did not provide the required particulars.
5. Malicious falsehood. The pleading was incoherent as to which statements were alleged to be false and failed adequately to plead malice against the first defendant. The court applied the distinction in Horrocks v Lowe [1975] AC 135 between dishonesty or indifference to truth, which may establish malice, and mere carelessness, impulsiveness or irrationality.
6. The particulars of malice had to be considered both individually and as a whole. Even viewed cumulatively, they did not plead facts more consistent with malice than its absence. The alleged failure to verify allegations, reliance on incomplete information, or failure to contact the claimant did not by themselves establish malice.
7. Following the approach in Yeo v Times Newspapers Ltd (No.2) [2015] EWHC 209 (QB), the Particulars of Claim were struck out rather than preserved in their existing form, without prejudice to a properly formulated application to amend. Following agreement between the parties, the strike-out applied against both defendants. The Claim Form was not struck out, and a 28-day period for any application to amend was contemplated.