DAVID HAVILAND v THE ANDREW LOWNIE LITERARY AGENCY LTD & Anor

In a defamation claim involving limited publication, serious harm under section 1 of the Defamation Act 2013 must be established as a consequence of the publication, or as probable future harm. The court assesses the quality of the publishees, not simply their number, but the influence of an organisation is not equivalent to publication to everyone within it. Inferences may be drawn where evidence from publishees is unavailable, yet the defamatory meanings, surrounding correspondence, subsequent conduct and evidence of republication must still provide a realistic basis for serious harm. Injury to feelings alone is insufficient. Where the claim has no real prospect of establishing serious harm, summary judgment may be granted; the claim may alternatively be struck out, and in an appropriate case the Jameel jurisdiction may prevent disproportionate proceedings.

The defendants applied for summary judgment under CPR r 24.2 and, alternatively, strike-out under CPR r 3.4(2)(a), CPR r 3.4(2)(b) and the Jameel jurisdiction. The claim concerned five emails sent to personnel at Reedsy, which had previously been found defamatory at common law by Nicklin J in [2021] EWHC 143 (QB). The defendants argued that the claimant had no real prospect of proving serious harm to reputation under section 1 of the Defamation Act 2013, and that any possible remedy would be disproportionate. The central issues were whether serious harm could realistically be inferred from publication to two or possibly three individuals, and whether the claim should proceed to trial.

1. Application granted. Summary judgment was entered for the defendants. The claimant had no real prospect of establishing that the publications had caused, or were likely to cause, serious harm to his reputation, and there was no reason for that issue or the claim to await trial.

2. Section 1 of the Defamation Act 2013 requires proof of actual harm caused by publication or probable future harm. It does not preserve the former common-law approach based on the inherent tendency of words to cause some reputational harm. Serious harm is assessed factually, including by reference to the quality of the publishees, the gravity and context of the meanings, the possibility of republication, and the surrounding evidence.

3. Although evidence from the publishees might be difficult to obtain, the claimant’s case depended substantially on inference. The emails were sent to Mr Nataf and Ms Kim, with disputed additional receipt of one email by another employee. There was no positive evidence of wider republication and no realistic prospect of obtaining it. Publication to a company was not, for this purpose, publication to its board or to the organisation generally: the relevant question was who actually received the words.

4. The meanings, in substance, accused the claimant of claiming credit in a marketing context for matters for which he was not entitled to claim credit. The surrounding correspondence was professional and polite. The changes to the claimant’s profiles were adequately explained by objections to inaccuracies and the prohibition on maintaining two service-provider profiles. The claimant retained an editor profile, and the evidence did not support continuing reputational effects or hostility caused by the publications. Injury to feelings, however genuine, could not establish serious harm.

5. Had summary judgment not been granted, the claim would have been struck out under CPR r 3.4(2)(a). The judge further stated that, if the claim had survived, it would have been struck out under the Jameel jurisdiction because a trial involving substantial truth and qualified privilege would consume substantial resources, while any realistic vindication would be wholly disproportionate to the possible benefit.