Stephanie Hayden v Family Education Trust

In a defamation claim, serious harm under Defamation Act 2013, s.1, must be established as a fact by evidence. The seriousness of the allegation alone is insufficient. The court must focus on the effect of publication, including the number and quality of publishees and whether they understood the words to refer to the claimant.

An inferential case may succeed, but it must rest on an evidential foundation rather than speculation. The issue may be determined summarily where the claimant has no real prospect of proving serious harm. A Jameel strike-out is exceptional and does not arise where the claim is already dismissed on conventional grounds.

The claimant brought a libel claim concerning a tweet published by the defendant and deleted after approximately 40 minutes. Although the tweet did not name her, she relied on surrounding Twitter activity and extrinsic evidence to establish reference and identification.

The defendant applied to strike out the claim under CPR 3.4(2), alternatively for summary judgment under CPR Part 24, contending that the pleaded case disclosed no real prospect of proving reference or serious harm to reputation and was abusive under the Jameel jurisdiction. The central issues were whether the reference case was arguable and whether the claimant had a real prospect of proving serious harm under s.1 of the Defamation Act 2013.

1. Reference and identification. The claimant’s case relied on extrinsic evidence, including earlier tweets and the surrounding Twitter conversation. That case was sufficiently clear and not fanciful. The objective question whether an ordinary, reasonable reader would understand the words to refer to the claimant required determination at trial. The strike-out application on this issue was refused.
2. Serious harm. The claimant’s case was wholly inferential. The court assumed, for the purposes of the application, that she could establish the pleaded meaning, including an allegation of criminal harassment. Nevertheless, the gravity of the allegation could not itself satisfy s.1. The court had to assess the effect of publication.
3. The tweet had been available for no more than 40 minutes. There was no evidence of actual readership capable of demonstrating reputational harm. Likes and retweets established only limited engagement, and the asserted aggregate number of followers did not establish actual publication or readership. The claimant also had to show that relevant publishees understood the tweet to refer to her.
4. The claimant had filed no evidence of actual harm and identified no reasonably available evidence likely to emerge at trial. Her inferential case therefore had no real prospect of satisfying s.1. Summary judgment was granted for the defendant.
5. The Jameel issue did not arise because the claim was dismissed on conventional grounds. Had the claim survived, it would not have been struck out as abusive: that jurisdiction is exceptional and requires a careful assessment of the benefit sought and the likely costs.
6. The claim was not totally without merit. The defendant was awarded its costs, summarily assessed at £12,500 before VAT.