Simon Blake & Anor v Laurence Fox

Serious harm under section 1(1) of the Defamation Act 2013 is a fact-sensitive threshold question. The claimant must establish, by evidence and on the balance of probabilities, that the publication caused or was likely to cause serious reputational harm. The court must assess causation in context, considering the publication, the claimant’s situation, the circumstances of publication and the inherent probabilities. An inferential case remains an evidential case and cannot rest on speculation. A reply-to-attack qualified privilege defence does not protect an irrelevant, disproportionate or retaliatory allegation. Where serious harm is not established, the publication is not defamatory and the court should ordinarily avoid determining alternative defences or wider issues unnecessary to the result.

The claimants sued over tweets in which the defendant called each of them a paedophile after they had called him a racist in responses to his criticism of a supermarket’s diversity policy. The defendant counterclaimed over the claimants’ descriptions of him as a racist.

Earlier preliminary rulings determined the meanings of the publications, their defamatory tendency, and whether they were statements of fact or opinion. The trial concerned serious harm, the defendant’s qualified privilege defence, and, if necessary, the claimants’ statutory defences of honest opinion and substantial truth.

1. The claimants’ claims succeeded. The allegations that Mr Blake and Mr Seymour were paedophiles were literal allegations of serious criminal conduct. Their gravity, mass publication, the claimants’ particular reputational circumstances, and the evidence of public reaction established serious harm on the balance of probabilities.
2. The defendant’s qualified privilege defence failed. Even assuming that being called a racist was an attack on a legitimate interest, the response had to be proportionate and relevant. The paedophile allegations had no apparent connection with the criticisms and amounted to mere retaliation. The defence was not a licence to defame.
3. The defendant’s counterclaims failed at the threshold. Although calling someone a racist was inherently capable of being defamatory, the publications were expressions of opinion in a contested public debate. The defendant did not establish that these particular tweets, rather than his own conduct, the wider controversy, the pandemic, his political activity or other causes, probably caused serious reputational harm.
4. Section 1(1) requires evidence of real-life reputational impact. Inferences may be drawn from the meaning, circumstances, claimant and inherent probabilities, but the process cannot be speculative and must address causation, including evidence against attribution to the publication complained of.
5. Because the counterclaims failed under section 1(1), the court did not determine honest opinion or substantial truth. Mr Blake’s and Mr Seymour’s claims succeeded, and Mr Fox’s counterclaims were dismissed. Damages and further remedies were left for later submissions.

First-instance judgment. Earlier preliminary issues were determined by the High Court in [2022] EWHC 3542 (KB) and by the Court of Appeal in [2023] EWCA Civ 1000.