Miqaad Versi v Mohamed Husain (aka Ed Husain)

In defamation proceedings, a trial of preliminary issues on serious harm should ordinarily be left to the trial of liability. The court should be slow to order one and should do so only in exceptional circumstances supported by clear and compelling justification.

Where disputed evidence on serious harm overlaps with evidence relevant to defences or damages, a separate trial is likely to increase costs, delay proceedings and fetter a just determination. A preliminary trial must not operate as summary judgment by the back door by shifting the burden of proof to the claimant. If a defendant seeks a dispositive determination that serious harm cannot be established, the appropriate routes are ordinarily summary judgment under Part 24 of the Civil Procedure Rules 1998 or strike out under the Jameel principles.

The claimant brought a defamation claim concerning a tweet published by the defendant for a limited period. A previous trial of preliminary issues determined the meaning of the tweet, identified factual and opinion meanings, and held that the publication was defamatory at common law: [2023] EWHC 482 (KB).

The defendant subsequently applied for a further trial of a preliminary issue concerning serious harm under section 1 of the Defamation Act 2013. The application was made approximately one year after the meaning judgment and while the proceedings were listed for a five-day trial. The central questions were whether the court had discretion to order such a trial at that stage and whether a cost-benefit analysis justified doing so.

1. The application for a trial of a preliminary issue on serious harm was refused. The claimant was the successful party and was awarded the costs of the application, to be assessed summarily.

2. The court accepted that CPR r.3.1(2) confers a general discretion to direct a separate trial of an issue and to determine the order in which issues are tried. That discretion must, however, be exercised consistently with the established guidance in defamation cases. The court should be slow to direct a serious-harm preliminary trial, particularly where substantial evidence is required. Such an order is an exception to the general rule and requires careful consideration and very clear justification.

3. The defendant had not shown any procedural shift following Lachaux. The later examples of serious-harm preliminary trials were fact-specific and did not establish a general change in approach. The application therefore had to be assessed under the ordinary case-management principles.

4. A preliminary trial would be dispositive only if it found that serious harm had not been caused. Summary judgment could achieve that result while placing the burden on the defendant. By contrast, a preliminary trial finding serious harm could bind the trial judge on evidence relevant also to damages and defences. It would therefore risk becoming summary judgment by the back door.

5. Applying the Steele cost-benefit considerations, the evidence concerning the polarised social-media context could bear on serious harm, honest opinion, qualified privilege and damages. The evidence could not be neatly separated, creating substantial overlap and a risk of increased costs, delay and unjust procedural fettering. A further trial would potentially create a three-trial process and would conflict with the overriding objective.

6. If the defendant considered that the serious-harm case was untenable, the appropriate dispositive procedure was an application for summary judgment under CPR Part 24 or, where appropriate, strike out under the Jameel principles.

Not an appeal. The judgment determined an interlocutory application in ongoing first-instance defamation proceedings.