Ken Bates v Tom Rubython & Anor

In a libel claim, serious harm may be proved by inference from the gravity and meaning of the allegations, the claimant’s profile, the circumstances and extent of publication, and the likelihood that readers treated the publication as authoritative. A defendant may rely on pre-existing reputation only through admissible evidence showing the reputation actually held by relevant publishees. Evidence of other publications may be used to isolate causation, but only where those publications reached the relevant readers and materially affect the assessment of harm. The court may restrain repetition and order publication of a judgment summary where those remedies are realistic and proportionate.

The claimant sued the journalist and publisher of an article in BusinessF1 Magazine which alleged that he had built his wealth through fraud, caused or arranged deaths, evaded tax, and used improper means to suppress criticism. Publication in England and Wales was admitted, and no truth or other substantive defence was advanced.

The defendants argued that the claimant’s reputation was already so bad that it could not suffer serious harm, and alternatively that the inferential case on serious harm was insufficient. The trial also concerned the admissibility of evidence about prior misconduct and reputation, the meaning of the article, and remedies.

1. Admissibility of reputation evidence. A defendant may adduce evidence of general bad reputation in the relevant sector, but evidence of rumours, other publications repeating the same allegation, and particular acts of misconduct tendered merely to prove character or disposition is inadmissible. Judicial strictures may be relevant where they remain sufficiently current and connected with the claimant’s reputation. Evidence of directly relevant background context may be admitted under Burstein v Times Newspapers Ltd, but the inquiry must remain focused and proportionate.
2. Serious harm. Under Defamation Act 2013, s.1(1), the claimant must prove actual or probable serious reputational harm as a matter of fact. Where several imputations are conveyed, the threshold must be met for each. The court may infer harm from the meaning and gravity of the words, the claimant’s public profile, the circumstances and extent of publication, the readership, repetition and inherent probabilities. The exercise is one of inference, not speculation.
3. Other publications may be considered to isolate the harm caused by the publication sued upon, but only where there is evidence or a proper basis for inferring that they reached the relevant readers and materially call causation into question.
4. Application. The article conveyed serious allegations of fraud, murder or suspected murder, tax evasion and concealment of wrongdoing. Its readership was connected with the sports industry, the magazine held itself out as authoritative, and the allegations were repeated in later issues. The defendants’ deliberate failure to disclose the subscriber list justified an adverse inference. The claimant proved serious harm in respect of every imputation.
5. Remedies. Damages must compensate reputational injury, vindicate the claimant and compensate injury to feelings, without disproportionately interfering with Article 10 rights. The claimant was awarded £150,000 including aggravated damages. An injunction was granted because there was a real risk of repetition. An order under Defamation Act 2013, s.12 was made because publication of a short judgment summary could realistically assist vindication in a proportionate manner.