In this defamation claim, the court refused permission for the claimant, who was complaining about multiple publications of defamatory statements to various individuals, to amend his particulars of claim on the grounds that the proposed amendments and supporting evidence failed to demonstrate a proper case on serious harm to his reputation.
In particular, the claimant failed to comply with the requirements of paragraph 4.2(3) of CPR PD 53B to plead his case in the proper manner - despite having previously been warned about the inadequacies of the particulars of claim by the court. He also was unable to provide any direct evidence from any individual who received the alleged publications which was capable of persuading the court that any of these publications had caused (or was likely to cause) serious harm to his reputation (with the evidence that was filed being criticised by the court as purely inferential and irrelevant in large parts). Consequently, the claim was struck out as having no reasonable prospects of success.
What are the practical implications of this case?
This case serves as a fundamental reminder that in a defamation claim, each publication of a defamatory statement gives rise to a single cause of action - and therefore needs to be carefully assessed on its own facts and merits.
Pursuant to section 1 of the Defamation Act 2013 (DA 2013), a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant. Further, paragraph 4.2(3) of CPR PD 53B confirms that a claimant must set out in their particulars of claim for defamation ‘the facts and matters relied upon in order to satisfy the requirement of section 1 of the Defamation Act 2013 that the publication of the statement complained of has caused or is likely to cause serious harm to the reputation of the claimant’.
In this case, the court had repeatedly warned the claimant during the preliminary stage of the proceedings that the approach to his particulars of claim was inappropriate. Despite this, the claimant continued to rely on a composite pleading of serious harm to reputation when applying to amend his statement of case. Further, the witness statements which were filed in support of that application were criticised for being inferential and irrelevant, with the claimant failing to provide any other direct (let alone credible) evidence to show that serious harm had been, or was likely to be, caused as a result of each individual receiving their specific publication.
This decision therefore reinforces the need for a claimant in a defamation action who relies on multiple publications sent to different individuals to properly plead their case that the publication of each relevant statement has caused or is likely to cause serious harm to their reputation. Such claimants also need to be prepared to provide evidence (ideally direct evidence to show that harm has been caused as a specific result of each individual publication) at an early stage of the proceedings to demonstrate that each cause of action has a reasonable prospect of success.
Relying solely on inferential or generalised evidence in the hope that further evidence will be uncovered before the trial is a risky approach and, as the court's decision in this case demonstrates, will only make claims susceptible to a strike out application.
What was the background?
The claimant, Mr Amersi, is the founder of the Conservative Friends of the Middle East and North Africa Limited.
The first defendant, Ms Leslie, is a former MP and managing director of the second defendant, CMEC UK & MENA Ltd.
The claimant's defamation claim related to the publication of a number of memos by the defendants to thirteen recipients, including other MPs and various high-profile individuals. The claimant's complaints in relation to these publications was distilled into 22 distinct imputations which he contended were defamatory of him, including the suspicion that he posed a risk to national security, and that he had attempted to set up a rival organisation to CMEC which would damage the diplomatic interests of the UK and the Conservative Party.
However, while fifteen separate publications were relied upon in his original particulars of claim, the claimant only advanced a single paragraph containing a composite case on serious harm to his reputation in relation to each of these publications. Furthermore, his pleaded case on serious harm was entirely inferential.
The court raised its concerns about the claimant's approach during the early stages of the proceedings, noting that the claimant's pleaded case on the alleged serious harm to his reputation arising from the publications failed to comply with Paragraph 4.2(3) of CPR PD 53B. The court eventually ordered the claimant to issue and serve an application notice (with evidence in support) seeking permission to amend his particulars of claim in order to particularise fully his case on the serious reputational harm caused to him (or likely to be caused to him) by the publications of the statements complained of.
In response to the claimant's application as ordered, the defendants made their own related application to strike out the original claim.
What did the court decide?
The court rejected the claimant's attempt to (again) rely on a composite pleading of serious harm to reputation within his amended particulars of claim.
While the court acknowledged that there was a clear and principled basis on which the court can, in an appropriate case, infer a degree of ‘percolation’ caused by the repetition of defamatory allegations in cases involving widespread publication (for example, in a national newspaper article) - where a claimant complains of publication of a defamatory statement to either a single publishee or a limited number of publishees, the scope for reliance on inference is likely to be very much reduced, both in relation to the direct harm caused to the claimant's reputation in the eyes of the immediate publishee(s) and any 'percolation' effect.
The court went to state that the impact of Lachaux v Independent Print Ltd [2020] AC 612 is that such reputational harm must be proved. Where the publishees can be identified (as the claimant was able to do for at least some of the publishees in this case), that means that an absence of evidence of the actual impact on the individual publishees can indicate that a claimant cannot discharge the evidential burden placed on them by DA 2013, s 1.
Having rejected the claimant's composite case of serious harm to reputation, the court went on to consider the evidence submitted by the claimant of serious harm to his reputation, as allegedly caused by the publication of each memo to the named publishees.
Here, the court noted that although the claimant had himself provided a number of additional witness statements in support of his application to amend, he did not file any witness statements from the individuals alleged to have received the memos in question, so as to provide evidence of whether each publication had caused any harm to his reputation. The court also criticised the evidence which was filed as continuing to be inferential, as well as largely irrelevant in places.
Accordingly, the court refused permission to amend the particulars of claim and, inevitably, the defendants' application to strike out the plea of serious harm to the claimant's reputation was successful. Consequently, the claim came to an end.
Case details:
- Court: King’s Bench Division
- Judge: The Honourable Mr Justice Nicklin
- Date of judgment: 7 June 2023
This article was first published by Lexis®PSL on 22 June 2023.
