Social Media and Defamatory Comment
The High Court recently delivered a crucial ruling in the defamation case Versi v Husain. This judgment, which comes after the Supreme Court’s 2019 decision in Lachaux, reinforces the current legal framework when using Trials of Preliminary Issues (“TPI”) in defamation claims. Taylor Hampton acted for Bruno Lachaux in this landmark case.
Background
The case (ongoing) revolves around a Tweet by Ed Husain (the Defendant) in November 2020, which Miqdaad Versi (the Claimant) claimed was defamatory. In April 2022, Judge Nicklin ordered a TPI to discuss and break down the meaning of the Tweet. It is particularly common in defamation claims for a party to use a TPI for a ruling on meaning. Where there is no defamatory meaning, there is no claim. TPIs can therefore be useful mechanisms to dispose of key issues at an early stage, saving parties time and costs. Ultimately, Nicklin’s TPI found the Tweet was indeed defamatory in meaning.
However, in March 2024 the Defendant applied for a second TPI this time in respect of the issue of serious harm in defamation to be determined; serious harm is the threshold for defamation (s. 1 Defamation Act 2013).
Parties arguments
Counsel for the Defendant (the party which brought the application) posited arguments that a TPI would fulfil a costs/benefit analysis. It would be relatively straightforward in this case to determine serious harm, as there was minimal evidence relied on. Counsel also claimed that over time summary judgment has become a less effective tool. The Defendant therefore signalled an intention to move away from Lachaux.
The Claimant’s Counsel argued that allowing a TPI would actually be more costly and was inconsistent with guidance provided by case law and the King’s Bench Guide. The application was, in essence, for summary judgment “by the backdoor” which is less preferable for a defendant because it puts the burden to establish serious harm on him, whereas a TPI moves it onto a claimant.
Judgment
Deputy High Court Judge Susie Alegre accepted the requisite case management powers to order multiple TPIs in a case (CPR 3.1(2)(i-j)). However, she acknowledged that when using its discretion to direct a TPI, the court must exercise caution especially in defamation cases. She referenced previous case law which emphasises that TPIs on serious harm are rare and require clear justification. Ultimately, she was not convinced that this case merited a shift away from the general approach. If the Defendant truly believed the Tweet conveyed no serious harm, he should apply for summary judgment.
The judge also conducted a cost/benefit analysis and found significant overlap between the evidence needed for a TPI and later what would be required at trial, making a TPI on serious harm inefficient and unnecessary. She concluded that any opportunity to address serious harm as a preliminary issue should have been seized during the earlier TPI on the Tweet’s meaning.
Conclusion: Serious Harm in Defamation
In her final remarks, the judge made clear the Claimant “won” the application, criticised the Defendant’s application as “’novel’ at best and procedurally misconceived at worst”, awarding the Claimant’s costs to be assessed summarily.
She reiterated that TPIs on serious harm in defamation cases are reserved for exceptional circumstances. This ruling reaffirms the precedent set in Lachaux and highlights that solicitors should think carefully about trying to circumvent established legal processes. Clearly, summary judgment remains the proper route for addressing issues of serious harm; TPIs on this matter remain exceptional.
For further information
For more information on the TPI process and our reputation management legal services, please see the services section on our website or call +442074275970.