High Court rejects defendant’s attempt to change approach to assessing serious harm in defamation claims


In the first substantive decision on the issue since the Supreme Court’s landmark 2019 judgment in Lachaux, the High Court has given judgment upholding existing guidance on how and when the serious harm test in defamation cases may be considered before final trial. 

Deputy High Court Judge Susie Alegre refused the Defendant, Ed Husain’s application in Versi v Husain for a Trial of a Preliminary Issue (“TPI”) of whether the Tweet that was the subject of the claim caused or was likely to cause serious reputational harm pursuant to s.1 of the Defamation Act 2013. Following a comprehensive review of caselaw, commentary, and the King’s Bench Guide, the Judge rejected the Defendant’s claim that recent authorities indicated a “paradigm shift” that merited a change in the existing approach, and went on to conclude that there was no principled basis for changing it. 

Mark Henderson, instructed by Zillur Rahman of Rahman Lowe, acted for the successful Claimant, Miqdaad Versi.

The background 

Nicklin J had ordered a TPI in April 2022 (the Meaning TPI). Neither party asked for serious harm to be included amongst the preliminary issues. HHJ Lewis handed down judgment in the Meaning TPI in March 2023 holding (contrary to the Defendant’s case) that the Tweet was defamatory of the Claimant at common law (see news story here).

Following pleadings, directions were given to final trial at a hearing in December 2023. 

The application for a TPI on serious harm was issued by the Defendant in March 2024, to be determined by a High Court judge due to its ‘novelty’. The Claimant opposed it from the outset, advising the Defendant that his option was to apply for summary judgment should he believe he could satisfy that test. 

The parties’ positions at the hearing of the application

The Defendant claimed there had been a “paradigm shift” recently in the authorities on serious harm, which justified the Court in adopting a new approach to applications for the serious harm test to be determined as a preliminary issue. He argued that summary judgment was less beneficial and that the costs/benefits test supported a departure from previous guidance. He claimed that he had lacked the information to raise serious harm as a preliminary issue when Nicklin J ordered the Meaning TPI.

The Claimant contended that the Defendant’s approach was incompatible with the guidance from caselaw, commentary, and the King’s Bench Guide as to both how and when the issue of serious harm should be considered if it is not to be left to trial. He said this was an example of a defendant seeking to evade the test for summary judgment which he could not meet by making a late application for a TPI. Summary judgment was the correct route and, in any event, if serious harm were to be considered as a preliminary issue, it should be done at the Meaning TPI rather than at a second TPI. He submitted that the Defendant’s explanation for failing to raise it then should be rejected.

The Judgment

The Court refused the Defendant’s application for a TPI on serious harm and rejected his case that the general approach to such applications should change. The Judge explained that: 

23. I accept that the Court has a general discretion to order a TPI (CPR r.3.1(2)), the question is how it should be exercised in relation to the issue of serious harm in defamation proceedings. Mr. de Wilde sought to persuade me that the case law does not indicate that a TPI on serious harm should be exceptional in such cases. 

24. The authorities, however, make it abundantly clear that the Court “should be slow” [King’s Bench Guide 2024] to order a TPI on serious harm in a defamation case.  And Nicklin J in Bindel v Pink News explicitly described the ordering of a TPI of this kind as “an exception to the general rule, and one that requires careful consideration by the Court and very clear justification.” [33]. It is, therefore, for the defendant making this application to show that the circumstances of this case merit such an exceptional approach and to provide compelling reasons to justify a departure from the usual approach. 

25. Mr. de Wilde provided detailed submissions on the evolution of the case law following Lachaux regarding the substantive assessment of serious harm in defamation proceedings and the burden on the Claimant to demonstrate serious harm… . But he failed to point to any clear authority to show that there had been a shift in the procedural approach which could justify a TPI on serious harm in these proceedings, at this stage, or in general

The Judge further found that the decisions on procedure relied on by the Defendant “do not provide authority as to a general change of approach in relation to TPIs on serious harm”. [26] 

The Judge stated that she “ha[d], however, also considered the other arguments put forward by Mr. de Wilde in favour of a TPI on serious harm as a general proposition in light of the Steele principles”. [27] She went on to dismiss the Defendant’s reasons why an application for a TPI on serious harm rather summary judgment should be entertained after the Meaning TPI, concluding that:

30. While a refusal of summary judgment would not trespass on the evidence at trial, a TPI that found there was serious harm would risk binding the court at trial with findings on evidence that could be equally relevant to the question of damages and/or relevant defences. A TPI on serious harm would have the effect of a summary judgment by the back door, shifting the burden of proof onto the claimant.  But following a TPI on meaning, the appropriate route for a dispositive outcome avoiding the need for a full trial in such circumstances is an application for summary judgment or a strike out application. 

The Judge explained that “While I am not persuaded that a TPI in serious harm would be appropriate in defamation proceedings in any but exceptional circumstances, I have considered the arguments put forward in the context of the cost/benefit analysis set out in Steele to assess whether this might be such an exceptional case” [31].  She found that there was “a significant overlap” in the evidence in this case on serious harm, damages, and some defences, which “tips any cost/benefit analysis very heavily against a TPI on serious harm in this case” [34].

She held that any opportunity to have serious harm determined as a preliminary issue would have been at the Meaning TPI. She rejected the Defendant’s explanation of why he “did not seek to explore this option” when Nicklin J had ordered this TPI in April 2022 [35]-[37]. 

In her conclusions, the Judge said that:

38. Having carefully considered the circumstances of this case, I am not persuaded that the arguments put forward by the defendant give clear justification for a departure from the guidance or any good reason to grant a TPI on serious harm at this stage in these proceedingsIt seems clear, in this case, that what the defendant is seeking is, in effect, a reverse summary judgment that shifts the burden of proof onto the claimant. In these circumstances, it would not be appropriate to exercise my discretion to bypass the usual procedure

39. In addition, having regard to the cost/benefit analysis principles in Steele, I find that determination of serious harm at a TPI in this case would unreasonably fetter the parties or the Court in achieving a just result because it would require findings on evidence that overlaps with potential evidence at trial.

40. I agree with Mr Henderson that an additional trial, at this stage, making it a three-trial process if the TPI resulted in a finding of serious harm is excessive and unnecessary… 

41. To allow for a further TPI on serious harm would go against the overriding objective and potentially add significant time and costs to already lengthy proceedings.  …   If the defendant was confident in his case on serious harm, it could be dealt with dispositively by way of summary judgment without the additional risk of binding a trial judge and muddying the evidential waters that would accompany a TPI on serious harm at this stage. 

She lastly held, rejecting the Defendant’s submissions that she should do other than award the Claimant his costs, that “The application in this case was ‘novel’ at best and procedurally misconceived at worst” [44].

As the first High Court judgment since 2018 where this issue has fallen for a decision, the judgment is of considerable significance to defamation practitioners. The reasoning explains why neither recent serious harm judgments nor a principled analysis justify a change to the Court’s approach. Parties seeking an early assessment of serious harm should therefore be familiar with the King’s Bench Guide and follow the guidance explained in this judgment. 

The Judgment can be found here.