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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sube & Anor v News Group Newspapers Ltd & Anor [2018] EWHC 1961 (QB) (27 July 2018)
Cite as: [2018] WLR(D) 488, [2018] WLR 5767, [2018] EWHC 1961 (QB), [2018] 1 WLR 5767

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Neutral Citation Number: [2018] EWHC 1961 (QB)
Case No: HQ17M03217


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



and -




Mark Engelman & Robert Whittock (instructed by Debenhams Ottaway) for the Claimants
David Price QC & Robin Hopkins (instructed by David Price QC) for the First Defendant
Christina Michalos (instructed by Express Newspapers) for the Second Defendant



Crown Copyright ©

    Mr Justice Warby :

  1. This judgment deals with a point of some interest concerning the interpretation and application of s 1 of the Defamation Act 2013 ("the 2013 Act"). The issue, which I shall call the Cumulative Harm Point, arose only after a substantial interim hearing before me in these claims for libel and other alleged torts. I have dealt with the matter without a hearing, but after reading detailed written submissions on behalf of all parties, filed and served according to a timetable I laid down at the time I handed down judgment on the issues that had been argued at that hearing: [2018] EWHC 1234 (QB) ("the First Judgment").
  2. Background

  3. The claimants bring this action in respect of some 22 articles published in the Sun, Express, and Daily Star newspapers online and/or in print between 7 September and 1 November 2016. One of their complaints is that the articles libelled them. On 14 May 2018, I heard argument on preliminary issues in the libel claims. I also dealt with applications (a) by the defendants, to disallow certain amendments adding claims in other torts, and/or to strike out some of those other claims, and (b) by the claimants, for permission to amend, and for extensions of time to avoid limitation defences.
  4. The preliminary issues were, in respect of each of the articles complained of: (1) whether that article bore the meanings attributed to it; (2) whether any such meaning is defamatory of either or both of the claimants; (3) whether any such defamatory meaning is fact or comment.
  5. Issue (2) encompassed more than one question. It included the question of whether the meaning at issue satisfied "the consensus requirement". A statement which tends to lower a person in the opinion of a section of society only is not a defamatory statement. It is defamatory only if it imputes some conduct or quality that would seriously harm the claimant's reputation in the eyes of "right-thinking members of society generally or … reasonable people generally": see the First Judgment at [30]. Issue (2) also encompassed the question of whether the meaning at issue satisfied the serious harm requirement, under s 1(1) of the 2013 Act. I summarised the law on this topic in paragraphs [23]-[25] of the First Judgment. For ease of reference I repeat them here.
  6. "23. The starting point is the common law principle that a meaning is defamatory of the claimant if it "[substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency to do so": Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) [2011] 1 WLR 1985 [96] (Tugendhat J). This is the common law "threshold of seriousness", which requires a "tendency" to affect adversely the attitudes of others towards the claimant, to a "substantial" extent.
    24. Section 1(1) of the Defamation Act 2013 has raised the bar. It provides that a statement "is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant." The words "is likely to cause", as used in this subsection, "are to be taken as connoting a tendency to cause": Lachaux v Independent Print Ltd [2017] EWCA Civ 1334 [50] (Davis LJ) (my emphasis). The effect of the subsection is to give "statutory status to Thornton, albeit also raising the threshold from one of substantiality to one of seriousness …": [82(1)].
    25. The approach to be adopted by the Court is explained in Lachaux:
    "69 … If the meaning … established … does not convey a serious defamatory imputation then the claim may, by reason of s.1(1), be vulnerable to being struck out without more ado.
    70. If, on the other hand, the meaning so established conveys a serious defamatory imputation … then an inference of serious reputational harm ordinarily can and should be drawn accordingly.
    73. … at a meaning hearing … [t]he seriousness of the reputational harm is … evaluated having regard to the seriousness of the imputation conveyed by the words used: coupled, where necessary or appropriate, with the context in which the words are used (for example, in a newspaper article or widely accessed blog).
    79. Whether in any given case the imputation is of sufficient gravity as of itself to connote serious reputational harm … should therefore normally be capable … of being relatively speedily assessed at the meaning hearing."
  7. My conclusions on the preliminary issues, as summarised in paragraph [13(1)] of the First Judgment, were these: the articles complained of contained a number of factual meanings about the claimants, but none of the meanings complained of was a defamatory factual imputation - some were not conveyed by the articles, and others did not satisfy the consensus requirement; the articles also contained or implied a number of derogatory comments or opinions about the claimants, which satisfied the consensus requirement, but none of those comments or opinions was, considered individually, sufficiently harmful to either claimant's reputation to satisfy the serious harm requirement. I went on to say this:
  8. "13 (1) … It would seem to follow that the libel claims fail, but that is subject to one issue, explained at [43] below.
    43. I am not sure that is necessarily the end of the matter, however. It has occurred to me since the hearing that the preliminary issue may have been too narrowly framed; that the question actually raised by s 1 of the 2013 Act is whether any of the articles crosses the s 1 threshold. Lachaux discusses the issue in terms of "imputations" (see above). It may be for this reason that the defendants framed the preliminary issues as they did. But I suspect the wording used by the Court in Lachaux resulted from the facts and/or the way the arguments were framed. The threshold test of reputational harm laid down by s 1 applies to the "publication" of a "statement". It is this that must be likely (that is, have a tendency) to cause serious harm to reputation. The Act distinguishes between "statements", and "imputations" that are "conveyed" by those statements. For instance, s 2(1) provides that it is a defence to an action for defamation for the defendant to show that "the imputation conveyed by the statement complained of is substantially true". It may therefore be that where the statement complained of (in this case an article) conveys a number of imputations that have a tendency to harm reputation, the s 1 test should be applied to the imputations collectively, rather than individually. This is not a point raised by the claimants, who consented to the trial of the preliminary issues as framed by News Group. I have not heard argument on the point. I have formed no view on whether it would matter in this case. But I may be prepared to hear argument, if the claimants so wish."
  9. The outcome of the other applications was, in summary, that (i) the claimants were permitted, without opposition, to amend their claim for harassment which therefore survives, in an expanded form,; (ii) their limited claim under the Data Protection Act (DPA) survived an attempt to strike it out, but was stayed, and the possibility of an application for summary judgment left open; (iii) their claim for exemplary damages was struck out; (iv) their amendments to plead claims in malicious falsehood, and under the Equality Act were disallowed, and the corresponding parts of the Particulars of Claim struck out; (v) their application for permission to amend to introduce expanded claims under the DPA was refused.
  10. At the hearing at which I handed down the First Judgment, Mr Engelman made clear that his clients did wish to argue the Cumulative Harm Point. He asked for time to prepare submissions, proposing that the issue be resolved on the papers. I was reluctant to take that course, as the draft judgment had been sent out some days earlier, allowing at least some time to prepare an argument. It was unclear what the claimants' case was, as to the effect of the Cumulative Harm Point on their claims. Despite this, and opposition from the defendants, I concluded that I ought to give the claimants time. A significant factor in that decision was the more general importance of the point of law. Mr Price QC, for News Group, had made clear that he would contend (1) that there is nothing in the point of law, which is concluded against the claimants by Lachaux; or (2) if that is wrong, there is nothing in the claimants' case on the facts. If his second submission is right, the point of law would be immaterial. But it plainly could not be said with any confidence at that time that this was a matter that affected only these parties.
  11. I therefore made orders reflecting the conclusions outlined at [5] above, but directed the exchange of written submissions on the Cumulative Harm Point and its impact in this case, given my findings on meaning and fact/comment. I adjourned the question of costs, and directed the parties to address that issue in their written submissions also. The parties agreed to my deciding all those issues without a hearing, which I now do pursuant to CPR 23.8(b).
  12. The law: more about Lachaux

  13. It is helpful to recall some of the facts of Lachaux, and to set out some further passages from the judgments in the case, which may have a bearing on the Cumulative Harm Point.
  14. The claimant, a French national resident in Dubai, sued for libel in respect of five articles. These were published in the Huffington Post (two articles), the Independent, the 'i', and the London Evening Standard. All the articles referred to a marital dispute between the claimant and his wife, Afsana. The meanings of the Independent article were determined by Sir David Eady, upon the trial of a preliminary issue in one of the claims. At a subsequent trial of meaning and serious harm, I determined the meanings of the other four articles complained of, and held that four of the five articles were defamatory of the claimant, satisfying the serious harm requirement laid down by s 1. I found that the second Huffington Post piece did not cause serious harm to reputation, nor was it likely to do so.
  15. The meanings which Sir David Eady found the Independent article to bear are summarised by the Court of Appeal in Lachaux at [16]:
  16. "Those included (among others) that the claimant had become violent towards Afsana; had himself callously and without justification snatched their son back from his mother's arms; had falsely accused Afsana of kidnapping their son, which, if upheld, could result in her, quite unfairly and wrongly, spending several years in a Dubai jail; was content to use Emirati law, which discriminates against women, to deprive Afsana of custody of and access to their son; was violent, abusive and controlling; and had obtained custody on a false basis and had initiated a prosecution in the UAE founded on a false allegation of abduction.
  17. It was agreed before me and on appeal that the meanings of the third article complained of – in the 'i' – were the same. Sir David Eady determined the meanings of the London Evening Standard article, which were "broadly, although not entirely, similar to those found with regard to the article in the Independent" (Lachaux [20]). The same was true of the Huffington Post article. Each of these articles therefore was found to convey multiple meanings. It was on that basis that I determined the issue of serious harm in that case. My findings were that "the publication of this article has caused serious harm to the claimant's reputation" ([144], the first Post article) or that "this publication has caused serious harm to the claimant's reputation" ([148], The Independent). See also [150], [153].
  18. There was no challenge to my determinations of meaning. On serious harm, the Court of Appeal upheld my decisions, though its reasoning was different. In the passages that I have cited above, the Court of Appeal spoke of the seriousness of "the meaning" and "the imputation", in the singular. In other passages, different language was used. The court referred to the harmful impact of "the statement", and embraced the plural when referring to meaning. Discussing the proper interpretation of s 1, the Court of Appeal made these further observations (the emphasis is mine):
  19. "68 … I can agree with Warby J that, by reason of s.1(1), an individual claimant if he is to succeed is required to show that the published statement has caused or is likely to cause serious (reputational) harm …
    85. It seems to me that, adopting the approach I have sought to outline above and focusing on the seriousness of the defamatory meanings as found by Sir David Eady and by the judge, the gravity of the imputations derived from the published statements is obvious: and a clear inference is to be drawn that serious harm to the reputation of the claimant has been caused. …
    86. Just consider the position. The claimant has, among other things, variously been accused of domestic violence and abuse: that connotes criminal acts of assault. He has been accused of child abduction: a criminal act. He has been accused of fabricating false allegations against Afsana with a view to having her imprisoned: a criminal act of attempting to pervert the course of justice. He has been accused of manipulating the Emirate Sharia system so as to discriminate against Afsana and unjustifiably to deprive her of access to her son. I need not go on. It is plain that an inference of serious reputational harm arises. The claimant's pleaded case that the words used were "very seriously defamatory" and had caused or were likely to cause serious harm was entirely justified. The judge's findings that the defamatory meanings conveyed were serious and that serious reputational harm had been caused (save for the second Huffington Post article: as to which finding no challenge by way of cross-appeal has been made) were thus themselves entirely justified."


  20. Mr Engelman makes the following submissions:
  21. (1) Although there are some jurisdictions which have adopted a law of defamation based upon imputations, which fall to be considered separately from one another (Mr Engelman offered New South Wales as one such jurisdiction), that is not the position under English law. At common law the cause of action for defamation arises, or does not arise, from a publication of words, or some other statement.

    (2) There is nothing in the wording of the 2013 Act to suggest that our law has been amended in this respect. Quite the contrary. The statutory question is whether a "statement" is defamatory. There are other indications in the statute that a statement is to be distinguished from the imputation(s) it conveys.

    (3) A single publication may convey a number of separate and distinct defamatory meanings, which may have a collective or cumulative impact that goes beyond their individual effect.

    (4) Further, it is established law that, when determining the seriousness of reputational harm, the Court may need to consider not only the imputation conveyed by words, but also "the context in which the words were used" (Lachaux [73], cited at [4] above). In this case, the "context" for any one imputation is "its juxtaposition with and within the other imputations" (paragraph 11 of the claimants' submissions.) Mr Engelman contends that individual imputations even if found to be non-defamatory opinion can be read as defamatory when considered together.

    (5) Some weight must be given to the mere repetition of the imputations. To say of a person, "you are milking the system", "unemployed", "shameless" and "arrogant", and "to publish those imputations constantly over some period in publications of vast circulation", means that the imputations are more likely to cause serious harm than any individual imputation taken in isolation. "It is simply reputational 'death by a thousand cuts'".

  22. Mr Engelman's written submissions at paragraph 16 summarise the claimants' case in this way:
  23. "Cs' case for clarity is indeed that all the imputations collectively caused the 'serious harm' contemplated by s 1 of the Act whether that allegation is said by Ds to comprise 'a composite claim' or not."
  24. When I read the written submissions, I took the argument to be that for the purposes of determining the question of serious harm the court should consider collectively the impact on reputation of (a) all the imputations in all of the articles complained of, or alternatively (b) all the imputations in each article complained of; and that on either approach the claimants should be held to overcome the threshold laid down by s 1. It is implicit in the claimants' third submission above, that the court should take into account imputations that I have ruled to be non-defamatory because they do not satisfy the consensus requirement. In the alternative, it is submitted by Mr Engelman that the Cumulative Harm Point should be left to trial because questions of new or complex law should be reserved to trial.
  25. Mr Price, for the First Defendant, submits as follows:-
  26. (1) The question I have raised must be answered by reference to the Court of Appeal's decision in Lachaux, and on that approach, the answer must be no.

    (2) It was not possible, prior to the 2013 Act, for a claimant to collect or combine non-defamatory imputations to make a statement defamatory, and there is nothing in s 1 which permits a claimant to do so now.

    (3) Prior to s 1, the determination of whether a statement was defamatory was entirely common law based. There was a two-stage approach. Both involved considering the wording of the statement in isolation; the extent and effect of its publication were irrelevant. The stages were, first, what imputations were conveyed by the statement, as determined by established principles? Second, did any imputation tend to make right-thinking members of society generally think the worse of the claimant? This was directed solely to its moral quality and required sufficient consensus. If so, the statement was actionable as a defamation even if its publication did not, in fact, cause any harm to the claimant's reputation. But if not, the statement was not actionable, no matter how much harm to the claimant's reputation was caused by its publication.

  27. I think it fair to summarise Mr Price's argument in this way. At common law, an article or other published statement is only defamatory if and to the extent that (a) it conveys a meaning (or imputation) which (b) tends to lower a person in the estimation of right-thinking people generally (thus satisfying the "consensus requirement") and (c) has a tendency to cause a substantial adverse effect on the attitudes of others towards the claimant (thus satisfying the Thornton threshold of seriousness). The only difference made by the 2013 Act is to raise the threshold at stage (c) from "substantial" to "serious".
  28. Mr Price further submits that any other approach is both conceptually difficult and hard to apply in practice. He asks, rhetorically, by what criteria would it be determined that the line had been crossed in order to give rise to a claim in defamation, where none of the individual imputations was damaging enough?
  29. For the Second Defendant, Ms Michalos advances submissions on similar lines to those of Mr Price. She also submits that, where the harmful impact of individual imputations falls below the serious harm threshold, it is not possible for them collectively to satisfy the serious harm requirement for three further reasons:-
  30. (1) Because "nothing plus nothing equals nothing. If the constituent elements do not satisfy the serious harm test, the totality cannot either as a matter of logic".

    (2) It is contrary to s.2(3) Defamation Act 2013 (and its predecessor, s 5 Defamation Act 1952) which anticipates that an individual imputation has a separate defence. In other words, an individual imputation itself must be actionable within the meaning of s 1, otherwise s 2(3) would be otiose.

    (3) It would be contrary to well-established legal principles concerning publications concerning two or more distinct statements. Allowing a Claimant to aggregate distinct imputations for serious harm purposes, when a Defendant cannot aggregate distinct imputations to prove truth "is iniquitous and likely to be in breach of Article 10 ECHR."


  31. I start with five things that seem to me quite clear. The first is that there is no good reason to leave the resolution of this issue to trial. It is a point of principle. I had thought the claimants' argument was based on the notion that some evidential exploration might be required. That would be wrong in my judgment for the reasons given in the First Judgment at [27-28]. In written observations on the draft of this judgment, which were submitted after the deadline, I am told that this was not the point. If, therefore, the point is one of pure law, I find it hard to see why it needs to await a trial.
  32. Secondly, it could not be right for the Court to consider the cumulative impact on reputation of all the imputations in all the articles complained of. That is contrary to established principle, and at odds with the wording of the 2013 Act. In some unusual circumstances, articles published at different times may be so interlinked that they can be considered in conjunction for some purposes, such as meaning, or reference (see, for instance, Hayward v Thompson [1982] 1 QB 47). But in general, for the purposes of assessing defamatory impact, a published article must be considered individually; it will not normally be appropriate or even possible to treat a number of articles as a single "statement" for the purpose of s 1, any more than it was at common law. It may, depending on the circumstances, be appropriate to take account of one or more previous articles as part of the context in which a given statement was published. But it is hard to see how the defamatory impact of one publication could be affected by the defamatory impact of a separate, later publication. The recent written observations on the draft of his judgment say that the claimants did not suggest that the Court should consider all imputations from all the articles in a combined manner. I have revisited the written submissions, including paragraph 16, which I have quoted at [15] above. I still think that is how the submissions read. (I refer also to paragraphs 8, 13, 14, 18 and 20). But I of course accept that this was not the intention.
  33. Thirdly, Mr Engelman's submissions draw no distinction between the articles published by the First Defendant and those published by the Second Defendant. It clearly could not be right to consider the articles all collectively. That is so for the reasons I have given, and because great care is needed before permitting a claimant to rely against one publisher on matter published by another, for which the first publisher is not alleged to have any editorial or other responsibility. I had thought this was part of the argument (see paragraph 11 of the claimants' submissions, quoted at [14(4)] above). But again, I am told that I misread the submissions.
  34. Fourthly, it cannot be right to suggest that, in deciding whether the serious harm requirement is satisfied, the Court should take account of meanings that are not defamatory because they do not satisfy the consensus requirement. That is a distinct element of the test of what is defamatory which stems from quite different policy considerations. Mr Engelman therefore cannot, on any view, seek to aggregate meanings which I have upheld (such as the Arrogance Meaning) with others which I have rejected as non-defamatory (such as the Unemployment Meaning). The recent written observations do not disclaim this submission.
  35. Finally, the submissions on behalf of the claimants fail to distinguish between Mr and Mrs Sube. But their claims plainly need separate and individual consideration. It cannot be (and to be fair, has not been) suggested that an individual imputation against A, which is not defamatory when considered in isolation, might nonetheless cross the s 1 threshold because of some similar or different imputation against B.
  36. The question of principle for my decision can be put this way: can an article be defamatory of a person, by reference to the statutory test, even though none of the imputations about that person which the article conveys is by itself defamatory, according to that test?
  37. The wording of the statute, viewed in isolation, is consistent with Mr Engelman's submissions. The statutory test is not phrased in terms of the reputational harm caused by a meaning, or an imputation. The test is whether serious harm to the reputation of the claimant resulted, or is likely to result, from the "publication" of a "statement". "Publish" bears the meaning it has in the law of defamation generally: see s 15 of the 2013 Act. Section 15 also defines "statement". It means "words, pictures, visual images, gestures or any other method of signifying meaning." A statement is thus distinguished from its meaning. Likewise, as I noted at [43] of the First Judgment, s 2 of the Act distinguishes between a statement and the "imputation" it conveys. The same is true of s 9, which provides that the court does not have jurisdiction to hear and determine an action against a person not domiciled in "the UK or a Member State etc". By s 9(3), "references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of." Section 14 limits the scope for suing in respect of "the publication of a statement that conveys the imputation that a person has a contagious or infectious disease…" (emphasis added).
  38. I do not accept Mr Price's submission that Lachaux is binding authority against the arguments of Mr Engelman. It is true that some of the wording used by the Court is consistent with the view that the question whether the serious harm requirement is satisfied depends upon the seriousness of "the meaning" or "the imputation", singular, which the court finds the words to bear. But a judgment is not to be treated as if it was a statute. Language such as this is commonplace, and proper, in discussion of general principles. It is all the easier to understand in the particular context, which includes the "single meaning rule" (outlined by Davis LJ at [69]). Different language is used elsewhere in the same judgment. The Cumulative Harm Point was not before the Court for decision, and its judgment contains no reasoning that bears on the issue. The decision itself is not inconsistent with Mr Engelman's argument. Indeed, it appears to have involved consideration of the defamatory impact of the many, various imputations which the words conveyed, as is apparent from paragraph [80], cited above.
  39. I also note the definitive formulation of the common law arrived at by Tugendhat J in Thornton at [96] and cited by the Court of Appeal in Lachaux at [30]. This tells us that the common law test of what is defamatory of a claimant depends upon the impact upon people's attitudes towards the claimant of "the publication of which he complains …" (my emphasis). This was no accidental choice of words. It was the outcome of a scrupulous analysis of seven previous definitions of what is defamatory at common law. The tests are cited in full in Thornton at [29]-[30]. None of them speaks of the effect of a "meaning" or "imputation". The tests are variously formulated by reference to the effect of "the words", "matter", "the communication" or "the publication". Those last words appear in the definition added by Neill LJ in Berkoff v Burchill [1996] 4 All ER 1008, 1018. It is on that definition that Tugendhat J based his own formulation.
  40. There is nothing illogical about a threshold test that involves an overall assessment of the harm caused by a published statement. The approach contemplated by Mr Engelman does not involve making something out of nothing. A published statement that causes some reputational harm is not "nothing". Suppose the serious harm threshold requires harm of 10 on a scale of 1-20. An article could contain five statements each of which causes harm at between 3 and 9 on the same scale. Aggregation could lead to reputational harm well beyond the threshold.
  41. Despite all these considerations, I have reached the firm conclusion that Mr Price's main submission ([17] above) is right. It is certainly the case that, in practice, the Courts have for many years now approached the question of whether a statement is defamatory by adopting the three-stage approach outlined above, which seeks to identify the imputations conveyed by a published article or statement, and then to test each individually against the consensus requirement, and the threshold of seriousness. Of course, that could be no more than a matter of methodology. It does not necessarily follow that this is the only way in which to test whether the common law requirements are met. It is however significant in my view that the question I posed in the First Judgment seems never to have been raised under the common law. Nobody on either side has identified any previous case in which the court has considered the actionability of a publication containing several imputations, each of which satisfies the consensus requirement but falls short of the threshold of seriousness.
  42. I am not sure that Ms Michalos is entirely right in her submission that the Cumulative Harm Point offends established principles in the ways she identifies. But I do see some force in some of the defendants' submissions about the knock-on consequences, if the Court were to accept the validity of the Cumulative Harm Point. The architecture of the modern law is largely based upon contests about individual imputations. Claimants must identify the imputations complained of. Defendants must identify those which they wish to defend. The defences of truth and honest opinion must be directed at particular imputations. It would be hard to bolt onto this structure a process of the kind that would be necessary if the Serious Harm Point was sound.
  43. The orthodox analysis has for many years been that a given published statement which conveys one or more natural and ordinary defamatory meanings gives rise to a single cause of action. If the statement conveys one or more defamatory true innuendo meanings, such meaning(s) will give rise to one or more additional causes of action. But I do not believe these principles are inconsistent with Mr Price's analysis, when it comes to the threshold of seriousness. The reality is that, before Thornton, relatively little analytical attention had been paid to that issue. The statutory amendment of the threshold of seriousness came shortly after the decision in Thornton. The wording of the statute is not decisive of the point I am considering. Far from it. But Parliament's intention plainly was to raise the threshold of seriousness beyond the Thornton test. No authority has been cited to show that it was ever the law that a claim in defamation could succeed although none of the individual imputations conveyed by the publication complained of crossed the common law threshold of seriousness. If that ever was the law, I do not consider it can or should be held to be the law today.
  44. In my judgment, in the modern law of defamation, a statement is only defamatory of a person if, and to the extent that, it conveys an imputation about the person which tends to lower him or her in the opinion of right thinking people generally, and causes or is likely to cause harm to their reputation which is serious. The serious harm requirement cannot be satisfied by aggregating the injury to reputation caused by two or more less harmful imputations.
  45. Is there a residual common law test?

  46. Given my conclusions so far, it is unnecessary to address the alternative submission advanced by Mr Price and Ms Michalos, that even if they are wrong in respect of the Cumulative Harm Point, the claimants cannot succeed, unless they satisfy me that each of the imputations to be combined would have crossed the common law threshold of seriousness. I can however see the obvious force of the argument that it would be wrong to interpret or apply s 1 in such a way as to reduce the threshold of seriousness. That cannot have been Parliament's intention. This seems to me to be a further point in favour of the answer at which I have arrived on the main issue.
  47. Application to the facts

  48. My conclusions on the issue of principle mean that this issue does not arise. But I have considered it and will state my conclusions, in case anyone contemplates taking this matter further.
  49. In relation to the Sun articles, in summary, I accept the submission of Mr Price that the resolution of the point of law has no practical application, as none of the articles taken individually should be held to satisfy the serious harm requirement, even if the harm caused is to be assessed by aggregating the injury caused by each individual imputation. Using the numbering system that I adopted in the First Judgment at [38]:-
  50. (1) I have, in essence, upheld only one of the imputations complained of, and held that in isolation it is a non-defamatory expression of opinion. Even if the claimants had won on the Cumulative Harm Point, they could not improve their position in respect of this article. The same applies to article (8), which is the online version of this same article

    (2) I have upheld two imputations, so the Cumulative Harm Point could in principle have a bearing. But I accept that the two meanings, though distinct, are very closely related and so is their defamatory sting. They would not, collectively, take the case across the statutory threshold.

    (3) (4), (5), (6), (7) and (9). In the case of each of these articles I have upheld the Arrogance, Unreasonable Refusal and Abuse meanings. Again, the meanings though distinct are closely related, as is their defamatory sting. I do not consider that they would cross the statutory threshold even if the harm caused was aggregated. I add that I do not consider, either, that in this case the repetition of the same points in a series of subsequent articles would tend to cause further and greater harm each time. On the contrary, the defamatory impact of repetition would tend to dull and dissipate. The same is not necessarily true of the injury to feelings that such repetition would cause. That, however, would be a matter for consideration when addressing the claim in harassment.

  51. In relation to the Express articles, my conclusions would have been different. Using the numbering adopted in paragraph [48] of the First Judgment, I find that the Cumulative Harm Point would make no difference in the case of articles (12), (14)-(16), and (18)-(23). In the case of one of these articles ((16)), I have rejected each of the two meanings complained of. Two of these articles ((18) and (23)) contain only one potentially defamatory meaning, so the Cumulative Harm Point could not help. The others in this category convey two, three, or four meanings, each of which satisfies the consensus requirement but falls short of the serious harm requirement. In none of these instances would the aggregation of the consequent reputational harm take the case across the statutory threshold. When it comes to the later articles in this sequence, I take account of the point made at 36(3) above: the fading impact of repetition.
  52. I find the position is different in respect of Express articles (11), (13) and (17) Each of these conveys six or more distinct defamatory meanings. They are meanings of a similar kind, but their nature and number, the way in which they are presented, and the variety of imputations involved, mean that if the Cumulative Harm point were good in law I would have held that Mr and Mrs Sube's claims in respect of articles (11) and (17) both satisfied the serious harm requirement. Their claims in respect of Article (13) would do so if the Particular of Claim were amended to plead the meanings I held them to bear (see the First Judgment at [48(13)]). As it is, the defamation claims in respect of these articles must also fail. Of course, the position may be different in respect of other causes of action, such as harassment.
  53. Opinion and serious harm

  54. Although I would hope it is already clear, not least from paragraph [38] above, it may be helpful to highlight this point: my decisions in this case do not rest on the proposition that expressions of opinion cannot defame a person. The judgment of Nicklin J in Morgan v Associated Newspapers Ltd [2018] EWHC 1725 (QB) contains an exploration of that issue at [18-24]. A proper analysis of the First Judgment in the present case can be found at [28-31] of Nicklin J's judgment in Morgan.
  55. As Nicklin J recognised at [30], this is a case that turns very much on its own peculiar facts and circumstances. But one further point that emerges from the discussion in this judgment, above, is that – in addition to those listed at [31(i)-(vi)] of Morgan, a factor that may be relevant when considering the defamatory impact of an expression of opinion is the context in which it is made, including whether it is a repetition of something said before by the same publisher.
  56. Specific disclosure

  57. My order of 24 May 2018 required the claimants' submissions to give "an indication of whether the application for specific disclosure is applicable to any claim other than defamation, and if so, the basis for its applicability". No such indication has been given. The claimants' submissions make no mention of specific disclosure. In my judgment, the application was at best premature when made, and it is now otiose. It is dismissed.
  58. Costs

  59. There are two main issues: the costs of the applications, and the costs of those claims which have been struck out.
  60. As to the applications, in my judgment the defendants have been overwhelmingly the successful parties. Such modest success as the claimants have achieved is of scant significance overall. I follow the ordinary rule and award the costs of the applications and the trial to the defendants.
  61. The normal rule is to make a summary assessment of those costs (44PD 9.2(b)). Here, I have set budgets for the parties' costs, which should be adhered to unless there is good reason to depart from them (CPR 3.18). The sums are relatively modest, and the actual costs incurred will have been greater. I am satisfied that the starting point should be to make orders based on the budgets. The second defendant asks for no more, and I assess its costs in the budgeted sum of £18,550. The approved figure for future costs in respect of the first defendant was £28,800. It does seek additional costs, on the basis that the paper determination that I have now undertaken represents a departure from the assumptions made when budgeting and represents good reason for an increase in the sum of £32,800 which I allowed for future costs. The additional sum sought is just shy of £8,000. I recognise that the procedure adopted in the end has gone unexpectedly beyond what was anticipated. I will not allow the full amount claimed, as the original allowance took account of the possibility the hearing would run over a single day, which it did not. I will allow £6,000 so that the summary assessment is in the sum of £46,360 (encompassing past costs, budgeted costs, the Precedent H, and the additional sums now allowed).
  62. The claims in defamation, malicious falsehood and under the Equalities Act 2010 having failed, the claimants must pay the costs of these claims, to be assessed if not agreed, insofar as such costs are not part of the applications and the preliminary issue trial.

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