It was my fault. I thank my noble friend for drawing my attention to that. I hope that that sets a pattern whereby his interventions will be entirely helpful—as they always are. Before I dig deeper, I should turn to the amendments before us. In the light of requests from a number of noble Lords for information on what the serious harm test is intended to encapsulate, it may be helpful for me to explain as fully as possible the Government’s thinking behind Clause 1.
The introduction of a serious harm test reflects the Government’s view that there is merit in legislating to ensure that trivial and unfounded actions do not proceed. It is the first time that there has been a statutory threshold of this nature in defamation proceedings. In the draft Bill, we consulted on the following provision. It said:
“A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant”.
In formulating this provision, we examined a series of cases over the past century in which the courts have considered the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd, in which an earlier House of Lords decision on Sim v Stretch was identified as authority for the existence of a “threshold of seriousness”. In Jameel v Dow Jones and Co, it was established that there needed to be a “real and substantial tort” in the jurisdiction for a claim to be able to proceed. The claim which failed that test was struck out as an abuse of process. The “substantial harm” clause aims to encapsulate the tests applied in these and other cases. Our view at that point, which we expressed to the Joint Committee on the draft Bill, was that this would reflect and strengthen the current law. Establishing in statute a substantial harm test for the first time would give this requirement a new prominence and would help to discourage trivial and unfounded claims being brought.
In its report, the Joint Committee on the draft Bill took the view that a stricter test was appropriate and that,
“a threshold test that focuses on the seriousness of the allegation would raise the bar in a meaningful way and give greater confidence to publishers that statements which do not cause significant harm, including jokes, parody, and irreverent criticism, do not put them at risk of losing a libel claim”.
It recommended a test of serious and substantial harm.
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The Government’s response to the committee’s report expressed our concern at using two separate terms alongside each other. I will return to that point shortly.
However, it indicated that, in the light of the committee’s views and the balance of opinion on consultation, the Government were persuaded that it was appropriate to raise the bar to bringing a claim and that a test of serious harm would do this while maintaining a balance that is not unduly restrictive of claimants’ rights. Our view is that the serious harm test would raise the bar to a modest extent above the requirement of the current law. A wide range of circumstances may be relevant in determining whether the serious harm test is met in individual cases. We do not consider that it would be practicable to try to predict particular circumstances or types of case which would or would not fail to meet the test, nor is it appropriate for Ministers to try to second guess how the courts would behave.
However, an example of the type of case which might well be decided differently is Mardas v New York Times Company & Anor. In that case, the High Court allowed the claimant’s appeal against the Master’s decision striking out the claim and noted that it would be only in rare cases that it would be appropriate to strike out an action as an abuse on the basis described in Jameel: that is, that there has not been a real and substantial tort in this jurisdiction. The Master’s decision in Mardas had been reached on the basis that there had been a very limited publication. This was estimated at approximately 177 hard copies of the New York Times article and approximately 31 hits on the online version of the article and a similar article in the International Herald Tribune. The claim related to matters that had happened some 40 years ago. The High Court considered that there was no basis for concluding that there was real and substantial tort in this jurisdiction and commented:
“A few dozen is enough to found a cause of action here, although the damages would be likely to be modest”.
We believe that the court would be likely to take a different view of this case under the serious harm test. In referring to this example, it is important to make clear that although the decision in Mardas related primarily to the extent of publication in this jurisdiction, this is only one of a wide range of circumstances which might be relevant to whether the claimant has suffered serious harm. The court will need to consider all the circumstances in reaching its decision. I appeal to the fellow lawyers of the noble Lord, Lord Browne, on this issue, but as a layman I feel that he may be setting too high a hurdle for me to clear in giving various examples because in the end it will be for the courts to decide. My layman suspicion is that that is the best place to leave the matter rather than for me to try to give examples.
As well as influencing how the courts approach these cases, we consider that the introduction of a serious harm test would have an important impact in discouraging claimants from bringing trivial claims. When claimants are considering whether to bring an action they will need to ask themselves whether the harm that they believe they have been caused is really serious. An advantage in using this term is that it is in common usage. We think that this is likely to make
many claimants think twice about bringing proceedings. I hope that the explanation I have given of the Government’s thinking is helpful.
Turning to the amendments in this group, Amendment 1 seeks to add an additional condition in Clause 1 so that a statement is defamatory only if the extent of its publication has caused, or is likely to cause, serious harm. We do not consider this amendment is necessary or appropriate. As I have explained, when considering whether a statement has caused, or is likely to cause, serious harm, the court will have regard to all relevant circumstances of the case, which may include the extent of the publication.
We do not think it would be appropriate to give undue prominence to the extent of the publication over and above other factors that the court may also wish to consider. Amendment 2 reflects the recommendation made by the Joint Committee on the draft Bill, chaired by my noble friend Lord Mawhinney, that the test in Clause 1 should be one of serious and substantial harm. We are not persuaded that it would be an advantage to include both terms. One of our key aims in the Bill is to simplify the law. We consider that using two terms would be likely to cause uncertainty over and litigation on what differences may exist between them which would add to disputes and costs while making little or no difference in practice to the outcome of cases. We believe that it is preferable to use one clear and simple term and rely on the good sense of the courts.
Amendment 3 requires the Secretary of State to issue guidance to the courts on using their existing strike-out powers. We do not consider that there is any need for this provision. The serious harm test in Clause 1 and the new early resolution procedure will make sure that the need to ensure that trivial and unfounded claims do not proceed is foremost in the court’s mind.
The courts already have a power in Rule 3.4 of the Civil Procedure Rules which permits them to strike out all or part of a claim where there are reasonable grounds for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power and we do not doubt that they will use it in defamation cases more often once the new higher threshold is in place.